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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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WHARTON  AND  STILLE'S 

MEDICAL  JURISPRUDENCE 

VOL.  I 

MENTAL   UNSOUNDNESS 


LEGAL  QUESTIONS 

BY 

FRANK  H.  BOWLBY 

Of  the  Publishers'  Editorial  Staff 


INSANITY:    FORMS   AND   MEDICO-LEGAL   RELATIONS 

BY 

JAMES   HENDRIE  LLOYD,   A.M.,   M.D. 

Nburoloqist  to  the  Philadelphia  Hospital;  Physician  to  the  Methodist 

Episcopal  Hospital;  Consulting  Neurologist  to  the  State 

Hospital  for  the  Chronic  Insane  at  Wer- 

NEBSVILLE,  PA. 


FIFTH    EDITION 


ROCHESTER,  N.  Y.: 

»HB  LAWYERS'  CO-OPERATIVE  PUBLISHING  COMPANY 

1905 


T 


Entered  according  to  Act  of  Congress,  in  the  year  eig-btecn  hundred  fifty-five,  by 

KAY  &  BROTHER, 

In  the  Office  of  the  Clerk  of  the  District  Court  of  the  United  States 

In  and  for  the  Eastern  District  of  Pennsylvania. 

Entered  according  to  Act  of  Congress,  in  the  j'ear  eighteen  hundred  sixty,  by 

KAY  &  BROTHER, 

In  the  CJerk's  Office  of  the  District  Court  of  the  United  States 

In  and  for  the  Eastern  District  of  Pennsylvania. 

Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  seventy-two,  by 

KAY  &  BROTHER, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  eighty-two,  by 

FRANCIS  WHARTON, 

In  the  Office  of  the  Librarian  of  Congress,  at  AVashington. 

Entered  according  to  Act  of  Congress  in  the  year  nineteen  hundred  five,  by 

LAWYERS'    CO-OPERATIVE   PUBLISHING   COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


3-?>if?/ 


E.  R,  Andbbws  Pbinting  Company,  Rochester,  N.  Y. 


PREFACE  TO  THE  THIRD  EDITION. 


Since  the  publication,  in  1860,  of  the  second  edition  of  this  work, 
the  specialty  of  psychological  law  has  taken  a  shape  which  has  made 
necessary  the  preparation  of  a  treatise  which  is  substantially  new. 
The  circumstances  which  have  led  to  this  change  may  be  thus  stated. 

Until  the  close  of  the  last  century,  insanity  received  but  little 
attention  from  physicians,  and  still  less  from  psychologists.  "Luna- 
tics," to  follow  the  barbarous  old  English  designation,  were  regarded 
as  outcasts,  mostly  incurable;  as  devoid  of  those  sensibilities  which 
call  for  tender  care;  as  presenting  little  more  claim  to  philanthropic 
consideration  than  do  brutes.  Unless  birth  or  wealth  gave  special 
opportunities  for  their  custody  at  home,  they  were  huddled,  in 
England  and  France,  in  pens,  or  chained  in  cells,  where  they  were 
generally  subjected  to  treatment  the  most  brutal.  In  New  England 
they  were  often  let  out  by  the  town  to  the  lowest  bidder,  who  under- 
took to  support  them  for  a  pittance  scarcely  sufficient  to  buy  offals  for 
their  food,  and  who  permitted  them,  when  they  were  gentle,  to  roam 
at  large,  or  chained  them,  when  violent,  in  stables.  Asylums,  as 
reformatory  and  hygienic  establishments,  were  unknowQ.  Hence 
arose  the  tendency,  both  of  phychologists  and  courts,  to  narrow  the 
definition  of  insanity  so  as  to  reduce,  as  far  as  possible,  the  numbers 
of  the  class  who  were  to  be  subjected  to  so  wretched  a  doom. 

But,  on  the  insanity  of  George  III.,  a  new  era  came  in.  Insanity 
could  not  be  so  vulgar  a  thing  when  it  attacked  the  King.  It  could 
scarcely  be  regarded  by  loyal  Englishmen  as  a  merited  curse,  when 
it  visited  a  prince  of  whose  virtues  they  were  justly  proud,  and  of 
whose  obstinate  self-will  they  were  blindly  ignorant.  Philanthro- 
pists as  well  as  philosophers  poured  in  with  abundant  advice  as  to 
the  tenderest  treatment  to  be  applied  to  the  royal  sufferer ;  and  com- 
mittees of  the  House  of  Commons  vied  with  medical  commissions  in 
speculating  on  the  characteristics  of  a  malady  which  had  become 
exalted  in  the  exaltation  of  the  victim  on  whom  it  had  pounced. 
Fortunately  for  the  interests  of  humanity,  almost  simultaneously  took 
place  in  Paris  the  investigations  of  Pinel.  This  remarkable  man,  who 
united    in    rare    excellence    great    administrative    power,    untiring 


iv  PREFACE  TO  THE  THIRD  EDITION. 

patience  of  research,  and  singular  attractiveness  of  style,  found  the 
Bicetre,  when  he  took  medical  charge  of  it,  in  1791,  in  a  condition 
at  which  humanity  shuddered.  It  combined,  under  one  general  super- 
intendence, the  functions  of  almshouse,  prison,  nursery,  foundling-'s 
home,  and  lunatic  asylum,  wdth  no  distinction  made  in  the  treatment 
of  crime  and  of  disease.  Such  patients  as  could  do  so  without  dis- 
turbance mingled  with  the  other  inmates  of  this  vast  abode  of  wretch- 
edness and  of  guilt ;  but  those  who  were  in  any  way  troublesome  were 
chained  in  damp  and  putrid  cells,  under  the  charge  of  convicts  whose 
desperateness  seemed  to  constitute  their  title  to  this  distinction. 
Against  this  inhumanity  Pinel  protested  with  such  untiring  and 
dauntless  eloquence  that  he  succeeded  in  effecting  a  thorough  reforma- 
tion. A  separate  asylum,  based  on  wise  sanitary  regulations,  was 
opened  for  the  insane,  and  subsequently  the  Salpetriere,  a  distinct 
establishment  for  deranged  women,  was  organized  under  his  particu- 
lar care.  He  was  succeeded  at  the  Salpetriere  by  Esquirol,  who  had 
been  his  assistant,  and  by  whom  his  wise  hygienic  reforms  were 
further  elaborated  and  extended. 

Nor  did  the  efforts  of  these  eminent  physicians  stop  at  the  amel- 
ioration of  the  physical  and  mental  condition  of  the  insane.  Madness 
having  been  shown  to  be  capable  of  cure,  and  to  be  a  condition  in 
itself  implying  no  moral  stigma,  and  insane  asylums  having  been 
proved  to  be  the  places  where  the  insane  can  most  readily  be  restored 
to  health,  many  persons  came  to  be  regarded  by  their  friends  and  by 
a  rightful  public  feeling  as  insane,  who  previously  would  have  been 
treated  as  sane.  The  definition  of  insanity,  in  the  philanthropic 
mind,  at  least,  was  so  enlarged  as  to  include  all  persons  who,  while 
not  being  clearly  maniacs,  were  yet  subject  to  mental  or  moral  anom- 
alies which  a  wise  medical  treatment  could  remove. 

But  this  was  not  the  only  circumstance  that  tended  to  an  expansion 
of  the  definition.  Another  influence,  still  more  marked,  had  already 
prepared  the  public  mind  to  treat  as  insanity  much  that  was  really 
only  folly  or  guilty  impulse.  Between  1760  and  1764,  Eousseau 
published  his  Contrat  Social  and  Emile,  works  which,  in  the  senti- 
mental humanitarianism  they  inculcated,  were  the  natural  extreme 
reaction  from  the  inhumanity  of  the  prior  absolutist  regime.  Rous- 
seau flamed  with  a  romantic  admiration  not  merely  for  the  liberty  to 
do  right,  but  for  the  liberty  to  do  MTong.  Even  the  grossest  natural 
instincts  were  of  divine  origin,  and  should  be  nursed  with  delicate 
respect.  Crime  was  something  to  which  a  man  was  impelled  by  his 
nature;  else,  why  should  he  indulge  in  crime?     Heretofore  all  in- 


PKEFACE  TO  THE  THIRD  EDITION.  v 

sanity  was  crime.  Now  all  crime  was  to  be  insanity.  Sin  was  not  to 
be  viewed  as  horrible  and  odioiLS,  but  as  something  abnormal,  indeed, 
but  provocative  of  curious  regard  and  sympathy.  And  criminals 
were  an  interesting  class  of  lunatics,  who  were  especially  consecrated 
to  the  restorative  care  of  the  state. 

Pinel,  like  most  other  French  philosophers  of  his  day,  was  not  slow, 
when  responding  to  this  reaction,  to  welcome  a  plan  which  proposed 
to  extirpate  crime  and  inaugurate  liberty  by  placing  crime  distinc- 
tively under  humane  medical  care.  Undoubtedly  there  was  much  in 
his  special  experience  to  strengthen  him  in  this  view.  He  had  seen 
many  insane  persons  treated  as  criminals.  It  was  natural  to  him  to 
assume  the  converse,  and  to  hold  that  there  are  many  criminals  who 
are  to  be  treated  as  insane.  In  sustaining  this  view  he  cautiously, 
though  distinctly,  set  forth  the  proposition,  hereafter  fully  discussed,  * 
that  there  is  a  distinct  form  of  madness  in  which  the  reason  remains 
unimpaired.  It  is  true,  when  he  came  to  illustrate  this  by  examples, 
it  was  found  that  the  "reasoning  maniacs"  whom  he  described  were 
more  or  less  maniacs  even  in  their  reason.  But,  nevertheless,  the 
proposition  fitted  symmetrically  into  the  philosophy  of  the  French 
Kevolution,  and  was  accepted  by  the  apostles  of  that  revolution 
wherever  they  taught. 

Fifty  years  afterwards,  in  times  greatly  changed,  another  influence 
arose  to  give  fresh  impetus  to  the  same  peculiar  theory.  The  French 
Revolution  was  over,  and  with  it  had  vanished  those  ideas  of  senti- 
mental humanitarianism  which  had  lent  it  so  much  fascination.  It  is 
true  that  the  evaporating  process  was  not  without  a  sensible  deposit 
of  good.  Insanity,  for  instance,  was  no  longer  associated  with  crime ; 
and  the  speculations  of  Pinel,  reproduced  in  a  modified  shape  by  his 
scholar,  Esquirol,  were,  when  accepted  by  French  legislation,  inter- 
preted to  mean  nothing  more  than  that  crime  is  often  a.  consequence 
of  insanity,  and,  when  so,  is  irresponsible.  In  1Y98,  however.  Gall 
startled  the  scientific  world  by  his  alleged  discovery  of  phrenology. 
His  genius,  eminently  enterprising  and  constructive,  but  shut  out  by 
the  then  state  of  Europe  from  political  adventure,  betook  itself  to 
adventure  in  science.  Arrested,  as  he  tells  us,  by  the  fact  that  those 
of  his  school  companions  who  had  good  verbal  memories  had  bulging 
eyes,  he  gradually  developed  the  theoiy  that  each  function  and  pro- 
pensity had  a  separate  local  habitation  in  the  brain;  and  that  the 
power  of  the  fxmction  or  propensity  varied  with  the  size  of  its  cerebral 
apartment,  as  measured  on  the  outside.     As,  however,  each  function 

Unfra,  §  531   (3d  ed.). 


▼i  PREFACE  TO  THE  THIRD  EDITION. 

and  each  propensity  dwelt  alone  in  its  particular  cell,  each  waa 
capable  of  independent  action,  and,  of  course,  as  each  could  be  inde- 
pendently strong  or  weak,  each  could  be  privately  insane.  This  sever 
ance  of  functions  and  propensities  was  the  distinguishing  feature  of 
Gall's  system;  and,  to  establish  it  psychologically,  he  devoted  the 
energies  of  a  mind  which,  while  disdaining  logical  restraint,  and  rash 
in  leaping  at  results,  was  peculiarly  quick,  curious,  and  specious.  A 
peripatetic  from  necessity,  for  the  German  reactionary  governments, 
doubtfid  of  the  uses  to  which  his  philosophy  might  be  put,  forced 
him  into  a  series  of  exiles,  he  collected,  wherever  he  went,  from  news- 
papers, from  sympathetic  disciples,  from  eveiy  quarter,  in  fact, 
except  the  official  reports  of  experts  and  of  courts,  every  anecdote 
by  which  his  theory  could  be  helped.  Such  was  the  piquant  plausi- 
bility of  his  publications  that  they  not  only  attracted  interest,  but 
enlisted  enthusiasm.  Nothing,  indeed,  could  be  more  racy  than  his 
details.  A  distinguished  prince,  remarkable  for  his  sagacity  and  cool 
sense,  was  possessed,  it  was  declared,  by  an  irresistible  propensity  to 
steal.  A  young  girl,  of  singular  amiability  and  excellent  reasoning 
powers,  was  in  the  habit  of  setting  fire  to  houses.  A  philanthropist, 
blandly  sane  in  all  other  respects,  met  with  some  injury  to  the  cell 
that  restrained  the  function  of  destructiveness,  and  forthmth  betook 
him  to  killing  his  neighbors.  ISTo  doubt  there  was  a  basis  of  reality 
in  most  of  Gall's  cases.  The  difficulty  w^as  that  he  did  not  sufficiently 
investigate  the  facts.  For  all  he  knew,  and  for  all  he  inquired,  the 
prince  and  the  girl  and  the  philanthropist  might  have  been  the 
descendants  of  insane  parents, — might  have  been  epileptics, — might 
have  betrayed  in  their  families  unmistakable  symptoms  of  mental 
derangement, — might  subsequently  have  died  in  a  madhouse.  ITor 
were  his  cases  cited  in  such  a  way  as  to  enable  subsequent  investi- 
gators to  inquire  into  their  accuracy.  I^o  one  could  tell  whence  most 
of  them  came.  Yet  so  engaging  was  the  style  in  which  they  were 
narrated,  and  so  great  Avas  the  confidence  felt  in  Gall  as  a  narrator, 
that  they  were  readily  accepted  by  those  whose  theories  they  sub- 
.served.  The  psychological  conclusion  was  inevitable.  If  criminal 
instincts  have  separate  apartments  in  the  brain,  then  those  criminal 
instincts  can  be  separately  insane.  Hence,  the  doctrine  of  mono- 
mania, sustained  at  once  by  Gall's  facts  and  by  his  hypothesis,  began, 
under  the  impulse  thus  imparted,  once  more  to  challenge  judicial 
assent. 

On  our  distinctive  jurisprudence,  the  causes  just  mentioned  would 
have  had  little  influence  had  it  not  been  for  the  indirect  bearings  of 


PREFACE  TO  THE  THIRD  EDITION.  vii 

another  condition.  Nothing  conld  have  been  more  barbarous  than  the 
old  English  adjustment  of  penalty  to  crime.  A  man  who  stole  a  fowl 
was  capitally  punished ;  and,  even  after  a  century  of  legal  reform,  the 
law  in  England  still  is  that  a  man  who  kills  another  when  designing 
to  hurt,  but  not  to  kill,  is  amenable  to  as  high  a  sentence  as  he  who 
deliberately  assassinates.  But  humane  observers  revolted  from  this 
subjecting  crimes  so  entirely  distinct  to  the  same  penalty,  and  they 
cast  about  for  some  method  of  relief.  In  the  United  States  a  remedy 
was  seized  which  was,  in  a  lai'ge  measure,  efficacious.  Murder  was 
tlivided  into  two  degrees,  and  capital  punishment  was  reserved 
exclusively  for  cases  in  which  tliere  was  proved  a  premeditated  inten- 
tion to  take  life.  On  this  has  been  not  unfrequently  grafted  the 
humane  construction  that  where,  from  mental  or  nervous  excitement, 
the  defendant  is  incapable  of  forming  a  specific  intent,  then  the 
capital  offense  is  not  proven.^  But  in  England,  these  mitigating' 
qualifications  were  not  accepted ;  and  though  in  the  United  States  the 
division  of  murder  into  two  degrees  was,  at  an  early  period,  estab- 
lished almost  universally,  the  courts  were  at  first  slow  to  recognize 
the  fact  that  a  mind  disturbed  by  nervous  excitement  and  blurred  by 
insane  predispositions  may  be  incapable  of  intellectual  premeditation, 
while,  at  the  same  time,  capable  and  responsible  for  passionate  crime. 
Hence,  it  has  been  that  the  jury  has  been  too  often  narrowed  to  a 
choice  between  conviction  of  a  capital  offense  and  acquittal ;  and 
hence,  to  justify  an  acquittal,  insanity  has  sometimes  been  used  as  a 
pretext,  when  insanity,  iji  the  correct  sense  of  the  term,  did  not  exist. 

This  unscientific  extension  of  insanity  received  a  quasi  scientific 
sanction  under  the  following  circumstances.  By  the  Anglo- American 
practice,  a  party  is  entitled  to  call  on  trial  any  expert  he  may  select ; 
and  he  is  not  likely  to  select  any  whose  views  will  not  promote  his 
cause.  It  so  happens  that  among  the  present  large  body  of  experts 
there  is  little  trouble  in  discovering  one  or  more  by  whom  is  main- 
tained the  particular  psychological  theory  of  which  the  party  on  trial 
stands  in  need.  It  is  an  old  truth  that  there  is  nothing  so  absurd 
but  that  some  philosopher  may  be  found  by  whom  it  is  affirmed. 
"Nihil  tarn  ahsurde  did  potest  quod  non  dicatur  ah  aliquo  philoso- 
pliorum."^  To  sustain  a  particular  defense,  for  instance,  it  is  neces- 
sary to  prove  that  the  "morals"  may  be  insane  while  the  mind  is  sane. 
The  defendant's  counsel  forthwith  proceed  to  search  among  the  multi- 
tudes who  have  written  on  insanity,  or  have  been  in  any  way  conver- 
sant with  the  insane,  for  a  philosopher  by  whom  this  unique  hypothe- 

"See  infra,  §  200  (3d  ed.).  'Cicero,  de  Divinatione,  II.  58. 


viii  PEEFACE  TO  TliE  THIRD  EDITION. 

sis  is  held.  When  the  case  is  tried,  this  philosopher  is  produced  and 
swears  promptly  and  positively  to  his  belief.  On  the  strict  principles 
of  law,  he  cannot  be  cross-examined  as  to  the  opinions  of  others,  for 
this  would  be  hearsay.  So  far,  therefore,  as  the  particular  case  is 
concerned,  he  stands  before  the  jury  as  if  he  was  the  collected  sense 
of  the  psychological  experts  of  the  whole  world.  It  may  be  that  the 
prosecution  may  be  able  to  cancel  his  testimony  by  the  production  of 
a  preponderating  weight  of  experts  on  the  other  side.  But  to  do  so 
requires  energy,  skill,  and  means;  and  too  often  has  the  duty  been 
neglected,  and  the  case  left  to  rest,  in  criminal  trials,  on  the  testimony 
of  the  exceptional  experts  selected  by  the  defense.  Hence  it  is  that 
juries,  if  not  courts,  have  occasionally  succumbed  to  such  testimony 
in  respectful  amazement,  feeling,  indeed,  that  it  is  wrong,  but  not 
seeing  how  it  could  be  disregarded. 

As  influences  disturbing  the  juridical  conception  of  insanity, — ^to 
recapitulate  those  which  we  have  just  been  enumerating  in  detail, — 
we  may,  therefore,  mention  (1)  the  romanticism  of  the  French 
psychological  followers  of  Rousseau,  afterwards  aided  by  phrenology, 
which  refined  crime  into  insanity;  (2)  reaction  from  the  old  English 
barbarism  which  punished  insanity  as  if  it  were  crime;  and  (3)  the 
hesitation  felt  by  the  courts  in  grappling  with  the  philosophy  of  a 
question  w^hich  had  been  claimed  to  be  purely  medical.  Under  these 
circumstances  arose  that  confusion  of  law  which  was  noticed  in  the 
prior  editions  of  this  treatise. 

Since  1860,  when  the  second  edition  was  issued,  a  great  change  has 
taken  place.  Before  that  period,  we  may  say  generally,  there  had 
been  no  positive  and  final  repudiation  by  psychological  science  of  the 
theory  of  criminal  monomanias.  Since  then  medical  as  well  as 
psychological  science  has  rallied,  and  from  all  quarters  there  has 
risen,  as  will  be  hereafter  shown  more  fully,  almost  an  unbroken 
denunciation  of  a  scheme  of  psychological  romanticism  which  sober- 
minded  men  have  learned  to  feel  is  as  repugnant  to  science  as  it  is 
hostile  to  society.*  And  this  advance  of  science  towards  a  common 
reconciliatory  standpoint  is  now  met  by  a  corresponding  advance  of 
law.  It  has  been  just  stated  that  one  of  the  causes  of  early  juridical 
confusion  on  this  topic  was  the  revulsion  from  the  excessive  punish- 
ments assigned  by  the  old  law  to  offenses  of  even  lighter  grade. 
Civilization  was  shocked  at  seeing  a  man  who,  from  nervous  or  mental 
or  physical  disorder,  was  incapable  of  cool  premeditation  or  exact 
intent,  hurried  to  the  gallows  for  what  might  be  a  comparatively 

*See  infra,  §§  552-643  (3d  ed.). 


PREFACE  TO  THE  THIRD  EDITION.  <x 

renial  crime ;  and  it  was  to  the  desire  to  save  such  that  the  toleration 
of  the  idea  of  irresponsibility  in  such  cases  is,  in  a  large  measure, 
traceable.  But  it  was  soon  found  that  this  enlargement  of  irrespon- 
sibility worked  badly.  It  exposed  many  persons,  virtually  sane,  to 
the  pains  and  penalties  of  insanity.  It  enfranchised  a  dangerous 
class  of  outlaws,  too  insane  to  be  punished  for  crime,  and  yet  too 
sane  to  be  restrained.  It  involved,  on  the  part  of  the  state,  the  abdica- 
tion of  one  of  its  chiefest  functions, — the  building  up  of  a  right 
moral  sense  in  those  of  its  subjects  in  whom  such  moral  sense  is 
deficient. 

But  is  so  violent  a  remedy  necessary  ?  Is  there  no  alternative 
between  an  unjust  conviction  of  a  man  of  an  offense  to  whose  grade 
of  guilt  he  does  not  quite  reach,  and  his  equally  unjust  acquittal  in 
the  face  of  evidence  showing  his  guilt  of  an  intermediate  grade  ?  It 
has  already  been  seen  that  in  the  United  States,  at  an  early  day,  a 
statutory  approach  was  made  to  this  result  by  the  beneficent  enact- 
ments dividing  murder  into  two  degrees.  But  this,  by  itself,  is  not 
enough.  A  court  may  say  to  a  jury,  "Here  is  evidence  of  premedita- 
tion ;  you  must  here  find  either  murder  in  the  first  degree,  or  acquit." 
Eminent  jurists,  in  order  to  meet  this  difficulty,  have  authoritatively 
advanced  positions  which  have  just  been  incidentally  noticed,  and  will 
now  be  stated  more  fully. 

The  idea  of  diminished  responsibility  in  cases  of  abnormal  excite- 
ment is  already  familiar  to  the  law.  Homicide  in  hot  blood  is  not 
murder,  but  manslaughter ;  yet,  what  is  rage  but  a  short  frenzy  ?  and 
how  difficult  is  it  to  distinguish  such  frenzy  from  the  mania  transi- 
toria  of  the  alienists  ?  A  drunken  man  engages  in  a  brawl,  and  shoots 
an  innocent  stranger ;  and  here,  as  his  mind  was  so  stupefied  by  drink 
that  he  was  incapable  of  a  specific  intent  to  take  life,  the  offense  is 
reduced  to  murder  in  the  second  degree.  Or  he  receives  and  passes  a 
counterfeit  note  when  in  the  same  condition,  and  here  his  drunken- 
ness is  admissible  to  show  that  he  did  not  know  the  note  was  counter- 
feit. Or  a  series  of  men,  sw^ept  away  by  religious  or  political  excite- 
ment, fall  into  such  a  highly  charged  and  abnormal  state  of  mind 
that  they  are  incapable  of  accurate  perception,  and  here,  then,  homi- 
cide committed  w^hen  in  such  a  state  is  held  to  be  reduced  to  murder 
in  the  second  degree.^ 

How  are  these  last  states  distinguishable  from  other  well-known 
exciting  influences  ?    What  is  there  that  mitigates  guilt  in  cases  where 

•See  infra,  §  181    (3d  ed.). 


X  PREFACE  TO  THE  THIRD  EDlTlOxS. 

the  patient  is  advanced  one  degree  in  the  insane  scale,  but  wiU  not 

mitigate  it  Avhen  he  is  advanced  two  degTees? 

By  the  Austrian  and  Bavarian  codes  this  question  has  been  recently 
answered  by  the  recog-nition  of  degrees  in  penal  responsibility. 
Diminished  responsibility  {verminderte  Zurechnungsfdhigkeit)  is 
distinctively  and  authoritatively  defined  as  a  condition  in  which  the 
mind  is  incapable  of  calm  and  exact  premeditation  or  conception,  and 
to  this  condition  a  lesser  gi-ade  of  punishment  is  assigned.  And  the 
same  principle  is  adopted  juridically  by  the  ]S[orth  Gennan  courts. 
In  Englana  there  is  no  statutory  adoption,  so  far  as  concerns  insanity, 
of  such  diminished  responsibility,  nor  have  the  courts  as  yet  pro- 
ceeded so  far  as  to  look  upon  nervous  or  mental  disease  as  lowering 
the  grade  of  guilt,  emphatic  as  they  are  in  recognizing  the  entire  sus- 
pension of  responsibility  when  insanity  destroys  the  capacity  of  dis- 
tinguishing between  right  and  wrong.  But  the  reform  which  the 
courts,  in  their  distinctively  judicial  capacity,  have  felt  unable  to 
effect,  has  been  brought  about  by  the  joint  action  of  judiciary  and 
executive.  Thus,  in  two  remarkable  cases  of  homicide,  those  of 
Watson  and  Edmunds,  hereafter  fully  noticed,^  the  defense  being- 
insanity,  but  the  proof  amounting  merely  to  insane  predisposition,  or, 
at  the  highest,  to  a  light  and  incipient  stage  of  insanity,  while  the 
jury  were  directed  to  convict,  yet,  after  conviction  of  the  capital 
crime,  on  application  to  the  Crown,  in  which  the  judges  joined, 
capital  punishment  was  commuted  to  imprisonment  for  life. 

In  the  United  States,  in  construing  the  statutes  already  noticed  as 
establishing  degrees  in  homicide,  the  courts^  have  uniformly  held,  as 
has  been  already  noticed,  that  when,  through  drunkenness,  the  defend- 
ant was  incapable  of  premeditation  or  of  specific  intent,  then  only 
the  second  degree  of  murder  is  reached.  The  same  relaxation  has 
been  applied,  not  only  in  the  United  States,  but  in  England,  to  cases 
of  larceny  and  other  fraudulent  crimes  when  the  party's  mental  condi- 
tion was  such,  through  drunkenness,  that  he  was  incapable  of  guilty 
knowledge  or  intent.  And  in  Pennsylvania,  in  a  series  of  cases  of 
riotous  homicide  committed  by  parties  in  a  high  state  of  political  and 
religious  excitement,  the  courts  humanely  and  wisely  accepted  the 
principle  already  stated,  that  there  may  be  a  fury  and  distraction  of 
mind  in  which  the  capacity  to  comprehend,  to  compare,  to  weigh,  and 
to  premeditate  may  be  temporarily  so  far  depressed  or  disturbed  as  to 
bring  the  offense  within  the  definition  of  murder  in  the  second,  as 
distinguished  from  that  of  murder  in  the  first,  degree.® 

•See  infra,  §§  166-173   (3d  ed.).  » See  infra,  §§  214-227   (3d  ed.). 

•See  infra,  §§  181,  200   (3d  ed.). 


PREFACE  TO  THE  THIRD  EDITION.  xi 

From  the  scope  of  the  reasoning  which  has  led  to  such  results,  it 
is  impossible  to  mthdraw  cases  of  mental  excitement  and  disturb- 
ance, which,  though  not  amounting  to  such  mature  insanity  as  to 
utterly  suspend  responsibility,  yet  prevent  the  patient  from  forming 
calm,  premeditated,  and  specific  criminal  designs.  Slow  as  have  the 
courts  been  in  reaching  this  conclusion,  we  may  now  regard  it  as 
gradually  winning  judicial  acceptance;^  and,  if  so,  we  may  view  the 
law  as  having  received  an  expansion  philosophically  consistent  with 
its  own  principles,  and  bringing  it  in  full  accord  with  the  mature 
and  humane  renditions  of  science.  Heretofore  "moral  insanity"  and 
"insane  monomania"  have  owed  the  little  practical  favor  they  have 
wrung  from  courts  and  juries  to  the  fact  that  there  were  cases  in 
which  their  recognition  seemed  to  be  the  only  way  of  escaping  a 
verdict  which  would  involve  the  penalty  of  death.  The  consequence 
was  that  the  public  was  outraged,  sometimes  by  the  acquittal,  on  the 
ground  of  insanity,  of  men  who,  in  no  other  relation,  would  be  viewed 
as  insane,  and  sometimes  by  the  conviction  and  execution  of  men 
who,  though  not  fully  insane,  would,  in  no  relation,  be  regarded  as 
fully  and  perfectly  responsible.  The  modification  of  the  law  now 
introduced  avoids  both  these  extremes.  It  says,  on  the  one  hand,  that 
men  not  fully  and  perfectly  insane  are  not  to  be  acquitted  of  crime. 
It  says,  on  the  other  hand,  that  they  are  not  to  be  convicted  of  those 
higher  grades  of  calm  and  specific  guilt  of  which  they  were  not 
capable.  It  judges  them  according  to  their  lights,  and  assigns  to 
them  that  well-knov^Ti  grade  of  modified  guilt  which  belongs  to  those 
who  do  wrong,  wilfully,  indeed,  and  intentionally,  but  whose  illegal 
acts  are  the  consequence  of  such  passion  as  destroys  in  them  the 
capacity  of  accurate  guilty  knowledge  or  complete  guilty  design. 

Such  is  the  shape  into  which  the  law  of  insanity  is  now  gradually 
settling.  That  the  change  is  one  of  natural  and  logical  development 
will  at  once  be  seen;  but  with  regard  to  it,  so  far  as  concerns  the 
question  of  time,  and  therefore,  so  far  as  concerns  the  present  edition 
of  this  work,  two  circumstances  are  to  be  particularly  noticed.  The 
first  is  that  the  development  here  spoken  of  has,  on  the  law  side, 
evidenced  itself  distinctively  in  the  last  ten  years.  The  second  is 
that,  on  the  psychological  and  medical  side,  it  has  only  been  within 
the  last  ten  or  fifteen  years  that  the  opinions  of  experts  and  of 
scientists  have  presented  themselves  in  such  a  body  as  to  enable  the 
full  voice  of  science  and  experience  in  this  relation  to  be  heard.  The 
results  on  both  sides  of  the  inquiry  are  exhibited  in  the  following 
"See  infra,  §  200  (3d  ed.). 


xii  PREFACE  TO  THE  THIRD  EDITION. 

pages.  What  has  been  just  said  is  mainly  designed  for  the  purpose 
of  explaining  why  the  text  of  the  former  editions  has  been  in  a  large 
measure  thrown  aside,  and  why,  in  its  place,  is  presented  what  is 
substantially  a  new  treatise.  ^  ° 

The  author  takes  this  method  of  expressing  his  acknowledgments  to 
T.  C.  CooGAN,  Esq.,  and  Nathan  Feanks,  Esq.,  for  aid  rendered  in 
examination  of  authorities. 

"  On  the  special  topic  of  this  preface  may  be  consulted  Dr.  Hammond  on  "Rea- 
soning Mania,"  Jour.  Nerv.  and  Ment.  Diseases,  Jan.  1882.  Attention  is  also  di- 
rscted  to  the  T.aluable  reports  of  Mr.  Richard  Vaux  on  Pfison  Discipline. 


PEEFAOE  TO  THE  FOURTH  EDITIOK 


In  tlie  present  edition  the  text  of  former  editions  has  beei\  rear- 
ranged and  condensed;  a  large  amount  of  new  material  introduced, 
the  number  of  citations  having  been  doubled ;  and  the  chapters  on  the 
jurisprudence  of  insanity  rewritten.  In  the  task  of  preparation  I 
have  been  aided  by  my  nephew,  Thomas  I.  Wharton,  Esq.,  of  Phila- 
delphia. 

r.  w. 

Philadelphia,  March  24,  1882. 


PREFACE  TO  THE  FIFTH  EDITION. 


In  this  edition  the  chapters  on  the  jurisprudence  of  insanity  have 
been  entirely  rewritten.  The  general  plan  of  the  fourth  edition  has 
been  followed,  but  the  wonderful  growth  of  the  subject  since  the 
publication  of  that  edition  has  led  to  the  addition  of  twelve  new 
chapters,  a  large  number  of  principles  and  points,  and  a  vastly  in- 
creased number  of  citations.  This  has  necessitated  great  condensa- 
tion,— far  greater  than  that  to  which  previous  editions  were  sub- 
jected; but  the  design  has  been  to  completely  exhaust  the  whole 
subject,  and  over  five  thousand  cases  have  been  examined  in  its  prep- 
aration, though,  for  brevity,  where  propositions  are  supported  by  a 
great  number  of  cases,  only  the  leading  and  the  latest  cases  from  each 
state  have  been  cited.  The  work  is  new,  but  contains  all  the  substance 
of  this  subject  in  the  fourth  edition,  with  extensive  additions,  and 
brings  the  whole  down  to  the  date  of  writing  by  the  incorporation 
of  the  great  mass  of  decisions  rendered  since  the  publication  of  the 
former  edition. 

In  this  edition  the  whole  subject  of  the  medical  jurisprudence  of 
insanity  has  been  written  by  Dr.  James  Hendrie  Lloyd.  This  is 
therefore  an  entirely  new  work,  not  a  mere  edition  of  the  former 
volume.  Being  written  by  a  physician,  it  presents  the  subject  on  a 
scientific  basis,  but  also  in  clear  relationship  to  the  law. 

It  may  be  noted  that  in  some  instances  there  is  a  tendency  to  diver- 
gence of  view  between  the  courts  and  the  physicians.  Something  of 
this  may  appear  herein.  But  the  legal  aspects  of  the  subject  have 
been  treated  by  Mr.  Bowlby,  in  Chapters  I.-XX.,  with  •  the  sole 
purpose  to  present  exactly  what  the  courts  have  decided  on  the  subject, 
and  not  to  exploit  any  theories  of  his  own.  The  work  of  Dr.  Lloyd, 
in  the  latter  part  of  the  book  (Chapters  XXI.-LIX.),  treats  the 
subject  independently,  from  the  standpoint  of  the  scientific  expert  on 
the  subject.  The  discussion  of  the  legal  questions  in  this  part  of 
the  work  is  incidental  to  the  treatment  of  the  subject  from  the  physi- 
cian's standpoint,  and  is  not  to  be  regarded  as,  in  itself,  a  treatise 
on  the  existing  law  of  the  subject  as  decided  by  the  courts.  That  is 
to  be  found  in  Chapters  I.-XX. 


tt 


TABLE  OF  CONTENTS. 


BOOK  I. 
MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


CHAPTEK  L 

CONTRACTS. 


I.    Lunacy,  generally. 

1.  General    view 4 

2.  By  early  authorities  lunacy  no  ground  for  avoidance  of  5 

3.  Subsequent  tendency  to  hold  all  contracts  with  luna- 

tics  void 6 

4.  Modern  rule  voidable,  not  void 7 

6.     Contracts  executed  in  good  faith  will  be  sustained. ...  8 

6.  Conflict  as  to  whether  deeds  are  voidable 9 

7.  On  rescission,  parties  to  be  placed  in  statu  quo 10 

8.  Liable    for   necessaries 10 

9.  Also  liable  for  contracts  during  luciB  intervals 11 

10.  Prevailing  modern  rule;  tests 11 

1 1 .  Delusion  as  a  test 15 

12.  Time  of  application  of  tests 15 

13.  Monomania  as  to  unrelated  subject-matter 15 

14.  Question  conditioned  by  fraud 16 

15.  Better  opinion  that  contracts  by  lunatics  are  voidable 

at  option 18 

16.  .What  weakness  incapacitates 19 

17.  Abuse  of  confidential   relations 21 

II.     Lunacy  which  will  terminate  continuing  contract. 

IS.     Partnership    contracts 21 

19.  Agency 25 

III.     Intoxication. 

20.  Intoxication,  unless  excessive,  no  ground  for  avoiding 

contract 23 

21.  Otherwise  when  combined  with  fraud 25 

22.  Tests,    generally 26 

23.  Conveyances 28 

xvii 
Vol.  I.  Med.  .Jur. — i. 


Kviii  CONTENTS. 

24.  Rule  in  equity 29 

25.  Drunkard  liable  for  necessaries 30 

2G.     Discliarge  of  servant  for  drunkenness 30 

IV.     Morphinism  and  other  addictions. 

27.  Eflect,    generally 31 

V.     Who  may  avoid. 

28.  Who  may  avoid. — administrators,  heirs,  etc 31 

20.     So,  of  representatives  and  guardians 31 

30.  And  so,  of  a  party  himself 31 

31.  Partnership    contracts 32 

VI.     Proof  ov  Incompetency. 

32.  Sufficiency,    generally 32 

33.  Previous  and  subsequent  derangement.  '. 33 

34.  Age,  weakness,  and  disease 34 

35.  Rationality  of  the  act  itself 35 

3G.     Conduct   of   party 36 

37.     Conduct  of  others 37 

3S.     Inquisition  only  prima  facie  proof  as  to  third  parties  37 

39.  Other  adjudications  of  unsoundness 38 

CHAPTER  II. 

MARRIAGE. 
I.    Lunacy. 

40.  Distinctive  rule  as  to  marriage 40 

41.  Tests 42 

42.  Fraud  and  incapacity  combined 44 

43.  Deaf-mutes  may  marry  when  compos  mentis . .- 44 

44.  Capacity,  how  determined 44 

45.  Proof 45 

46.  Necessity  of  a  decree  ot  annulment 48 

47.  Jurisdiction  and  procedure 48 

48.  Effect 49 

IT.     Intoxication. 

49.  Degree  which  will  invalidate  marriage 50 

CHAPTER  III. 

DIVORCE. 
I.    Lunacy. 

50.  Insanity  as  a  ground 51 

51.  Effect  of  insanity  on  adultery 52 

52.  Effect  of  insanity  on  desertion  as  a  ground 53 

53.  Effect  of  insanity  on  cruelty  as  a  ground 53 

54.  Effect  of  insanity  on  the  action 54 

II.    Drunkenness. 

55.  Divorce  on  the  ground  of  drunkenness 56 

56.  Effect  of  drunkenness  on  desertion  as  a  ground 58 

57.  Effect  of  drunkenness  on  cruelty  as  a  ground 59 


CONTENTS.  3tix 

CHAPTER  IV. 

WILLS. 
I.    Capacity,  generally. 

58.     Disposing  inind :  definition  and  necessity  of 64 

5i>.     Jdiots  unable  to  make  a  will 64 

60.     Dincient  theories  as  to  necessary  qualifications art 

Gl.     Theory  that  low  grade  of  intelligence  is  sulFicient O.i 

G2.     Rule  changed ^•'' 

G3.     Business  capacity  test ^" 

64.     Test  of  contractual  capacity <»^ 

G5.     Test  of  capacity  to  understand  transactions GO 

GG.     Test  of  capacity  to  collect  and  retain  in  mind 70 

G7.     Test  of  capacity  to  understand  claims  to  bounty 71 

GS.     Delusion    test 73 

G9.     Capacity  for  criminal  responsibility  as  a  test 73 

70.  Time  of  application  of  tests 74 

71.  Mere  mental  weakness  does  not  incapacitate 74 

72.  Age,   weakness,   disease 75 

73.  Failure  of  memory 76 

II.      MOXOMANIA,  OU  PARTIAL  INSANITY. 

74.  Partial   insanity  delined 77 

75.  Legal  existence  and  recognition 77 

7G.     Conflict  in  the  decisions  reconciled  by  theory  of  mental 

twilight 78 

77.  Effect  of  monomania  on  capacity;  modern  rule 70 

78.  Moral    insanity 79 

79.  Even  ]norbid  derangement  need  not  incapacitate 80 

III.     Delusions. 

SO.     Definitions 80 

81.  Will  void  when  the  result  of  insane  delusion 81 

82.  Not  avoided  by  collateral  delusion 82 

S3.     Must  be  insane 83 

84.  Must   actively   exist 85 

85.  Prejudice,  eccentricity 85 

86.  Speculative    beliefs 87 

IV.    Incapacity  acted  upo?,'  by  fr«lud  ok  undue  influence. 

87.  EfTect  generally 89 

88.  Must  amount  to  restraint 90 

89.  Effect  of  trust  relations 91 

90.  Question  is  one  of  capacity  to  resist 93 

V.    Intoxication. 

91.  Degree  of  drunkenness  affecting 94 

92.  Exception  in  case  of  undue  influence 95 

93.  Habitual  drunkard  not  necessarily  incapacitated 95 

94.  Drunkenness  is  evidence  only 96 

95.  Use  of  lyedicines  may  produce  incapacity 97 

VI.    Methods  of  determining  capacity  or  incapacity. 

96.  Questions  of  law  for  the  court 97 

97.  Qviestions  of  fact  for  the  jury 97 

98.  Equity   cases 99 


IX  CONTENTS. 

VII.      PKOOF  of  incompetency, — WEIGHT,  SUFFICIENCY. 

c.  General  rules. 

99.     General    insanity j., 100 

3  00.     Partial  insanity  and  delusion 101 

i.  By  attesting  witnesses  and  others  present. 

101.  Cogency  and  necessity  of 102 

102.  Value  .' 103 

103.  Denial  of  competency;  self-contradiction 104 

O.     The  act  itself. 

104.  Preparation  of  instrument 104 

105.  Rationality  of  the  M'ill 106 

106.  Equality  and  justice  of  the  provisions 108 

107.  Conformity  to  previous  intentions Ill 

108.  The  act  itself  in  case  of  intoxication 113 

d.  Conduct  and  behavior. 

109.  Of   testator 113 

110.  Conduct  of  others 115 

Hi.     Change  of  character  or  disposition 115 

112.  Intoxication  in  connection  with   conduct  and  circum- 

stances    llfl 

e.  Conditions,  circumstances,  and  surroundings. 

1 1 3.  Business  acts  and  capacity 117 

114.  Business  acts  bj'  drunkard 118 

1 15.  Previous  and  subsequent  insanity 118 

116.  Previous  and  subsequent  intoxication 120 

1 17.  Hereditary   tendency 121 

lis.     Insanity,  fraud,  and  incapacity  combined 122 

119.  Diunkenness  in  connection  with  undue   influence  and 

fraud    123 

120.  Instructions,  knowledge,  and  intent 124 

121.  Knowledge  of  contents  in  case  of  drunkenness 126 

122.  Piatification  or  subsequent  recognition 126 

/.     Old  age. 

123.  Old  age  does  not  per  se  incapacitate 12-(> 

124.  So  of  partial  loss  of  faculties 127 

125.  And  bodily  infirmities 128 

126.  Excessive  failure  of  memory  invalidates 129 

127.  And  senile  dread  of  relatives 129 

ff.     Physical  condition. 

128.  Mere  weakness  and  its  effects 130 

129.  Absolute   prostration 132 

130.  .  Deaf  and  dumb  testators 132 

h.     ln({ui8ition  of  lunacy  or  drunkenness  as  evidence. 

VIII.     Lucid  intervals. 

131.  Application  of  doctrine  to  wills 133 

132.  Restoration  of  disposing  mind  must  be  shown 133 

1 33.  How   i)roven •. 134 

IX.     Unexecuted  or  nuncupative  wills. 

134.  Nature;  strict  proof  of  intent  necessary 135 

X.     Revocation. 

13.).     i^lTect  of  destruction  or  defacement 136 


CONTENTH.  xjci 

XI.      MOKPHIKISM   AN»  OTHER  ADDICTIONS. 

13G,     Rules  as  to  drunkenness  apply >.......  137 

CHAPTER  V. 

GIFTS. 

137.  Gifts  inter  vivos 130 

138.  Testamentary  gifts 140 

13!).     Habitual  drunkenness  affecting  gifts 141 

CHAPTER  VI. 

COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 
L    Lunacy. 

140.  Process  to  determine  lunacy  by  a  commission 143 

141.  Jurisdiction 14.S 

142.  General  manner  of  issuing 14.") 

143.  Nature  and  necessity  of 140 

144.  Issue  before  a  commission  is  gcnei-al  incompetency.  .  .  .  14(J 

145.  Tests  of  incapacity 147 

14G.     Age,  disease,  weakness 150 

147.  Eccentricity  or  partial  luisoundness 151 

148.  Question  for  jury 151 

149.  Proof  to  establish  incompetency 152 

150.  Inquisition  as  evidence;  conclusiveness  generally 150 

151.  Effect  of  inquisition  on  overreached  acts 151 

1 52.  Right  to  traverse IGO 

153.  Evidence  necessary  to  rebut  inquisition 161 

154.  Proceedings  may  be  set  aside   if  irregular  or  inequi- 

table    162 

155.  Superseding  on  recovery 163 

II.    Deunkenmcss. 

150.     Drunkenness   warranting    inquisition 164 

157.  Inquisition  of  habitual  drunkenness  as  evidence 166 

158.  Discharge  and  restoration 167 

CHAPTER  VII. 

RESTRAINT. 

159.  Right  to  restrain  generally 169 

160.  Discharge  from  confinement 171 

161.  In  the  case  of  habitixal  drunkards 172 

CHAPTER  VIIL 

INSANITY  AS  A  DEFENSE  TO  A  CHARGE  OF  CRIME. 
I.    Genkbax  rules. 

1G2.     Criminal   responsil)ility  generally 175 

163.      What  constitutes  insanity  generally 176 


xxu 


CONTENTS. 


ICA.     Tlieorj-  that  insanity  is  a  question  exclusively  of  fact.  177 

165.     Objections  to  this  view .  178 

IGfi.     Term   ■'mental   disease"   includes   every  phase   of  dis- 
order       178 

1G7.     Definition  of  insanity  must  come  from  court,  not  ex- 
ports    179 

IflS.     Must  be  legal,  not  medical,  insanity 179 

160.     Jurj-  not  qualified  to  decide  question  of  law 180 

170.  Question,  therefore,  rests  with  the  judges 180 

171.  Relative  functions  of  court  and  jury 181 

II.     Special  exceptions. 

172.  Enumeration  of  exceptions 182 

III.      lUIOCY  AND  GENERAL  MANIA. 

173.  What  deprivation   sufficient 183 

]  74.     Tests  of  earlier  times 183 

175.  Test  of  right  or  wrong  as  to  the  particular  act 185 

176.  Test  of  knowledge  of  nature  of  act 186 

177.  Ivight  and  wrong  test  generally  satisfactory 188 

17s.     Time  when  tests  are  applied 189 

IV.     Pabtial  insanity  ok  monomania. 

179.  Definitions 189 

180.  Criminal    responsibility 190 

181.  Question  for  jury 191 

182.  Delusions  defined 191 

183.  Eftect  on  responsibility  generally 192 

184.  Delusions  must  be  objective 193 

185.  Distinction  between  objective  and  subjective  delusions.  193 

186.  Where  reason  can  dispel  subjective  delusions,  responsi- 

bility exists 193 

187.  Delusion  must  be  such  as  to  excuse  if  true 194 

188.  Effect  on  degree  of  crime 195 

V.     Irresistidi.e  impulse. 

189.  Definition 196 

190.  Insane    luicontrollable    impulse    recognized    in    many 

states 197 

191.  Limit  to  irresponsibility 198 

192.  Contrary  rule  in  North  Carolina  and  other  states 20C 

193.  Test  of  responsibility  under  the  contrary  rule 201 

194.  Passion  as  a  miligating  tlemcnt 201 

VI.     Mobal  insanity. 

195.  Definitions 202 

196.  English    rule 202 

197.  So  in  the  United  States  generally 202 

108.     The  contrary  rule 204 

199.  Rule  apjfiied  with  caution 204 

VII.     Kleptomania. 

200.  Definition   and   nature 205 

Vlll.     Ebotomania. 

201.  Definition  and  nature 205 


CONTEXTS.  xxiii 

IX.     Incapacitv  or  ik.male  as  afiectinc  rape.  , 

202.  Elfect  of,  generally 205 

203.  Tests   of   capacity 207 

X.     Insanity  at  or  after  the  trial. 

204.  Effects  generally 207 

205.  Methods  of  raising  the  question 209 

20G.     Tests 210 

207.  Determination  as  to  the  submission  of  the  issue 212 

208.  Disposition  of  the  issue 214 

209.  Effect  of  determination 215 

210.  Insanity  after  the  verdict 21.S 

211.  Insanity  after  judgment 219 

•212.     Appeals  or  reviews 220 

213.  Effect  of  recovery 221 

XI.     Proof  required  to  establish. 

214.  General  rules 222 

215.  Previous  and  subsequent  conditions 222 

216.  Nature  of  crime 223 

217.  Motive 224 

218.  Acts  and  conduct 224 

219.  Personal  characteristics 220 

220.  Causes  of   insanity 227 

221.  Ileieditary    insanity 228 

CHAPTEK  IX. 

INTOXICATION  AS  A  DEb'ENSE  TO  CHARGE  OF  CRIME. 
I.     Insanity  produced  by  intoxication. 

222.  Permanent  insanity  from  drunkenness 230 

223.  Degree  of  insanity  from  drunkenness  which  will  excuse  232 

224.  Nature  of  delirium  tremens;  an  insane  condition 232 

225.  Responsibility  in  delirium  tremens 234 

220.     Effect   of    particular    susceptibility   to    insanity    from 

drink 235 

II.    Pkesknt  intoxication. 

227.  Mere  drunkenness  does  not  avoid  responsibility 230 

228.  This  view  necessary  to  public  safety 238 

229.  Right  to  show^  to  indicate  noncommission 238 

230.  Right  to  show  on  question  of  intent  generally 239 

231.  Intent  in  larceny,  burglary,  robbery,  etc 242 

232.  Intent  in  homicide  cases 243 

233.  Degree  of  intoxication  necessary  to  affect  intent 244 

234.  Deliberation  and  premeditation  in  homicide  cases  .  .  .  246 

235.  Degree  of  intoxication  necessary  to  affect  deliberation.  247 
23G.     Provocation 249 

237.  Self-defense 250 

238.  Intent  in  assault  cases 250 

239.  Intent  in  assault  to  rape 252 

240.  Intent  in  attempt  to  commit  suicide 253 

241.  Texas  statute  as  to  intoxication 253 


xiv  CONTENTS. 

242.  Drinking  for  the  purpose  of  crime 254 

243.  Involuntary  intoxication 255 

III.     Iktoxication  of  the  person  injured. 

244.  Effect   of,   generally 255 

iV.     Efi'ect  of  addiction  to  the  use  of  drugs. 

245.  General   rules \ 256 

CHAPTER  X. 

LIFE  INSURANCE. 

I.       LUN.XCY. 

2  46.     Insanity  as  a  breach  of  warranty 258 

247.  Insane  homicide  as  breach  of  condition .'.. 259 

248.  Condition  against  suicide,  question  one  of  constructioK.  259 
241).     General  rule  as  to  efiect 259 

250.  Degree  of  capacity  ;  test  of  consciousness  and  intent.  .  260 

251.  Test  of  responsibility  for  criminal  acts 262 

252.  Test  of  capacity  to  understand  moral  character  of  the 

act 262 

25.3.     "Sane  or  insane"  is  a  good  condition 264 

254.  "In  the  knoA\Ti  violation  of  the  law  of  any  state''  does 

not  extend  to  insanity 266 

255.  Rule  in  case  of  exception  as  to  assigned  policies 266 

256.  Effect  of  insanity  on  accident  insurance 266 

257.  Effect  of  insanity  on  mutual  insurance ,  267 

258.  INlethod  of  determining  existence  of  insanity 268 

259.  SulReiency  of  evidence  to  establish 268 

II.     Dkunkenness. 

260.  Effect  as  a  breach  of  warranty  or  condition 270 

261.  Subsequently  acquired  habits  of  intoxication 272 

262.  Accident  and  mutual  insurance 273 

263.  Habits ;  a  question  for  the  jury 273 

CHAPTER  XI. 

TOUTS. 
I.      LtTNACY. 

264.  Lunatic  liable  for  torts 275 

265.  Effect  of  insanity  of  i)erson  injured 277 

II.    Drunkenness. 

260.     Effect  of  liability  generally 277 

267.  Employment   of   persons   having  the   habit   of   intoxi- 

cation,   generally 278 

268.  In  case  of  injury  to  fellow  servant 279 

269.  EfVect  as  to  contributory  negligence,  generally 280 

270.  With  relation  to  trespassers  upon,  and  persons  cross- 

ing, railroads 282 

271.  With  relation  to  passengers  and  carriers 284 

272.  With  relation  to  injuries  on  highways,  streets,  etc. . . .  286 


CONTENTS.  xxT 

273.     Application  of  last  dear  chance  doctrine 287 

274.^   Question  for  jury 288 

275.     SufTiciency  of  evidence  to  establish  negligence 28!) 

CHAPTER  XII. 

OFFICES  AND  PLACES  OF  TRUST. 
I.    Lunacy. 

27G.     Mental  incapacity  as  a  disqualification 292 

II.    Drunkenness. 

277.  Drunkenness  as  a  ground  of  incapacity 292 

CHAPTER  XIII. 

SETTLEMENT  OR  DOMICIL. 

278.  Capacity  as  aflecting  power  to  choose 294 

CHAPTER  XIV. 

THE  STATUTE  OF  LIMITATIONS. 
I.    Lunacy. 

279.  Degree  of  incapacity  which  will  prevent  running 29.'> 

IL      DUUNKENNESS. 

280.  EfTeet  of  incapacity  to  prevent  running 296 

CHAPTER  XV. 

ACTIOMS. 

281.  Competency  to  maintain 298 

CHAPTER  XVI. 

JUDGMENTS. 

282.  Effect  of  incapacity  upon,  generally 299 

283.  Effect  as  to  purchasers 301 

284.  Degree  of  insanity  which  will  affect 302 

285.  When  and  how  relieved  against 303 

CHAPTER  XVII. 

BANKRUPTCY. 
2S6.     What   incapacity   affects 306 

CHAPTER  XVIIL 

JURORS. 
287.     Insanity  as  affecting  capacity 307 


tvi  CONTENTS. 

CHAPTEE  XIX. 

WITNESSES. 
I.    Lunacy. 

288.  General  rules  as  to  effect 30S 

289.  Presumption  and  burden  of  proof  as  to 310 

290.  Method  of  determining  capacity 310 

291.  Proof  as  to  incompetency 312 

292.  Habeas  corpus  may  bring  witness 314 

293.  Proof  in  case  of  subsequent  insanity  of  witness 314 

294.  Effect  of  insanity  of  adverse  party 315 

II.      DRLM<ENNi:S&. 

295.  Effect  on  competency,  generally. 316 

CHAPTER  XX. 

EVIDENCE. 

I.      PllKSUSrPTIOX  AND  BUIJDEN  AND  MEASURE  OF  TROOF. 

u.     With  reference  to  lunacy. 

290.     Presumption  of  sanity 320 

297.  Burden  of  proof  generally  in  miscellaneous  matters.  .  .  32." 

298.  Burden  of  proof  in  criminal  cases '  32.") 

299.  Conflicting  rules  as  to  burden  of  proof  in  will  cases. .  .  32<S 

300.  '  Shifting  of  the  burden  resting  with  the  proponent.  .  .  .  330 

301.  Sufficiency  of  evidence  to  satisfy  or  shift  the  burden.  .  331 

302.  Burden  of  proof  after  probate 334 

303.  Insurance  cases;  burden  of  proof  in  case  of  suicide.  .  .  330 

304.  Presumption  and  burden  of  proof  of  continuance  as  to 

habitual   insanitj' 330 

305.  Temporary  insanity 339 

306.  Habitual  and  temporary  insanity  distinguished 340 

307.  Presumption  as  to  continuance  of  hicid  intervals 342 

808.     Nature  of  presumption  of  continuance 343 

309.  IMeasure  of  proof ;  civil  cases 343 

310.  Criminal  eases;  beyond  a  reasonable  doubt 346 

311.  To  the  satisfaction  of  the  jury 346 

312.  By  a  preponderance  of  the  evidence 348 

ol3.     What  is  a  suiHcient  preponderance 349 

314.  Clearly  proved,  reasonable  certainty 351 

315.  Reasonable  doubt  of  insanity 352 

316.  What  constitutes  reasonable  doubt 354 

317.  Summary  as  to  measure  of  proof 356 

6.     Drunkenness. 

318.  Presumptions  and  burden  of  proof 356 

319.  Presumption  of  continuance 358 

320.  Measure   of   proof 359 

II.      COMPETENCY  AND  ADMISSIBILITY. 

c     With  reference  to  lunacy. 

321.  Previous  and  subsequent  condition 300 

322.  The  act  itself 363 


CONTENTS.  XXV I  i 

323.     Declarations  aud  admissions  of  the  party 3G4 

S24.     Declarations,  admissions,  and  acts  of  third  persons.  .  .  368 

325.     Letters,  private  writings,  deeds,  wills,  etc 370 

320.     Acts  and   conduct 372 

327.     Surrounding   circumstances 375 

32S.     Kelations'iiip  between  parties 377 

329.  Physical  and  mental  condition 379 

330.  Hereditary    insanity 381 

331.  Keputation  and  hearsay 382 

332.  Adjudications  and  certificates  of  lunacy 383 

6.     With  reference  to  drunkenness. 

333.  The  fact  of  intoxication 386 

334.  General  character  and  habits 388 

335.  Previous  v.nd  subsequent  intoxication 389 

330.     Acts   and   conduct 390 

337.  Confessions,  admissions,  and  declarations 391 

III.      OriMON  EVIDENCE. 

a.     With  referoice  to  lunacy. 

1.  Experts. 

338.  Admissibility   generally 392: 

339.  Application  of  doctrine  as  to  privilege  of  witnesses. .  . .  393 

340.  Opinions  formed  from  observation  or  examination....  395 

341.  Opinions  based  on  evidence 396 

342.  Opinions  upon  hypothetical  nuestions  or  statements..  398 

343.  Qualifications  of  experts 403 

344.  Basis  of  facts  or  reasons  for  the  opinions 405 

345.  Scope  generally 406 

346.  Scope  as  to  time 409 

347.  Cross-examination  of  experts 409 

348.  Weight   generally 412 

349.  As  alTected  by  facts,  opportunity  to  observe  character, 

etc 413 

330.     As  compared  with  other  opinions 414 

351.  A  question  for  the  jury 416 

2.  Nonexperts. 

352.  Admissibility  generally 417 

353.  Grounds  of  admissibility 421 

354.  Effect  of  rules  as  to  privilege  of  witnesses 423 

355.  Who  may  give 425 

356.  The  acquaintance  and  observation  necessary 425 

357.  Facts  and  reasons  as  a  basis  of  an  opinion 429 

358.  Scope   generally 432 

359.  Limitation  of  scope  in  particular  states 436 

360.  Scope  as  to  time 438 

361.  Cross-examination,  rebuttal,  and  impeachment 439 

362.  Weight   generally 441 

363.  As  alfected  by  character,  capacity,  and  opportunity.  .  .  442 

364.  As  affected  by  facts  and  reasons  stated 444 

3.  Subscribing  witnesses. 

365.  Admissibility   generally 445 


CONTE.NTS 

3CG.     Necessity  of  giving 447 

307.  Scope 449 

308.  Weight 449 

4.     Opinions  covering  the  issiie. 

369.  General  and  prevailing  rule 452 

370.  Application  to  particular  classes  of  cases 454 

37 1.  The  contrary  rule , 457 

6.     With  reference  to  drunkenness. 

372.  Who  may  give ;  nature  of 458 


IV.    Books. 


!73.     Admissibility   generally 460 


BOOK  IT. 

INSANITY-ITS  VARIOUS  FORMS  AND  ITS  MEDICO- 
LEGAL ASPECTS. 


CHAPTER  XXL 

INTRODUCTION. 

374.     The  subject  is  scientific „ 465 

875,     Insanity  is  to  be  studied  in  the  hospitals 465 

370.     It  is  a  disease 466 

377.  Insanity  is  not  a  crime 460 

378.  The  subject  is  both  medical  and  legal 467 

o7n.     The  aim  of  this  treatise 467 

380.  The   extensive   literature 467 

381.  The  original  sources   4CS 

CHAPTER  XXIL 

HISTORICAL  NOTES. 

382.  The  history  of  the  )nedical  jurisprudence  of  insanity..  469 

383.  Among  the  ancients    469 

384.  Tlie  Greeks   470 

385.  The  Roman  law  471 

386.  The  civil  law  was  very  copious 47  i 

387.  The  middle  ages 472 

888.     Demonomania,  or  witchcraft 47!^ 

389.  The  subject  obscured  by  demonomania 473 

CHAPTER  XXIIL 

DEFINITIONS. 

L    The  definition  oi'  insanity. 

390.  Definitions  are  dillieult   474 

391.  A  proposed  definition  of  insanity <75  . 


CONTENTS.  xxix 

392.  Dreams  are  a  disorder  of  tlu;  mind 475 

393.  Idiocy  is  a  form  of  insanity 470 

394.  Objections  stated  and  met 47G 

395.  Insanity  is  a  disease  of  the  brain 477 

II.     Illusiom,  hallucination,  and  delusion. 

390.  The  proper  and  improper  use  of  these  terms 477 

597.  The  definition  of  illusion 477 

398.  The  definition  of  hallucination 478 

399.  The  definition  of  delusion   , 479 

■lOO.  Varieties  of  delusions   480 

ril.     Lunatic. 

401.  The  origin  of  tlie  term 480 

402.  The  later  use  of  the  term 481 

•103.  Usage  in  the  United  States   481 

CHAPTER  XXIV. 

NON  COMPOS  MENTIS. 

404.  Confusion  about  this  term 482 

405.  The  classical  meaning 482 

406.  Its  earliest  use  in  English  law 483 

407.  The  statute  De  Prerogativa  Regis 484 

408.  The  distinction  between  idiots  and  lunatics 484 

409.  The  importance  of  the  term  non  compos  mentis 485 

410.  Coke's  use  of  the  term   485 

411.  Hale's  use  of  the  term  "lunatic" 48G 

412.  Hale's  ideas  prevailed   486 

413.  His  ideas  were  artificial 487 

414.  Trouble  in  the  court  of  chancery 487 

415.  Lord    Ilardwick's   opinion 487 

416.  Objections  to  the  term  "lunatic" 488 

417.  Lord  Eldon's  opinion   489 

418.  Lord  Erskine's  opinion 489 

419.  How  confusion  arose 490 

420.  The  various  uses  of  the  term. 491 

421.  The  American  usage 491 

422.  Common-law  definitions  binding  in  America 492 

423.  Some  hair-splitting  distinctions    492 

424.  Later  and  better  usage 493 

425.  Distinctions  ignored 493 

426.  A  brief  review  of  the  subject 494 

427.  Conclusion 495 

CHAPTER  XXV. 

LUCID  INTERVzYLS. 

428.  The  early  origin  of  this  term 496 

429.  Associated  with  the  term  "lunatic" 496 

430.  Its  fanciful  meaning , ' 497 


CONTENTS. 

431.  Hale's  doctrine  was  unscientific 497 

432.  Lord  Eldon's  opinion   497 

433.  The  legal  idea  is  artificial 498 

434.  Defining  in  a  circle    498 

435.  Importance  of  this  subject   499 

436.  Lord  Brougham's  opinion   499 

437.  The  conse.iucnces  flowing  fi'oni  this  doctrine 500 

438.  In  criminal  cases  500 

439.  Violent  presumptions  of  the  law  501 

440.  The  practice  has  varied  501 

441.  The  onus  prohamli 501 

442.  Eemissions  not  the  same  as  lucid  intervals 502 

443.  The  prejudice  against  lucid  intervals 502 

444.  The  danger  of  the  doctrine 503 

445.  Not  a  complete  restoration 50:^ 


CHAPTER  XXVI. 

INSANITY  AND  THE  LAW. 

446.  The  first  definition  of  insanity  in  the  law   SO."* 

447.  Crude  ideas 50."> 

448.  Insanity  in  the  middle  ages   506 

449.  Tradition  and  common  law 50s; 

450.  Old  and  fanciful  opinions 50^ 

451.  Very   few   old  authorities 509 

452.  The  writings  of   Bracton    509 

453.  His  influence  has  been  long-continued 510 

454.  His  dependence  on  the  civil  law 510 

455.  Justinian 511 

456.  Britton 511 

457.  The  statute  De  Prerogativa  Regis 512 

458.  Littleton,  and  the  doctrine  of  non-stultification 512 

459.  Why  a  man  was  not  allowed  to  stultify  himself 513 

460.  Coke  and  the  Beverley  Case 513 

461.  Insanity  and  high  treason 514 

462.  The  early  prejudice  against  the  insane  regicide 514 

463.  Coke's  attempts  at  a  classification  of  insanity 515 

464.  His  scheme-  of  classification   515 

465.  Coke's  distinction  between  civil  and  criminal  insanity.  516 

466.  Coke's  scheme  is  noteworthy 516 

467.  His  ideas  of  lunacy   517 

468.  The  writings  of  Hale   517 

469.  His  definitions   517 

470.  Hale  on  tests  for  insanity 511) 

471.  His  ov^'n  test 519 

472.  Hale's  "partial"  insanity,  and  "total"  insanity 520 

473.  What  is  "partial"  insanity 521 

474.  And  "total"  insanity 521 

475.  The  terms  criticized   521 


CONTENTS.  xxxi 

476.  Hale's  erroneous  definition  of  a  lunatic 522 

477.  Hawkins  and  tlie  right-and-wrong  test 522 

478.  The  laws  of  insanity  as  made  by  the  judges 523 

479.  The  Arnold  Case   523 

480.  The  wild-beast  tlieory 524 

481.  The   case  of  Earl   Ferrers;   an  insane   man  forced  to 

conduct  his  own  defense   525 

482.  The  right-and-wrong  test  fully  started 525 

483.  This  tt!st  not  satisfactory  to  all  legal  minds 52G 

484.  Erskine  and  the  case  of  Hadfleld 527 

485.  The  test  of  delusion   527 

486.  Erskine's  distinction  between  civil  and  criminal  cases.  527 

487.  The  right-and-wrong  test  without  authority .528 

488.  No  such  thing  as  "total"  madness 528 

489.  The  importance  of  Erskine's  speech 528 

490.  The  written  law 530 

491.  The  statute  law  requires  no  tests   530 

•492.  The  small  number  of  cases  up  to  one  hundred  years 

ago 531 

493.  Bellingham's  Case 531 

494.  The  test  of  delusion  rejected 532 

405.  The  right-and-wrong  rule  not  properly  applied 533 

490.  The  distinction  again  between   civil   and  criminal  in- 
sanity    .534 

497.  The  cases  of  Parker  and  Bowler 534 

498.  The  case  of  OfTord 535 

499.  The  cases  of  Bellingham  and  OfFord  compared 535 

500.  The  case  of  Oxford;  a  step  in  advance 536 

501.  The  formative  period   5,37 

C02.  Madness  not  to  be  reduced  to  fixed  rules 537 

CHAPTEE  XXVII. 

THE  RULES  JN  THE  M'NAGHTEN  CASE. 

503.  No  binding  authority  on  criminal  lunacy 539 

504.  Recent  opinions  largely  based  on  the  M'Naghten  Case.  540 
4505.  The  case  of  M'Naghten   540 

50(i.  Delusional  insanity  541 

507.  Lord  Tindal's  charge   54] 

508.  Two  distinct  tests   542 

609.  The  questions  propounded  to  the  judges 542 

510.  The  questions  analyzed    54.*? 

SIL  The  answers  of  the  judges 544 

512.  The  three  points  involved   54* 

513.  Sir  Eitzjames  Stephen's  opinion   54.'» 

514.  Inconsistencies  in  Stephen's  opinion  546 

5L5.  The  right-and-wrong  test  criticized 54(1 

516.  In  reference  to  the  act  itself 546 

517.  The  distinction  between  "moral"  and  "legal"  wrong.  .  547 


CONTENTS. 

518.  The  test  of  delusion   547 

519.  The  criminal  act  must  be  traced  to  the  delusion 547 

520.  The  insane  man  must  act  as  though  he  were  sane. . . .  54S 

521.  'Ihe  test  of  delusion  not  applicable  to  all  cases  of  in- 

sanity    54!) 

622.     Loss  of  self-control 549 

523»     Bishop's  idea  that  a  test  is  like  a  yardstick 550 

524.  Not  a  question  of  law,  but  a  question  of  fact 551 

525.  The  M'Naghten  rules  not  always  followed 552 

526.  The  law  takes  no  heed  of  insanity  in  the  abstract. .  .  .  552 

527.  A  contrary  opinion   552 

528.  Insanity  a  fact  to  be  determined  by  jury 553 

529.  Insanity,  being  a  fact,  is  not  definable  by  statute.  .  . .  55;^ 

CRAPTEE  XXVIII. 

THE  M'NAGHTEN  RULES  IN  AMERICA. 

530.  Their  authority  in  American  courts 554 

531.  Not  necessarily  binding  in  America 555 

532.  The  right-and-wrong  rule  long  .used  in  America 55<i 

633.     The   M'Nagliten   rules   not   accepted   in   all   American 

courts 55r 

534.  The  IM'Naghten  rules  rejected  in  one  case  as  demand- 

ing too  much  proof 557 

535.  The  law  in  Pennsylvania 558 

5'3na.     The  knowledge  of  right  and  wrong 559 

535b.     The  knowledge  of  right  and  wrong  in  respect 

to  the  particular  act  559 

535c.     Hale's  "partial"  insanity  recognized 560 

535d.     Loss  of  self-control   561 

535e.     No  unanimity  among  the  judges 561 

636.     The  IM'Naghten  rules  not  satisfactory 562 

537.  Inability  to  control  the  conduct 562 

538.  A  test  that  inculpates  every  delusional  lunatic 562 

539.  The  will  overmastered   563 

540.  Guilty  even  though  insane   563 

541.  Nearly  a  model  test   563 

542.  The  element  of  self-control 564 

543.  Consciousness  of  the  act  done 564 

644.     Irresistible  impulse  is  no  excuse 564 

545.  Knowledge  and  power  always  coexist  in  law 565 

546.  Free  agency  an  element 565 

647.     A  will  sutllcient  to  restrain  an  insane  impulse 565 

548.  Insanity  is  a  question  of  fact,  and  not  of  legal  defini- 

tion    566 

549.  Tlie  M'Naghten  rule  too  exacting 566 

650.     The  right-and-wrong  rule  not  a  safe  test 566 

551.     An  involuntary  act  of  the  body,  not  of  the  mind 567 

652.     The  New  Hampshire  ca-ses 567 


CONTENTS.  xxxiii 

553.  Errors  of  former  days  have  gained  the  sanction  of  the 

law 569 

554.  All  symptoms  and  all  tests  are  matters  of  fact 569 

555.  The  legal  definition  of  insanity  is  an  anachronism. .  . .  570 

556.  The  so-called  legal  tests  criticized  from  the  bench. .  .  .  570 

557.  Striving  after  an  impossible  test 572 

CHAPTER  XXIX. 

THE  METAPHYSICAL  CONCEPTION  OF  INSANITY. 

55S.     The  spiritual  theory 573 

559.  Among  the  ancients   573 

560.  The  wide  prevalence  of  the  spiritual  conception 574 

561.  The  distinction  between  body  and  mind 574 

562.  The  metaphysical  impulse   575 

563.  Subtle  questions,  of  more  than  speculative  interest...  576 

564.  The  curious  tricks  of  metaphysics 576 

565.  Evil  effects  on  jurisprudence   576 

566.  In  English  law    577 

567.  Refinements  and  definitions 578 

568.  A.  recent  product  of  metaphysics  579 

569.  But  artificial  psychiatry  is  not  confined  to  lawyers  and 

the  courts 580 

570.  Monomania  is  an  invention  of  the  etymologists 581 

571.  Moral  insanity  is  a  product  of  dialectics 582 

572.  It  is  also  a  boomerang 582 

573.  Insanity  not  an  abstraction,  but  a  disease 583 

CHAPTER  XXX. 

THE  SCIENTIFIC  CONCEPTION  OF  INSANITY. 

I.    In  gekerax. 

574.  Insanity  is  a  disease 584 

575.  The   scientific   conception   stated 585 

n.    The  causes  of  insanity. 

576.  Heredity 585 

577.  The  difficulty  of  ascertaining  heredity 586 

578.  Statistics  not  always  reliable 587 

579.  Two  modes  of  transmission  587 

580.  Heredity  is  not  a.  fixed  rule 587 

581.  Heredity  is  to  be  traced  through  all  the  lines  of  do- 

scent  588 

582.  Criminality  and  insanity 589 

583.  No  distinct  type  of  hereditary  insnnity 589 

584.  A  matter  of  statistics 590 

585.  The  infiuence  of  race  and  nationality 590 

586.  The  influence  of  sex  and  age 591 

587.  Occupations,  climate,  and  seasons   591 

Vol.  I.  Med.  Jue. — n. 


Lxxiv  CONTENTS. 

588.  Religion  often  a  potent  cause 591 

589.  The  influence  of  alcohol  592 

590.  Alcoholism  and  crime  593 

591.  The  influence  of  infectious  diseases 594 

592.  Syphilis  as  a  cause  of  insanity 595 

593.  The  various  metals   59G 

594.  jMoral   and  emotional  causes  are  sometimes  active  in 

insanity 596 

595.  Injury  to  the  brain 596 

596.  Miscellaneous  causes 597 

597.  Disturbed  nutrition  of  the  brain   597 

III.    The  pathology  or  insanity. 

698.  A  purely  technical  subject 597 

599.  Functional  and  organic  diseases 597 

600.  A  sign  of  the  progress  of  mental  pathology 598 

601.  The  morbid  anatomy    598 

602.  An  obscure  problem 590 

603.  The  organic  changes  in  the  brain 599 

604.  The  general  law  of  mental  pathology  fiW 

605.  Bacteriology  and  insanity   59!) 

606.  Conclusion 600 

CHAPTER  XXXL 

THE  CLASSIFICATION  OF  INSANITY. 

607.  Classification  cannot  be  ignored 601 

60S.  There  are  varieties  of  insanity 601 

609.  Methods  of  classification   602 

610.  The  best  method  is  a  mi.xed  one 602 

61 1.  A  hint  for  classification 602 

612.  Still  another  fact    60.S 

613.  Acquired  insanity 603 

614.  An  anatomical" basis   60.'? 

615.  KralTt-Ebing's  scheme 604 

610.  Easy  to  criticize    604 

617.  Several  objections  stated   605 

618.  Classificjition  not  a  medico-legal  subject 605 

CHAPTER  XXXII. 

MANIA. 

L    The  meoical  aspects  of  mania. 

619.  The  disease  defined   607 

620.  Mania  the  opposite  of  melancholia  608 

621.  Exaltation  is  a  prominent  symptom  of  mania 60*5 

622.  Acceleration  of  the  ideas  in  mania 608 

623.  The  moral  faculties  in  mania 609 

624.  Motor  excitement 610 

625.  Hallucinations  in  mania 610 


CONTENTS.  XXXV 

626.  The  conduct  is  affected 611 

627.  The  physical  disorder Oil 

628.  Impulsive  acts 611 

629.  Severe  cases Oil 

630.  The  mode  of  onset 612 

631.  The     distinction     between     mania     and     melancholia 

ignored 612 

632.  The  mode  of  termination 613 

033.     Examples  of  the  abuse  of  the  term 613 

11.     The  medico-legal  aspects  of  mania. 

634.  The  incipiejit  stages   614 

635.  Mania  is  a  much  abused  term  in  medical  jurisprudence.  614 

636.  Its  greatest  abuse   014 

637.  Emotional  insanity 615 

638.  Emotional  disturbance  is  not  necessarily  mania 616 

639.  Impulsive  insanity  and  mania  617 

640.  Transitory  mania  and  homicidal  mania  618 

641.  Epilepsy  and  mania    619 

642.  Other  forms 010 

643.  Puerperal  mania 619 

644.  The  sudden  onset  of  insanity  after  childbirth 620 

645.  The  causes  of  puerperal  insanity 620 

646.  From  the  medico-legal  standpoint,  puerperal  mania  is 

a  grave  affection 020 

647.  Responsibility  in  the  childbearing  woman  621 

648.  The  responsibility  varies   021 

649.  The  social  penalty 622 

650.  Insane  impulses  in  puerperal  insanity 623 

651.  False  accusations 623 

652.  The  delusions  of  puerperal  patients   624 

CHAPTER  XXXIII. 

MELANCHOLIA. 

L    The  medical  aspects  of  melancholia, 

653.  Melancholia  as  contrasted  with  mania 626 

654.  The  sense  of  personal  un worthiness 620 

655.  The  essential  features  of  the  disease   027 

656.  Delusions   in  melancholia    627 

657.  Sexual  delusions 628 

658.  Religious  delusions 629 

659.  Varieties  of  delusions 629 

660.  Hallucinations 630 

661.  The  bodily  condition 630 

66'2.     Forms  of  melancholia 630 

663.  Agitated  melancholia 631 

664.  Stuporous  melancholia 631 

665.  Hypochondriacal  melancholia 632 

666.  The  termination  of  melancholia  632 


xxxvi  CONTENTS. 

667.  Chronic  melancholia 632 

668.  Infection  as  a  cause  of  this  disease 632 

IL    The  meuico-lkgal  aspects  of  melancholia. 

668A.  Melancholia  is  a  form  of  "partial"  insanity 633 

669.  Suicide  is  a  common  danger  in  melancholia 633 

670.  The  mental  state  in  suicides 634 

671.  The  right-and-wrong  test  as  applied  to  suicides 634 

672.  The  medico-legal  importance  of  suicide 63.5 

673.  Among  the  ancients   635 

674.  Bracton's  statement 636 

675.  The  law  in  America  on  attempt  to  commit  suicide ....  636 

676.  If  a  would-be  suicide  kills  anotlier  person,  he  is  guilty 

of  hoinicide 636 

677.  Accidental  suicide  while  attempting  to  commit  a  fel- 

ony    637 

678.  Cases  of  double  suicide   637 

679.  The  guilt  of  the  survivor 638 

680.  The  psychology  of  dovible  suicide 638 

681.  Double  suicide  in  mother  and  child 639 

682.  Assisting  in  any  way  to  commit  suicide  is  a  crime.  .  .  639 
.    683.     The  principle  of  husband's  control    640 

684.  The  refinements  of  the  law  on  the  subject  of  suicide.  .  640 

685.  The  futility  of  laws  against  suicide   641 

686.  Christianity  condemned  suicide   641 

687.  Public  opinion  is  more  tolerant  642 

688.  Laws  against  suicidal  attempts  also  useless 642 

689.  Suicide  and  life  insurance  643 

690.  Voluntary  or  involuntary  suicide   644 

691.  The  law  in  America 644 

692.  What  constitutes  a  criminal  intent  in  suicide 645 

693.  The  better  psychiatry  is  the  better  law 645 

694.  The  proof  of  suicide   646 

695.  Can  a  man  contract  that  he  will  never  go  insane 646 

696.  Suicide  raises  no  presumption  of  insanity 646 

697.  The  findings  of  coroners'  juries  in  cases  of  suicide 647 

698.  An  academic  question 648 

699.  The  real  problem  in  suicidal  melancholia 648 

700.  The  presumption  of  sanity 649 

701.  The  relation  of  the  suicidal  act  to  a  delusion 650 

702.  The  present  doctrine  of  English  law  650 

703.  Some  legal  opinions  differ  651 

704.  In  cases  in  which  suicide  is  a  crime,  insanity  excul- 

pates    651 

705.  The   difficulty   of   diagnosis   in   some   cases   of   insane 

suicides 651 

706.  The  study  of  statistics  of  insane  suicides 652 

707.  The  difiiculty  of  analyzing  statistics 653 

708.  Homicide  may  be  committed  by  the  raclancholiac 654 

709.  Deliberation  and  premeditation  in  these  patients 655 

710.  Homicidal  impulses  in  melancholia 655 


CONTENTS.  xxxvii 

711.  The  complicated  motives  that  may  lead  to  homicide. . .     656 

712.  Criminal  motives  in  suicidal  patients   657 


CHAPTER  XXXIV. 

STUPOROUS  INSANITY. 

I.    The  medical  aspects  of  stuporous  insanity. 

713.  Definition 658 

714.  Occurrence 658 

715.  The  onset 659 

716.  Characteristics 659 

717.  The  phj'sical  state 659 

718.  Special  symptoms 659 

719.  The  prognosis 660 

720.  This  insanity  is  a  physical  disease 660 

II.     The  medico-legal  aspects  oe  stuporotjs  insanity. 

721.  This   is   not  a   disease   at  all   likely  to   figure   in  the 

courts 660 


CHAPTEE  XXXV. 

CONFUSIONAL  INSANITY. 

I.    The  medical  aspects  of  confusion al  insanity. 

722.  A  statement  of  the  disease   661 

723.  Its  history 662 

724.  Similar  to  delirium 662 

725.  The  causes  of  the  disease 662 

726.  Hallucinations  are  common 663 

727.  The  emotional  disturbance   664 

728.  The  intelligence  is  involved 664 

729.  Impulsive  acts : 664 

730.  The  physical  state 664 

731.  Various  forms 665 

732.  Duration  and  prognosis   665 

733.  The  pathology  is  not  entirely  unknown 666 

734.  The  scientific  interest  in  these  cases 666 

II.    The  medico-legal  aspects  of  confusional  insanity. 

735.  Impulsive  acts  of  violence   666 

736.  Loss  of  responsibility 667 

737.  The  word  "impulse"  has  been  greatly  abused 667 

738.  The  defense  of  impulsive  insanity 668 

739.  Suicide  in  these  patients 668 

740.  Disturbance  of  the  emotions  denied 668 

741.  The  evil  passions 669 

742.  Impulsive  acts  not  always  dangerous   669 


Kxxviii  CONTENTS. 

CHAPTER  XXXVI. 

SECONIWRY  OR  CHRONIC  INSANITY. 

I.      TitE   MEDICAL   ASPEC'IS  OF   SECONDARY  OB  CIIKONIC   INSANfTY. 

743.  A  statement  of  the  disease   67 1 

744.  The  cases  vary  witliin  wide  limits 671 

745.  Progressive  M'eakness  of  mind 672 

746.  Symptoms  become  fixed   672 

747.  The  emotions  are  weakened 672 

748.  The  ke_^Tiote  of  chronic  insanity  is  weakness 672 

749.  Exacerbations  occur 673 

750.  The  conduct 673 

751.  Habits  ami  tendencies   673 

II.    The  medico-legal  aspects  of  chromic  insanity. 

752.  Chronic  lunatics  may  commit  crime    674 

753.  How  distinguished  from  acute  cases  674 

754.  The  presumption  in  favor  of  irresponsibility 674 

755.  Few  courts  would  hesitate  to  admit  such  presumption.  674 

756.  The    distinction    between    chronic   lunatics    and    para- 

noiaes 675 

757.  Epilepsy  and  clnonic  insanity 675 

758.  What  eases  are  to  be  called  chronic 675 

759.  Offenses  against  decency   670 

CHAPTER  XXXVII. 

DEMENTIA. 

I.      TifE   MEDICAL   ASPECTS   OF   DEMENTIA. 

760.  A  terminal  deterioration   677 

761.  Dementia  is  an  evidence  that   insanity  is  a  physical 

disease 677 

762.  An  analysis  of  the  disease 678 

*  763.     Various  forms  of  dementia  are  seen 678 

763^.  The  question  of  a  "primary"  dementia 679 

II.    The  medico-legal  aspects  of  terminal  dementia. 

764.  A  common  legal  error  about  dementia 679 

765.  Only  dements  are  "totally  deprived  of  understanding 

and  memory" 680 

CHAPTER  XXXVIII. 

PERIODICAL  INSANITY. 

I.    The  medical  aspects  or  periodical  insanity. 

766.  In  some  forms  of  mental  disease  there  is  observed  a 

tendency  to  periodicity   681 

767.  Periodicity    in    mental    pathology   has    long   been   ob- 

served        682 

768.  A  sign  of  degeneration 682 

769.  The  marks  of  periodicity   683 


CONTENTS.  xxxix 

770.  The  intervals  between  the  attacks 684 

771.  The  nature  of  the  attack 684 

772.  Periodical  insanity  may  assume  several  types 684 

773.  Periodical  mania 684 

774.  The    distinction   between    simple   primary   mania   and 

periodical  mania 686 

775.  Periodical  melancholia 687 

776.  Circular  insanity 687 

777.  This  is  a  special  form  of  mental  disease 687 

778.  There  is  a  complete  cycle  in  this  disease 688 

779.  The  maniacal  period  in  circular  insanity 689 

780.  The  short  interval  is  not  a  true  "lucid  interval" 689 

781.  The  period  of  melancholia  in  circular  insanity 690 

782.  The  periodicity  and  sameness  are  distinguishing  marks.  690 

783.  Varieties  of  circular  insanity  have  been  named 691 

IL    The  medico-legal  aspects  of  periodical  insanity. 

784.  The  question  of  "lucid  intervals"  in  circular  insanity.  691 

785.  Testamentary  capacity  in  these  cases 691 

786.  The  difficulty  of  determining  a  lucid  interval 691 

787.  Abuse  of  the  doctrine  of  lucid  intervals 692 

788.  A  legal  maxim  of  the  civilians 693 

789.  Every  case  must  be  stvidied  by  itself 693 

790.  Among   the   more   common   symptoms   are   insane   im- 

pulses    694 

791.  But  the  criminal  acts  of  the  periodical  insane  have  no 

special  characteristics 694 

792.  Suicide  and  homicide  in  periodical  insanity 695 

793.  The  period  of  transition  from  one  attack  to  another 

is  not  necessarily  a  "lucid  interval" 695 

CHAPTER  XXXIX. 

HYPOCHONDRIA. 
L    The  medical  aspects  of  hypockondkia. 

794.  The  term  defined   696 

795.  Hypochondria  and  melandiolia 696 

796.  Hypochondria  and  neurasthenia   697 

797.  Hypochondria  and  paranoia    697 

798.  Various  forms  of  hypochondria 697 

799.  Sexual  hypochondria 698 

II.    The  medico-legal  aspects  of  iiYPociiONDrviA. 

800.  Hypochondria  and  suicide  699 

801.  Errors  in  diagnosis    699 

CHAPTER  XL. 

THE  INSANITIES  ASSOCIATED  WITH  THE  GREAT  NEUROSES. 
I.     In  general. 

802.  The  chief  neuroses 701 


xl  CONTENTS. 

II.    Htsteeical  insanity. 

803.     The  curious  origin  of  the  term  "hysteria" 701 

S04.     The  symptoms  of  hysteria  are  of  two  kinds 702 

805.  The  inter-paroxysmal  symptoms   702 

806.  Hysteria  in  the  middle  ages 702 

807.  The  paralyses  caused  bj-  hysteria 70.3 

808.  Other  bodily  symptoms   704 

809.  The  pjftoxysmal  symptoms  of  hysteria  are  those  which 

occur  in  convulsive  attacks 704 

810.  The  hysterical  fit  has  several  stages 705 

m.     The  medico-legal  aspects  of  hysterical  insanity. 

811.  Hysterical  patients  are  impressionable 706 

812.  Hysteria  and  suicide 707 

813.  Hysteria  and  hypnotism   707 

814.  The  power  of  suggestion  is  a  form  of  undue  influence. .  70S 

815.  Vulgar  errors  about  hysteria   708 

816.  Hj'steria  is  not  the  same  as  simulation 708 

817.  Hysteria  is  not  moral  insanity   709 

IV.     The  insanity  of  chorea. 

818.  A  brief  description  of  St.  Vitus'  dance 709 

819.  The  mental  disorder  in  chorea  710 

820.  Fatal  cases  may  occur  711 

821.  Chronic  insanity  is  not  common  after  chorea 711 

V.    The  medico-legal  aspects  of  the  insanity  of  chorea. 

822.  The  mental  disorder  is  mild  in  most  cases 711 

823.  Grave  cases  may  occur  712 

824.  Hereditary  chorea 712 

VI.    The  mental  symptoms  of  neurasthenia. 

825.  Neurasthenia  is  a  term  introduced  by  Beard 713 

826.  Fixed  ideas,  morbid  impulses,  or  obsessions 713 

827.  Varieties  of  obsessions   714 

828.  The  insanity  of  doubt 714 

829.  Morbid  fears  are  numerous 715 

830.  Mysophobia  is  a  type   716 

831.  A  true  form  of  impulsive  insanity   716 

832.  Criminal    impulses,    such    as    kleptomania    and    pyro- 

mania 717 

833.  Suicidal  and  homicidal  impulses  take  the  form,  in  some 

cases,  of  genuine'  obsessions   718 

834.  A  critical  analysis  of  obsessions 718 

835.  The  intelligence  may  be  affected   719 

836.  The  pathological  nature  of  obsessions 719 

837.  Their  resemblance  to  hallacinations 719 

Vn.    The  medico-legal  aspects  of  obsessions. 

S38.     Obsessions  are  involuntary   720 

839.  They  are  without  motive 720 

840.  They  are  persistent 720 

841.  Obsessions  are  not  ordinary  criminal  impulses 720 

842.  These  cases  seldom  come  before  the  courts 721 

843.  The  legal  prejudice  against  irresistible  impulses 721 

844.  Irresistible  impulse  is  a  valid  defense 722 


CONTENTS.  xli 

845.  This  defense  must  be  closely  scrutinized 723 

846.  This  subjoct  is  not  treated  uniformly  in  the  courts...  724 

847.  Irresistible  impulse  may  be  simulated« 724 

848.  Homicide  is  rare  as  a  result  of  obsessions 724 

849.  All  insane  impulses  are  not  obsessions 724 

850.  Dogmatic  statements  on  this  subject   725 

851.  Is  dipsomania  an  obsession   725 

852.  Sexual  perversions  in  this  connection 725 

CHAPTER  XLI. 

EPILEPTIC  INSANITY. 

L    Tub  medical  aspects  of  epileptic  insanity. 

853.  Definition  of  epilepsy   726 

854.  A  disease  of  mam'  names 727 

855.  The  epileptic  fit  is  of  several  grades 728 

856.  The  physical  syinptoms  of  epilepsy  described 728 

857.  The  mental  sjTiiptoms 729 

85S.     The  symptoms  before  the  fit 729 

859.  Epileptic  automatism 730 

860.  Varieties  of  the  aura 730 

860i.  The  ocular  symptoms  in  epilepsy 731 

861.  The  mental  derangement  during  the  fit 731 

862.  Concealed,  or  masked,  ejiilepsy 732 

863.  The  mental  symptoms  following  the  fit 733 

864.  The  permanent  effects  of  epilepsy 733 

865.  The  epileptic  status  and  other  complications 734 

866.  The  causes  of  epilepsy   734 

U     The  medico-legal  aspects  or  epileptic  insanity. 

867.  Epilepsy  in  the  courts 735 

868.  Opposing  views 735 

869.  Criminal  epileptics  or  epileptic  criminals 735 

870.  Some  conditions  of  irresponsibility 736 

871.  States  of  mental  perversion   736 

872.  Psychical  epilepsy 737 

873.  The  minor  attacks   not  always,   but  sometimes,   dan- 

gerous    738 

874.  Consciousness  is  not  always  a  reliable  test 738 

875.  The  legal  presmnption  in  epilepsy 738 

876.  Epilepsy  raises  no  "immediate"  presumption 739 

877.  Why  the  defense  of  epilepsy  proves  weak 740 

878.  Epilepsy  may  be  a  good  defense 741 

879.  It  may  lower  the  grade  of  the  crime 741 

880.  The  frequency  of  epilepsy  in  criminals 742 

881.  The  courts  have  sustained  the  wills  of  epileptics 742 

881^.  The  marriage  of  epileptics    743 

882.  The  responsibility  of  epileptics  in  civil  matters 743 


xlii  CONTENTS. 

CHAPTER  XLII. 

GENEEAL  PARESIS. 

L    The  medtcai-  aspects  of  general  paresis. 

883.  Many  synonyms 745 

884.  Importiince  of  the  affection 746 

885.  The  history  of  general  paresis   746 

886.  It  is  an  extensive  subject 747 

887.  The  underlying  process   747 

888.  Syphilis  and  general  paresis 747 

889.  The  course  of  the  disease 748 

890.  The  four  stages  of  general  paresis 748 

891.  The  prodromal  stage    748 

S92.     The  second  stage   749 

893.  The  delusions  of  grandeur 750 

894.  The  sense  of  well-l>eing 751 

895.  The  physical  changes 751 

896.  The  third  stage   751 

897.  The  fourth  stage   752 

898.  Sex  and  race 752 

899.  Varieties  and  complications   753 

000.     Locomotor  ataxia  and  general  paresis 753 

901.  The  pathology  and  morbid  anatomy  753 

902.  Remissions  in  this  disease 753 

n.     The  medico -legal  aspects  of  general  paresis. 

903.  In  conflict  with  the  law 754 

904.  Crimes  inspired  by  delusions  of  grandeur 755 

905.  Thefts  by  general  paretics 755 

906.  Extravagance 75.'i 

907.  Stealing  as  a  morbid  act 75<i 

90S.     Cases  in  which  a  doubt  arises 756 

909.  The  case  of  Cochran  757 

910.  Other  crimes  committed  by  general  paretics 757 

911.  Imprudent  marriages 758 

912.  The  question  of  testamentary  capacity 758 

013.     Acts  of  violence 759 

914.  The  case  of  Sheriff  Rowan,  and  the  question  of  (avic 

capacity 760 

CHAPTEE  XLIII. 

SYPHILITIC  INSANITY. 

L    The  xiedical  aspects  of  syphilitic  insanity. 

915.  The  destructive  action  of  syphilis 762 

916.  Its  wide  extent  in  the  nervous  system 762 

917.  The  mental  symptoms   763 

918.  Syphilitic  dementia 763 

919.  The  resemblance  between  syphilitic  insanity  and  gen- 

eral paresis 764 


CONTENTS.  RJiu 

II.      The   MEOICO-LEGAL   ASPECTS  OF   SYPHILITIC  INSANITY. 

920.     These  are  such  as  arise  from  dementia  under  all  cir- 
cumstances       766 


CHAPTER  XLIV. 

ALCOHOLIC  INSANITY. 

L    The  medical  aspects  oi-  alcoholic  insanity. 

921.  The  poisonous  effects  of  alcohol   766 

922.  These  effects  are  acute  and  chronic 767 

923.  Simple  acute  poisoning   767 

924.  Delirium  trcjnens 767 

925.  The  sub-acute  insanity  of  some  habitual  drinkers.  .  .  .  768 

926.  Alcoholic  melancholia 769 

927.  Mania  a  j)otu  7GS> 

928.  The  chronic  effects    7G9 

929.  Chronic  alcoholic  insanity 770 

930.  Alcoholic  general  paresis  770 

931.  Epilepsy  in  alcoholism  771 

932.  Dipsomania 771 

933.  Alcoholic  dementia 772 

934.  The  pathology  and  morbid  anatomy  of  chronic  alcohol- 

ism    772 

n.    The  medico-legal  aspects  of  alcoholic  insanity. 

935.  Drunkenness ' 772 

936.  Is  drunkenness  a  crime 772 

937.  The  proper  medico-legal  question  is  whether  drunken- 

ness is  an  excuse  for  crime 773 

938.  Under  the  common  law 773 

939.  How  the  law  has  been  modified 774 

940.  The  difference  in  law  between  acute  and  chronic  alco- 

holism    774 

941.  The  courts  recognize  chronic  alcoholism  as  a  disease..  775 

942.  The  full  significance  of  the  princii^le 775 

943.  Drunkenness  and  irresponsibility 776 

944.  Drunkenness  destroys  responsibility  in  fact  if  not  in 

law 777 

945.  The  motive  of  the   law  in   holding   the  drimkard  ac- 

countable    777 

940.     A  modification  of  the  old  common-law  doctrine 778 

947.  The  rulings  in  American  courts 778 

948.  Drunkenness  may  reduce  the  grade  of  crime 779 

949.  A  departure  from  the  old  maxim 780 

950.  Degrees  of  drunkenness 780 

951.  Drunkenness  as  afTecting  civil  capacity 780 

962.     Testamentary  capacity  during  drunkenness 781 

952^.  The  commitment  of  chronic  inebriates 782 


xliT  CONTENTS. 

CHAPTER  XLV. 

ACUTE  DELIRIUM. 

L    The  medical  aspects  of  acute  delirium. 

953.     A  statement  of  the  disease 783 

054.     Its  history 784 

955.     A  severe  afTection 784 

950.     A  rapidly  fatal  disease  in  some  cases 784 

957.  The  cases  vary 785 

958.  Post-febrile  cases 786 

059.     A  fatal  case 786 

960.     A  second  fatal  case 787 

061.     A  post-maniacal  case 787 

902.     Menintfitis  present 787 

963.  No  one  theoiy  for  the  disease 788 

964.  Infection  is  prol)ably  a  cause 788 

965.  The  action  of  microbes 789 

,,  906.     Uniform  results  not  obtained 789 

n.    The  medico-legal  aspects  of  acute  delirium. 

967.     The  question  of  capacity  not  likely  to  arise 790 

1)68.     Many  grades  of  the  ail'ection 790 

CHAPTER  XLVI. 

SENILE  INSANITY. 

L    Medical  aspects  of  senile  insaniiy. 

909.     The  law  of  old  age   791 

970.  The  causes  of  senile  insanity 792 

971.  Weakness  is  the  characteristic  of  old  age 792 

972.  Old  age  em  a  cause  of  insanity 792 

973.  Senile  melancholia 793 

974.  Mania  in  old  age 794 

975.  Senile  dementia ; 794 

976.  Delusions  in  the  aged 794 

977.  Accidents   and  episodes 795 

978.  Alcoholism  and  drug  iiabits  in  old  age 795 

979.  The  completeness  of  the  destruction 796 

980.  Stages  and  varieties 796 

n.    The  meuico-llgal  aspects  of  senile  insanity. 

981.  Senile  dementia  and  the  law 797 

982.  A  senile  dement  not  a  lunatic 798 

983.  A  senile  dement  is  "non  compos  mentis" 798 

984.  The  scientific  conception  of  senile  insanity 799 

985.  The  law  now  takes  the  scientific  view 799 

980.     Criminal  acts  by  senile  patients 799 

987.  Senile   insanity  in  civil   oases 800 

988.  How  diderences  of  opinion  arise 800 

989.  The  presumption  of  sanity  in  senile  cases 801 

990.  Lucid  intervals  in  senile  insanity 802 

991.  The  definition  of  a  "sound  and  disposing  mind," 802 


CONTENTS.  xlv 

092.     In   respect  to   testamentary   capacity,   the   mind   of   a 

senile  dement  may  be  impaired  in  several  ways 80;{ 

993.  Undue  inllucnce 803 

994.  There  can  be  no  uniform  test  for  genile  insanity 804 

995.  Contracts  and  legal  papers  other  than  wills 804 

99G.     Different  kinds  of  capacity 804 

997.  A  favorite   rule 805 

CHAPTER  XLVII. 

APHASIA. 

I.  The  medical  aspects  of  aphasia. 

998.  Definition  of  the  term 806 

999.  Tlic  function  of  speech  analyzed 807 

1000.  Historical  data , 808 

1001.  Various  forms  of  aphasia 808 

1002.  The  function  of  hearing  in  the  acquisition  of  language.  803 

1003.  The  function  of  speaking 809 

1004.  The  function  of  seeinsj  in  the  acquisition  of  language.  809 

1005.  The  function  of  writing 809 

lOOG.     The  fourfold  faculty  of  language 809 

1007.  The  principal  varieties  of  aphasia 810 

1007a.     Motor  aphasia 810 

1007b.     Auditory  aphasia,  or  word-deafness 811 

1007c.     Visual  aphasia,  or  word-blindness 811 

1007d.     Agraphia 811 

1008.  The  facts  needful  for  the  medical  jurist 812 

1009.  The  dependence  of  thought  on  language 812 

1010.  Words  as  symbols  of  things 813 

1011.  The  diseases  which  cause  aphasia 814 

II.  The  medico-i.egal  aspects  of  aphasia. 

1012.  Testamentary  capacity  in  cases  of  aphasia 814 

1013.  The  impairment  in  motor  aphasia 815 

1014.  Tlie  impairment  in  auditory  aphasia 816 

1015.  The  impairment  in  verbal  blindness,  or  visual  aphasia  817 

1016.  The  impairment  in  agraphia 817 

1017.  The  frequency  of  these  cases  in  the  courts 817 

1018.  The  Parish  will  case  and  the  ojius  prohandi 818 

1019.  Tlie  issue  briefly  stated 818 

CHAPTER  XLVIII. 

PARANOIA. 

I.    The  medical  aspects  of  paranoia. 

1020.  Delinition 821 

1021.  Systematized   and   fixed   delusions 821 

1022.  The  terms  "paranoia"  and  "monomania" 821 

1023.  Monomania  and  partial  insanity   822 

1024.  The  two  kinds  of  systematized  delusions 822 

1025.  The  distinction  between  paranoia    and    melancholia  . . .  823 


xlvi  CONTENTS. 

1026.  Delusions  of  persecution   824 

1027.  Delusions  of  grandeur 824 

1028.  Systematized  delusion  made  the  criterion  of  monomania  825 

1029.  Degeneration 826 

1030.  The  stigmata  of  degeneration 826 

1031.  Paranoia  has  several  stages 827 

1031a.     The  first  stage 827 

1031b.     The  second  stage,  or  stage  of  persecution. .  . .  828 

1031c.     The  third  stage,  or  stage  of  grandeur 828 

1032.  Paranoia  is  a  primary  affection 829 

1033.  Various  forms  of  paranoia 829 

1034.  Common  types  of  the  disease 830 

1035.  The  persecutory  form  is  the  most  dangerous 830 

1036.  Hallucinations  in  paranoia 831 

1037.  The  religious  paranoiacs 831 

1038.  Insane  inventors  832 

1039.  The  erotomaniacs 833 

n.     The  jieuico-legal  asx-ects  of  paranoia. 

1040.  Criminal  paranoiacs 833 

1041.  Sir  Matthew  Hale's  "partial  insanity  " 834 

1042.  Abuse  of  the  term  "partial  insanity"   834 

1043.  Delusion  as  a  test  for  insanity 835 

1044.  The  test  of  delusion  defined 836 

1045.  The  connection  of  the  delusion  with  the  act 836 

1046.  Delusions  to  be  judged  as  though  tliey  were  real 838 

1047.  The  knowledge  of  right  and  wrong 838 

1048.  A  clear  statement  of  the  rule 839 

1049.  The  rule  not  logically  enforced 839 

1050.  The  distinction  between  delusion  and  erroneous  belief  840 

1051.  The  defense  of  insanity  resented  by  the  prisoner.' 840 

in.      MOBAL  INSANITY. 

1052.  This  term  is  not  to  be  taken  too  literally 841 

1053.  A  faulty  term 842 

1054.  Moral  insanity  is  not  to  be  despised 842 

1055.  Confusion  among  those  who  describe  this  affection. .  . .  843 
1050.     Diiiiculties  of  the  subject 843 

1057.  The    criminal  degenerates 844 

1058.  Moral  insanity  has  been  recognized  in  a  few  courts. . . .  84P 

CHAPTEE  XLIX. 

DEMENTIA  PRECOX. 

L    The  medical  aspects  of  demextia  pb/ECOx. 

1059.  Definition 846 

1060.  The  idea?  underlying  this  term 847 

1061.  History  of  this  tenn 847 

1062.  The  causes 848 

1063.  An  objection  to  this  term 849 

1064.  Hebephrenia ^50 


CONTENTS.  xlvii 

1065.     Katatonia 851 

lOGG.     The  paranoid  form 851 

1067.  A  criticism  of  terms 852 

1068.  Juvenile  insanity  not  always  incurable 852 

II.    The  mkuico-legal  aspects  of  dementia  precox. 

1U(j9.     Juvenile  insanity  and  juvenile  crime 853 

1070.  Simulation  in  these  cases 854 

107 1.  Grave  problems  may  arise 854 

1072.  Crimes  committed  by  juvenile  paranoiacs 855 

CHAPTER  L. 

IDIOCY. 
I.    The  medical  aspects  of  idiocy. 

^  1073.     The  distinction  between  idiocy  and  insanity 857 

1074.  The  definition  of  idiocy  and  imbecility 858 

1075.  Malformation  of  the  brain 858 

1070.     The  vari.ous  kinds  of  idiocy 858 

1077.  The  intelligence  always  involved  in  idiocy 8.")!> 

1078.  The  other  mental   faculties  involved 860 

1079.  The  moral  faculties  also  involved   860 

lOSO.     The  moral  imbeciles 861 

1081.     The  epileptic  idiots   862 

10S2.     The  pathology  and  morbid  anatomy  of  idiocy 862 

II.    The  medico-legal  aspects  of  idiocy. 

1083.  Ancient  laws  on  defective  children 802 

1084.  The  statute  De  Prerogativa  Regis 864 

1085.  Hardship  and  confusion  caused  by  the  old  law 864 

1086.  The  deaf  and  dumb  were  regarded  as  idiots 865 

1087.  No   scientific  test   for  idiocy 865 

1088.  The  presumption  of  law  in  cases  of  idiocy 865 

1089.  The  rights  and  responsibilities  of  idiots 866 

1090.  The  marriage  of  imbeciles 866 

1091.  Testamentary  capacity 868 

1092.  Capacity  in  civil  matters 869 

1093.  Responsibility  in  criminal  matters 809 

III.    The  deaf  and  dumb. 

1094.  The  civil  Jaw  on  deaf-mutism 870 

1095.  The  legal  presumption  in  deaf-mutism 870 

1090.     An  error  to  be  avoided 871 

1097.  The  mental  capacity  of  deaf-mutes  varies 871 

1098.  Deeds  and  wills  by  deaf-mutes 872 

1099.  The  marriage  of  deaf-mutes 872 

1100.  Deaf-mutes  as  witnesses 872 

1101.  The  legal  presumption  of  sanity  in  deaf-mutes 873 

1102.  The    distinction    between    deaf-mutism    and    acquired 

deafness 873 

1103.  Standing  mute 873 


xlviii  CONTENTS. 

CHAPTER  LI. 

NARCOMANIA. 

1 1 04.  Meaning  of  the  terra 874 

1.      The  MEt'lCAL  ASPECTS  OF  THE  OPIUM  HABIT. 

1105.  Some  historical   data 875 

HOG.     The  peculiar  features  of  morphinism 876 

1107.  The  various  form  of  the  opium  habit 876 

1108.  The  opium  habit  becomes  a  disease 877 

1109.  The  physiological  action  of  opium 877 

1110.  The  chronic  eU'ects  of  the  drug 877 

1111.  Moral  perversions 878 

1112.  The  narcomaniac's  unreal  world 879 

1113.  The  mental  changes 879 

II.     The  medico-legal  aspects  of  the  opium  hawt. 

1114.  Crimes  by  narcomaniacs 880 

1115.  Medico-legal   cases  not   numerous 882 

III.  The  medical  aspects  of  the  cocain  habit. 

1  ]  16.     The  abuse  of  coca  and  cocain 883 

1117.  Cocain  is  a  powerful  poison  to  the  nervous  system. . .  .  883 

1118.  The  tragic  history  of  the  all-round  victims  of  drugs..  884 

1119.  The  symptoms  of  cocain  poisoning 885 

1120.  Various  forms  of  the  disorder 885 

1121.  Cocomania  is  a  form  of  insanity 880 

IV.  The  iiEDico-LEGAL  aspects  of  the  cocaix  habit. 

1122.  The   cocomaniac  not   responsible 886 

1123.  The  great  danger  from  the  cocomaniac  is  violence 887 

V.     The  chloral  akd  other  drug  habits. 

1124.  These  drug  habits  are  various 887 

1125.  More  than  one  drue  used  by  the  patient 887 

CHAPTER  LIT. 

COJVniUNICATED  INSANITY. 

1126.  insanity  transferred  from  one  person  to  another 888 

1127.  Mental  contagion 888 

1128.  Comniunioated  insanity  is  practically  always  a  delu- 

sional insanity,  or  a  paranoia 889 

1 129.  A  case  in  three  sisters 889 

1130.  Insanity  in  twins 890 

CHAPTER  LIII. 

SIZHULATED  INSANITY. 

1131.  Popular  errors  on  this  subject • , , . .  891 

1132.  Historic  instances 891 

1133.  The  simiilation  of  insanity  is  not  common 892 

1134.  Neither  is  the  simulation  of  insanity  easy 892 

'  1135.     Motives   for   simulation 893 


CONTENTS.  Stlix 

113G.     The  mode  of  onset  is  to  be  scrutinized  carefully  in  such 

cases 894 

1137.  Overacting  the  part 894 

1138.  Dementia  is  commonly  simulated 894 

1139.  Loss  of  memory  is  not  unfrequcntly  feigned  by  crimi- 

nals   895 

1140.  The  simulation  of  mania 895 

1141.  Violent  conduct 896 

1142.  The  simulation  of  epilepsy 896 

1143.  Injurious  effects   of  feigning 897 

CHAPTER    LIV. 

SOMNAMBULISM. 
1.     Thk  mf;d]cal  aspects  ov  som.vambulism. 

1144.  A  definition  of  this  disorder 898 

1145.  Unconsciousness  in  somnambulism 898 

1146.  The  self-absorption  of  the  sleep-walker 899 

.  '  1 147.     Two  kinds  of  somnambulism 899 

1148.  Somnambulism  and  hypnotism 900 

1149.  The  influence  of  suggestion 901 

1150.  Somnambulism  and  epilepsy 901 

II.     The  medico-legal  aspects  of  somnambulism. 

1151.  Somnambulism  not  usually  described  as  an  insanity..  901 

1152.  Somnambulism  and  hypnotism  as  medico-legal  topics..  901 

1153.  Responsibility  in  somnambulism 902 

1154.  The  case  of  Fraser 903 

1155.  Is   somnambulism   technical  insanity    904 

115G.     Somnambulism  is  a  form  of  insanity 904 

1157.     The  possibility  of  epilepsy  being  confounded  with  som- 
nambulism    905 

1j5S.     Sexual  assaults  on  somnambulists  and  by  somnambu- 
lists    905 

1159.  Somnambulism   and   divorce 905 

1160.  Trespass  by  the  sleep-walker 905 

1161.  Somnambulism  and  life  insurance 905 

1162.  Somnolentia 906 

1163.  Somnolentia  as  an  excuse  for  homicide 906 

CHAPTER  LV. 

WILLS. 

1164.  An   artificial   right 908 

1165.  Historical  data 909 

1166.  Legal  presumptions 910 

1167.  The  onus  probnndi 910 

1 168.  The  witnesses  to  the  will 911 

1169.  Inconsistency  as  to  the  onus  prohandi 912 

1170.  The  ]iresumplion  of  sanity 912 

Vol.  I.  Med.  Jlr. — iii. 


CONTENTS. 

1171.  The  presumption  that  insanity  continues 914 

1172.  The  presumption  as  to  lucid  intervals 914 

1173.  Presumption  is  not  proof 915 

1174.  Presumptions  in  science 915 

11 75.  A  reasonable  will 916 

1176.  Testamentary  capacity  a  broad  and  difficult  subject.  . .  917 

1177.  Some  reasons  for  the  difficulty 917 

1178.  The  distinction  between  civil  and  criminal  cases 91S 

1179.  The  old  opinion  that  delusion  invalidates  a  will 91!> 

1180.  The  influence  of  the  criminal  law 920 

1181.  The  connection  of  the  delusion  with  the  will 920 

1182.  The  law  as  now  generally  accepted 921 

1183.  Delusion  as  the  only  criterion  of  insanity 922 

1184.  Testamentary  capacity  as  affected  by  delirium 923 

1185.  Testamentary  capacity  as  affected  by  imbecility 924 

1186.  Testamentary  capacity  and  epilepsy   92-1 

1187.  Testamentary  capacity  and  suicide 92.") 

IISS.  Testamentary  capacity  as  affected  by  moral  insanity.  .  92") 

1189.  Insane  jealousy  as  proof  of  delusion 92u 

1190.  Testamentary  capacity  in  old  age 927 

1190i.  Undue  intiuence 928 

1191.  A  sound  and  disposing  mind  and  memory 92n 

1192.  The  legal  definition  of  a  sound  and  disposing  mind.  .  .  .  930 

1193.  A  scientific  definition  of  testamentary  capacity  not  pos- 

sible    930 

1194.  Evidence  of  testamentary  capacity 931 

CHAPTER  LVI. 

THE  CONTRACTS  AND  TOUTS  OF  THE  INSANE. 

CONTKACTS. 

1195.  The  ancient  law   93."> 

1196.  The  doctrine  of  nonstultification 934 

1197.  This  doctrine  criticized 934 

1198.  The  contracts  of  lunatics  not  always  void 934 

1199.  A  lunatic  can  contract  for  necessaries 935 

1200.  An  exception  based  on  the  doctrine  of  torts 935 

1201.  The  real  question  is  often  one  of  capacity 93(> 

1202.  The  question  of  fraud 937 

1203.  The   modern   view 938 

1204.  The  test  of  capacity 938 

1205.  Drunkenness  avoids  a  contract 939 

1206.  The  conveyances  of  the  insane 940 

1207.  The  proof  of  unsound  mind  in  such  cases 940 

1208.  The  finding  of  a  conunission  is  only  prima  facie  evi- 

dence    940 


II.     TOBTS. 


1209.  By  law  a  lunatic  is  liable  for  his  torts 942 

1210.  The  principle  underlying  this  law 943 


CONTENTS.  li 

1211.  Illustrative  cases 94.'} 

1212.  Slander  is  an  exception 944 

CHAPTER  LVIL 

THE  TRIAL  OF  THE  INSANE  FOR  CRIMES. 

I.    In  generat,. 

1213.  The  humane  principles  of  the  common  law 945 

1214.  An  insane  person  is  exempt  from  trial 946 

1215.  Methods   for  determining  the  question 948 

1210.     Statutory  law  on  the  subject 948 

1217.  No  certainty  about  the  application  of  these  laws 948 

1218.  The  proper  test  of  insanity  in  these  cases 949 

1219.  The  proper  question  to  be  tried 950 

1220.  Insanity  pleaded  in  bar  of  sentence 951 

1221.  A  new  trial  may  be  granted  because  of  present  insanity  951 

1222.  Insanity  acts  to  stay  execution 952 

1223.  Druni^enness  exempts  a  man  from  trial 952 

1224.  The  exercise  of  judicial  discretion 952 

1225.  A  preliminary  trial  is  not  an  inalienable  right 953 

IT.    The  old  rule  denyinq  coiinsfx  to  a  pkisoneb  on  trial  for  his  life. 

1226.  A  matter  of  historic  interest 954 

ill.     Expert  testimony. 

1227.  A  dilficult  problem 956 

1228.  Truth  may  be  elusive 957 

1229.  The  province  of  an  expert  witness 958 

1230.  The  uncertainty  of  expert  testimony 959 

1231.  The  ethics  of  the  subject  959 

1232.  Proposed  remedies 960 

1233.  Memoranda  for  experts    960 

CHAPTER  LVIII. 

THE  EXAMINATION  AND  CERTIFICATION  OF  THE  INSANTl. 

I.     In  genekal. 

1234.  The  precautions  of  the  law 962 

1235.  The  old  method  by  inquisition 962 

1230.     The  modern  method  by  certification 964 

1236i.  The  certification  of  habitual  drunkards 965 

II.    Duties  of  rnvsiciANs  with  reference  to  certifying  insanity. 

1237.  The  responsibility  of  physicians 965 

1238.  Details  of  tlie  legal  requirements 966 

1239.  The   grounds    for   certification    967 

1240.  Concealed  insanity 967 

HL    The  liabilities  of  physicians. 

1241.  Negligence 968 

1242.  Conspiracy 969 

1243.  Trespass  and  malicious  arrest 970 

1244.  A  certificate  of  insanity  is  merely  a  written  opinion.  .  970 


li;.  CONTENTS. 

1245.  The  legal  status  of  a  certificate 971 

1246.  A  certificate  may  be  a  libel 971 

1247.  The  power  to  detain  aud  to  discharge 971 

124S.     Habeas  corpus ; 972 

CHAPTEK  LIX. 

PARTIAL  RESPONSIBILITY  IN  THE  INSANE. 

124S^.  This  doctrine  has  usually  been  denied  in  law 97S 

1249.  But  it  has  also  been  recognized 974 

1250.  Nothing  unreasonable  in  such  a  doctrine 974 

1251.  The  courts  not  always  agreed 974 

1252.  Degrees  of  guilt  in  crime  and  in  disease 975 

1253.  Guilt  modified  by  age 97<i 

12532.  Guilt  modified  by  alcoholism   970 

1254.  The  degrees  of  murder 970 

1255.  The  meaning  of  "'premeditation," 977 

1256.  Alienists  as  well  as  lawyers  oppose  the  doctrine 978. 

1257.  As  to  monomania 979 

1258.  The  boundaries  of  insanity  not  easily  settled 979 

1259.  Not  a  purely  speculative  question 979 


TABLE  OF  CASES  CITED. 


Abbot  V.  Plumbe,  1  Doiig-l.  216 452 

Abbott  V.  Com.  107  Ky.  024,  55  S.  W.  196..   .175.   1S5,   108,  .310,  375,  403,  419 

Abraham  v.  Wilkins,  17  Ark.  292 00,  09,  77,  420,  446 

Accident  Ins.  Co.  v.  Crandal,  120  U.  S.  527,  30  L.  ed.   740,  7  Sup.  Ct.  Rep.  685  260 

Achey  v.  Stephens,  8  Ind.  411 32,  321,  324,  337,  339,  341 

Adams  v.  Citizens'  State  Bank,  70  Ind.  89 302 

V.  State,  34  Tex.  Crim.  Rep.  470,  31  S.  W.  372 419,  421,  4.34 

Adamson  v.  Smith,  2  Mill,  Const.  269,  12  Am.  Dec.  665 296 

Addington  v.  Wilson,  5  Ind.  137,  61  Am.  Dee.  SI 89,  108,  109 

Adkins  v.  Columbia  L.  Ins.  Co.  70  Mo.  27,  35  Am.  Rep.  410 265 

Adler  v.  State,  35  Ark.  517,  37  Am.  Rep.  48 209,  219,  304 

.4i:tna  L.  Ins.  Co.  v.  Davey,  123  U.  S.  739,  31  L.  ed.  315,  8  Sup.  Ct.  Rep. 

331 270,  271,  272 

V.  Deming,  123  Ind.  384,  24  N.  E.  86 271,  272,  375 

V.  Hanna,  81  Tex.  487,  17  S.  W.  35 274 

V.  Sellers,  154  Ind.  370,  77  Am.  St.  Rep.  481,  56  N.  E.  97 7 

Aikin  v.  Wcckerley,  19  Mich.  482 65,  70,  71,  115,  330.  331,  ,345 

Airaan  v.  Stout,  42  Pa.  114 5,  14,  37,  456 

Alcock  V.  Royal  Exchange  Assurance,  13  Q.  B.  292 390 

Aldrich  v.  Alameda  County,  120  Cal.  140,  52  Pac.  148 171 

V.  Bailey,  132  N.  Y.  85,  30  N.  E.  264 13,  21 

Alexander,  Re,  27  N.  J.  Eq.  463 1 15 

V.  Alexander,  5  Ala.  517 100 

Alger  V.  Lowell,  3  Allen,  402 281,  290 

Alleman  v.  Stepp,  52  Iowa,  020,  35  Am.  Rep.  288,  3  N.  W.  036 313 

Allen  V.  Allen,  31  Mo.  479 60 

V.  Berryhill,  27  Iowa,  540,  1  Am.  Rep.  309 32 

V.  Griffin,  09  Wis.  529,  35  N.  W.  21 328,  331 

V.  Public  Administrator,   1   Bradf.  378 100,  328,  394 

V.  State,  60  Ala.  19 308 

Allis  V.  Billings,  0  Met.  415,  39  Am.  Dec.  744 7,  10 

V.  Moore,  2  Allen,  306 296 

Allison,  Re,  35  N.  Y.  S.  R.  323,  12  N.  Y.  Supp.  324 141 

V.  Allison,  7   Dana,  94 136 

V.  Allison,  46  111.  61,  92  Am.  Dec.  237 102,  448,  449 

V.  Taylor,  6  Dana,  87,  32  Am.  Dec.  68 299,  303,  304 

Allmon  V.  Pigg,  82  111.  149.  25  Am.  Rep.  303 91 

liii 


liv  .     TABLE  Oy  CASES  CITED. 

AUore  v.  Jewell,  94  U.  S.  506,  24  L.  ed.  260 18,  20,  299 

Alston  V.  Boyd,  6  Humph.  504 16 

V.  Jones,    17   Barb.   276 1 12 

Alvord  V.  Alvord,  109  Iowa,  113,  80  N.  W.  306 154,  418,  432 

American  Bible  Soc.  v.  Price,  115  111.  623,  5  N.  E.  126 81,  82,  88,  99,  107, 

420,  421 

American  L.  Ins.  Co.  v.  Isett,  74  Pa.  176   263,  264 

American  Seamen's  Friend  Soc.  v.  Hopper,  33  N.  Y.  619 73,  81,  86 

American  Trust  &  Bkg.  Co.  v.  Boone,  102  Ga.  202,  40  L.  R.  A.  250,  06  Am. 

St.  Rep.  167,  29  S.  E.  182 157 

Ames,  Re,  51  Iowa,  596,  2  N.  W.  408 129,  369 

Ames's  Will,  40  Or.  495,  67  Pac.  737 72,  75,  83,  88,  15S 

Anderson,  Re,  132  N.  C.  243,  43  S.  E.  649 148 

V.  Burrows,  4  Car.  &  P.  210 169 

V.  Chicago,  St.  P.   M.  &  0.  R.  Co.  87  Wis.  195,  23  L.  R.  A.  203,  58  N. 

W.  79  .  .  . 284 

V.  Cranmer,  11  W.  Va.  562 15,  33,  321,  324,  338,  418,  423 

V.  Irwin,  101  111.  411 332 

V.  State,  43  Conn.  514,  21  Am.  Rep.  669 180,  195,  203,  204 

V.  State,  42  Ga.  9 185,  201,  203,  215,  352,  407 

V.  State,  25  Neb.  550,  41  N.  W.  357 176,  185,  188 

Andress  v.  Weller,  3  N.  J.  Eq.  604 69,  75,  87,  94,  95,  120,  357,  35S 

Andrews,  Re,  33  N.  J.  Eq.  514 413 

V.  Black,  43  111.  250 44S 

Angell  V.  Probate  Court,  11  R.  I.  187 14s 

Angel  Will  Case,  29  Am.  Jour,  of  Insanity 145,  82 

Anna,  The,  47  Fed.  525 29(i 

Anonymous,  4  Pick.  32 40,  43,  44,  47 

2  Kay  &  J.  441 22 

17  Abb.  N.  C.  231 59 

Anthony  v.  Hutchins,  10  R.  I.  165 14,  17 

Apland  v.  Pott  (S.  D.)  92  N.  W.  19 35,  428 

Appleby  v.  Brock,  70  Mo.  314. 422,  432,  43.3,  434,  458 

Arbery  v.  Ashe,  1  Hagg.  Eccl.  Rep.  214 117 

Argo  V.  Coffin,  142  111.  368,  34  Am.  St.  Rep.  86,  32  N.  E.  679 35,  320,  323 

Armor  v.  State,  63  Ala.  176 241,  244,  460 

Armor's  Estate,  154  Pa,  517,  26  Atl.  619 90 

Armstrong  v.  Farrar,  8  Mo.  627 368,  370 

V.  Short,  8  N.  C.    (1  Hawks)    11 154,  156 

V.  State,  30  Fla.  170,  17  L.  R.  A.  484,  11  So.  018.  .222,  327,  337,  343, 

3.V2,  35.3,  354,  355,  417,  419,  442 

V.  Timmons,  3  Harr.   (Del.)   343 308,  309,  310,  313 

Arnett  v.  Owens,  23  Ky.  L.  Rep.  1409,  65  S.  W.  151 7 

Arnhout,  Re,  1  Paige,  497 162 

Arnold,  Re,  14  Hun,  525 409,  437 

V.  Hickman,  6  Munf.  15 27 

V.  Richmond  Iron  Works,  1  Gray,  434 10,  940 

V.  Townsend,   14   Phila.   216 159,  869 

Arnold  Case.     See  Rex  v.  Arnold. 

Arrington  v.  Arrington,  32  Ark.  674 144 


TABLE  OF  CASES  CITED.  Iv 

Artrip  V.  Rasnake,  96  Va.  277,  31  S.  E.  4 34 

Asbury  v.  Frisz,  148  Ind.  513,  47  N.  E.  328 .* 33,  146,  296 

Ash  V.  Conyers,  2  Miles  ( Pa.)  94 303 

Ash's  Case,  Freem.  Ch.  259 41,42,  171 

Ashcraft  v.  De  Armond,  44  Iowa,  229 10,  3G1,  362,  363,  383 

Ashworth  v.  McNamee  (Colo.  App.)  70  Pae.  156 103 

Aszman  v.  State,  123  Ind.  347,  8  L.  P.  A.  33,  24  N.  E.  123 177 

181,  236,  237,  243,  246,  248,  249 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Weber,  33  Kan.  543,  52  Am.  Rep.  543,  6  Pac.  877  286 

xUkins  V.  Sanger,  1  Pick.  192 369 

Atkinson,  Ex  parte,  Jac.  333 151 

V.  Medford,  46  Me.  510 40,  43 

Atty.  Gen.  v.  Parnther,  3  Pro.  Ch.  441....  11,  134,  13.5,  323,  337,  379,  498,  916 

Atwood  V.  Smith,  1 1  Ala.  894 152 

Aubert  V.  Aubert,  6  La.  Ann.  104 11,  68,  133,  381 

Audenreid's  Appeal,  89  Pa.  114,  33  Am.  Rep.  731 92 

Aurentz  v.  Anderson,  3  Pittsb.  310 11,  338,  340,  344 

Aurora  v.  Hillnian,  90  111.  61 287,  290,  460 

Austen  v.  Graham,  29  Eng.  L.  &  Eq.  Rep.  38,  8  Moore  P.  C.  C.  493 100,  108 

Austin  V.  Willis,  Bull.  N.  P.  264 452 

Avery  v.  Avery,  33  Kan.  1,  52  Am.  Rop.  523,  5  Pac.  418 53 

Aylward  v.  Briggs,  145  Mo.  604,  47  S.  W.  510 129 

Ayres  v.  Ayres,  43  N.  J.  Eq.  565,  12  Atl.  621 130 

v.  State  (Tex.  Crim.  App.)   26  S.  AV.  396 246,  248,  251 

Ayrey  v.  Hill,  2  Addaras  Ecel.  Rep.  206 94,  95,  96,  120,  134 


Bacoigalupo  v.  Com.  33  Gratt.  807,  36  Am.  Rep.  795 326,  347,  348 

Bachmeyer  v.  Mutual  Reserve  Fund  Life  Asso.  87  Wis.  328,  58  N.  W.  399.  .266 

269,  336,  345 

V.  Mutual  Reserve  Fund  Life  Asso.  82  Wis.  255,  52  N.  W.  101 ..  .  .265,  268 

Bacon  v.  Bacon,  76  Miss.  458,  24  So.  968 169,  970 

V.  New  England  Order  of  Protection,  123  Fed.  152 270,  272 

Bageard  v.  Consolidated  Traction  Co.  64  N.  J.  L.  316,  49  L.  R.  A.  425,  81 

Am.  St.  Rep.  498,  45  Atl.  620 280 

Bagshaw  v.   Parker,   10  Beav.  532 22 

Bagster  Case,  Ray,  Med.  Jur.  Insanity,  5th  ed.  p.  108 867 

Bailey,  Re,  7  Jur.  N.  S.  712 115 

V.  Harvey,  60  N.  H.  152 316 

V.  State,  26  Ind.  422 230,  231,  232 

Baker  v.  Baker,  202  111.  .595,  67  N.  E.  410.  .127,  329,  331,  345,  371,  433,  443,  444 

V.  Baker,  82  Ind.  146 51,  53 

V.  Baker,  L.  R.  5  Prob.  Div.  142,  49  L.  J.  Prob.  N.  S.  49,  42  L.  T.  N.  S. 
332,  28  Week.  Rep.  630,  Affirmed  in  L.  R.  6  Prob.  Div.  12;  49  L. 

J.  Prob.  N.  S.  83 31,  52,  55 

V.  Cartwright,  10  C.  B.  N.  S.  124,  30  L.  J.  C.  P.  364,  7  Jur.  N.  S.  1247  47 

V.  lewis,  4  Rawle,  356 93,  111 

Baldrick  v.  Garvey,  66  Iowa,  16,  23  N.  W.  156 37 


Ivi  TABLE  OF  CASES  CITED. 

Baldwin,  Re,  13  Wash.  666,  43  Pac.  934 331 

V.  Dunton,   40   111.    188*. 4,  12,  10 

V.  Parker,  99  Mass.  79,  96  Am.  Dec.  G97 90,  94 

V.  State,  12  Mo.  223 199,  348,  430,  439 

V.  State,  15  Tex.  App.  275 206,  207 

Baldwin's  Appeal,  44  Conn.  37 461 

Ball  V.  Com.  81  Ky.  662 349 

V.  Kane,  1  Penn.  (Del.)  90,  39  Atl.  778 69,  94,  337,  449 

V.  Mannin,  3  Bligh  N.  R.  1,  1  Dow.  &  C.  880 5,  13 

Ball's  Case,  2  N.  Y.  City  Hall  Rec.  85 223 

Ballantinc  v.  Proiidfoot,  62  Wis.  216,  22  N.  W.  392 82 

Ballard  v.  State,  19  Neb.  610,  28  N.  W.  271 326,  353,  400,  402 

Ballew  V.  Clark,  24  N.  C.  (2  Ired.  L.)  23 324,  337,  338 

Baltimore  &  0.  R.  Co.  v.  Boteler,  38  Md.  568 281,  288,  388 

V.  Henthorne,  19  C.  C.  A.  623,  43  U.  S.  App.  113,  73  Fed.  634 279,  388 

V.  State,  81  Md.  371,  32  Atl.  201 281,  283 

Banker  v.  Banker,  63  N.  Y.  409 40,  42,  44,  47,  50,  158,  159 

Bank  of  Oil  City  v.  Guardian  Mut.  L.  Ins.  Co.  6  Legal  Gaz.  348,  5  Bigelow, 

Life  Ins.  &  Acci.  Rep.  478 266 

Banks  v.  Goodfellow,  22  L.  T.  N.  S.  813,  L.  R.  5  Q.  B.  549,  39  L.  J.  Q.  B.  N.  S. 

237,.  .  .  15,  16,  72,  78,  79,  82,  83,  85,  98,  114,  118,  .329,  801,  917.  921,  931 
Bannatyne  v.  Bannatyne,  14  Eng.  L.  &  Eq.  Rep.  581,  16  Jur.  864,    2    Rob. 

Eccl.  Rep.  472 11,  65,  135,  156,  160,  333 

Bannister  v.  Jackson,  45  N.  J.  Eq.  702,  17  Atl.  692 95,  120,  358 

Baranoski's  Case,  9  Pa.  Co.  Ct.  264 220 

Barber  v.  Barber,  74  Iowa,  301,  37  N.  W.  381 42 

V.  Barber  (Conn.)   14  Law  Rep.  375 57 

Barber's  Appeal,  63  Conn.  393,  22  L.  R.  A.  90,  27  Atl.  973.  .  .  .327,  330.  331, 

332,  345,  346,  400,  402,  405 

Barbinoau.  Re,  27  Misc.  417,  59  N.  Y.  Supp.  375 132 

Barbo  V.  Rider,  67  Wis.  598,  31  K  W\  155 153 

Barker,  Re,  2  Johns.  Ch.  232 149,  150 

V.  Comins,  110  Mass.  477 73,  110,  330,  332,  364,  374,  423 

V.  Northern  P.  R.  Co.  65  Fed.  460 ; 5 

V.  Pope,  91  N.  C.  165 383,  420 

V.  Savage,  1  Sweeney,  288 316,  388 

Barnes  v.  Barnes,  66  Me.  286 .- 67,  90,  93,  123,  330 

Barnett  v.  Barnett,  54  N.  C.  (1  Jones,  Eq.)  221 323,  871,  872 

Barney  v.  Dimmitt,  Wright   (Ohio)   44 30 

Barnhardt  v.  Smith,  86  N.  C.  473 69,  75 

Barnsley,  Ex  parte,  3  Atk.  168 147,  487,  488,  797,  798 

Barr's  Case,  Am.  Joiirn.  Ins.  Vol.  XXXV.  p.  411 896 

Barrett  v.  Buxton,  2  Aik.  (Vt.)   167,  16  Am.  Dec.  691 26,  29,  96,  781,  940 

Barry  v.  Butlin,  1  Curt.  Eccl.  Rep.  631 92,  125,  333,  819,  911 

V.  Butlin,  2  Moore  P.  C.  C.  482 105,  124 

Bartee  v.  Thompson,  S  Baxt.  508 328,  329,  334 

Bartholick,  Re,  1  Connoly,  373,  5  N.  Y.  Supp.  842 117,  128 

Bartholomew  v.  People,  104  111.  605,  44  Am.  Rep.  97 239,  242,  255 

Barton  v.  Robins,  3  Phillim.  Eccl.  Rep.  442,  note 127 

Batchelder  v.  Batchelder,  14  N.  H.  380 56,  57 


TABLE  OF  CASES  CITED.  Ivii 

Bateman's  Case,  4  Harg.  St.  Tr.  206 054 

Bates  V.  Ball,  72  111.  108 24,  27 

V.  Bates,  27  Iowa,  110,  1  Am.  Rep.  260 ... , 366 

V.  HyKian  (Miss.)  28  So.  567 .• 8 

Battle  V.  State,  105  Ga.  703,  32  S.  E.  100 433,  443 

Baughman  v.  Baughman,  32  Kan.  538,  4  Pac.  1003 43,  44,  46,  322,  325,  419,  421 

Baughn  v.  State,  100  Ga.  554,  38  L.  R.  A.  577,  28  S.  E.  68,  Affirmed  in  168 

U.  S.  398,  42  L.  ed.  515,  18  Sup.  Ct.  Rep.  87 218,  219,  952 

Baumgarden  v.  Langles,  35  La.  Ann.  441 32 

Bawden  v.  Bawden,  2  Swabey  &  T.  417,  31  L.  J.  Prob.  N.  S.  94,  8  Jur.  N.  S. 

157,  6  L.  T.  N.  S.  27,  10  Week.  Rep.  292 55 

Baxter  v.  Abbott,  7  Gray,  71 102,  330,  381,  392,  .395,  403,  448,  452,  912 

V.  Baxter,  76  Hun,  98,  27  N.  Y.  Supp.  834 38 

V.  Portsmouth,  5  Barn.  &  C.  170,  2  Car.  &  P.  178,  7  Dowl.  &  R.  614 

10,  154,  160,  935 

Beach,  Re,  23  App.  Div.  411,  48  N.  Y.  Supp.  437. 88,  89,  149 

Beall  V.  Cunnin-'iam,  1  B.  Mon.  399 370 

Beals  V.  See,  10  Pa.  56,  49  Am.  Dec.  573 8,  17,  936 

Bean  v.  Bean,  11  Lane.  Bar,   138 56,  59 

Beasley  v.  Beasley,  180  111.  103,  54  N.  E.  187 7 

V.  State,  50  Ala.  149,  20  Am.  Rep.  292..  181,  184,  202,  203,  224,  230, 

232,  236,  320,  363 

Beaubien  v.  Cicotte,  8  Mich.  9 322,  329,  330 

V.  Cicotte,  12  Mich.  459.  .72,  100,  370,  371,  375,  412,  420,  430,  431,  439, 

443,  457 

Beaumont,  Re,  1  Whart.  52,  29  Am.  Dec.  33 146,  148,  163,  491,  799,  963 

Beaumont's  Case.     See  Beaumont,  Re. 

Beavan  v.  M'Donnell,  9  Exch.  309,  2  C.  L.  Rep.  474,  23  L.  J.  Exch.  N.  S.  94, 
22  L.  T.  243,  Affirmed  in  10  Exch.  184,  23  L.  J.  Exch.  N.  S.  326 

8,  361,  392 

Beazley  v.  Denson,  40  Tex.  416 330 

Beck  V.  State,  76  Ga.  452 230,  232,  237,  245,  347,  351,  368,  391 

Bedlow,  Re,  67  Hun,  408,  22  N.  Y.  Supp.  290 '. 80 

Behrens  v.  McKenzie,  23  Iowa,  333,  92  Am.  Dec.  428 12,  275 

Belcher  v.  Belcher,  10  Yerg.  121 29,  30,  95,  113,  142 

Bell  V.  Bennett,  73  Ga.  784 40,  45,  48 

V.  Buckmaster,  1  Harr.  (Del.)  460 328,  332,  913 

V.  Clark,  31  N.  C.  (9  Ired.  L.)  239 452 

V.  Lee,  28  Grant  Ch.   (U.  C.)    150 82 

V.  McMaster,  29  Hun,  272 433,  437 

V.  Rinuer,  16  Ohio  St.  45 310 

Cellenger,  Re,  32  Misc.  414,  66  N.  Y.  Supp.  531 145 

Beller  v.  Jones,  22  Ark.  92 8,  14,  420,  426,  458 

Bellingham's  Case.     See  Rex  v.  Bellingham. 

Bennett  v.  Bennett  (Neb.)  91  N.  W.  409 17,  18,  19 

V.  Hibbert,  88  Iowa,  154,  55  N.  W.  93 114 

V.  State,  57  Wis.  69,  46  Am.  Rep.  26,  14  N.  W.  912 199,  398,  453 

V.  State   (Wis.)   4  Crim.  L.  Mag.  378 189 

Bennett's  Estate,  201  Pa.  485,  51  Atl.  336 80,  84 

Benoist  v.  Murrin,  58  Mo.  307 15,  67,  79,  81,  335 


Iviii  TABLE  OF  CASES  CITED. 

Bensell  v.  Chancellor,  5  Whart.  371,  34  Am.  Dec.  561 6,  368,  534,  942 

Bensieck  v.  Cook,  110  Mo.  173,  33  Am.  St.  Rep.  422,  19  S.  W.  642 300 

Bergin  v.  State,  31  Ohio  St.  Ill 325 

Berkley  v.  Cannon,  4  Rich.  L.  136 25,  30 

Bernett  v.  Taylor,  9  Ves.  Jr.  381 314 

Bernhardt  v.  State,  82  Wis.  23,  51  N.  W.  1009 248 

Berrien,  Re,  24  N.  Y.  S.  R.  332,  5  N.  Y.  Supp.  37 83 

Berrien's  Will,  35  N.  Y.  S.  R.  255,  12  N.  Y.  Supp.  585 105,  111 

Berry  v.  Berry,  147  Ind.  176,  46  N.  E.  470 144 

V.  Hall,  105  X.  C.  154,  10  S.  E.  903 17,  33 

V.  Hamilton,  10  B.  Mon.  129 131 

V.  State  Deposit  &  T.  Co.  96  Md.  45,  53  Atl.  720 72,  114,  382,  400,  410 

V.  State,  10  Ga.  512 421 

Berryman  v.  Berryman,  59  Mich.  605,  26  N.  W^  789 57,  58 

Berry  Will  Case,  The,  93  Md.  560,  49  Atl.  401.  .  .84,  130,  381,  383,  400,  416, 

418,  419,  428,  432,  450 

Best  V.  Best,  11  Ky.  L.  Rep.  215,  11  S.  W.  810 95 

Bever  v.  Spangler,  93  Iowa,  576,  61  N.  W.  1072.  .118,  119,  337,  342,  362,  392, 

400,  401,  410,  415,  416,  417 

Beverage  v.  Ralston,  98  Va.  625,  37  S.  E.  283 34 

Beverley  v.  Walden,  20  Gratt.  147 32,  36,  443 

Beverley's  Case,  4  Coke,  124.  .5,  11,  31,  236,  299,  460,  486,  505,  510,  513,  514, 

933,  939 

Beville  v.  Jones,  74  Tex.  148,  1  S.  W.  1128 14,  20 

Bey's  Succession,  46  La.  Ann.  773,  24  L.  R.  A.  577,  15  So.  297.  .106,  115,  135, 

332,  34.T 

Beyley  v.  Alexander,  Ea.st's  Notes,  Cas.  79,  Morley's  India  Digest,  352 202 

Bible  V.  W'isecarver   (Tenn.  Ch.  App.)   50  S.  W.  070 10 

Rice  V.  Hall,  120  111.  597,  12  N.  E.  236 448,  449 

i^icknell  v.  Bicknell,  2  Thomp.  &  C.  96 93 

Uicknell's  Goods,  3  Addams  Eccl.  Rep.  231 136 

Biddle  v.  Jenkins,  61  Neb.  400,  85.N.  W.  392 169,  383 

Bigelow  V.  Berkshire  L.  Ins.  Co.  93  U.  S.  284,  23  L.  ed.  918 264,  265,  644 

Billinghurst  v.  Vickers,  1  Phillim.  Eccl.  Rep.  193   92,  110,  124,  334 

Billings  V.  Accident  Ins.  Co.  64  Vt.  78,  17  L.  R.  A.  89,  33  Am.  St.  Rep.  913,  24 

Atl.  656 265 

Binyon  v.  United  States    (Ind.  Terr.)    76  S.  W.  205 224,  339 

Bird  V.  Bird,  2  Hagg.  Eccl.  Rep.  142 123 

Birdsall,  Re,  2  Connoly,  433,  13  N.  Y.  Supp.  421   129 

Birdsong  v.  Birdsong,  2  Head,  289 17,  18,  24,  25,  26,  30 

Birdzell  v.  Birdzell,  33  Kan.  434,  52  Am.  Rep.  539,  6  Pac.  561 54 

Bischoff,  Re,  37  Misc.  734,  76  N.  Y.  Supp.  467 163 

Bishop  V.  Cora.  109  Ky.  558,  60  S.  W.  190 386,  392,  404 

V.  Com.  22  Ky.  L.  Rep.  760,  58  S.  W.  817 326 

V.  Hendrick,  42  N.  Y.  S.  R.  296,  17  N.  Y.  Supp.  241 34,  38 

V.  Spining.  38   Ind.   143 408,  453 

Bi&sell,  Re,  63  Neb.  595,  88  N.  W.  683 88 

Bitner  v.  Bitner,  65  Pa.  347 93,  374,  395,  458 

Bittleston  v.  Clark,  2  Lee,  Eccl.  Rep.  229 69 

Bixler  v.  Gilleland,  4  Pa.  156 168 


TABLE  OF  CASES  CITED.  lix 

Blachford  v.  Christian,  1  Knapp  P.  C.  73 17 

Black  V.  Ellis,  3  Hill  L.  68 67,  95,  121,  357.  358 

Black's  Case,   18  Pa.  434 145 

Black's  Estate,  132  Pa.  134,  19  Atl.  31   166 

Blackburn  v.  State,  23  Ohio  St.  146 185,  186,  197,  199,  565,  638 

Black  Hawk  County  v.  Springer,  58  Iowa.  417,  10  N.  W.  791 152,  171 

Blackmore,  Re,  1  De  G.  J.  &  S.  84,  1  New  Reports,  187,  32  L.  J.  Ch.  N.  S. 

436,  9  Jur.  N.  S.  90,  8  L.  T.  N.  S.  264,  476 164 

Blackstone  v.  Standard  Life  &  Acci.  Ins.  Co.  74  Mich.  592,  3  L.  R.  A.  486, 

42  N.  VV.  IfTfi 260,  263,  264,  266-209,  361 

Blagg  V.  Hunter,  15  Ark.  246 141 

Blair,  Re,  16  Daly,  540,  16  N.  Y.  Supp.  874 76 

Blake  v.  Garwood,  42  N.  J.  Eq.  276,  10  Atl.  874 23 

V.  Rourke,  74  Iowa,  519,  38  N.  VV.  392 341,  415,  439 

V^lakely  v.  Blakely,  33  N.  J.  Eq.  502 7,  11,  13,  15 

lUakely's  Will,  48  Wis.  294,  4  N.  W.  337 72,  78,  84,  111,  118,  128,  414 

lUaker,  Re,  27  N.  Y.  Week.  Dig.  486,  12  N.  Y.  S.  R.  741 74,  127,  385 

Blakey  v.  Blakey,  33  Atl.  611 110,  369,  370 

Blarichard  v.  Nestle,  3  Denio,  37 6.'),  66 

Blandy  v.  Blandy,  20  App.  D.  C.  535 53,  ]  .54 

Blaney  v.  Blaney,  126  Mass.  205 56,  57 

Blanton  v.  State,  1  Wash.  265,  24  Pac.  439 423 

Bledsoe  v.  Bledsoe,  8  Ky.  L.  Rep.  55,  1  S.  W.  10 108.  109.  Ill 

Bleecker  v.  Lynch,  1  Bradf.  458 75,  76,  91,  92,  127 

Blewitt,  Re,  131  N.  Y.  541,  30  N.  E.  587 145,  171 

V.  Blewitt,  4  Hagg.  Eccl.  Rep.  410 130,  332 

Blimm  v.  Com.  7  Bush,  320 235,  239,  244,  254,  255 

Blinn  v.  Schwarz,  63  App.  Div.  25,  71  N.  Y.  Supp.  343 7,  8 

Bliss  V.  Connecticut  &.  P.  Rivers  R.  Co.  24  Vt.  424 24,  29,  297,  780 

V.  New  York  C.  &  H.  R.  R.  Co.  160  Mass.  447,  39  Am.  St.  Rep.  504,  36 

N.  E.  65 393 

Blood,  Re,  62  Vt.  359,  19  Atl.  770 374,  433,  453 

Blcodworth  v.  State,  6  Baxt.  621,  32  Am.  Rep.  546 206 

Blough  V.  Parry,  144  Ind.  463,  40  N.  E.  70,  43  N.  E.  560 66,  334 

Blume  V.  State,  154  Ind.  343,  56  N.  E.  771 200,  226,  356,  370,  420,  442,  444 

Boardman  v.  Woodman,  47  N.  H.  120.. 79,  80,  S3,  102,  392,  404,  437,  448, 
4-52,  519,  551,  567,  568,  569.  572,  582,  800,  804,  836,  845,  915,  925, 

931,  9.32 

Bogardus  v.  Clark,  4  Paige,  623 155 

Boggess  V.  Boggess,  4  Dana,   308 60 

V.  Boggess,  127  Mo.  305,  29  S.  W.  1018 13,  14,  34,  368 

Boiling  V.  State,  54  Ark.  588,  10  S.  W.  658.  .  177,  194,  195,  199,  32.5,  367,  373, 

419,  427,  435,  458 

Bomgardner  v.  Andrews,  55  Iowa,  638,  8  N.  W.  481 400,  405 

Bonard's  Will,  16  Abb.  Pr.  N.  S.  128 88 

Bond  V.  Bond,  7  Allen,  1 12,  14,  16 

V.  State,  23  Ohio  St.  349 349 

Bonds  V.  State,  Mart.  &  Y.  143,  17  Am.  Dec.  795 212,  214,  218,  220 

Bonfanti  v.  State,  2  Minn.  123,  Gil.  99 348 

Bonner  v.  Matthews,  cited  in  Shelford  on  Lunatics,  327 125 


Ix  TABLE  OF  CASES  CITED. 

Booher  v,  Stato,  156  Ind.  435,  54  L.  R.  A.  391,  60  N.  E.  156 239 

Boone  v.  Ritchie,  21  Ky.  L.  Rep.  864,  53  S.  W.  518 , 321,  331 

Boorman  v.  Northwestern  Mut.  Relief  Asso.  90  Wis.  144,  62  N.  W.  924.  .36, 

261,  431,  432 

Booth  V.  Kitchen,  3  Redf.  52 90,  110 

Bootle  V.  Blundell,  19  Ves.  Jr.  494,  Cooper  Ch.  136,  15  Revised  Rep,  93,  .103, 

104,  367,  371,  447,  451,  452 

Boren  v.  State,  32  Tex.  Crim.  Rep.  637,  25  S.  W.  775 182,  184,  196 

Borlase  v.  Borlase,  4  Notes  of  Cases,  106 136 

Borradaile  v.  Hunter,  5  Man.  &  G.  637,  5  Scott  N.  R.  418,  12  L.  J.  C.  P.  N.  S. 

225,  7  Jur.  443 260,  043 

Borum  v.  Bell,  132  Ala.  85,  31  So.  454 10 

Bost  V.  Bost,  87  N.  C.  477 72,  379,  420,  427,  435,  457 

Boswell  V.  Com.  20  Gratt.  860 231,  246,  248,  348,  355 

V.  State,  63  Ala.  307,  35  Am.  Rep.  20 194,  199,  202,  203,  347,  349,  351 

Bottle  V.  Blundell,  19  Ves.  Jr.  494,  Cooper,  Ch.  130,  15  Revised  Rep.  93 99 

Boughton  V.  Knight,  L.  R.  3  Prob.  &  Div.  64,  42  L.  J.  Prob.  N.  S.  41,  28  L.  T. 

N.  S.  562.  , 69,  73,  78,  80,  81,  84,  86,  87,  101,  226,  341,  363,  375 

Bovard  v.  State,  30  Miss.  600 190,  192,  201,  369 

V.  Wallace,  4  Serg.  &  R.  499 369 

Bowden  v.  Achor,  95  Ga.  243,  22  S.  E.  254 418 

V.  People,    12   Hun,   85 235,  362 

Bowen  v.  Long,  19  Ky.  L.  Rep.  1881,  44  S.  W.  647 292 

Bowie  v.  Bowie,  3  Md.  Ch.  51 GO 

Bowler's  Case,  1  CoUinson  on  Lunacy,  673 181,  191,  531,  535,  675,  735 

Bowman  v.  Van  Baum,  17  Phila.  633 13,  159,  160,  162,  386,  941 

Boyce  v.  Phoenix  Mut.  L.  Ins.  14  Can.  S.  C.  723 272 

v.  Smith,  9  Gratt.  704,  60  Am.  Dee.  313 15 

Boyd  V.  Boyd,  66  Pa.  283 92,  125,  33:! 

v.  Eby,  8  Watts,  66 113,  1.34,  369,  370 

Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E,  249 299 

Boyer's  Estate,  166  Pa.  630.  31  Atl.  359 ilii 

Boylan  v.  Meeker,   15  N.  J.  Eq.  310 114,  366 

V.  Meeker,  28  N.  J.  L.  274 109-111,  335,  338,  305.  374 

Boynton  v.  Reese,  112  Ga.  354,  37  S.  E.  437 19 

Boyse  v.  Rossborough,  6  H.  L.  Cas.  47,  26  L.  J.  Ch.  N.  S.  2.56,  3  Jur.  N.  S. 

373,   5   Week.  Rep.   414 91,  93 

Brace  v.  Black,  125  111.  33,  17  N.  E.  06 82,  83,  100,  306,  424 

Bradbury,  Ex  parte,  3  Jur.  1108,  4  Deacon  Bankr.  202 159,  160 

Bradford  v.  Abend,  SO  111.  78,  31  Am.  Rep.  67 54,  55 

Bradley  v.  Palmer,  193  111.  15,  61  N.  E.  856 84,  lOO 

V.  Second  Ave.  R.  Co.  8  Daly,  289 280,  291 

v.  State,  31  Ind.  492 197,  228,  230,  328,  352,  353,  354,  381 

Brady  v.  McBride,  39  N.  J.  495 158 

v.  Smith,  8  Misc.  465,  28  N.  Y.  Supp.  776 437 

Bramel  v.  Bramel,  101  Ky.  64,  39  S.  W.  520 71,  329,  331 

Bramhall  v.  United  States,  6  Ct.  CI.  238 299,  305 

Bramhall's  Case.     See  Braiiiiall  v.  Unitkio  State.s. 

Bramlette  v.  State,  21  Tex.  App.  611,  57  Am.  Rep.  622,  2  S.  W.  765 252 

Brand  v.  Brand,  39  How.  Pr.  193 420,  433,  447 


TABLE  OF  CASES  CITED.  1x1 

Brand  v.  Schenectady  &  T.  R.  Co.  8  Barb.  368 281,  283,  291 

Brannen  v.  Kokonio,  G.  &  J.  Gravel  Road  Co.  115  Ind.  115,  7  Am.  St.  Rep.  411, 

17  N.  E.  202 287 

Braslier  v.  Cortlandt,  2  Johns.  Ch.  400 301 

Brashers  v.  Onne,  93  Md.  442,  49  Atl.  620 362,  365,  374,  418,  432,  438 

Breasted  v.  Farmers'  Loan  &  T.  Co.  8  N.  Y.  299.  59  Am.  Dec.  482.  AHirmin<r 

4  Hill,  73 260,  262,  643 

Brcckenridge  v.  Ormsby,  1  J.  J.  Marsh,  245,  19  Am.  Dec.  71 18 

Breed  v.  Pratt,  18  Pick.  115 38,  90,  92,  125,  157,  158,  161,  333 

Breedlove  v.  Bundy,  9G  Ind.  319 314 

Brewer  v.  Ferguson,  1 1  Humph.  565 369 

Brick  V.  Brick,  66  N.  Y.  144 90,  91,  93,  117,  123 

Bricker  v.  Lightner,  40  Pa.   199 313,  420,  440 

Brickner  v.  New  York  C.  R.  Co.  2  Lans.  506,  Affirmed  in  49  N.  Y.  672 278,  280 

Briggs,  Ex  parte,  14  W.  N.  C.  341 220 

V.  Minneapolis  Street  R.  Co.  52  Minn.  36,  53  N.  VV.  1019 285 

Brigham  v.  Brigham,  12  Mass.  504 154 

Brill  V.  Flagler,  23  Wend.  354 453 

Brindle  v.  M'llvaine,  10  Serg.  &  R.  282 317,  388 

Brink  v.  Wolf,  24  Pa.  Co.  Ct.  197,  7  Northampton  Co.  Rep.  283 275 

Brinkley  v.  State,  58  Ga.  296 184,  383 

Brinkman  v.  Rueggesick,  71  Mo.  553 68,  69,  383 

Brinton's  Estate,   13   Phila.  234 82 

Bristed  v.  Weeks,  5  Redf.  529 413 

Brittain  v.  Mull,  99  N.  C.  483,  6  S.  E.  382 299 

Broaddus  v.  Broaddus,  10  Bush,  29i) 108,  111 

Broadstreet  v.  Broadstreet,  7  Mass.  474 52 

Broadwater  v.  Darne,  10  Mo.  277 24 

Brock  V.  Luckett,  4  How.  (Miss.)  459 113,  415,  450 

V.  State,  22  Ohio  C.  C.  364 221 

Brogden  v.  Brown,  2  Addams  Eccl.  Rep.  441 90,  125,  134,  334,  743,  910,  923 

Bromfiold,  Ex  parte,  1  Ves.  Jr.  463,  3  Bro.  C.  C.  510,  2  Revised  Rep.  126 483 

Brooke  v.  Berry,  2  Gill,  83 17,  344,  442 

Brooks  V.  Barrett,  7  Pick.  94 114,  1 15,  330 

V.  Pratt,  55  C.  C.  A.  515,  118  Fed.  725 32,  415 

Brooks's  Estate,  54  Cal.  471 420,  428 

Brookshaw  v.  Hopkins,  LofTt,  243 ; 170 

Broome  v.  Ellis,  2  Lee  Eccl.  Rep.  528 104,  451 

Brotherton  v.  People,  75  N.  Y.  159 327,  353 

Brouncker  v.  Brouncker,  2  Phillim.  Eccl.  Rep.  57 70 

Brower  v.  Fisher,  4  Johns.  Ch.  441 323,  872 

Brown,  Re,  1  Abb.  Pr.  112 164 

Re,  45  Mich.  326,  7  N.  W.  899 150 

Re,  38  Minn.  1 12,  35  N.  W.  726 365,  368,  369 

V.  Brown,  38  Ark.  324 56,  57,  60,  165 

V.  Brown,  39  Mich.  792 324 

V.  Brown,  L.  R.  1  Prob.  &  Div.  46,  35  L.  J.  Prob.  N.  S.  13,  11  Jur.  N.  S. 

1027,  13  L.  T.  N.  S.  645,  14  Week.  Rep.  149 60 

V.  Bruce,  19  U.  C.  Q.  B.  35 99,  322 

V.  Com.  14  Bush,  398 182,  352,  398,  422,  428,  564 


bdi  TABLE  OF  CASES  CITED. 

Brown  v.  Com.  78  Pa.  122 186,  197,  200,  326 

V.  Howe,  0  Gray,  84.  69  Am.  Dec.  276 275 

V.  Jodiell,  3  Car.  &  P.  30,  Moody  &  M.  105 6,  938 

V.  Lambe  (Iowa)  93  N.  W.  486 155,  158 

V.  Miles,  61  Hun,  453,  16  N.  Y.  Supp.  251 156 

V.  Mitchell,  75  Tex.  9,  12  S.  W.  606 70,  395,  420 

V.  Mitchell,  87  Tex.  140,  26  S.  W.  1059 372,  458 

V.  Mitchell,  88  Tex.  350,  36  L.  R.  A.  64,  31  S.  W.  621 68,  69,  366,  456 

V.  Moore,  6  Yerg.  272 370 

V.  Rentfro,  57  Tex.  327 305 

V.  Riggin,  94  111.  560 11,  67,  74,  75,  120,  341,  416,  925 

V.  State,  40  Fla.  459,  25  So.  63 320,  325 

V.  State,  4  Tex.  App.  275 246,  247 

V.  Torrey,  24  Barb.  583 117,  119,  138,  329,  742 

V.  Ward,  53  Md.  376,  36  Am.  Rep.  422 71,  81,  88,  321,  328,  378 

V.  Westbiook,  27  Ga.  102 41,  45,  51 

Browne  v.  Molliston,  3  Whart.  129 91,  429,  802 

Bro\\Tifield  v.  Brownfield,  43  111.  147 377 

Browning  v.  Budd,  6  Moore  P.  C.  C.  430 345 

V.  Reane,  2  Phillim.  Eccl.  Rep.  69 40,  41,  43,  44,  46,  47,  159,  .325 

Bruen  v.  People  (111.)  09  N.  E.  24 386 

Brugh,  Re,  61  Hun,  193,  16  N.  Y.  Supp.  551 163 

Brunt  V.  Brunt,  L.  R.  3  Prob.  &  Div.  37,  28  L.  T.  N.  S.  368,  21  Week.  Rep.  392  136 

Brush,  Re,  35  Misc.  689,  72  N.  Y.  Supp.  421 84,  88 

V.  Holland,  3  Bradf.  461 Ill 

Brush's  Case,  3  Abb.  N.  C.  225 974 

Bryant  v.  Jackson,  6  Humph,  199 276,  363 

Brydges  v.  King,  1  Hagg.  Eccl.  Rep.  250 9:3 

Buchan,  Re,  16  Misc.  204,  38  N.  Y.  Supp.  1 124 74 

Buchanan,  Re,  129  Cal.  330,  50  L.  R.  A.  378,  61  Pac.  1120 171,  211,  217 

V.  Belsey,  65  App.  Div.  58,  72  N.  Y.  Supp.  601 66,  84,  415 

V.  Buchanan,  103  Ga.  90,  29  S.  E.  608 40 

V.  Pierie,  205  Pa.  123,  54  Atl.  583 8S 

Buckey  v.  Buckoy,  38  W.  Va.  168,  18  S.  E.  383.  .13-15,  32,  34,  321,  324,  365,  443 

Buckhannon  v.  Com.  86  Ky.  110,  5  S.  W.  358 237,  246 

Buckland  v.  Charlemont,  3  Pick.  173 ' 204 

Buckler  v.  Reese,  Contra,  100  Ky.  336,  38  S.  W.  492 ... 300 

Buckley,  Re,  16  N.  Y.  S.  R.  983,  2  N.  Y.  Supp.  24 117 

Buckman,  Re,  64  Vt.  313.  33  Am.  St.  Rep.  930,  24  Atl.  252 364 

Buckminster  v.  Perry,  4  Mass.  593 430 

Buesching  v.  St.  Louis  Gaslight  Co.  6  Mo.  App.  85 281 

Bulger  V.  Ross,  98  Ala.  267,  12  So.  803 70,  75,  109 

Bull,  Re,  14  Daly,  510,  2  N.  Y.  Supp.  52 118 

V.  Wheeler,  6  Dem.   123 86 

Bumpus  V.  French.  179  Mass.  131,  60  N.  E.  414 145 

Bunce  v.  Gallagher,  5  Blatchf.  489,  Fed.  Cas.  No.  2,133 23 

Bunch  V.  Hurst,  3  Dosauss.  Eq.  273,  5  Am.  Dec.  551 20,  36 

Bundy  v.  ISIcKnight,  48  Ind.  502 75,  92,  366,  417 

Bunn  V.  Postell,  107  Ga.  490,  33  S.  E.  707 8 

Burdett  v.  Thompson,  L.  R.  3  Prob.  &  Div.  72 69 


TABLE  OF  CASES  CITED.  Ixiii 

Burger  v.  Hill,  1  Bradf.  360 66,  124,  334 

Burgess  v.  Pollock,  53  Iowa,  273,  36  Am.  Rep.  218,  5  N.  W.  179 15 

Burgo  V.  State,  26  N'eb.  639,  42  N.  W.  701 179,  184,  199,  201,  402,  412 

Burk's  Will,  2  Redf.  239 90 

Burke  v.  Allen,  29  K  H.  106,  61  Am.  Dec.  642 6,  38 

Burkhard  v.  State,  18  Tex.  App.  599 180,  254,  360 

Burkhardt  v.  Burkhardt,  107  Iowa,  369,  77  N.  W.  1069 16 

Burkhart  v.  Gladisli,  123  Ind.  338,  24  N.  E.  118.  .71,  73,  78,  83,  101,  377,  378, 

423,  425 

Burley  v.  McGough,  115  111.  11,  3  N.  E.  738 412,  413 

Burnett  v.  People,  204  111.  208,  98  Am.  St.  Rep.  206,  68  N.  E.  505 638 

Burney  v.  Torrey,  100  Ala.  157,  46  Am.  St.  Rep.  33,  14  So.  685.  .416,  418,  419, 

432,  441,  442 

Burnham  v.  Kidwell,   113  111.  425 7,  14 

V.  Mitchell,  34  Wis.  117 295,  296,  384,  385,  425,  427 

Hums,  Re,  121  N.  C.  336,  28  S.  E.  519 328,  364 

V.  Burns,  13  Fla.  369 58 

V.  Elba,  32  Wis.  605 286,  288,  358 

V.  O'Rourke,  5  Robt.  649 27 

Burr,  Re,  2  Barb.   Ch.  208 164 

Re,  17  Barb.  9 148,   149,  163 

V.  Da  vail,  8  Jlod.  59 109 

Burritt  v.  Silliman,  16  Barb.   198 126,  137 

Burroughs  v.  Richman,  13  N.  J.  L.  233,  23  Ain.  Dec.  717 24,  25.  27,  387 

Burrow's  Case,  1  Lewin  C.  C.  75 231,  232 

Burrows,  Re,  8  Ohio  N.  P.  358 •. 132 

V.  Bvu-rows,  1  Hagg.  Eccl.  Rep.  109 114,  647,  759 

Burt  V.  Burt,  168  Mass.  204,  46  N.  E.  622 56,  57,  459 

V.  Mason,  97  Mich.  127,  56  N.  W.  365 37 

V.  Quisenberry,  132  111.  385,  24  N.  E.  622 13,  14,  34,  37 

V.  State,  38  Tex.  Crim.  Rep.  397,  39  L.  R.  A.  305,  40  S.  W.  1000,  43 

S.  W.  344 348,  395,  390,  399-401,  403,  419,  435,  461 

Burton  v.  %den,  L.  R.  8  Q.  B.  295,  42  L.  J.  Mag.  Cas.  N.  S.  115,  28  L.  T.  N. 

S.  408,  21  Week.  Rep.  593 267 

V.  Scott,  3  Rand.   (Va.)   399 119,  322,  323,  328,  329,  338,  369,  442 

V.  State,  33  Tex.  Crim.  Rep.  138,  25  S.  W.  782 181,  210,  214 

Bush,  Re,  1  Connoly,  403,  5  N.  Y.  Supp.  23 102 

V.  Breinig,  113  Pa.  310,  57  Arn.  Rep.  409,  0  Atl.  86 27,  29 

V.  Lisle,  89  Ky.  393,  12  S.  W.  762 138,  381 

V.  Pettibone,  4  N.  Y.  300 275,  301 

Bussey  v.  Gross,  9  Ky.  L.  Rep.  843,  7  S.  W.  150 140 

Butcher  v.  West  Virginia  &  P.  R.  Co.  37  W.  Va.  180,  18  L.  R.  A.  519,  16  S.  E. 

457 283 

Butler  V.  Benson,  1  Barb.  526 448 

V.  Mulvihill,  1  Bligh,  137 26 

V.  St.  Louis  L.  Ins.  Co.  45  Iowa,  93 385,  433,  453 

V.  State,  97  Ind.  378 307 

V.  State,  102  Wis.  364,  78  N.  W.  590 198 

Butlin  V.  Barry,  1  Curt.  Eccl.  Rep.  614 92,  125 

Butters  v.  Comyns,  81  111.  App.  418 303 


Ixiv  TABLE  OF  CASES  CITED. 

Button  V.  Hudson  River  R.  Co.  18  N.  Y.  248 282 

V.  McCauIey,  38  Barb.  413 387 

Buys  V.  Buys,  99  Mich.  354,  58  N.  W.  331 432 

Byard  v.  Conover,  39  N.  J.  Eq.  244 132 


c 

Caddell  V.  State.  136  Ala.  9,  34  So.  191 385 

Cadwallader  v.  West,  48  Mo.  483 4,  5,  20,  21,  92,  93,  123 

Cady,  Re,  36  Hun,  122 293 

Caffey  v.  State,  78  Miss.  645,  29  So.  396 172,  222 

Cain  V.  Warford,  33  Md.  23 4 

Calderon  v.  ]\Iartin,  50  La.  Ann.  1153.  23  So.  909 147 

Caldwell  v.  Anderson,  104  Pa.  199 125,  334 

V.  State,  41  Tex.  86 307 

Caleb,  Re,  139  Cal.  673,  73  Pac.  539 86 

V.  State,  39  Miss.  722 43:: 

Calhoun  v.  Jones,  2  Redf.  34 92 

V.  Mosly,  114  Ga.  641,  40  S.  E.  714 298 

Call  V.  Byram,  39  Ind.  499 445 

Calloway  v.  \Yitherspoon,  40  N.  C.  (5  Ired.  Eq. )   128 25 

Calumet  Electric  Street  R.  Co.  v.  Mabie,  66  111.  App.  235 295,  296 

Camp  V.  Camp,  18  Tex.  528 59,  60 

V.  Shaw,  52  111.  App.  241 138,  358 

Campbell  v.  Campbell,  130  111.  466,  6  L.  R.  A.  167,  22  N.  E.  620.  .  .  .66,  67,  70,  97 

V.  Carnahan  (Ark.)   13  S.  W.  1098 Ill 

V.  Fidelity  &  C.  Co.  109  Ky.  061,  00  S.  W.  492 267,  273,  458 

V.  Hill,  22  U.  C.  C.  P.  526 34 

V.  Hill,  23  U.  C.  C.  P.  473 15,  33 

V.  Hooper,  3  Smale  &  G.  153,  24  L.  J.  Ch.  N.  S.  644,  1  Jur.  N.  S.  670, 

3  Eq.  Rep.  727,  3  Week.  Rep.  528 4 

V.  Ketcham,  1  Bibb,  406 *. 25,  26,  30 

V.  Spencer,  2  Binn.  129 24 

V.  State,  23  Ala.  44 310,  311 

Campbell  &  Z.  Co.  v.  Roedi^or,  78  Md.  601,  28  Atl.  901 280 

Canada's  Appeal,  47  Conn.  450 110 

Canfield  v.  Fairbanks,  63  Barb.  461 18,  36,  378 

Cannady  v.  Lynch,  27  Minn.  435,  8  N.  W.  164 308-31 1,  314,  317,  419 

Cannon  v.  Smalley,  L.  R.  10  Prob.  Div.  96 43,  47,  325 

V.  State,  41  Tex.  Crim.  Rep.  467,  56  S.  W.  351 .  .  185,  192,  200,  300,  373, 

383,  418,  460 
Capper  v.  Dando,  4  Nev.  &  M.  335,  2  Ad.  &  El.  458,  1  H.  &  W.  11,  4  L.  J.  K. 

B.   N.   S.   97 300 

Card,  Re,  28  N.  Y.  S.  R.  528,  8  N.  Y.  Supp.  297 115 

Carl  V.  Gabel,  120  Mo.  283,  25  S.  W.  214 329 

Carlin  v.  Baird,  11  Ky.  L.  Rep.  932,  13  S.  W.  434 137,  882 

Carlisle  v.  State  (Tex.  Crim.  App.)  56  S.  W.  365 349,  351,  383,  407 

Carmichael,  Re,  36  Ala.  514 152,  374,  379,  395,  428 

Carnagie  v.  Diven,  31  Or.  366,  49  Pac.  891 13,  14 


TABLE  OF  CASES  CITED.  Ixv 

Carpenter,  Re,  79  Cal.  382,  21  Pac.  835 97,  115,  426 

V.  Bailey,  79  Cal.  382,  21  Pac.  835 429 

V.  Bailey,  94  Cal.  406,  29  Pac.  1101 .81,  86,  400,  425,  426,  428 

V.  Calvert,  83  111.  62 67,  110,  111,  331,  379,  415,  416,  445 

V.  Carpenter,  8  Bush,  283 11,  13,  331,  337,  339,  341 

V.  Com.  92  Kj'.  452,  IS  S.  W.  9 232,  252 

V.  Dame,  10  Ind.  125 311-315 

V.  Hatch,  64  N.  H.  573,  15  Atl.  219 362,  364,  420 

V.  State,  10  Ind.  125 311 

Carpenter's  Estate,  94  Cal.  416,  29  Pac.  1101 116 

Carr  v.  Holliday,  40  iS'.  C.   (5  Ired.  Eq.)    107 8 

V.  State,  96  Ga.  284,  22  S.  E.  570 355,  360,  563 

V.  State,  98  Ga.  89,  27  S.  E.  148 209,  221 

Carrico  v.  Neal,   1   Dana,   163 92,  111 

Carroll  v.  Norton,  3  Bradf.  291 76,  127 

Carter,  Re  (N.  J.  Eq.)  51  Atl.  65 76 

V.  Seattle,  19  Wash.  597,  53  Pac.  1102 388 

V.  State,  39  Tex.  Crim.  Rep.  345,  46  S.  W.  236,  45  S.  W.  508 325,  347 

V.  State,  12  Tex.  500,  02  Am.  Dec.  539 224,  234,  236,  255,  320,  775 

V.  State,  56  Ga.  466 407 

V.  State,  87  Ala.  113,  6  So.  356 250 

Carter's  Estate,  11  Pa.  Co.  Ct.  140 99 

Cartwright  v.  Cartwright,  1  Phillim,  Eccl.  Rep.  90 328,  695,  915 

V.  State,  8  Lea,  377 246,  248,  249 

Casat  V.  State,  40  Ark.  511 •. .  .232,  245,  351 

Case,  Re  ( Conn.)  52  Atl.  403 76 

Casey  v.  People,  31  Hun,  158,  2  N.  Y.  Crim.  Rep.  187 192,  203,  353 

Cash  V.  Lust,  142  Mo.  630,  64  Am.  St.  Rep.  576,  44  S.  W.  724 114,  128 

Cassady  v.  Magher,  85  Ind.  228 282 

Cassedy  v.  Stockbridge,  21  Va.  391 287 

Castner  v.  Sliker,  33  N.  J.  L.  95 445,  458-460 

Castor  V.  Davis,  120  Ind.  231,  22  N.  E.  110 47,  339 

Gates  V.  Woodson,  2  Dana,  452 IS 

Cathcart  v.  Sugenheimer,  18  S.  C.  123 384 

Cauffman  v.  Long,  82  Pa.  72 99 

Caulkins  v.  Fry,  35  Conn.  170 25,  27,  38 

Cavaness  v.  State,  43  Ark.  331 230,  232,  349,  390 

Cavender  v.  Waddingham,  5  Mo.  App.  457 24,  27,  376 

Cawley  v.  State,  133  Ala.  128,  32  So.  227 203,  364,  373 

Cawthorn  v.  Haynes,  24  Mo.  236 367 

Central  R.  &  Bkg.  Co.  v.  Pliinazee,  93  Ga.  488,  21  S.  E.  66 281,  284 

Chafin  Will  Case,  32  Wis.  557 •. 89 

Chamberlain  v.  Evans,  H.  of  L.  1767 773 

Chambers  v.  The  Queen's  Proctor,  2  Curt.  Eccl.^Rep.  415.  .105,  106,  114,  119, 

647,  759,  801,  915 

Chancellor  v.  Donnell,  95  Ala.  342,.  10  So.  910 324 

Chandler  v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701  .  .68,  101,  106,  107,  114, 

117,  119,  134.  320,  331,  333,  392,  395,  412,  458 

V.  Ferris,  1  Harr.   (Del.)   454 69,  91,  328,  913 

Chaney  v.  Bryan,  16  Lea,  67 77 

Vol.  I.  Med.  Jur. — iv. 


Ixvi  TABLE  OF  CASES  CITED. 

Chapline  v.  Stone,  77  Mo.  App.  52,3 40,  43 

Chapman  v.  Erie  R.  Co.  55  N.  Y.  .379 278,  279,  3.59,  392 

V.  Republic  L.  Ins.  Co.  6  Biss.  238,  Fed.  Cas.  No.  2,606 264,  265 

Charles  v.  State,  13  Tex.  App.  658 246 

Charter  Oak  L.  Ins.  Co.  v.  Eodtl,  95  U.  S.  235,  24  L.  ed.  433.  .260,  263,  264, 

392,  420,  442 

Chase  v.  Hathaway,  14  Mass.  222 144 

V.  Lincoln,  3  Mass.   236    103,   445,  447 

V.  People,  40  111.. 353 352 

V.  State,  41  Tex.  Crim.  Rep.  500,  55  S.  W.  833 21S 

V.  Winans,  59  Md.  475 409,  444 

Chatham  v.  State,  92  Ala.  47,  9  So.  007 241,  244 

Chattin,  Re,  16  X.  J.  Eq.  496 149 

Chavannes  v.  Priestley,  80  Iowa,  310,  9  L.  R.  A.  193,  45  N.  W.  766 145 

Cheatham  v.  Hatcher,  30  Gratt.  56,  32  Am.  Rep.  650.  .  103,  104,  412,  448,  451,  452 

Cheney  v.  Price,  90  Hun,  238,  37  N.  Y.  Supp.  117 71,  75,  79,  102,  120 

Chess  V.  Chess,  1  Penr.  &  W.  32,  21  Am.  Dec.  350 3G.3 

Clicvalier  v.  \^^iatley,  12  La.  Ann.  651 20 

Chew  V.  Bank  of  Baltimore,  14  Md.  299 10 

Chicago  V.  Doolin,  99  111.  App.  143 388 

Chicago  &  A.  R.  Co.  v.  Sullivan,  63  111.  293 278,  279 

Chicago  &  N.  W.  R.  Co.  v.  Drake,  33  111.  App.  114 281 

Chicago  City  R.  Co.  v.  Lewis,  5  111.  App.  242 280 

V.  Wall,  93  111.  App.  411 •. 459 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Bell,  70  111.  102 283 

V.  Doyle,  18  Kan.  58 31 

Chicago  West  Div.  R.  Co.  v.  Mills,  91  111.  39 323,  324 

Cluckering  v.  Brooks,  61  Vt.  554,  18  Atl.  144 420,  433,  456 

Chidester  v.  Turnbull,  117  Iowa,  168,  90  N.  W.  583 19 

Children's  Aid  Soc.  v.  Loveridge,  70  N.  1^  387 84,  90,  128 

Choice  V.  State,  31  Ga.  481 412 

V.  State,  31  Ga.  424..  185,  ISC,  201,  20.;,  223,  231,  23.5-237,  347,  360, 

383,  392,  398,  399,  408,  412,  419,  453,  459,  844 
Chrisman  v.  Chrisman,  6  Or.   127,  18  Pac.  8.. 69,  72,  74,  75,  97,  119,   128, 

328-330,  335,  345,  363 

V.  State,  54  Ark.  283,  15  S.  V\'.  889,  26  Am.  St.  Rep.  44 236,  239 

Christian  v.  Columbus  &  R.  R.  Co.  79  Ga.  460,  7  S.  E.  216 276 

Christie,  Re,  5   Paige,  242 38,   156,  313 

Christmas  v.  Mitchell,  38  N.  C.   (3  Ircd.  Eq.)   535 38,  133,  146,  154,  156,  310 

Cliristy  v.  Clarke,  45  Barb.  529 41,  44,  322 

Church  V.  Northern  P.  R.  Co.  31  Fed.  529 289 

Churchill  v.  Scott,  65  Mich.  485,  32  N.  W.  737 18 

Cilley  V.  Cilley,  34  Me.  162 103,  330,  447,  451,  913 

Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  Ind.  469,  6  L.  R.  A.  241,  16 

Am.  St.  Rep.  334,  22  N.  E.  340 284 

Cincinnati  Street  R.  Co.  v.  Wright,  54  Ohio  St.  181,  32  L.  R.  A.  340,  43  N. 

E.  088 323 

Claffey  v.  Ledwith,  56  N.  J.  Eq.  333,  38  Atl.  433 72,  74 

Clapp  V.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  681.  .84,  109,  434,  437,  438, 

445,  446,  457 


TABLE  OF  CASES  CITED.  Ixvii 

Oark,  Re,  o7  App.  Div.  5,  67  N.  Y.  Supp.  G31,  175  N.  Y.  139,  67  N.  E. 

212 147,  148,  150 

V.  Caldwell,  6  Watts,   139 159 

V.  Ellis,  9  Or.  128 74,   102,   109,  338,  339,  341 

V.  Fisher,  1  Paige,  171,  19  Am.  Dec.  402.  .72,  90,  108,  134,  337,  338, 

393,  414 
V.  Lopez,  75  Miss.  932,  23  So.  648;  Rehearing  denied  in  75  Miss.  938, 

23  So.  957 18,  309 

V.  Malpas,  31  Beav.  80,  4  De  G.  F.  &  J.  401,  8  Jur.  N.  S.  734,   10 

Week.  Rep.  676   20,  324 

V.  Morrison,  25  Pa.  455 369 

V.  Periam,  2  Atk.  337,  9  Mod.  340 372 

V.  Robinson,  88  111.  498   292 

V.  Stansburj',  49  Md.  346 92,  94,  123 

V.  State,  12  Oliio,  483,  40  Am.  Dec.  481 186,  199,  410,  413,  419,  458 

V.  Stnte,  8  Tox.  App.  350 175,  181,  186,  188,  189,  351 

V.  Trail,  1  Met.    (Ky.)   35 155,  157,  158,  204,  295,  296 

V.  Wilmington  &  W.  R.  Co.  109  N.  C.  430,  14  L.  R.  A.  749,  14  S.  E. 

43    289 

Clark's  Case,  1  N.  Y.  City  Hall  Rec.  176,  1  Wheeler  C.  C.  218,  note.  .  179,  184,  191 

Clarke  v.  Cartwright,  1  Phillim.  Eccl.  Rep.  90.  .133,  134,  156,  338,  339,  429,  692 

V.  Davis,   1  Redf.  249 74,   76,    110,  128 

V.  Dunham,  4  Denio,  262 304,  305 

V.  Equitable  Life  Assur.  Soc.  55  C.  C.  A.  200,  118  Fed.  374 265 

V.  Irwin.  63  Neb.  539,  88  N.  W.  783 295,  344,  383,  419 

V.  Lear,  cited  in  1  Phillim.  Eccl.  Rep.   119 82 

V.  Sa^\'J'er,  3  Sandf.  Ch.  352,  Reversed  on  other  grounds,  2  N.  Y.  498 

66,  69,  93,  130,  139,  341,  392,  4-U 

Clarkson  v.  HanAvay,  2  P.  Wms.  203 18 

Clary  v.  Clary,  24  N.  C.   (2  Ired.  L. )   78 427 

Clay  V.  Hammond,  199  111.  370,  93  Am.  St.  Rep.  146,  65  N.  E.  352 7,  16,  172 

Clearwater,  Re,  17  N.  Y.  S.  R.  794    2  N.  Y.  Supp.  99 114 

V.  Kimler,  43  111.  272   5,  35,  140 

Cleghorn  v.  New  York  C.  &  H.  R.  R.  Co.  56  N.  Y.  44,  15  Am.  Rep.  375.  .278,  388 

Clement,  Re,  Shelford  on  Lunatics,  92 149 

V.  Mattison,  3  Rich.  L.  93 41,  50 

Clements  v.  McGinn    (Cal.)    33  Pac.  920.. 97,  308,  309,  311,  313,  314,  334, 

344,  370 

Cleveland  v.  State,  86  Ala.   1,  5  So.  426 244 

Cleveland's  Appeal,  72  Conn.  340,  44  Atl.  476 147 

Clifford,  Re,  57  N.  J.  Eq.  14,  41  Atl.  356 147,  152 

Clift  V.  Schwabe,  2  Car.  &  K.  134,  3  C.  B.  437,  17  L.  J.  C.  P.  N.  S.  2.  . .  .260,  643 

Clifton  V.  Clifton,  47  N.  J.  Eq.  227,  21  Atl.  333 72,  422,  443,  444 

V.  Davis,  1  Pars.  Sel.  Eq.  Cas.  31 28,  29 

V.  Murray,  7  Ga.  564,  50  Am.  Dec.  411 127 

Cline,  Re,  24  Or.  175,  41  Am.  St.  Rep.  851,  33  Pac.  542 84.  117 

V.  Lindsey,  110  Ind.  337,  11  N.  E.  441 444 

V.  State,  43  Ohio  St.  332,   1  N.  E.  22 236,  240,  252. 

Clinton  v.  Estes,  20  Ark.  216 361 

Clore  V.  State,  26  Tex.  App.  624,  10  S.  W.  242 246,  253 


Ixviii  TABLE  OF  CASES  CITED. 

Clowry  V.  dowry,  IG  Ohio  C.  C.  302,  S  Ohio  C.  D.  G52 .  54,  56 

Cluck  V.  State,  40  Ind.  263 175,  176,  248 

Clutch  V.  Clutch,  1  N.  J.  Eq.  475 60 

Coates  V.  State,  50  Ark.  330,  7  S.  W.  304 348 

Cochran  v.  Amsden,  104  Ind.  282,  3  N.  E.  934 145,  163 

Cochran's  Will,  1  T.  B.  Mon.  263,  15  Am.  Dec.  116 12 L  .337,  346,  .350 

Cockcraft  v.  R<awles,  4  Notes  of  Cases,  237 90 

Cockell  V.  Taylor,  15  Beav.  115,  21  L.  J.  Ch.  N.  S.  -545 20,  324 

Cockrill  V.  Cockrill.  79  Fed.  143,  Affirmed  in  34  C.  C.  A.  254,  92  Fed.  811.  . 

7,  163,  166,  16S 

V.  Cox,   65  Tex.   676 69,   421,  458 

Cocks  V.  Purday,  2  Car.  &  K.  27(J 461 

Coe,  Re,  47  App.  Div.  177,  62  N.  Y.  Supp.  376 158 

Coffee  V.  State,  3  Yerg.  283,  24  Am.  Dec.  570 353 

Coffey  V.  Coffey,  179  111.  283,  53  N.  E.  590,  Affirming  74  111.  App.  241.  ..  .  12,  139 

'  V.  Home  L.  Ins.  Co.  44  How.  Pr.  481 114,  268,  322 

Coffin,  Re,  83  N.  Y.  Supp.  941 165 

Coghill  V.  Kennedy,  119  Ala.  641,  24  So.  459 122 

Coghlan  v.  Coghlan,  cited  in  1  Phillim.  Eccl.  Rep.  120 105,  111 

Coglilan's  Case,  cited  in  19  Ves.  Jr.  508 134 

Cohn  V.  Cohn,  85  Cal.  108,  24  Pac.  659 53 

Coit  V.  Patchen,  77  N.  Y.  533 84,  86,  92,  117 

Colbath  V.  State,  4  Tex.  App.  76 246 

V.  State,  2  Tex.  App.  391 246 

Colby  V.  Jackson,  12  N.  H.  526 170 

Cole  V.  Cole.  5  Sneed,  57,  70  Am.  Dec.  275 40,  41,  43,  45 

V.  Robbins,  Bull.  N.  P.  172 6,  29 

Cole's  Trial,  7  Abb.  Pr.  N.  S.  321 177,  186,  204,  225,  226,  228,  375,  378 

Cole's  Will,  49  Wis.  179,  5  N.  W.  346 82-84,  89,  328,  331,  332,  336,  344 

Colee  V.  State,  75  Ind.  513 223,  421,  425,   432,  442,  804 

Coleman,  Re,  111  N.  Y.  220,  19  N.  E.  71 97,  98,  394,  424,  446 

V.  Com.  25  Gratt.  865,  18  Am.  Rep.  711 308-311,  315 

V.  Frazer,  3  Bush,  300 10,  19 

V.  Robertson,   17  Ala.  84 67,  68,  108-110 

Colgate's  Estate,  5  W.  N.  C.  170 99 

Colhoun  V.  Jones,  2  Redf.  34 108 

Collier  v.  Simpson,  5  Car.  &  P.  74 461 

Collins,  Re,   18  N.  J.  Eq.  253 149,   150,   152,  322 

V.  Brazill,  63  Iowa,  432,  19  N.  W.  338 75,  109 

V.  Osborn,  34  N.  J.  Eq.  511 Ill 

V.  People,  194  111.  506,  62  N.  E.  902 390,  459 

V.  Townley,  21  N.  J.  Eq.  353 127 

Columbus  &  W.  R.  Co.  v.  Wood,  86  Ala.  164,  5  So.  463 282 

Colvin,  Re,  3  Md.  Ch.  278 149 

V.  Warford,   20  Md.   357 362,   370,   383,  452 

Comb's  Appeal,  105  Pa.  155 99,  117 

Combs  V.  Combs,  23  Ky.  L.  Rep.  1264,  65  S.  W\  13. 18 

Comfort,  Re,  63  N.  J.  Eq.  377,  53  Atl.  133 161 

Com.  V.  Ault,  10  Pa.  Super.  Ct.  651 242 

V.  Bakeman,  131  Mass.  ■S77,  41  Am.  Rep.  248 256 


TABLE  OF  CASES  CITED.  Ixix 

Cosa  V.  Baker,  11  Phila.  G31 231,  244,  246 

V.  Baranski,  36  Pittsb.  L.  J.  363,  9  Pa.  Co.  Ct.  264 219 

V.  Barner,  199  Pa.  335,  49  Atl.  60 19.5,  320,  348 

V.  Bezek,  168  Pa.  603,  32  Atl.  109 187,  347,  348,  350 

V.  Braley,  1  Mass.  103 209,  949 

V,  Brayman,   136  Mass.  438 375,   392,  403,  436 

V.  Brown,  193  Pa.  507,  44  Atl.  497 429 

V.  Buccieri,  153  Pa.  535,  26  Atl.  228.  .212,  220,  224,  227,  228,  307,  355, 

380,  408,  409,  429,  740 

V.  Chapin,  45  Phila.  Leg.  Int.  434 972 

V.  Cleary,  135  Pa.  64,  8  L.  R.  A.  301,  19  Atl.  1017 387 

V.  Cleary,  148  Pa.  26,  23  Atl.  1110 177,  226,  236,  246,  248,  380 

V.  Cloonen,  151  Pa.  605,  25  Atl.  145 387 

V.  Cressinger,  193  Pa.  326,  44  Atl.  433 190,  443 

V.  Crozier,  1   Brewst.    (Pa.)    349 231,  247,  248 

V.  Curry,  150  Mass.  509,  23  N.  E.  212 390 

V.  Eddy,  7  Gray,  583 325,  327,  351 

V.  Elvin,  5  Pa.  Dist.  R.  593 975 

V.  Fairbanks,  2  Allen,  511 436 

V.  Farkin,  2  Clark  (Pa.)   208 177,  184,  187,  224,  351 

V.  Farkin,  2  Pars.  Sol.  Eq.  Cas.  439 558 

V.  Freeth,  5  Clark   (Pa.)   455 190,  191,  194,  200 

V.  French,  Thacher  Crim.  Cas.  163 255 

V.  Freth,  3  Phila.  105 197,  546,  559,  724,  830 

V.  Fritch,  9  Pa.  Co.  Ct.  164 205 

V.  Gearhardt,  205  Pa.  387,  54  Atl.  1029 185,  419 

V.  Gentry,  5  Pa.  Dist.  R.  703 352 

V.  Gerade,  145  Pa.  289,  27  Am.  St.  Rep.  689,  22  Atl.  464.  .  .  .348-350,  427 

V.  Gilbert,   165  Mass.  45,  42  N.  E.  336 236-238,  255 

V.  Green,  1  Ashm.  (Pa.)  289 234 

V.  Hagenlock,  140  Mass.  125,  3  N.  E.  36 251 

V.  Haggerty,  4  Clark    (Pa.)    187 461 

V.  Hart,  2  Brewst.   (Pa.)   546 237,  246,  248,  357,  359 

V.  Hathaway   (1816)    13  Mass.  299 209,217,  950 

V.  Hawkins,   3  Gray,  463 249 

V.  Hays,   195  Pa.  270,  45  Atl.   728 219,  220 

V.  Heath,  11  Gray,  303 202,  320,  327,  347,  348,  350 

V.  Heidler,  191  Pa.  375,  43  Atl.  211 326,  558 

V.  Hill,   14  Mass.   207 873 

V.  Hillman,   189   Pa.   548 737 

V.  Hollinger,  100  Pa.  155,  42  Atl.  ,548 195,  975,  976 

V.  Howe,  9  Gray,   110 391 

V.  Hughes,  133  Mass.  496 75,  387 

V.  Jones,   1   Leigh,   612 186,  199 

V.  Kilpatrick,  204  Pa.  218,  53  Atl.  774 325,  347 

V.  Kirkbride,  7  Phila.  8 172 

V.  Laros 739 

V.  Lutz,   10  Kulp,  234 185,   226,  228 

V.  Lynch,  25  Pittsb.  L.  J.  193   ( 1878 ) 742,  974,  975 

V.  Lynch,  3  Pi<ttsb.  412 347,  348,  351 


Ixx  TABLE  OF  CASES  CITED. 

Com.  V.  McAnany,  3  Brewst.    { Pa. )    292 27 

V.  McCauUey,    16    Phila.    502 188,    190,  35.1 

V.  McGowan,  189  Pa.  641,  69  Am.  St.  Rep.  836,  42  Atl.  365 248 

V.  McKie,  1  Gray,  61,  61  Am.  Dec.  410 327 

V.  Malone,   114  Mass.  295 250 

V.  Meredith,  41  Phila.  Leg.  Int.  64 904 

V.  Meredith,  17  Phila.  90..  148-150,  177,  184,  189,  192,  226,  227,  547, 

560,  836,  922 

V.  Mink,  123  Mass.  422,  25  Am.  Rep.  109 63(i 

V.  Moore,  2  Pittsb.  502 185 

V.  Mosler,  4  Pa.  204.  .177,  185,  190,  192,  203,  205,  224,  363,  528,  550, 

558,  561,  722,  736,  838 

V.  Moss,    0   Kulp,    31 382 

V.  O'Hara   977 

V.  Pervier,  3  Phila.  229 246,  248 

V.  Piatt,  11  Phila.  421 187,  199,  231,  246,  247 

V.  Pomeroy,  117  Mass.  143 360,  361,  303,  373,  393,  41  1 

V.  Reeves,  140  Pa.  258,  21  Atl.  315 149,  150,  963 

V.  Reynolds,  cited  in  10  Allen,  64 308,  309,  311 

V.  Rich,   14   Gray,   335 404,   408,   433,  45.-) 

V.  Rogers,  7  Met.  500,  41  Am.  Dec.  458..  ISO,  185-187,  193-195,  201, 

202,  348,  349,  392,  396-398,  402,  408,  412,  453,  550,  567,  838 

V.  Sayres,   12  Phila.  553 185,   180,   190,  191 

V.  Shurlock,  14  Phila.  Leg.  Int.  33 177 

V,  Smith,  15  Phila.  Leg.  Int.  33,  6  Am.  L.  Reg.  257 177 

V.  Spinlc,  27  W.  N.  C.  37 38:1 

V.  Spink,  137  Pa.  255,  20  Atl.  680 154,  171.  90:) 

V.  Sturtivant,   117  Mass.   122,   19  Am.  Rep.  401 434.  43(i 

V.  Taylor,    16   Phila.   439 208,  210 

V.  Van  Horn,  188  Pa.  143,  41  Atl.  409 177,  364 

V.  Werling,  164  Pa.  559,  30  Atl.  406.  .  .  .176,  186,  190,  205,  349,  350,  390 

V.  Whitler,  2  Brewst.   (Pa.)    388 615 

V.  Wilson,  1  Gray,  337 378,  434,  430,  401 

V.  Winnemore,  1  Brewst.  (Pa.)   356..  185,  190,  194,  199,  211,  218,  337, 

381,  559,  724,  735,  740 

V.  Wireback,  192  Pa.  150,  44  Atl.  1 102 220 

V.  Wireback,   190  Pa.  138,  42  Atl.  542..  176,  193,  195,  22.3,  326,  350, 

419,  432,  433,  549,  560,  018,  722,  801,  836,  975,  970 

V,  Woodley,  166  Pa.  463,  31  Atl.  202 350 

Com.  ex  rel.  Bickel  v.  Bennet,  15  W.  N.  C.  515 172 

Norton  v.  Chapin,  19  Phila.  551 172 

Cope  V.  Harrold,  204  Pa.  154,  53  Atl.  760 151,  155 

Haskell  v.  Haskell,  2  Brewst.   (Pa.)  491 ..  140,  151-154,  194,  197,  377, 

381,  385 

Draper  v.  Kirkbride,  3  Brewst.    (Pa.)   393 155,  109,   171,  172 

Haskell  v.  Kirkl.ride,  3  Brewst.   ( Pa. )   586 172 

Helmbold  v.  Kirkbride,  11  Phila.  427 172,  322,  344,  415,  442 

Nyce  V.     Kirkbride,  2  Brewst.    (Pa.)    400 169,   170,  972 

Stewart  v.  Kirkbride,  2  Brewst.   (Pa.)   419 170,  384,  972 

McGinnis  v.  McGinnis,  3  Pittsb.  445 165,  160 


TABLE  OF  CASES  CITED.  Ixxi 

Com.  ex  rel.  Pitcairn  v.  Pitcairn,  204  Pa.  514,  54  Atl.  328 IGl 

Euchenberg  v.  Schneider,  59  Pa.  328 147-150,  904 

Mintzer  v.  Sheriff,  8   PhiLa.  045 9-70 

Rubright  v.  Western  Pennsylvania  Hospital,  3  Pittsb.  299..  151,  169, 

170,  967,  972 
Commonwealth  Title  Ins.  &  T.  Co.  v.  Gray,  150  Pa.  255,  24  Atl.  040.  .421, 

426,  427,  458 

Comstock,  Re,  26  N.  Y.  S.  R.  292,  7  N.  Y.  Supp.  334 Ill 

V.  Hadlyme  Ecclesiastical  Soc.  8  Conn.  254,  20  Am.  Dec.  100.  .68,  90, 

91,  329,  335,  305,  366 

Conant  v.  Jackson,  16  Vt.  335 26,  357 

Concord  v.  Rumney,  45  N.  H.  423 41,  43 

Conely  v.  McDonald,  40  Mich.  150 115,  119,  362,  374,  406 

Conley  v.  Com.  98  Ky.  125,  32  S.  W.  285 236,  238,  240 

V.  Nailor,  118  U.  S.  127,  30  L.  ed.  112,  6  Sup.  Ct.  Rep.  1001 20 

Connecticut  Mut.  L.  Ins.  Co.. v.  Akens,  150  U.  S.  468,  37  L.  ed.  1148,  14  Sup. 

Ct.  Rep.  155 203,  336 

V.  Groom,  86  Pa.  92,  27  Am.  Rep.  689 260,  203 

V.  Lathrop,  111  U.  S.  612,  28  L.  ed.  536,  4  Sup.  Ct.  Rep.  533 420 

V.  McWhirter,  19  C.  C.  A.  519,  44  U.  S.  App.  492,  73  Fed.  444 646 

Connelly  v.  Fisher,  3  Tenn.  Ch.  382 19 

Connor,  Re,  29  Misc.  391,  61  N.  Y.  Supp.  910 413 

Re,  27  N.  Y.  S.  R.  905,  7  N.  Y.  Supp.  855 70,  130,  131,  394 

Connors,  Re,  110  Cal.  408,  42  Pac.  906 293 

Conolly  V.  Crescent  City  R.  Co.  41  La.  Ann.  57,  3  L.  R.  A.  133,  17  Am.  St. 

Rep.  389,  5  So.  259,  6  So.  526 285 

Conover,  Re,  28  N.  J.  Eq.  330 148,  149 

Continental  Ins.  Co,  v.  Delpeuch,  82  Pa.  225 269 

Continental  L.  Ins.  Co.  v.  Thoena,  26  111.  App.  495 270 

Converse  v.  Converse,  21  Vt.  168,  52  Am.  Dec.  58.  .67,  68,  72,  800,  805,  927,  930 

Convey,  Re,  52  Iowa,  197,  2  N.  W.  1084 69,  70,  72,  75,  94,  110 

Conway  v.  State,  118  Ind.  482,  21  N.  E.  285 176,  184,  198,  199,  723 

v.  Vizzard,  122  Ind.  266,  23  N.  E.  771 69,  76,  108,  110,  111 

Cook,  Re,  25  N.  Y.  S.  R.  64,  6  N.  Y.  Supp.  720 160 

v.  Cook,  53   Barb.    180 38,   52,    154,  337 

V.  Parker,  4  Phila.  265 G,  937,  942 

v.  Territory,  3  Wyo.  110,  4  Pac.  887 241,  244,  249 

Cook's  Estate,  41  Phila.  Leg.  Int.  6 104 

Estate,  16  Phila.  322 104,   109,  451 

Cooke  V.  Clayworth,  18  Ves.  Jr.  12,  11  Revised  Rep.  137 24,  25,  28-30 

V.  Turner,  15  Sim.  611,  16  L.  J.  Ch.  N.  S.  487,  11  Jur.  702 384 

Coon  V.  Cook,  6  Ind.  268 146 

Coop,  Bb,  24  N.  Y.  S.  R.  417,  6  N.  Y.  Supp.  664 132 

Cooper  V.  Benedict,  3  Dem.    136 107 

V.  Massachusetts  Mut.  L.  Ins.  Co.  102  Mass.  227,  3  Am.  Rep.  451.  ..  .  261 

Cope,  Re,  7  Pa.  Co.  Ct.  406 '. 148,  149,  151-153 

Copeland  v.  Copeland,  32  Ala.  512 335 

Copenhaver  v.  State,  160  Ind.  540,  67  N.  E.  453 176 

Copenrath  v.  Kienby,  83  Ind.  18 7 

Corbit  V.  Smith,  7  Iowa,  60,  71  Am.  Dec.  431 14,  17,  337,  340 


Ixxii  TABLE  OF  CASES  CITED. 

Corby  v.  Moran,  119  Mich.  272,  77  N.  W.  930 37 

Cordrey  v.  Cordrey,  1   Houst.    (Del.)    269 69-72,  332 

Cornelius,  Re,  23  Misc.  434,  51  N.  Y.  Supp.  877. ... .' 133 

V.  Cornelius,  52  N.  C.   (7  Jones  L.)   593 69,  102,  450 

Cornell  v.  State,  104  Wis.  527,  80  N.  W.  745 195,  367,  397 

Cornett  v.  Cornett,  122  Mich.  685,  81  N.  W.  920 161 

Cornwell  v.  Riker,  2  Dem.  354 70,  75,  87,  127,  400 

V.  State,   Mart.   &  Y.    147 231 

Cory  V.  Cory,  1  Ves.  Sr.  20 24 

Coryell  v.  Stone,  62  Ind.  307 369,  392,  457,  458 

Cotrell  V.  Com.  13  Ky.  L.  Rep.  305,  17  S.  W.  149 430 

Cottell  V.  State,  12  Ohio  C.  C.  467,  5  Ohio  Dec.  472 195,  349,  351 

Cotterell  v.  Dutton,  4  Taunt.  826,  14  Revised  Rep.  675 296 

Cotton  V.  Ulmer,  45  Ala.  378,  6  Am.  Rep.  703 79,  81,  328 

Couch  V.  Eastham,  29  W.  Va.  784,  3  S.  E.  23 ^ 109,  110 

V.  Gentry,  113  Mo.  248,  20  S.  W.  890 .72,  73 

Coughlin  V.  Poulson,  2  MacArth.  308 381,  382 

Coursey  v.  Coursey,  60  111.   186 61 

Covas  V.  Bertoulin,  44  La.  Ann.  683,  1 1  So.  143 303 

Covenhoven's  Case,   1  N.  J.  Eq.  27 38,   155,  156 

Coverston  v.  Connecticut  Mut.  L.  Ins.  Co.  4  Bigelow  Life  &  Acci.  Ins.  Rep. 

109,  Fed.  Cas.  No.  3,290 262 

Covington  v.  Neftzger,  140  111.  008,  33  Am.  St.  Rep.  261,  30  N.  E.  764 18 

Cowan  V.  Cowan,  139  Mass.  377,  1  N.  E.  152 55 

Cowee  V.  Cornell,  75  N.  Y.  91,  31  Am.  Rep.  428 20,  321,  325 

Cowles  V.  Merchants,  140  Mass.  377,  5  N.  E.  288 436 

Coyle  V.  Com.  104  Pa.  117 393,  398,  405,  453,  454 

V.  Com.  100  Pa.  573,  45  Am.  Rep.  397.  .197,  204,  226,  320,  325,  348, 

350,  351,  657,  740 

Craddock  v.  Cabiness,    1   Swan.  474 17,  21 

Craft  V.  Simon,   118  Ala.  625,  24  So.  3S0 144,    140,  151 

Cragg  V.  Holme,  Cited  in  18  Ves.  Jr.  14 20 

Craig  V.  Feland,  4  T.  B.  Mon.  232 102 

Cram  v.  Cram,  33  Vt.   15 420,  458 

Cramer  v.  Burlington,  42  Iowa,  315 286,  288,  290,  357,  358,  360 

V.  Crumbaugh,  3  Md.  491 125,  334 

Crandal  v.  Accident  Ins.  Co.  27  Fed.  40 266,  267 

Crane  v.  Conklin,   1  N.  J.  Eq.  346,  22  Am.  Dec.  519 25,  26,  28 

Crank  v.  Frith,  2  Moody  &  R.  202,  9  Car.  &  P.  197 447 

Cranmer,  Ex  parte,  12  Ves.  Jr.  445 149,  150,  489,  490,  798 

Cravens   v.   Faulooner,   28   Mo.   21 335 

Crawford,  Re,   1  Myl.  &  C.  240 16.5 

V.  Cliristian,  102  Wis.  51,  78  N.  W.  406 421 

V.  Hoeft,  58  Mich.  1,  23  N.  W.  27,  24  N.  W.  645,  25  N.  W.  567,  26 

N.  W.   870 20,  324,  378 

V.  Scovel,  8  W.  N.  C.  36+ 10,  32 

V.  Scovcll,  94  Pa.  48,  39  Am.  Rep.  766 940 

V.  Thomson,  161  111.  161,  43  N.  E.  617 301,  302,  304 

Creagh  v.  Blood,  2  Jones  &  L.  509,  8  Ir.  Eq.  Rep.  434 11,  13,  36,  384,  385 

Creekmore  v.  Baxter,  121  N.  C.  31,  27  S.  E.  994 16,  937 


TABLE  OF  CASES  CITED.  Ixxiii 

Crcely   v.   Ostrander,   3   Bradf.    107 75,  128 

Crew  V.  St.  Louis,  K.  &  N.  W.  R.  Co.  20  Fed.  87 278,  279,  359,  3G0 

V.  State   (Tex.  dim.  App. )    23  S.  W.   14 252 

Crews  V.  State,  34  Tex.  Crim.  Rep.  533,  31  S.  W.  373 181 

Cribb  V.  State  (Ga.)  45  S.  E.  396 23G,  237 

Crichton  v.  Crichton,  73  Wis.  59,  40  N.  W.  638 60 

Crippcn  v.  Culver,   13  Barb.  428 299,  300,  304,  305 

Crispell  v.  Dubois,  4  Barb.  393 92 

Crocker  v.  Chase,  57  Vt.  413 367,  368,  376,  378 

Crockett  v.  Davis,  81  Md.  134,  31  Atl.  710 132,  396,  413 

Croft  V.  Day,  1  Curt.  Eccl.  Rep.  782 125,  333 

Crolius  V.   Stark,   7   Lans.   311 65,  76 

V.  Stark,   64   Barb.    1 12 413 

Cropp  V.  Cropp,  88  Va.  753,  14  S.  E.  529 324,  333 

Crosby  v.  People,  137  111.  325,  27  N.  E.  49 251 

Cross  V.  Andrews,  Cro.  Eliz.  pt.  2,  p.  622 275 

V.  Kent,  32  Md.  581 275 

V.  State,  55  Wis.  261,  12  N.  W.  425 246,  251 

Crossan  v.  Crossan,  169  Mo.  631,  70  S.  W.  136 68 

Crosswell  v.  People,  13  Mich.  427,  87  Am.  Dec.  774 206,  207 

Crouse  v.  Holman,  19  Ind.  30 7 

Crouzeilles's  Succession,  106  La.  442,  31  So.  64 133 

Crow  V.  Meyersieck,  88  Mo.  411 299 

V.  Peters,   63   Mo.   429 ". 431 

Crowell  V.  Kirk,  14  N.  C.   ( 3  Dev.  L. )   355 445,  446,  456 

Crowinshield  v.  Crowinshield,  2  Gray,  524 38,  103,  329,  330,  912 

Crowson  v.  Crowson,   172  Mo.  691,  72  S.  W.   1065 68,  69,  365,  418 

Crowther  v.  Rowlandson,  27   Cal.   376 32,  295 

Cruger,  Re,  36  Misc.  477,  73  N.  Y.  Supp.  812 131 

Cruise  v.  Christopher,   5   Dana,    181 20,  25 

Crura  V.  Thornley,  47  111.  192 46,   114,   139,  140,  377 

Crump  V.  Morgan,  38  N.  C.  (3  Ired.  Eq.)  91,  40  Am.  Dec.  447.  .40,  41,  43,  48,  49 

Cubbage  v.  Cubbage,  1  Harr.   (Del.)   461,  note 33S,  913 

Cudney  v.  Cudney,  68  N.  Y.   148 110,  122 

Culver  V.  Haslam,  7  Barb.  314 420,  426,  437,  443,  7»2 

Gumming,  Re,  11  Eng.  L.  &  Eq.  Rep.  202,  1  De  G.  M.  &  G.  537,  21  L.  J.  Ch. 

N.  S.  753,  16  Jur.  483 146,  161 

Cummings  v.  Henry,   10  Ind.   109 24,  27,  29 

Cuneo  v.  Bessoni,  63  Ind.  524 153,  417 

Cunningham  v.  Bucky,  42  W.  Va.  671,  35  L.  R.  A.  850,  57  Am.  St.  Rep.  876, 

26  S.  E.  442 281 

v.  State,  56  Miss.  269,  21  Am.  Rep.  360 184,   191,  194,  201,  203, 

327,  346,  353,  354 

Currie  v.  Child,  3  Campb.  283 314 

v.  Currie,  24  Can.  S.  C.  712 333 

Ourry  v.  Bratney,  29  Ind.   195 363 

V.  Com.  2  Bush,  67 246 

V.  Curry,  Wilson  Super.  Ct.  (Ind.)   236 51 

Curtis  V.  Brownell,  42  Mich.  165,  171,  3  N.  W.  936 18,  36,  37 

V.  Hall,  4  N.  J.  L.   361 - 25,  387 


Ixxiv  TABLE  OF  CASES  CITED. 

Cuthbertson's  Appeal,  97   Pa.   163 125,  334 

Cutler  V.  Cutler,  103  Wis.  258,  79  N.  W.  240 105,  111 

V.  Zollinger,  117  Mo.  92,  22  S.  W.  895 13-16,  33,  189,  340 

C.  V,  C.  28  Eng.  L,  &  Eq.  Rep.  60? 60 


Dacey  v.  People,  116  111.  555,  6  N.  E.  165 197,  199,  353,  722 

Dale's  Appeal,  57  Conn.  127,  17  Atl.  757 115,  120,  361,  363,  368,  369 

Dalton's  Case,  19  How.  St.  Tr.  809 957 

Daly  V.  Daly,  183  111.  269,  55  N.  E.  671 76,  380 

V.  Hinz,  113  Cal.  366,  45  Pac.  693 290 

V.  John  Hancock  Mut.  L.  Ins.  Co.  ( Ind.)  8  Ins.  L.  J.  319 271 

Damien's    Case    515 

Dane  v.  Kirkwall,  8  Car.  &  P.  679 8,   10,  16,  938 

Danforth  v.  State,  75  Ga.  614,  58  Am.  Rep.  480 ;210,  320,  347,  349 

Daniel  v.  Daniel,  39  Pa.  191 66,  424,  435,  458 

V.  Hill,   52   Ala.   430 92 

Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.  183  Mass.  393,  62  L.  R.  A.  751, 

67  N.  E.  424 277 

Darby  v.  Cabanne,  1  Mo.  App.  126 24,  30 

V.  Hayford,   56   Me.   246 13,  14 

Darley  v.  Darley,  3  Bradf.  481 122 

Darling  v.  Bennet,  8  Mass.  129 150,  152 

Darnell  v.  Rowland,  30  Ind.  342 17,  34,  444 

V.  State,  24  Tex.  App.  6,  5  S.  W.  522 221 

Darrow  v.  Family  Fund  Soc.  42  Hun,  245 636 

Davenport,  Re,  63  N.  J.  Eq.  342,  50  Atl.  441 152,  161 

Davies  v.  Cooper,  5  Myl.  &  C.  276 20 

V.  Grindley,  Shelford,  Lunatics,  266 13 

D'Avignon,  Re,  12  Colo.  App.  489,  55  Pac.  936 103,  446 

Davis,  Re,  91  Hun,  209,  36  N.  Y.  Supp.  822 119 

V.  Calvert,  5  Gill  &  J.  300,  25  Am.  Dec.  282.  .08,  100,  108,  109,  362, 

370,  805 

V.  Culver,  13  How.  Pr.  68 76 

V.  Davis,   123  Mass.  590 94 

V.  Denny,  94  Md.  390,  50  Atl.  1037 451 

V.  Lane,  10  N.  H.  156 23 

V.  Latta,  94  Iowa,  727,  62  N.  W.  17 118,  119 

V.  Merrill,  47   N.  H.   208 170 

V.  Oregon  &  C.  R.  Co.  8  Or.  172 280,  281 

V.  Phillips,  85  Mich.  198,  48  N.  W.  513 5,  12 

V.  Rogers,  1  Houst.  (Del.)  44 125,  127,  132,  375,  380 

V.  State,  35  Ind.  496,  9  Am.  Rep.  760 399,  401-404,  408,  410,  413,  416 

V.  State   (Fla.)   32  So.  822 203,  405 

V.  State,  25  Ohio  St.  369 247 

V.  State,  38  Md.  15 461 

V.  Tarver,  65  Ala.   98 394,  423 


TxVBLE  OF  CASES  CITED.  IxxT 

Davis  V,  United  States,  160  U.  S.  469,  40  L.  ed.  499,  l(i  Sup.  Ct.  Rep.  353 

323,  326,  327,  352-354 
V.  United  States,  165  U.  S.  373,  41  L.  ed.  750,  17  Sup.  Ct.-Rep.  360.  .  .  . 

187,198,410,  411 

Davison  v.  Tipton,  10  Ohio  L.  J.  321 145 

Davren  v.  White,  42  N.  J.  Eq.  569,  7  Atl.  682 13,  14 

Dawson  v.  Dawson,  23  Mo.  App.  169 56 

V.  State,  16  Ind.  428,  79  Am.  Dec.  439 236,  240,  386,  389 

Day  V.  Day,  3  N.  J.  Eq.  549 127 

v.  Seeley,  17  Vt.  542 13,  20,  35,  323 

De  Alberts  v.  State,  34  Tex.  Crim.  Rep.  508,  31  S.  W.  391 234,  235,  253 

Dean  v.  American  Mut.  L.  Ins.  Co.  4  Allen,  96 261 

V.  Dean,   27   Vt.    746 329 

V.  Fuller,  40  Pa.  474 447 

V.  Negley,  41  Pa.  317,  80  Am.  Dec.  620 123 

Deans  v.  Wilmington  &  W.  R.  Co.  107  N.  C.  686,  22  Am.  St.  Rep.  902,  12  S. 

E.  77 288,  289 

Dearmond  v.  Dearmond,  12  Ind.  455 321 

Deas  v.  Wandell,  3  Thomp.  &  C.  128 110 

De  Gogorza  v.  Knickerbocker  L.  Ins.  Co.  65  N.  Y.  232 264,  265 

De  Haven's  Appeal,  75  Pa.  337 99 

Dejarnette  v.  Com.  75  Va.  867.  .  182,  190,  191,  196,  199,  200,  347,  348,  408,  453,  565 
Delafield  v.  Parish,  25  N.  Y.  115.  .  .  .60,  71,  136,  321,  323,  329-331,  345,  414, 

742,  801,  815,  818,  868,  911,  924,  931 

Delahunty,  Re,  28  Abb.  N.  C.  245,  18  N.  Y.  Supp.  395 304 

Delaney  v.  Salina,  34  Kan.  532,  9  Pac.  271 69,  74 

Delaplain  v.  Grubb,  44  W.  Va.  612,  67  Am.  St.  Rep.  788,  30  S.  E.  201 

14,  15,  19,  321,  443 

De  Lesdernier  v.  De  Lesdernier,  45  La.  Ann.  1364,  14  So.  191 57 

Delgado  v.  State,  34  Tex.  Crim.  Rep.  157,  29  S.  W.  1070 253 

Demelt,  Re,  27  Hun,  480 160 

V.  Leonard,  19  How.  Pr.  140 37,  38,  154,  155,  158,  160.  304 

Den  V.  Vancleve,  5  N.  J.  L.  589 364,  372 

Den  ex  dem.  Aber  v.  Clark,  10  N.  J.  L.  217,  IS  Am.  Dec.  417 38,  154,  156 

Trumbull  v.  Gibbons,  22  N.  J.  L.   117,  51  Am.  Dec.  253 69,  -73, 

109,  110,  335,  925 

Merritt  v.  Johnson,  5  N.  J.  L.  454,  8  Am.  Dec.  010 69 

State  Bank  v.  Moore,  5  N.  J.  L.  470 6 

Stevens  v.  Vancleve,  4  Wash.  C.  C.  262,  Fed.  Cas.  No.  13,  412 

68,  74,  97,  102,  104,  331,  338,  339,  362,  363,  366,  450,  451 

Denison's  Appeal,  29  Conn.  399 106,  366 

Denman  v.  St.  Paul  &  D.  R.  Co.  26  Minn.  357,  4  N.  W.  605 282 

Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97 5,  12,  13,  15,  17,  100 

Denni  v.  Elliott,  60  Tex.  337 299 

Denning  v.  Butcher,  91  Iowa,  428,  59  N.  W.  69 364,  394,  395,  424-427, 

431,  433,  438 

Dennis  v.  Dennis,  08  Conn.  186,  34  L.  R.  A.  449,  57  Am.  St.  Rep.  95,  36  Atl.  34  58 

V.  Union  Mut.  L.  Ins.  Co.  84  Cal.  570,  24  Pac.  120 265 

V.  Weekes,  46  Ga.  514 . 122,  366,  370,  381 

V,  Weekes,  51  Ga.  24 110,  425 


Ixxvi  TABLE  OF  CA.SES  CITED. 

Denny  v.  Denny,  8  Allen,  311 55 

V.  Pinney,  60  Vt.  524,  12  Atl.  108 322,  329 

V.  Tyler,  3  Allen,  225 172 

Denson  v.  Beazley,  34  Tex.  101 73,  184 

Dent  V.  Bennett,  7  Sim.  539 16 

Denton  v.  Franklin,  9  B.  Mon.  28 130 

Denver  Tramway  Co.  v.  Reicl,  4  Colo.  App.  53,  35  Pac.  269 281 

Depuy's  Estate,  1  W.  N.  C.  212 98,  99 

De.sclm.s  v.  Baltimore  &  O.  R.  Co.  149  Pa.  432,  24  Atl.  283 290 

Deshon  v.  Jklercliants'  Bank,  8  Bosw.  461 454 

Desilver,  Re,  5  Rawle,  1 1 1,  28  Am.  Dec.  645 7,  9 

Des  Moines  Nat.  Bank  v.  Chisholm,  71  Iowa,  675,  33  X.  W.  234 5,  14 

Devereaux  v.  Hubbard,  117  Mich.  119,  75  N.  W.  450 17 

Devin  v.  Scott,  34  Ind.  67 165,  166 

Dew  V.  Clark,  1  Addams  Eccl.  Rep.  279,  3  Add.  79 73,  77,  79,  81,  82,  87, 

184,  189,  328,  650,  920,  922,  925,  930,  931 

V.  Clarke,  5  Russ.  Ch.  166,  6  L.  J.  Ch.  186 522,  548,  650,  738,  835,  921 

Dewey  v.  Allgire,  37  Neb.  6,  40  Am.  St.  Rep.  468,  55  N.  W.  276.  .  10,  14,  16,  38,  384 

De  Witt  V.  Barley,  9  N.  Y.  371 434,  437,  445,  447 

V.  Barley,  13  Barb.  550 420,  429 

V.  Barly,  17  N.  Y.  340 418,  419,  422,  431,  437,  453 

Dexter  v.  Hall,  15  Wall.  20,  21  L.  ed.  73 6,  9,  38,  337,  339,  398,  399, 

402,  408,  453,  455 

Dey,  Re,  9  N.  J.  Eq.  181 146,  172 

Dibrell  v.  Lanier,  89  Tenn.  497,  12  L.  R.  A.  70,  15  S.  W.  87 67 

Dieken  v.  Johnson,  7  Ga.  484 13,  324,  337,  338,  432 

Dickenson  v.  Blisset,  1  Dick.  268 , 871 

Dickerson  v.  Davis,  111  Ind.  433,  12  N.  E.  145 299,  303-305 

V.  Northwestern  Mut.  L.  Ins.  Co.  200  111.  270,  05  X.  E.  694,  Affirming 

102  111.  App.  280 264,  265 

Dickie  v.  Carter,  42  111.  376 363 

V.  Van  Vleek,  5  Rcdf.  284 106 

Dickinson  v.  Barber,  9  Mass.  225,  6  Am.  Dec.  58 33,  276,  301,  363,  395 

V.  Buskie,  59  Wis.  136,  17  N.  W.  685 317 

V.  Dickinson,  64  Pa.  401 421,  446,  449 

Dickson  v.  Waldron,   135  Jnd.  507,  24  L.  R.  A.  483,  488,  41  Am.  St.  Rep. 

440,  34  N.  E.  506,  35  N.  E.  1 311,  316 

Dietrich  v.  Dietrich,  4  Watts,  167,  note 369 

Dietrick  v.  Dietrick,  5  Serg.  &  R.  207 379 

Dietz,  Re,  41  N.  J.  Eq.  284,  7  Atl.  443 109,  1 10 

Digges'  Case,  cited  in  Powell  on  Devises,  710 451 

Dillard  v.  Dillard,  2  Strobh.  L.  89 309 

Dimes  v.  Dimes,  10  I\Ioore  P.  C.  C.  422 134 

Dimick  v.  Downs,  82  111.  570 387,  458 

Dimond's  Estate,  3  Pa.  Dist.  R.  554 96,  120,  121,  362 

Dinges  v.  Branson,  14  W.  Va.  100 140,  365,  367 

Dinkelspiel  v.  Central  Kentucky  Asylum,  24  Ky.  L.  Rep.  2240,  73  S.  W.  771. .  320 
District  of  Columbia  v.  Amies,   107   U.   S.  519,  27  L.  ed.  018,  2  Sup.  Ct. 

Hep.  840 308-311 

Ditchburn  v.  Fearn,  0  Jur.  201 85,  86.  87 


TABLE  OF  CASES  CITED.  Ixxvii 

Ditchett  V.  Spuyten  Duyvil  &  P.  M.  R.  Co.  5  Hun,  1G5,  Reversed  on  other 

grounds,  67  N.  Y.  42.5 2S1,  288 

Dixon,  Re,  42  App.  Div.  481,  59  N.  Y.  Supp.  421 97,  98,  127,  129 

Dobbyn  v.  Decow,  25  U.  C.  C.  P.  18 970 

Dobie  V.  Armstrong,  27  App.  Div.  520,  50  N.  Y.  Supp.  801 .  . 84,  SG,  99,  114,  .^.lO,  413 

Dodds  V.  Wilson,  3  Brev.  389 5 

V.  Wilson,  1  Treadway  Const.  448 : 5 

Dodge  V.  Meech,  1  Hagg.  Eccl.  Rep.  612 112.  372 

Doe  V.  Roe,  1  Edm.  Sel.  Cas.  344 43,  49 

Doe  ex  deni.  Bainbridge  v.  Bainbridgo,  4  Cox  C.  C.  454 39S 

Guest  V.  Beeson,  2  Houst.  (Del.)  246 13,  19,  33,  321,  .324,  380 

McDougald  v.  McLean,  GO  N.  C.  (1  Winst.  L.)   120 420,  425,  427,  458 

Sutton  V.  Reagan,  5  Blaekf.  217,  33  Am.  Dec.  466 33,  396,  418,  420,  429 

Pritchard  v.  Roe,  3  Penn.  (Del.)   128,  50  Atl.  217 409,  417 

Griggs  V.  Shane,  4  T.  R.  306 296 

Mather  v.  Whitefoot,  8  Car.  &  P.  270 382 

Moffit  V.  Witherspoon,  32  N.  C.   ( 10  Ired.  L.)    185 12 

j:)ominick  v.  Dominick,  20  Abb.  N.  C.  286 136,  159,  160,  371,  384 

V.  Randolph,   124  Ala.  557,  27   So.  481 12,  15,  16,  37,  320,  344,  421, 

428,  440 

Donegal,  Re,  2  Ves.  Sr.  407,  Ves.  Sr.  Supp.  369 147,  151,  488 

Donelson  v.  Posey,  13  Aia.  752 26,  28,  250 

j:)oran  v.  McConlogue,  150  Pa.  98,  24  Atl.  357 .  .■ 35,  418,  444 

Dorchester  v.  Dorchester,  18  N.  Y.  S.  R.  402,  3  N.  Y.  Supp.  238,  Reversed  on 

other  grounds  in  121  N.  Y.  156,  23  N.  E.  1043 35,  321,  323,  .344 

Dorman,  Re,  5  Dem.  112 108 

Dorniay  v.  Borrodaile,  10  Beav.  335,  Affirmed  in  5  C.  B.  380,  11  Jur.  231 .  .260,  266 

Doniick  v.  Reichenback,  10  Serg.  &  R.  84 65 

Dnrsey  v.  Sheppard,  12  Gill  &  J.  192,  37  Am.  Dec.  77 13G,  334 

V.  Warlield,  7  Md.  65 432,  458 

Dotts  V.  Fetzer,  9  Pa.  88 369 

Doty  V.  Hubbard,  55  Vt.  278 14,  159,  324 

Doud  v..  Hall,  8  Allen,  410 316 

Dougherty  v.  Powe,  127  Ala.  577,  30  So.  524 9,  33 

Doughty  V.  Doughty,  7  N.  J.  Eq.  227 14,  2G 

V.  Doughty,  7  N.  J.  Eq.  643 444 

Douglass  V.  Douglass,  31  Iowa,  421 53 

Douglass's  Estate,  162  Pa.  567,  29  Atl.  715 98 

Dove  V.  State,  3  Heisk,  ,348 348,  353,  401,  410,  419,  421 

Dove's  Case,  3  Stephen's  Crim.  Law,  p.  273 844 

Dowdell,  Re,  169  Mass.  387,  61  Am.  St.  Rep.  290,  47  N.  E.  1033 145,  171 

Downer's  Goods,  1  Spink's  Eccl.  &  Adm.  Rep.  106,  26  Eng.  L.  &  Eq.  Rep.  600.  .  136 

Downing,  Re,  (Wis.)   95  N.  W.  876 424 

Doyle,  Re   16  R.  L  537,  5  L.  R.  A. -359,  27  Am.  St.  Rep.  759,  18  Atl.  159 171 

Doyle's  Estate,  7  Pa.  Co.  Ct.  657 76,  98,  130 

Dozier,  Ex  parte,  4  Baxt.  81 144 

Drake,  Re,  45  App.  Div.  206,  60  N.  Y.  Supp.  1020 97,  98,  127,  128 

Drake's  Appeal,  45  Conn.  9 92,  93 

Draper  v.  Saxton,  118  Mass.  431 453 

Draper's  Estate,  26  W.  N.  C.  218 37,  38,  154,  155 


Ixxviii  TABLE  OF  CASES  CITED. 

Drayton,  Ex  parte,  1  Desauss.  Eq.  144 163 

V.  Wells,  1  Nott  &  M'C.  409,  9  Am.  Dec.  718 315 

Dred  Scott  Oise,  19  How.  393,  15  L.  ed.  G91 557 

Drew  V.  Nunn,  40  L.  T.  N.  S.  07 1,  48  L.  J.  Q.  B.  N.  S.  591,  L.  K.  4  Q.  B.  Div. 

661,  27  Week.  Hop.  810 23 

Drummond  v.  Hopper,  4  Harr.  (Del.)   327 25,  30 

Duchess  of  Cleveland's  Case. .  : ' 742,  974 

Diickor  V.  Whitson,  112  N.  C.  44,  IG  S.  E.  854 368,  424 

Dufaur  v.  Professional  L.  Assur.  Co.  25  Beav.  599,  4  Jur.  N.  S.  841,  27  L.  J. 

Ch.  N.  S.  817 260 

Dumeld  V.  INIorris,  2  Harr.  (Del.)  375 338 

V.  Robeson,  2  Harr.   (Del.)   375 65,  75,  92,  96,   113-115,  120,   121, 

133,  134,  320,  322,  328,  336,  358 

Dugan's  Estate,  6  Pa.  Dist.  R.  222 167 

Duggan  V.  McBreen,  78  Iowa,  591,  43  N.  W.  547 98 

Dulany  v.  Green,  4  Harr.  (Del.)  285 24,  28,  29 

Dumond  v.  Kiff,  7  Lans.  465 129 

Dunaway  v.  Snioot,  23  Ky.  L.  Rep.  2289,  67  S.  W.  62 91 

DunCombe  v.  Richards,  46  Mich.  166,  9  N.  W.  149 20,  140,  141,  324,  325 

Dunham,  Re,  15  N.  Y.  S.  R.  869,  1  N.  Y.  Supp.  120 Ill 

Dunham's  Appeal,  27  Conn.  192.  ....  .71,  83,  378,  419,  433,  434,  441,  919,  921,  931 

Dunlap  V.  Wagner,  85  Ind.  529,  44  Am.  Rep.  42 282 

Dunn  V.  Amos,  14  Wis.  107 28 

V.  Dunn,  114  Cal.  210,  46  Pac.  5 299,  302 

V.  Dunn,  62  Cal.  176 50 

V.  People,  109  111.  635 197,  198,  550,  563,  83S 

Dunnage  v.  White,  1  Swanst.  137,  1  Wils.  67,  18  Revised  Rep.  33 17,  26 

Durant  v.  Ashmore,  2  Rich.  L.  184 367 

Durham  v.  Durham,  L.  R.  10  Prob.  Div.  80 43 

V.  Smith,  120  Ind.  463,  22  N.  E.  333 16,  444 

Durie  v.  Morris,  1  U.  S.  Law  Mag.  49 41 

Durling  v.  Loveland,  2  Curt.  Eccl.  Rep.  225 92,  125,  126 

Durnell  v.  Corfjeld,  8  Jur.  915 125,  126 

Duvale  v.  Duvale    (N.  J.  Eq.)  34  Atl.  888 54 

Dwyer,  Re,  29  Misc.  382,  61  N.  Y.  Supp.  903 114 

Dyce  Sombre,  Re,  13  Jur.  857,  1  Macn.  &  G.  116,  1  Hall  &  T.  285 164 

V.  Troup,  Deane  &  S.  22 107 

Dye  V.  Young,  55  Iowa,  433,  7  N.  W.  678 369 

Dyer  v.  Dyer,  87  Ind.  13 362 

Dyre's  Estate,  12  Phila.  156 67,  75,  100,  155 

Dyson's  Case,  1  Lcwin  C.  C.  64 214,  216 


E 

Eakin  v.  Hawkins,  48  W.  Va.  364,  37  S.  E.  622 '  321 

V.  Hawkins,  52  W.  Va.  124,  43  S.  E.  211 35,  321,  342 

Ealing  Grove,  The,  2  Hagg.  Adm.  15 30 

Ean  V.  Snyder,  46  Barb.  230 66,  117,  32* 

Earlo  V.  Norfolk  &  N.  15.  Hosiery  To.  36  N.  .J.  Eq.  188 13 


TABLE  OF  CASES  CITED.  Ixxix 

Earl  Ferrers's  Case.    See  Ferkees's  Trial. 

Earnmoor  S.  S.  Co.  v.  Union  Ins.  Co.  44  Fed.  374 278 

Eastabrook  v.  Union  Mut.  L.  Ins.  Co.  54  Me.  224,  89  Am.  Dec.  74.3.  .200,  261,  643 
Eastis  V.  Montgomery,  95  Ala.  4SG,  36  Am.  St.  Rep.  227,  11  So.  204.  .71,  74, 

70, 118,  333 

East  Tennessee  &  W.  N.  C.  R.  Co.  v.  Winters,  85  Tenn.  240,  1  S.  W.  790 283 

Eastwood  V.  People,  3  Park.  Crim.  Rep.  25,  Affirmed  in  14  N.  Y.  502 249,  459 

Eaton  V.  Eaton,  37  N.  J.  L.  108,  18  Am.  Rep.  71G 10,  13 

V.  Perry,  29  Mo.  90 24 

Eckert  v.  Flowry,  43  Pa.  40 91,  378,  439,  928 

V.  State,  114  Wis.  100,  89  N.  W.  820 185 

Eckstein,  Re,  1  Clark,  (Pa.)  224,  1  Pars.  Sel.  Cas.  59 29!),  301,  304 

Eddey's  Appeal,  109  Pa.  400,  1  Atl.  425 98,  99,  117 

Eddy,  Re,  32  N.  J.  Eq.  701 128 

Edge  V.  Edge,  38  N.  J.  Eq.  211 102 

Edgerly  v.  Union  Street  R.  Co.  07  N.  H.  312,  ,30  Atl.  558 285,  280 

Edmondson's  Case,  Times,  Jan.  17th,  1872 , 199 

Edson  V.  Munsell,  10  Allen,  557 , 384 

Edwards  v.  Davenport,  20  Fed.  750 12 

V.  Edwards,  14  Tex.  Civ.  App.  87,  30  S.  W.  1080 16 

V.  State,  38  Tex.  Crim.  Rep.  386,  39  L.  R.  A.  262,  43  S.  W.  112 250,  257 

V.  Travelers'  L.  Ins.  Co.  20  Fed.  661 644 

V.  Worcester,  172  Mass.  104,  51  N.  E.  447 459 

Egan,  Re,  36  App.  Div.  47,  55  N.  Y.  Supp.  105 171 

v.  Dry  Dock,  E.  B.  &  B.  R.  Co.  12  App.  Div.  556,  42  N.  Y.  Supp.  188.  . .  461 

Egbers  v.  Egbers,  177  111.  82,  52  N.  E.  285 331,  345,  368 

Egbert  v.  Egbert,  78  Pa.  320 102,  328,  380,  434,  440,  448 

Eggers  V.  Eggers,  57  Ind.  401 78,  82,  404,  412,  416 

Ehminne,  Re,  30  Misc.  21,  62  N.  Y.  Supp.  1000 92,  132 

Ekin  V.  McCracken,  11  Phila.  534 11,  15,  30,  77,  86,  114 

Elcessor  v.  Elcessor,  146  Pa.  359,  23  Atl.  230 32,  140,  418,  420,  421,  432,  433 

Elder  v.  Ogletree,  36  Ga.  64 434 

V.  State,  100  Ga.  83,  26  S.  E.  80 182 

Eldredge  v.  Palmer,  185  111.  618,  76  Am.  St.  Rep.  59,  57  N.  E.  770 8 

Elkinton  v.  Brick,  44  N.  J.  Eq.  154,  1  L.  R.  A.  161,  15  Atl.  391.  .  .  .119,  121, 

321,  328,  333,  358 

Ellars  v.  IMossbarger,  9  111.  App.  122 33 

Elliott  V.  Welby,  13  Mo.  App.  19 138,  322,  330,  332,  333,  335,  342 

Elliott's  Will,  2  J.  J.  Marsh,  340 75 

Ellis  V.  Bowman,  17  L.  T.  11 47 

V.  Ellis,  133  Mass.  469 436 

V.  Mathews,  19  Tex.  390,  70  Am.  Dee.  353 17,  20,  324 

V.  Secor,  31  Mich.  185,  18  Am.  Rep.  178 141 

V.  State,  33  Tex.  Crim.  Rep.  86,  24  S.  W.  894 383 

V.  White,  61  Iowa,  644,  17  N.  W.  28 54 

Elmer  v.  Kechele,  1  Redf.  472 293 

Eloi  V.  Eloi,  36  La.  Ann.  563 153,  418,  442 

Elston  V,  Jasper,  45  Tex.  409 10,  38,  157,  339 

Elwood  V.  O'Brien,  105  Iowa,  239,  74  N.  W.  740 12,  160 

Ely,  Re,  16  IMi.se.  228,  39  N.  Y.  Supp.  177 113,  160 


Ixxx  TABLE  OF  CASES  CITED. 

Elyot's  Case,  Carter,  53 870 

El'zey  V.  Elzey,  1  Houst.  (Del.)   .308 42,  46,  50,  56 

Emeriek  v.  Emerick,  83  Iowa,  411,  13  L.  R.  A.  757,  49  N.  W.  1017 150 

Emery  v.  Hoyt,  46  111.  258 5,  15,  154,  338,  41G,  443 

Emes  V.  Ernes,  11  Grant  Cli.   (N.  C.)   325 14 

Emig  V.  Diehl,  76  Pa.  359 315 

Emmerioli  v.  Thorlej-,  35  App.  Div.  452,  54  N.  Y.  Supp.  791 170 

Emswiler,  Re,  8  Ohio  N.  P.  132,  11  Ohio  S.  &  C.  P.  Dec.  10 148,  149 

Encking  v.  Simmons,  28  Wis.  272 6,  8,  10 

Engelhardt  v.  State,  88  Ala.  100,  7  So.  154 250 

English  V.  Porter,  109  111.  285 13,  14,  152,  321,  324,  344 

Enright  v.  Atlanta,  78  Ga.  288 390 

Entwistle  v.  Meikle,  180  111.  9,  54  N.  E.  217 07,  331,  345,  385,  445 

Epling  V.  Hutton,  121  111.  555,  13  N.  E.  242 138 

Equitable  Life  Assur.  Soc.  v.  Paterson,  41  Ga.  388,  5  Am.  Rep.  535 263,  272 

Errickson  v.  Fields,  30  N.  J.  Eq.  634 105 

Erwin  v.  State,  10  Tex.  App.  700 234 

Eslava  v.  Lepretre,  21  Ala.  504,  50  Am.  Dec.  266 146,  305 

JLsterbrook  v.  Gardner,  2  Deni.  543 108,  1 12 

Estes  V.  State,  55  Ga.  30 240,  241 

Etliridge  v.  Bennett,  9  Houst.    (Del.)    295,  31   Atl.   813.. 69,  87,   320,  418, 

420,  445,  458 

Ettcr  V.  Armstrong,  46  Ind.  197 69 

Evans,  Re,  37  Misc.  337,  75  N.  Y.  Supp.  491 95,  109 

Re,  114,  Iowa,  240,  86  N.  W.  283 '. 79,  368 

V.  Arnold,  52  Ga.  169 97,  102,  103,  106,  111,  203,  329 

V.  Hettich,  7  Wheat.  453,  5  L.  ed.  496 310 

V.  Horan,  52  Md.  602 10 

V.  Johnson,  39  W.  Va.  299,  23  L.  R.  A.  737,  45  Am.  St.  Rep.  912,  19 

S.  E.  623 144 

V.  Knight,  1  Addams  Eccl.  Rep.  229 107,  111,  923 

Ever.s,  Ex  parte,  29  Tex.  App.  539,  16  S.  W.  343 253,  254 

V.  State,  31  Tex.  Crim.  Rep.  318,  18  L.  R.  A.  421,  37  Am.  St.  Rep.  811, 

20  S.  W.  744 185,  232,  236,  253,  254 

Ewing  V.  Wilson,  63  Tex.  88 299,  302 

Exum  V.  Canty,  34  Miss.  533 34,  35,  111,  443 


Fahnostock  v.  State,  23  Ind.  231 383 

Fain  v.  Com.  78  Ky.  183,  39  Am.  Rep.  213 379,  408,  900 

Fairchild  v.  Bascomb,  35  Vt.  398 312,  313,  362,  374,  376,  378,  400,  ^01, 

403,  404,  408,  453,  457 

Fane  v.  Devonshire,  6  Bro.  P.  C.  137 35,  325 

Farley  v.  Parker,  6  Or.  105,  25  Am.  Rep.  504 , 6,  9,  430 

Farman,  Re,  54  Barb.  274 65 

Farmer  v.  Farmer,  129  Mo.  530,  31  S.  W.  926 67 

V.  Farmer,  1  H.  L.  Cas.  724 872 

Farnam  v.  Brooks,  9  Pick.  212 4,  17. 


TABLE  OF  CASES  CITED.  Ixxxi 

Farnham,  Re,  [1895]  2  Cli.  799,  64  L.  J.  Cb.  N.  S.  717,  12  Reports,  554,  73  L. 

T.  N.  S.  231,  3  Manson,  109 306 

Farnsworth,  Re,  62  Wis.  474,  22  N.  W.  523 72 

V.  Noffsinger,  46  W.  Va.  410,  33  S.  E.  246 15,  19,  321,  412,  444 

Farnswortli's  Will,  62  Wis.  474,  22  N.  W.  523 113 

Farnum  v.  Boyd,  56  N.  J.  Eq.  766,  41  Atl.  422 86,  92 

Farrell  v.  Brennan,  32  Mo.  328,  82  Am.  Dec.  137 434,  456 

Farrer  v.  State,  2  Ohio  St.  54 197,  198,  200,  203,  225,  350-352 

Fan-is  v.  Com.  8  Ky.  L.  Rep.  417,  1  S.  W.  729 199 

Faulder  v.  Silk,  3  Campb.  126 38,  154,  384,  941 

Faulkner  v.  Territory,  6  N.  M.  404,  30  Pac.  905 325,  354 

Fay  V.  Burdett,  81  Ind.  435,  42  Am.  Rep.  142 15,  321,  323,  337,  343 

Fayette  v.  Chesterville,  77  Me.  28,  52  Am.  Rep.  741 294.  404,  454 

Fee  V.  Taylor,  83  Ky.  259 331,  332 

Fennell  v.  Tait,  1  Cromp.  M.  &  R.  584,  5  Tyrw.  218 308,  314 

Fenton,  Re,  97  Iowa,  192,  66  N.  W.  99 399.  427 

V.  Holloway,  1  Starkie,  126 29 

Fentress  v.  Fentress,  7  Heisk.  428 147,  148 

Ferguson  v.  Borrett,  1  Fost.  &  F.  613 34 

Ferrars,  Ex  parte,  Mosely,  332 164 

Ferrell  v.  State,  43  Tex.  503 238,  239 

Ferrers's  Trial,  19  How.  St.  Tr.  886 223,  525,  834,  841,  955 

Ferris,  Re,  74  App.  Div.  619,  77  N.  Y.  Supp.  309 163 

V.  People,  35  N.  Y.   125 225,  353 

Fidelity  Trust  Co.,  Re,  27  Misc.  118,  57  N.  Y.  Supp.  361 157 

Field,  Re,  3  Curt.  Eccl.  Rep.  754 93 

V.  Shorb,  99  Cal.  661,  34  Pac.  504 139 

Field's  Appeal,  36  Conn.  277 445,  447,  450 

Fielding  v.  State,  135  Ala.  56,  33  So.  677 241 

Fincham  v.  Edwards,  3  Curt.  Eccl.  Rep.  63 12V 

Finn,  Re,  1  Misc.  280,  22  N.  Y.  Supp.  1066 109 

Finzer  v.  Nevin,  13  Ky.  L.  Rep.  773,  18  S.  W.  367 305 

Firby  v.  State,  3  Baxt.  358 214,  217,  22] 

First  Nat.  Bank  v.  Wirebacb,  100  Pa.  37,  Affirming  12  W.  N.  C.  150 

33,  372,  392,  398,  405,  413,  417,  421,  425,  431-433,  439,  44G 

Fiscus  V.  Turner,  125  Ind.  40,  24  N.  E.  602 148,  149..  444 

Fishbume  v.  Ferguson,  84  Va.  87,  4  S.  E.  575 20,  324,  332,  337,  426 

Fisher  v.  People,  23  111.  283 186,  197,  199,  327,  347 

V.  State,  30  Tex.  App.  502,  18  S.  W.  90 239,  254,  444 

V.  State,  64  Ind.  435 230,  232,  237 

V.  West  Virginia  &  P.  R.  Co.  42  W.  Va.  183,  33  L.  R.  A.  69,  24  S.  E.  570  280 
V.  West  Virginia  &  P.  R.  Co.  39  W.  Va.  366,  23  L.  R.  A.  758,  19  S.  E. 

578 280,  284 

l<'itch  V.  American  Popular  L.  Ins.  Co.  59  N.  Y.  557,  17  Am.  Rep.  372 266 

Fitzgerald,  Re,  30  N.  J.  Eq.  50 153,  412 

V.  Reed,   17   Miss.   94 25 

V.  Reed,  9  Smedes  &  M.  94 6 

V.  Shelton,  95  N.  C.  519 364 

V.  Weston,  52  Wis.  354,  9  N.  W.  13 281,  290,  357,  387 

Fitzhugh   V.   Wilcox,    12    Barb.   235 6,    38,  156 

Vol.    I.   Meo.   Jur. — v. 


Ixxxii  TABLE  OF  CASES  CITED. 

Fitzpatrick  V.  Com.  81  Ky.  357 176,  177,  187,200,  227 

Flach  V.  Gottschalk,  88  Md.  368,  42  L.  R.  A.  745,  71  Am.  St.  Rep.  418,  41 

Atl.  908 •  « 

Flanagan  v.  People,  52  N.  Y.  4G7,  11  Am.  Rep.  731....  196,  200,  201,  203, 

56.5,  618,  721 

V.  State,  103  Ga.  619,  30  S.  E.  550 198,  213,  222 

V.  State,  106  Ga.  109,  32  S.  E.  80 402 

Flanders  v.  Davis,  19  N.  H.  139 102,  443 

Flanigan  v.  People,  80  N.  Y.  554,  40  Am.  Rep.  556 236,  24.") 

Flannigan  v.  People,  52  N.  Y.  467,  11  Am.  Rep.  731 183 

Flansburgh,  Re,  82  Hun,  49,  31  N.  Y.  Supp.  177 69,  70,  345,  925 

Fleming  v.  Seeligson,  57  Tex.  524 300,  305 

V.  State,  5  Humph.  564 317,  330 

Fletcher  v.  Fletcher,  28  L.  J.  Q.  B.  N.  S.  136,  1  El.  &  El.  420,  5  Jur.  N.  S.  678, 

7  Week.  Rep.  187 170,  969 

Flint,  Re,  100  Cal.  391,  34  Pac.  863 40Ci 

Re,  Shelford  on  Lunatics,  91 151 

Florey  v.  Florey,  24  Ala.  241 377,  419,  92.1 

Floyd  V.  Floyd,  3  Strobh.  L.  44,  49  Am.  Dec.  626 90 

Fluck  V.  Rea,  51  N.  J.  Eq.  233,  27  Atl.  636 120 

Flynt  V.  Bodenhamer,  80  N.  C.  205 403,  404,  41G 

Fogarty  v.  State,  80  Ga.  450,  5  S.  E.  782 203,  215,  217,  741 

Follmar  v.  Germania  L.  Ins.  Co.  cited  in  Bliss  on  Life  Insurance,  §  242 260 

Folts,  Re,  71  Ilun,  492,  24  N.  Y.  Supp.  1052 127,  128,  437,  43S 

Fonville  v.  State,  91  Ala.  39,  8  So.  688 231,  243,  356,  357,  359 

Foot  V.  Stanton,  1  Deane  &  S.  Eccl.  Rep.  19 131,  451,  742,  92.-; 

V.  Tewksbury,  2  Vt.  97 27 

Forbes  v.  Edinburgh  Life  Assur.  Co.  10  Shaw  &  D.  451 272 

Forbing  v.  Weber,  99  Ind.  588 130 

Force  v.  Probasco,  43  N.  J.  L.  539 970 

Ford  V.  Ford,  7  Humph.  92 68,  119,  136,  333,  362 

V.  State,  71  Ala.  385 244,  339,  342,  347,  349,  351,  430 

V.  State,  73  Miss.  734,  35  L.  R.  A.  117,  19  So.  665 190,  326,  327, 

337,  340,  352,  353 

V.  Umatilla  County,  15  Or.  315,  10  Pac.  33 290,  357 

Forman,  Re,  54  Barb.  279 70,  73,  79,  80,  85,  137,  332 

Re,  Tucker,  205 93,  136,  137 

V.  Forman,  53  N.  Y.  S.  R.  639,  24  N.  Y.  Supp.  917 41,  42,  51 

V.  Smith,  7  Lans.  443 72,  4L5 

Forney  v.  Ferrell,  4  W.  Va.  729 36!) 

Fornshill  v.  Murray,  1  Bland  Ch.  479,  18  Am.  Dec.  344 41 

Foss  V.  Hildreth,  10  Allen,  76 24,  390 

Foster   v.    Brooks,    6    Ga.    291 383 

V.  Dickerson,  64  Vt.  233,  24  Atl.  253.  . .  .  104,  369,  374,  377,  395,  397, 

404^06,  410,  419-423,  429,  432,  439,  442,  445,  451,  457 

V.  Jones,  23  Ga.  108 299,  301 

V.  Means,  Speers  Eq.  569,  42  Am.  Dec.  332 40,  42,  44,  46 

Foster's  Estate,  142  Pa.  62,  21  Atl.  798 98 

Fountain  v.  Brown,  38  Ala.  72 106,  372,  374,  381 

Fouts  V.  State,  4  G.  Greene,  500 192,  194,  198,  199 


TABLE  OF  CASES  CITED.  Ixxxiii 

Fow's  Estate,  147  Pa.  2G4,  23  Atl.  447 128 

Fowler  v.  Mutual  L.  Ins.  Co.  4  Lans.  202 261,  268,  270 

V.  llamsdell,  4  Alb.  L.  J.  94 • 83,  88 

Fowlis  V.  Davidson,  6  Notes  of  Cases,  461 77,  100,  341,  343 

Fox  V.  Evans,  3  Yeates,  500 452 

V.  Penn  Mut.  L.  Ins.  Co.  (Pa.)  4  Bigelow  Life  &  Acci.  Ins.  Rep.  458. .  271 

V.  Territory,  2  Wash.  Terr.  297,  5  Pac.  003 316 

Francis  v.  Wilkinson,  147  111.  370,  35  N.  E.  150 13-15,  07 

Francke  v.  His  Wife,  29  La.  Ann.  302 .  147,  150,  153,  169,  412 

Frank  v.  Mainwaring,  2  Beav.  115 38,  155,  159,  321 

Franke  v.  Shipley,  22  Or.  104,  29  Pac.  268 72 

Franklin  v.  Franklin,  53  Kan.  143,  35  Pac.  1118 53 

Franks  v.  Jones,  39  Kan.  236,  17  Pac.  663 28 

Frantz  v.  Frantz,  6  Ohio  S.  &  C.  P.  Doc.  555 148 

Frary  v.  Gusha,  59  Vt.  257,  9  Atl.  549 377,  378,  395 

Eraser  v.  Jennison,  42  Mich.  206,  3  N.  W.  882 67,  79,  128,  367,  370,  381, 

383,  393,  394.  402,  412,  423,  435,  461 

Eraser's  Case,  Journal  of  Mental  Science,  1878,  Vol.  XXIV.,  p.  451 903,  904 

Frazer  v.  Frazer,  25  Ky.  L.  Rep.  882,  76  S.  W.  546 155 

V.  Frazer,  2  Del.  Ch.  260 11,  13,  108,  111,  112,  323,  501,  093 

Frear  v.  Williams,  7  Baxt.  550 329,  448 

Freed  v.  Brovra,  55  Ind.  310 10,  19,  38 

Freeman  v.  Dwiggins,  54  N.  C.   (2  Jones  Eq.)   162 30 

V.  Easly,  1 17  111.  317,  7  N.  E.  656 67,  75 

V.  People,  4  Denio,  9,  47  Am.  Dee.  216 185,   187,   188,   190,   194, 

203,  207,  208,  210,  211,  214-216,  221,  409,  949,  951,  953 
Freeman  Case.    See  Freeman  v.  People. 

Freese  v.  State    (Ind.)    65  N.  E.  915 355 

French  v.  French,  8  Ohio,  214,  31  Am.  Rep.  441 29,  30 

V.  State,  85  Wis.  400,  21  L.  R.  A.  402,  39  Am.  St.  Rep.  855,  55  N. 

W.  566 215 

V.  State,  93  Wis.  325,  67  N.  W.  706 208,  216,  217,  364,  373,  390,  407 

French  Lumbering  Co.  v.  Theriault<  107  Wis.  627,  51  L.  R.  A.  910,  81  Am.  St. 

Rep.  856,  83  N.  W.  927 7 

Frere  v.  Peacocke,  3  Curt.  Eccl.  Rep.  664 : 121 

V.  Peacocke,  1  Rob.  Eccl.  Rep.  442 85,  925 

Frey  v.  Germania  L.  Ins.  Co.  56  Mich.  29,  22  N.  W.  100 264 

Fricke,  Re,  47  N.  Y.  S.  R.  10,  19  N.  Y.  Supp.  315 83,  117 

Friery  v.  People,  54  Barb.  319 241,  245,  779 

Frink  v.  Coe,  4  G.  Greene,  555,  61  Am.  Dec.  141 278 

Frith's  Case,  22  How.  St.  Tr.  307 208,  211,  395,  840,  950 

Frizzell  v.  Reed,  77  Ga.  724 420,  427,  431 

Frost  V.  Wheeler,  43  N.  J.  Eq.  573,  12  Atl.  612 69,  87,  138 

Frowert's  Estate,  2  W.  N.  C.  588 99 

Frush  V.  Green,  86  Md.  494,  39  Atl.  863 17,  19 

Fry  V.  Fry,  L.  R.  15  Prob.  Div.  25,  Affirmed  in  L.  R.  15  Prob,  Div.  50,  59 

L.  J.  Prob.  N.  S.  43,  62  L.  T.  N.  S.  501,  38  Week.  Rep.  615 153 

Fulbright  v.  Perry  County,  145  Mo.  432,  46  S.  W.  955 99,  114,  331 

FuUeck  V.  Allinsou,  3  Hagg.  Eccl,  Rep.  527 83,  84,  105,   114,  135 

Fuller  V.  Fuller,  17  Cal.  605 , 309 


Ixxxiv  TABLE  OF  CASES  CITED. 

Fulp  V.  Roanoke  &  S.  R.  Co.  120  N.  C.  525,  27  S.  E.  74 283,  288 

Fulton  V.  Andrew,  L.  R.  7  H.  L.  Cas.  448,  44  L.  J.  Prob.  N.  S.  17,  32  L.  T.  N. 

S.  209,  23  Week.  Rep.  566 110,  122 

V.  Unibehend,  182  Mass.  487,  65  N.  E.  829 345 

Fulwider  v.  Ingels,  87  Ind.  414 5,  340,  444 

Furlong  v.  Carraher,  108  Iowa,  492,  79  N.  W.  277 446,  449 

Furnif?s  v.  Mutual  L.  Ins.  Co.  14  Jones  &  S.  407 271 

Furry  v.  Bartling  (Iowa)   94  N.  W.  471 13,  15,  37 

Furst  V.  State,  31  Neb.  403,  47  N.  W.  1116 185,  327,  353 

Futrill  V.  Futrill,  58  N.  C.  (5  Jones  Eq.)  61 26 


G 

Gaffney's  Case,  35  Am.  Journal  of  Insanity,  Vol.  XXXV.,  p.  534 894 

Gahagan  v.  Boston  &  L.  R.  Co.  1  Allen,  187,  79  Am.  Dec.  724 388,  458 

Gainesville  v.  Caldwell,  81  Ga.  76,  7  S.  E.  99 310,  312,  313,  315 

Gaitan  v.  State,  11  Tex.  App.  544 249 

Gaither  v.  Gaither,  20  Ga.  709 70,  92 

Galer  v.  Galer,  108  Iowa,  496,  79  N.  W.  257 139 

Galloway  v.  Hendon,  131  Ala.  280,  31  So.  003 9 

Galpin  v.  Wilson,  40  Iowa,  90 4,  17 

Gait  V.  Provan,  108  Iowa,  561,  79  N.  W.  357 129 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Davis,  4  Tex.  Civ.  App.  408,  23  S.  W.  301 279 

Gamble  v.  Gamble,  39  Barb.  373 108,  109 

Gangwere,  Re,  14  Pa.  417,  53  Am.  Dec.  554 42,  134,  159,  499 

Gannon,  Re,  2  Misc.  329,  21  N.  Y.  Supp.  960 77,  189 

Gardiner  v.  Gardiner,  34  N.  Y.  155 90,  1 17,  437,  440 

V.  People,  6  Park.  Crim.  Rep.  155 435 

Gardner  v.  Gardner,  22  Wend.  526,  34  Am.  Dec.  340.  .93-96,  121,  124,  142,  357-359 

v.  Lamback,  47  Ga.  133 66,  73,  79,  97 

Garner  v.  State,  28  Fla.  113,  29  Am.  St.  Rep.  202,  9  So.  835 231,  236, 

237,  239,  240,  246-248,  254 

Garnett  v.  Garnett,  114  Mass.  379,  19  Am.  Rep.  369 55 

Garretson  v.  Hubbard,  110  Iowa,  7,  81  N.  W.  174 302 

Garrison  v.  Blanton,  48  Tex.  299 C9,  70,  97.  104,  421,  449,  458 

V.  Garrison,  15  N.  J.  Eq.  2GG 104,  450,  451,  458 

Garrow  v.  Brown,  60  N.  C.  (Winst.  Eq.)  46,  49,  86  Am.  Dec.  450 18 

Gartside  v.  Islicrwood,  1  Bro.  Ch.  560 5,   16,   17,  20 

Garvin  v.  Williams,  44  Mo.  465,  100  Am.  Dec.  314 92 

Gass  V.  Gass,  3  Humph.  278 82,  88,  97,  117,  344,  447 

V.  Mason,  4  Sneed,  497 17 

Gates  V.  Cornett,  72  INIicli.  435,  40  N.  W.  740 20,  324 

V.  Meredith,  7  Ind.  440 276,  277,  387 

Gathings  v.  William.s,  27  N.  C.  (5  Ircd.  L.)  487,  44  Am.  Dec.  49 41,  45,  48 

Gatley's  Estate,  4  Pa.  Dist.  R.  52 99,  131 

Gaul,  Re,  7  W.  N.  C.  522 963 

Gavitt  V.  Moulton  (^Vis.)  96  N.  W.  305 103,  105 

Guy  V.  T'nion  Mut.  L.  Ins.  Co.  9  Blatcbf.  142,  Fed.  Cas.  No.  5,282 261-264, 

336,  413,  414,  41.6 


TABLE  OF  CASJCS  CITED.  Ixxxv 

Gc-ale's  Goods,  3  Swabcy  &  T.  431,  33  L.  J.  Prob.  N.  S.  125,  12  Week.  Rep. 

1027 133,  872 

Gebhart  v.  Shindle,  15  Serg.  &  R.  235 .309,  317 

Gee  V.  Ward,  5  Week.  Rep.  579,  7  El.  &  Bl.  500,  3  Jur.  N.  S.  092 308 

Cehrke  v.  State,  13  Tex.  508 422,  434,  435 

General  Convention  v.  Crocker,  7  Ohio  C.  C.  327 84 

Gensemer's  Estate,  170  Pa.  96,  32  Atl.  501 941 

Genz  V.  State,  58  N.  J.  L.  482,  34  Atl.  810 347,  419,  429 

V.  State.  59  N.  J.  L.  488,  59  Am.  St.  Rep.  019,  37  Atl.  09 504 

Gerhold  v.  Wyss,  13  Neb.  90,  12  N.  W.  81 1 49 

German  v.  United  States,  57  C.  C.  A.  128,  120  Fed.  GOG 352 

Germania  L.  Ins.  Co.  v.  Ross  Lewin,  24  Colo.  43,  05  Am.  St.  Rep.  215,  51  Pac. 

488 640 

German  Sav.  &  Loan  Soc.  v.  De  Laslimutt,  67  Fed.  399 9 

V.  De  Lashmutt,  83  Fed.  33 20,  21 

<;errish  v.  Nason,  22  Me.  438,  39  Am.  Dec.  589 329,  330,  913 

Getchell  v.  Hill,  21  Minn.  404 453 

Gharky,  Re,  57  Cal.  274 90 

Gibbons  v.  Dunn,  40  Mich.  140,  9  N.  W.  140 324.  344,  345 

Gibson  v.  Gibson,  9  Yerg.  329 392,  395,  419,  432,  445,  440 

V.  Gibson,  24  Mo.  227 123,  307,  392 

V.  Jeyes,  0  Ves.  Jr.  260,  5  Revised  Rep.  295 149,  490 

V.  Soper,  6  Gray,  279,  66  Am.  Dec.  414 10,  31,  32,  159,  384,  385 

Gibson's  Estate,  11  W.  N.  C.  355 90 

Giebel  v.  State,  28  Tex.  App.  151,  12  S.  W.  591 175,  184,  180,  190,  351 

Gihon,  Re,  44  App.  Div.  621,  60  N.  Y.  Supp.  65,  Affirmed  163  N.  Y.  595,  57 

N.  E.   1110 , 76 

Gilham,  Re,  64  N.  J.  Eq.  715,  52  Atl.  690 95,  390 

Gill  V.  Rochester  &  P.  R.  Co.  37  Hun,  109 286 

Gillespie  v.  Shuliberrier,  50  IST.  C.  (5  Jones  L.)  157 341 

Gillooley  v.  State,  58  Ind.  182 245 

<;i]man  v.  Ayer    (N.  J.  Eq.)    47  Atl.  1049,  Affirmed  in  03  N.  J.  Eq.  806,  52 

Atl.  1131 128 

V.  Eastern  R.  Co.  13  Allen,  433,  90  Am.  Dec.  210 279,  388 

V.  Eastern  R.  Corp.  10  Allen,  233,  87  Am.  Dec.  035 279,  289 

Gingrich  v.  Rogers  (Neb.)   90  N.  W.  156 8,  9,  337 

Glass  V.  Hilberg,  1  Pa.  Dist.  R.  621 15G,  IGO,  303,  333 

Glasscock  v.  Tate,  107  Tenn.  486,  04  S.  W.  715 5 

Gleespin,  Re,  20  N.  J.  Eq.  523 07,  109,  110,  117 

Glen,  Ex  parte,  4  Desauss.  Eq.  540 40,  161 

Glockner,  Re,  17  N.  Y.  S.  R.  798,  2  N.  Y.  Supp.  97 138,  882 

Glover  v.  Hayden,  4  Cush.  580 94 

Goble  V.  Grant,  3  N.  J.  Eq.  029 93,  108,  121,  338,  358 

Godden  r.  Burke,  35  La.  Ann.  100 71,  74,  87,  418,  419,  925 

Golden  v.  State,  25  Ga.  527 246 

Goldie  V.  Murray,  6  Jur.  608 72,  105 

Golding  V.  Golding,  6  Mo.  App.  G02 57 

Goldschmidt  v.  Mutual  L.  Ins.  Co.  102  N.  Y.  486,  7  N.  E.  408 336 

Goldthorp,  Re,  94  Iowa,  33G,  58  Am.  St.  Rep.  400,  62  N.  W.  845.  .366,  304, 

423,  429,  435,  453 


Ixxxvi  TABLE  OF  CASES  CITED. 

Goldthorp  V.  Goldthorp,  106  Iowa,  722,  77  N.  W.  471 418 

Golliher  v.  Com.  2  Duv.  163,  87  Am.  Dec.  493 240,  244,  246 

Gombault  v.  Public  Administrator,  4  Bradf.  226 106,  108,  125,  134,  135 

Gonsolis  V.  Gearhart,  31  Mo.  585 30 

Gon/.;.lcs  v.  State,  31  Tex.  Crim.  Eep.  508,  21  S.  W.  253 254 

Good  V.  Floyd   (Tonn.  Cli.  App.)   48  S.  W.  687 17 

Goodacre  v.  Smith,  15  Week.  Eep.  561,  36  L.  J.  Prob.  N.  S.  43,  L.  R.  1  Prob. 

&  Div.  359,  15  L.  T.  N.  S.  511 Ill,  125 

Goodell  V.  Harrington,  3  Tliojnp.  &  C.  345.. 37,  38,  155,  158,  160,  384,  385,  437 

Goodhart  v.  Speer,  7  Ohio  C.  Dec.  47 42 

Goodheart  v.  Ransley,  28  Ohio  L.  J.  227 41,  42,  47,  322 

Goodman,  Re,  44  L.  T.  N.  S.  527 87 

V.  Sapp,  102  N.  C.  477,  9  S.  E.  483 43!r 

Goodtitle  ex  dcm.  Alexander  v.  Clayton,  62  Burr.  2225 452 

Goodwin  V.  State,  90  Ind.  550.  .  158,  171,  175-177,  179,  1  "0,  203,  223,  227, 

355,  358,  399,  400,  407,  410,  415,  416,  418,  429,  430,  460,  72:? 
Goodyear  v.  Adams,  1  Silv.  Sup.  Ct.  185,  24  N.  Y.  S.  R.  317,  5  N.  Y.  Supp.  275 

13,  35 

Gordon  v.  Morrow,  10  Ky.  L.  Rep.  845,  10  S.  W.  373 86 

Gore  V.  Gibson,  13  Mees.  &  W.  623,  14  L.  J.  Exch.  N.  S.   151,  9  Jur.   140 

24,  29,  30,  94,  781,  94o 

Gorkow,  Re,  20  Wash.  563,  56  Pac.  385 130,  421,  43 1 

Goshen  v.  Richmond,  4  Alh^n,  458 4.> 

Gould  V.  Crawford,  2  Pa.  St.  89 316 

Gourlay  v.  Gourlay,  16  R.  I.  705,  19  Atl.  142 56 

Grabill  v.  Barr,  5  Pa.  441,  47  Am.  Dec.  418 322,  337 

Graham  v.  Castor,  55  Ind.  559 5 

V.  Com.  16  B.  Mon.  587 198,  199,  347 

V.  Manhattan  R.  Co.  149  N.  Y.  330,  43  N.  E.  917 285 

V.  Pancoast,  30  Pa.  89 5 

V.  State,  102  Ga.  650,  29  S.  E.  584 176,  219 

Grand  Lodge  I.  0.  of  M.  A.  v.  Wieting,  168  111.  408,  61  Am.  St.  Rep.  123, 

48  N.  E.  59    401,  425,  427 

Granger  v.  Sherriir,  133  Cal.  416,  65  Pac.  873 144 

Grant  v.  Thompson,  4  Conn.  203,  10  Am.  Dec.  119 6,  16,  33,  361,  375,  418 

Graves  v.  State,  45  N.  J.  L.  347,  46  Am.  Rep.  778 200,  203,  32.5,  348,  349 

V.  State,  45  N.  J.  L.  203 351 

Gray,  Re,  1  Silv.  Sup.  Ct.  338,  5  N.  Y.  Supp.  464 118,  804 

V.  Obear,  59  Ga.  675 147,  148,  368,  442 

V.  Rumrill,  9  Va.  Law  Reg.  310,  44  S.  E.  697 132,  329,  345 

Green  v.  Com.  83  Pa.  75 195 

V.  State,  04  Ark.  523,  43  S.  W.  973.  .185,  200,  201,  203,  204,  372,  381, 

382,  396,  403,  404,  419 

V.  State,  88  Tenn.  614,  14  S.  W.  430 210,  219,  337,  340 

V.  Wood,  2  Vern.  633 17 

Green's  Estate,  140  Pa.  137,  21  Atl.  250 444 

Grecnley  v.  State,  60  Ind.  141 353,  373 

Grecnslade  v.  Dare,  20  Beav.  284,  24  L.  J.  Ch.  N.  S.  490,  1  Jur.  N.  S.  294, 

3  Week.  Rep.  220 324,  383 

Grcenwade  v.  Greenwade,  43  Md.  313 148,  150,  151,  163,  164 


TABLE  OF  CASES.  CITED.  Ixxxvii 

Greenwood,  Ex  parte,  1  Jur.  N.  S.  522 972 

V.  Greenwood,  3  Curt.  Eccl.  Rep.  .337 86,  98,  919,  931 

Greenwood's  Case,  Addams  Eccl.  Rep.  279,  note 85 

Greer  v.  Greer,  9  Gratt.  330 17,  140 

Gresh  v.  Tamany,  2  Kulp,  453 154 

Gresh's  Case,   12  Pa.  Co.  Ct.  295 169,  972 

Gribben  v.  Maxwell,  34  Kan.  8,  55  Am.  Rep.  233,  7  Pac.  584 8 

Gridley  v.  Bocrgs,  62  Cal.  190 158,  385,  380,  410 

Griffin  v.  Griffin,  R.  M.  Charlt.  (Ga.)  217 100,  108,  338,  450 

Griffith  V.  Diffenderffer,  50  Md.  400 91,  92,  110 

V.  Frederick  County  Bank,  0  Gill  &  J.  424 20 

Griffiths's  Case,  19  How.  St.  Tr.  809 957 

Grimani  v.  Draper,  6  Notes  of  Cases,  418 101,   101,  162 

V.  Draper,  12  Jur.  925 341 

Grimes  v.  Shaw,  2  Tex.  Civ.  App.  20,  21  S.  W.  718 157 

Grissom  v.  State,  62  INIiss.  107 184,  190,  196 

Griswold  v.  Butler,  3  Conn.  227 146,  296 

V.  Miller,  15  Barb.  523 159 

Groom  v.  Thomas,  2  Hagg.  Eccl.  Rep.  433.  .  115,  120,  135,  320,  328,  331,  338,  339 

Gross,  Re,  25  N.  Y.  Week.  Dig.  305 110 

Re,  17  N.  Y.  S.  R.  739 86 

V.  State,  62  Md.  179 380 

<^rote.  Re,  31  Misc.  99,  64  N.  Y.  Supp.  1035 160 

(Jrubb  V.  State,  117  Ind.  277,  20  N.  E;  257,  725.  .191,  197,  199,  200,  352,  353, 

383,  410,  421 

Grubbs  v.  McDonald,  91  Pa.  236 120,  345,  362 

Gruber  v.  State,  3  W.  Va.  699 212,  214-217,  951 

Guagando  v.  State,  41  Tex.  626 210-213,  950 

Guetig  V.  State,  66  Ind.  94,  32  Am.  Rep.  99 177,  200 

V.  State,  63  Ind.  278 228,  320,  353-355,  399,  400,  401,  412,  413,  417 

Guild  V.  Hull,  127  111.  523,  20  N.  E.  665 13,  14,  100,  323 

V.  Warne,  149  111.  105,  36  N.  E.  635 14,  324 

Guiteau's  Case,  10  Fed.  161.  .179,  187,  190,  192,  19.5,  198,  228,  320,  353,  380, 

417,  515,  562,  838,  954,  956,  959,  974 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Gross  (Tex.  Civ.  App.)  21  S.  W.  186 387 

Gunter  v.  State,  S3  Ala.  96,  3  So.  600.  .  170,  194,  2.32,  234,  347,  349,  351,  398, 

417,  453,  454 

Gurley  v.  Butler,  83  Ind.  501 293 

Gustavenson  v.  State,  10  Wyo.  300,  68  Pae.  1000 237,  239 

Guthrie  v.  Guthrie,  84  Iowa,  372,  51  N.  W.  13 148,  151 

v.  Shaffer,  7  Okla.  459,  .54  Pac.  698 308,  311,  312 

Guy  v.  New  York,  0.  &  W.  R.  Co.  30  Hun,  399 289 

Gwatkin  v.  Com.  9  I-reigh,  678,  33  Am.  Dec.  264 242 

Gwin  V.  Gwin,  5  Idaho,  271,  48  Pac.  295 449,  451 


H 

Haden  v.  Hays,  14  Pa.  91 33 

Hadfield's  Case.      See  Hadiield's  Trial. 

Hadfield's  Trial,  27  How.  St.  Tr.  1281.  .179,  184,  529,  530,  532,  579,  597,  650, 

680,  835,  836,  919,  922.  967,     974 


Ixxxviii  TABLE  OF  CASES  CITED. 

Hagan  v.  Sone,  68  App.  Div.  60,  74  N.  Y.  Supp.  109 335,  413 

V.  State,  5  Baxt.  615 391 

Hageman  v.  Salisberry,  74  Pa.  280 301 

Haile  v.  State,  11  liuraph.  154 240,  248 

Haines  v.  Cearlock,  95  111.  App.  203 144 

V.  Havdon,  05  Mich.  332,  35  Am.  St.  Rep.  566,  54  N.  W.  911.  .79,  116, 

362,  365,  308,  374 

Halbert,  Re,  15  Misc.  308,  37  N.  Y.  Supp.  757 74,  87,  94,  96.  120,  121 

Hale  V.  Brown,  11  Ala.  87 4,  20,  26 

V.  Hills,  8  Conn.  39 6 

V.  Stery,  7  Colo.  App.  165,  42  Pac.  598 29 

Haley  v.  Cliicago  &  N.  W.  R.  Co.  21  Iowa,  15 286 

Hall'v.  Com.  (Pa.)   11  Cent.  Rep.  183,  12  Atl.  163 307,  461 

V.  Com.  22  W.  N.  C.  25,  12  Atl.  163.  .192,  199,  382,  383,  407,  411,  560, 

657,  737,  741,  836 

V.  Hall.   17    Pick.  373 377 

V.  Hall,  38  Ala.  131 80,  91 

V.  Hall,  IS  Ga.  40 72 

V.  Hall,  3  Swabey  &  T.  349,  33  L.  J.  Prob.  N.  S.  65,  9  L.  T.  N.  S.  810.52,  53 

V.  Knappenberger,  97  Mo.  509,  11  S.  W.  239 5 

V.  Moreman,  3  M'Cord  L.  477 25 

V.  Mutual  L.  Ins.  Co.  19  Ky.  L.  Rep.  1240,  43  S.  W.  194 12,  321,  323 

V.  O'Malley,  49  Tex.  70 387 

V.  Perry,  87  Me.  569,  47  Am.  St.  Rep.  352,  33  Atl.  160 395,  401 

V.  Semple,  3  Post.  &  F.  337 969,  970 

V.  State,  31  Tex.  Crim.  Rep.  565,  21  S.  W.  368 251,  375 

V.  Unger,  2  Abb.  N.  S.  507,  Fed.  Cas.  No.  5,949 12,  13,  323,  339 

V.  Warren,  9  Ves.  Jr.  609,  7  Revised  Rep.  306 11,  38,  134,  154,  155,  499 

Hallett  V.  Oakes,  1  Cush.  296 30 

Halley  v.  Webster,  21  Me.  461 134,  337,  338,  339,  358,  380,  436,  914 

Ham  V.  Delaware  &  H.  Canal  Co.  142  Pa.  617,  21  Atl.  1012 286 

Hamaker  v.  Hamaker,  18  111.  137,  65  Am.  Dec.  705 43,     51 

Hamblett  v.  Hamblett,  6  N.  H.  333 437,  445 

Hamilton,  Re,  29  Misc.  724,  62  X.  Y.  Supp.  820 130 

V.  Hamilton,  10  R.  I.  538 155,  333,  374 

Hamilton's  Estate,  4  Pa.  Dist.  R.  161,  IG  Pa.  Co.  Ct.  303 OS,  881 

Hammond  v.  Dike,  42  Minn.  273,  18  Am.  St.  Rep.  503,  44  N.  W.  01 304,  366 

Hampson  v.  Taylor,  15  R.  I.  83,  8  Atl.  331,  23  Atl.  732 290 

Hampton  v.  Westcott,  49  N.  J.  Eq.  522,  25  Atl.  254 72,  76 

Hamrick  v.  State,  134  Ind.  324,  34  N.  E.  3 148,  149,  456 

Hanbury  v.  Hanbury  [1892]  P.  222,  61  L.  J.  Prob.  N.  S.  115 54 

Hancock  v.  Peaty,  L.  R.  1  Prob.  &  Div.  335,  36  L.  J.  Prob.  N.  S.  57,  16  L.  T. 

N.  S.  182,  15  Week.  Rep.  719 41,  43,  45 

Hand  v.  Burrows,  23  Hun,  330 314 

Handley  v.  Jones,  cited  in  7  Ad.  &  El.  337 370 

V.  Stacey,  1  Fost.  &  F.  574 95,  90,  120 

Haneklau  v.  Felchlin,  57  Mo.  App.  602 2-5 

Haney  v.  Clark,  65  Tex.  93 425 

Hankinson  v.  Charlotte,  C.  &  A.  R.  Co.  41  S.  C.  1,  19  S.  E.  206 283,  290 

Hanley  v.  National  Loan  &  Invest.  Co.  44  W.  Va.  450,  29  S.  E.  1002 5 


TABLE  OF  CASES  CITED.  Ixxxix 

Hanna  v.  Read,  102  111.  59G,  40  Am.  Rep.  609 380 

Hannum  v.  Worrall,  2  Del.  Co.  Rep.  49 167 

Hannum's   Appeal,   9    Pa.   471 297 

Hansen  v.  Hansell,  3  Pa.  Dist.  R.  724 52-54 

Hanvey  v.  State,  68  Ga.  612 238,  247 

Harbison  v.  Lemon,  3  Blackf.  51,  23  Am.  Dec.  376 27,  28,  29,  357 

Harden  v.  Hays,  9  Pa.  151 102,  104,  134,  135,  338,  367,  448,  449,  452 

Harding  v.  Handy,  11  Wheat.  103,  6  L.  ed.  429 18,  21,  33 

Hardy  v.  Berger,  76  App.  Div.  393,  78  N.  Y.  Supp.  709 8,  9 

V.  Merrill,  50  N.  H.  227,  22  Am.  Rep.  441 329,  330,  434,  437 

Harman  v.  Harman,  16  111.  85 00,  61 

Harmon  v.  Harmon,  51  Fed.  113 4 

Harmony  Lodge,  I.  O.  0.  F.'s  Appeal,  127  Pa.  269,  18  Atl.  10 96,  113 

Harmstead  v.  Kingsley,  3  W.  N.  C.  64 301 

Harnett  v.  Garvey,  66  N.  Y.  641 408 

Harp  V.  Parr,  168  111.  459,  48  N.  E.  113 67,  97 

Harper  v.  Harper,  1  Thomp.  &  C.  351 99.  329,  41;! 

Harper's  Will,  4  Bibb,  244 110,  121,  445 

Harrel  v.  Harrel,  1  Duv.  203 91.  108 

Harrigau,  Re,  Myriek  Prob.  (Cal.)   135 96 

V.  Harrigan,  135  Cal.  397,  87  Am.  St.  Rep.  118,  67  Pac.  506 53 

Harring  v.  Allen,  25  Mich.  505 300,  367 

Harrington  v.  Stees,  82  111.  50,  25  Am.  Rep.  290 91 

Harris,  Re,  7  Del.  Ch.  42,  28  Atl.  329 146 

V.  Berrall,  1  Swabey  &  T.  153,  7  Week.  Rep.  19 137 

V.  Betson,  28  N.  J.  Eq.  213 127 

V.  State,  18  Tex.  App.  287 205,  395,  420,  443 

V.  United  States,  8  App.  D.  C.  20,  36  L.  R.  A.  465 236 

V.  Wamsley,  41  Iowa,  67 1 5,  17 

Harris  Case 961 

Harrison  v.  Bishop.  131  Ind.  161,  31  Am.  St.  Rep.  422,  30  Iv.  E.  1009..  158, 

333,  338,  342 

V.  Harrison,  120  Ala.  323,  28  So.  586 324,  344 

V.  Rowan,  3  Wash.  C.  C.  580,  Fed.  Cas.  No.  6,141 .  .68-70,  72,  74,  102, 

104,118,330,393,405,414,434,444,450,  451 

V.  State  (Tex.  Crim.  App.)  69  S.  W.  500 203,  419 

Harrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jur.  853 43,  44,  47,  310,  322,  325,  872 

Hart  V.  Deamer,  6  Wend.  497 37,  38,  1.54,  155,  384 

V.  Miller,  29  Ind.  App.  222,  64  N.  E.  239 157 

V.  State,  14  Neb.  572,  16  N.  W.  905 185,  201 

V.  Thompson,  15  La.  88 117,  358 

Hartford  v.  Palmer,  16  Johns.  143 308,  309 

Hartman  v.  Keystone  Ins.  Co.  21  Pa.  466 263,  266 

Hartwell  v.  McMaster,  4  Redf.  393 114 

Harvey  v.  Sullens,  56  Mo.  372 67,  158 

V.  Sullens,  46  Mo.  147,  2  Am.  Rep.  491 67,  92,  125,  128,  333 

Harwood  v.  Baker,  3  Moore  P.  C.  C.  282 132 

Haskell  v.  Haskell,  54  Cal.  262 59 

Hassard  v.  Smith,  Ir.  Rep.  6  Eq.  429 8 

Hastings  v.  Rider,  99  Mass.  622 392,  403,  409,  445,  458 


ic  TABLE  OF  CASES  CITED. 

Hathaway  v.  National  L.  Ins.  Co.  48  Vt.  335.  .114,  2G0,  261,  268,  269,  399, 

403,  406,  408,  421,  439 

Hathorn  v.  King,  8  Mass.  371,  5  Am.  Dec.  106 76,  112,  395,  418 

Hauberger  v.  Root,  6  Watts  &  S.  434 309 

Haughian  v.  Conlan,  86  App.  Div.  290,  83  N.  Y.  Supp.  830 95 

Haviland,  Re,  1  W.  N.  C.  345 166 

V.  Hayes,  37  N.  Y.  25 36,  113 

Ha  we  V.  State,  11  Neb.  537,  38  Am.  Rep.  375,  10  N.  W.  452 177,  184,  192 

Hawkins  v.  Bone,  4  Fost.  &  F.  311 : 30 

V.  Grimes,  13  B.  Mon.  257 322,  323,  329,  331,  332,  384 

Hawley  v.  Griffin,  121  Iowa,  667,  92  N.  W.  113 302,  395 

V.  Griffin,  121  Iowa,  691,  97  N.  W.  96 305 

V.  Griffin  (Iowa)  82  N.  W.  905 296,  303,  363,  375,  380,  382,  443,  444 

V.  Howell,  60  Iowa,  79,  14  N.  W.  199 27 

Haxton  v.  McClaren,  132  Ind.  235,  31  N.  E.  48 439 

Hay  V.  Miller,  48  Neb.  156,  66  N.  W.  1115 14,  16,  421 

Haycraft  v.  Creasy,  2  East.  92,  6  Revised  Rep.  380 943 

Haydock  v.  Haydock,  34  N.  J.  Eq.  570,  38  Am.  Rep.  385 , 21,  321 

Hayes  v.  Burkam,  67  Ind.  359 369 

V.  Candee,  75  Conn.  131,  52  Atl.  826 17,  454 

V.  Huffstater,  65  Barb.  530 27 

V.  West,   37    Ind.    21 367 

Haynes  v.  Swann,  6  Heisk.  560 11,  172,  342 

Hays  V.  Com.  17  Ky.  L.  Rep.  1147,  33  S.  W.  1104 185,  187,  564,  854,  869 

Hayward  v.  Hay  ward,  1  Swabey   &  T.  81,  6  Week.  Rep.  638 54 

Hazard  v.  Hazard,  5  Thomp.  &  C.  79 109 

V.  Hefford,  2  Hun,  445 90 

Hazzard's  Estate,  7  Pa.  Co.  Ct.  56 99 

Heald  v.  Thing,  45  Me.  392 397,  406 

Healey  v.  New  York,  6  Thomp.  &  C.  92 28S 

Healy  v.  New  York,  3  Hvin,  708 287 

Heard  v.  Sack,  81  Mo.  610 299,  302,  303,  304,  305 

Hebert  v.  Winn,  24  La.  Ann.  385 94,  96,  120,  357 

Heenan,  Re,  15  Phila.  588 340 

HelT  V.  Cox,  5  Ohio  N.  P.  413 157 

Heft,  Re,  8  Pa.  Dist.  R.  99 151,  161,  W.l 

Hegney  v.  Head,  126  Mo.  619,  29  S.  W.  587 333 

Heller,  Re,  3  Paige,  199 305 

Helmbold,  Re,  12  Phila.  424 164 

Helper  v.  Hosack,  197  Pa.  631,  47  Atl.  847 33,  375 

Hemingway  v.  Coleman,  49  Conn.  390,  44  Am.  Dec.  243 5 

Hemingway's  Estate,  195  Pa.  291,  78  Am.  St.  Rep.  815,  45  Atl.  726,  Affirming 

7  Northampton  Co.  Rep.  93 80,  82,  85,  329 

Hemphill  v.  Holford,  88  Mich.  293,  50  N.  W.  300 35,  441 

Hempton  v.  State,  111  Wis.  127,  86  N.  W.  596.  .  157,  158,  195,  216,  239,  337, 

339,  379,  384,  419,  426,  431 

Henderson  v.  McGregor,  30  Wis.  78 4,  16,  18,  21,  24  149 

V.  Mitchell,  Bail.  E^j.  113,  21  Am.  Dec.  526 305 

Hendrix  v.  Money,  1  Bush,  306 33,  380,  415 

Heuncasey  v.  Woulfe,  49  La.  Ann.  1376,  22  So.  394 1^0 


TABLE  OF  CASES  CITED.  xci 

Henrizi  v.  Kelir,  90  Wis.  344,  63  N.  W.  285 12 

Henry,  Re,  18  Misc.  149,  41  N.  Y.  Supp.  109G 71,  70,  81,  S3 

V.  Brothers,  48  Pa.  70 299,  304,  3S5 

V.  Fine,   23  Ark.   417 375,  370 

V.  Hall,  106  Ala.  84,  54  Am.  St.  Rep.  22,  17  So.  187 322 

V.  Ritenour,  31  Ind.  136 27 

Henslie  v.  State,  3  Heisk.  202 205,  242 

Henson  v.  State,  112  Ala.  41,  21  So.  79 352 

Herbert  v.  Berrier,  81  Ind.  1 321,  329 

Ilermandez  v.  State,  32  Tex.  Crim.  Rep.  271,  22  S.  W.  972 241,  251 

Herndon  v.  State,  111  Ga.  1«78,  36  S.  E.  634 396 

V.  Vick,  18  Tex.  Civ.  App.  583,  45  S.  W.  852 155,  342,  384 

Herring  v.  Wilmington  &  R.  R.  Co.  32  N.  C.   (10  Ired.  L.)  402,  51  Am.  Dec. 

395 282 

Herster  v.  Herster,  122  Pa.  239,  9  Am.  St.  Rep.  95,  16  Atl.  342.  .89,  90.  125, 

287,  365,  366 
Hertrich  v.  Hertricli,  114  Iowa,  G43,  86  Am.  St.  Rep.  389,  87  N.  W.  689.  .368, 

369,  419,  422,  423,  445 

Heuston  v.  Simpson,  115  Ind.  62,  7  Am.  St.  Rep.  409,  17  N.  E.  261 394 

Hewett  V.  Hurley,  88  Me.  431,  34  Atl.  274 ; 436 

Hewitt,  Re,  31  Misc.  81,  64  N.  Y.  Supp.  571 109,  119,  121,  133 

Hewlett  V.  Wood,  55  N.  Y.  634 437,  456 

Heyward  v.  Hazard,  1  Bay,  335 102,  445 

Hiatt  V.  Mutual  L.  Ins.  Co.  2  Dill.  572,  note 263,  269,  307 

Hickman  v.  Hickman,  1  Wash.  257,  22  Am.  St.  Rep.  148,  24  Pac.  445 51 

V.  State,  38  Tex.  190 438 

Hicks  V.  Hicks,  79  Wis.  465,  48  N.  W.  495 51 

V.  Marshall,  8  Hun,  327 38,   158,  161 

Hides  V.  Hides,  05  How.  Pr.  17 44 

Hiett  V.  Shull,  36  W.  Va.  563,  15  S.  E.  146 12,  308,  309,  320,  323,  443 

Higbee  v.  Guardian  Mut.  L.  Ins.  Co.  66  Barb.  466 116,  270,  406,  407,  423,  437 

Higgins  V.  Carlton,  28  IMd.  115,  92  Am.  Dec.  606.  .  .68,  75,  91,  104,  109,  110, 

320,  331,  3.32,  337-339,  433,  434,  441,  4.52,  914 

V.  Nethery,  30  Wash.  230,  70  Pac.  489 119,  335,  419,  426 

Hildreth  v.  Marshall,  51  N.  J.  Eq.  241,  27  Atl.  405 882 

Hiler  v.  State,  4  Blackf .  552 352 

Hill,  Re,  31  N.  J.  Eq.  203 149, "  151 

V.  Day,  34  N.  J.  Eq.  150 12,  23,  154 

V.  Hill,  27  N.  J.  Eq.  214. 53 

V.  Horton,  4  Dem.  90 164 

V.  McLaurin,   28  Miss.   288 12 

V.  Nash,  41  Me.  585,  66  Am.  Dec.  266 97,  99,  128 

V.  State,  42  Neb.  503,  60  N.  W.  916 194,  217,  230,  231,  246 

Hilts  V.  Chicago  &  G.  T.  R.  Co.  55  Mich.  437,  21  N.  W.  878 278,  279 

Hinchman,  Re,  4  Clark    ( Pa. )    184 963 

V.  Richie,  Brightly   (Pa.)    143 103,  169 

Hines  v.  Potts,  56  Miss.  346 6 

Hirsch  v.  Trainer,  3  Abb.  N.  C.  274 9,  37,  38,  154 

Hite  V.  Com.  14  Ky.  L.  Rep.  308,  20  S.  W.  217 425 

V.  Sims,  94  Ind.  333 85,  1 75,  352 


xcii  TABLE  OF  CASES  CITED. 

nix  V.  Whittemore,  4  Met.  545 160,  341 

Hoag,  Re,  7  Paige,  312 161 

Hoard  v.  Peck,  56  Barb.  202 408 

V.  State,  15  Lea,  318 227,  232,  312,  326 

Hoban  v.  Campau,  52  Mich.  346,  50  Am.  Rep.  253,  17  N.  W.  797.  .67,  89,  119,  131 

Hobart  v.  Cook,  167  Mass.  55,  39  L.  R.  A.  715,  44  N.  E.  1085 447 

Hobbs  V.  People,  1S3  111.  336,  55  N.  E.  692 139 

Hcblyn,  Re,  29  L.  T.  305 147,  153 

Hoby  V.  Hoby,  1  Hagg.  Eccl.  R6p.  146 74,  87,  115,  134,  1S5 

Hodgdon  v.  Crosby,  1  '\Vas1i.  Terr.  578 35,  330 

Hodge  V.  State,  26  Fla.  11,  7  So.  593 354,  355 

Hodges  V.  Scott,  118  Mass.  S.^O 372,  436 

Hoelfner  v.  Grand  Lodge,  G.  O.  of  H.  41  Mo.  App.  359 267 

Hoeh  V.  Hoeh,  107  Pa.  387,  47  Atl.  351 18 

Hoerth  v.  Zable.  92  Ky.  202,  17  S.  W.  360 104,  109,  451 

Hoey  V.  Hoey,  53  App.  Div.  208,  65  N.  Y.  Supp.  778 324 

Hoffman  v.  Overbey,  137  U.  S.  465,  34  L.  ed.  754,  11  Sup.  Ct.  Rep.  157 367 

Hogan  V.  Roche,  179  Mass.  510,  61  N.  E.  57 422,  436 

Hoge  V.  Fisher,  Pet.  C.  C.  163,  Fed.  Cas.  No.  6,585.  .  .321,  324,  330,  338,  443,  914 

Hogmire,  Re,  108  Mich.  410,  66  N.  W.  327 418,  434,  441 

Ilolbrook  V.  Gay,  0  Cush.  215 314 

Plolcomb  V.  Holcomb,  2S  Conn.  177 309,  311,  312 

V.  Holcomb,  95  N.  Y.  316 .• 437,  445 

V.  State,  41  Tex.  125 427 

Holden  v.  Meadows,  31  Wis.  2S4 71 

Holdom  V.  Ancient  Order,  U.  W.  159  111.  619,  31  L.  R.  A.  67,  50  Am.  St.  Rep. 

183,  43  N.  E.  772 259 

Holland  v.  Barnes,  53  Ala.  S3,  25  Am.  Rep.  595 20 

V.  Holland,  4  Legal  Gaz.  372 57,  59,  60 

V.  Miller,  12  La.  Ann.  624 17 

V.  West  End  Street  R.  Co.  155  Mass.  3S7,  29  N.  E.  622 290 

V.  Zollner,   102  Cal.  633,  36  Pac.  930,  37  Pac.  231 423 

Hollenbeck  v.  Cook,  180  111.  65,  54  N.  E.  154 331,  345,  364 

Hollinger  v.   Satiis,   37   N.  J.   Eq.   221 83 

llollouay  V.  Galloway,  51  111.  159 74,  119,  331.  332,  33(i 

V.  State  (Tex.'crim.  App.)   77  S.  W.  14 253 

Holraberg  v.  Phillips    (Iowa)    78  N.  W.  66 132 

Holmes,  Re,  4  Russ.  Ch.  182,  28  Revised  Rep.  42 148,  150 

V.  Oregon  &  C.  R.  Co.  6  Sawy.  290,  5  Fed.  523 281,  284,  290 

V.  State,  1 1  Tex.  App.  233 25(5 

Holsenbake  v.  State,  45  Ga.   43 347,  351 

HolterhofT  v.  ]\Iutnal  Ben.  Ins.  Co.  5  Ohio  Dec.  Reprint,  141 270-273 

Holtum  V.  Gcrmania  L.  Ins.  Co.  139  Cal.  645,  73  Pac.  591 270 

Holyland,  Ex  parte,  11  Ves.  Jr.  10,  8  Revised  Rep.  07 134,  163,  164 

Honesty  v.  Com.  81  Va.  283 248,  356,  357 

Hoopes'  Estate,  174  Pa.  373,  34  Atl.  603 339 

Hoover,  Re,  8  Mackey,  495 112 

V.  State,  48  Neb.  184,  66  N.  W.  1117 418 

V.  State  (Ind.)  68  K  E.  .591   177,  180.  226,  373,  386 

Hope  V.  Everhart,  70  Pa.  231 G,  160,  301,  302 


TABLE  OF  CASES  (UTED.  xciii 

Hopkins,  Re,  20  N.  Y.  Week.  Dig.  97 100 

V.  Howard,  20  R.  I.  305,  30  Atl.  519 148,  303 

V.  Wheeler,  21  R:  I.  533,  79  Am.  St.  Rep.  819,  45  Atl.  551 450 

Hopper,  Re,  5  Paige,  491 301,  303,  304 

Hopple's  Estate,  7  W.  N.  C.  523 76,  91,  93 

Hopps  V.  Pfiople,  31  111.  385,  83  Am.  Dec.  231 ....  197,  198,  326,  352,  383,  563,  722 

Hopson  V.  Boyd,  0  B.  Mon.  290 38,  154,  156,  158,  159,  100 

Hopt  V.  Utah,  104  U.  S.  031,  20  L.  ed.  873 246 

Horah  v.  Knox,  87  N.  C.  490 395,  456.  457 

ITorn  V.  Anglo-Australian  &  Universal  Familj?  L.  Ins.  Co.  7  Jur.  N.  S.  073, 

9  Week.  Rep.  359,  30  L.  J.  Ch.  N.  S.  511,  4  L.  T.  N.  S.  142 260 

V.  Anglo- Australian  Assur.  Co.  9  Week.  Rep.  359,  4  L.  T.  N.  S.  142,  30 

L.  J.  Ch.  N.  S.  511,  7  Jur.  N.  S.  673 259,  643 

V.  Pullman,  72  N.  Y.  209 70,  75,  90,  107,  110 

V.  Pullman,  10  Hun,  471 308 

Home  V.  Home,  31  N.  C.   (9  Ired.  L.)  99 09,  112 

Horner  v.  Marshall,  5  Munf.  4C6 270,  303,  304 

Hornish  v.  People,  142  111.  620,  18  L.  R.  A.  237,  32  N.  E.  677.  .181,  1S2,  184, 

186,  199,  353,  355 

ilorton  V.  Equitable  L.  Assur.  Soe.  (N.  Y.)  2  Bigelow  Life  &  Acci.  Rep.  108.  272 

V.  United  States,  15  App.  D.  C.  310 19a   400,  402,  404,  409,  410,  418 

Hoskins  v.  Hoskins,  9  Ky.  I.  Rep.  915,  7  S.  W.  546 113,  129 

Hotchkiss  V.  Eortson,  7  Yerg.  07 25 

Houser  v.  Lightner,  42  Phila.  Leg.  Int.  289 96 

iloaston  V.  State,  20  Tex.  App.  657,  14  S.  W.  352. . , 253,  254 

I  iouston  &  T.  C.  R.  Co.  v.  Reason,  61  Tex.  613 281 

V.  Smith,   52  Tex.   17S 282 

V.  Sympkins,  54  Tex.  015,  38  Am.  Rep.  032 282,  288 

V.  Waller,  56  Tex.  331 290 

Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec.  514 12,  13,  14,  100,  385,  386,  400 

V.  Harmon,  49  Me.  269 164 

V.  Hobson,  53  Me.  451,  89  Am.  Dec.  705 ,      10 

V.  Hobson,  55  Me.  256 13,  14,  372 

Howard  v.  Braithwaite,  1  Ves.  &  B.  202 104,  449,  451 

V.  Coke,  7  B.  Mon.  655 68,  69,  77,  425 

V.  Patrick,  38  Mich.  795 315 

V.  Russell,  75  Tex.  171,  12  S.  W.  525 436 

Howard's  Will,  5  T.  B.  Mon.  199,  17  Am.  Dec.  60 104,  108,  117,  130,  450,  451 

Howat  V.  Howat,  19  Ky.  L.  Rep.  756,  41  S.  W.  771 332 

Howe  V.  Howe,  99  Mass.  88, • ...  10,  35,  141,  324,  344,  365,  368,  374 

V.  Richards,  112  Iowa,  220,  83  N.  W.  909 71,  96,  111,  364,  371,  378, 

401,  416 

Howell  V.  Howell,  47  Ga.  492 365 

V.  Taylor,  1 1  Hun,  214 437 

V.  Taylor,  50  N.  J.  Eq.  428,  26  Atl.  566 75 

Hoyt,  Re,  20  Abb.  N.  C.  162 165,  394 

V.  Adee,  S  Lans.  173 37,  38,  154,  155,  313,  384 

V.  Hoyt,  9  N.  Y.  S.  R.  731 84,  86,  109 

Hubbard  v.  Hoag,  60  Iowa,  750,  15  X.  W.  600 33 

V.  Hubbard,  7  Or.  42 72,  94  331 

V.  Mason  City,  60  Iowa.  400,  14  N.  W.  772 358,  360,  388,  390 


xciv  TABLE  OF  CASES  CITED. 

Hubbard's  Will,  6  J.  J.  Marsh,  50 96,  113 

Hubbcll  V.  Bissell,  2  Allen,  19G 441 

Hudson  V.  Hudson,  li  Swabey  &  T.  314,  33  L.  J.  Prob.  N.  S.  5,  9  Jur.  N.  S. 

1302,  9  L.  T.  N.  S.  579,  12  Week.  Rep.  216 59 

Hudson's  Case,  Skinner,  79 452 

Huff  V.  Huff,  41  Ga.  096 .  103,  447 

Huffman  v.  Click,  77  N.  C.  55 461 

Hughes  V.  Hu^lies,  2  Munf.  209 137,  156 

V.  Hughes,   19  Ala.  308 60 

V.  Hus'hes,  31  Ala.  519 108,  110,  372,  383,  434,  449 

V.  Jones,  116  X.  Y.  67,  5  L.  R.  A.  632,  15  Am.  St.  Rep.  386,  22  N.  E. 

446 147,  1.54-156,  157,  158 

V.  Murtha,  32  N.  J.  Eq.  288 94 

Huling  y.  Huling,  32  111.  App.  519 , 316 

Hulings  V.  Laird,  21  Pa.  265 14.". 

Hull  V.  Hull,  117  Iowa,  738,  89  N.  W.  979 425,  430 

V.  Louth,  109  Ind.  315,  58  Am.  Rep.  40.5,  10  X.  E.  270 313,  325,  396 

Hume  V.  J3urton,  1  Ridgw.  P.  C.  204 154,  155,  3S-; 

Humphrej',  Re,  26  X.  J.  Eq.  513 110 

Humphreys  v.  State    (Tex.  Crim.  App.)    39  S.  W.  679 211,  220 

V.  State,  45  Ga.  190 185,  186,  192,  194,  320,  35 1 

Hunslet  v.  Dewsberry  Union,  2  Jur.  X.  S.  1207,  note 294 

Himt  V.  Habitoay,  125  ilich.  137,  84  Am.  St.  Rep.  503,  84  X.  W.  59 7 

V.  Hunt,  3  B.  Mon.  575 369,  429 

V.  Hunt,  13  X.  J.  Eq.  161 37,  154 

V.  Moore,  2  Pa.  St.  105 17 

V.  Searcy,  167  Mo.  158,  67  S.  W.  206 144,  161 

V.  State,  33  Tex.  Crim.  Rep.  2.52,  26  S.  W.  206 337 

Hunter  v.  Atkins,  3  Myl.  &  K.  113 1 4fi 

V.  Edney,  L.  R.  10  Prob.  Div.  93 43,  47 

Huntingdon  &  B.  T.  R.  &  Coal  Co.  v.  Decker,  84  Pa.  419 279 

Hurst  V.  State  (Tex.  Crim.  App.)  40  S.  W.  264 365,  383,  418 

V.  State,  40  Tex.  Crim.  Rep.  378.  46  S.  W.  635,  50  S.  W.  719 .  .200,  320,  350 

Hutchins  v.  Ford,  82  Me.  363,  19  Atl.  832 404 

Hutchinson  v.  Brown,  Clarke,  Ch.  40S 25,  26,  3(» 

V.  Hutchinson,  50  111.  App.  87 419,  4.34.  453 

V.  Sandt,  4  Rawle,  234,  26  Am.  Dec.  127 38,  159,  162,  386 

V.  Tindall,  3  X.  J.  Eq.  357 24,  26,  28,  30,  14J 

Hutton  V.  W'atorloo  L.  Assur.  Co.  1  Fost.  &  F.  735 272 

Hutts  V.  Hutts,  62  Ind.  214 378 

Hyatt  V.  Lunnin,  1  Dem.  14 124 

Hyer  v.  Little,  20  N.  J.  Eq.  443 17,  21,  324,  418,  458 


Illinois  C.  R.  Co.  v.  Crngin,  71  111.  177 280,  288,  387 

V.  Hutchinson,  47  111.  408 282 

V.  .Jewell,  46  111.  99,  92  Am.  Dec.  240 279 

V.  Sheehan,  29  III.  App.  90 , 28.4 


TABLE  OF  CA.SES  CITED.  xcr 

Imhoff  V.  Witmer,  31  P;i.  243 50,  159 

Imperial  Loan  Co.  v.  Stone   (18i)2)   1  Q.  B.  599,  61  L.  J.  Q.  B.  N.  S.  449,  66 

L.  T.  N.  S.  556,  56  J.  P.  4.36 937 

Indianapolis  &  St.  L.  R.  Co.  v.  Galbrcatli,  63  111.  436 282,  283 

Ingalls  V.  State,  48  Wis.  647,  4  N.  \V.  785 240,  242 

Ingersoll  v.  Knights  of  Golden  Rule,  47  Fed.  272 646 

Ingoldsby  v.  Ingoldshy,  20  Grant  Ch.   (U.  C.)   131 72,  87,  85 

Ingraham  v.  Baldwin,  9  N.  Y.  45 7 

Ingram  v.  Wyatt,  1  Hagg.  Eccl.  Rep.  384 92,  931 

In.skeep  v.  State,  35  Ohio  St.  4S2 221 

V.  State,  30  Ohio  St.  145 221 

Iredale,  Re,  53  App.  Div.  45,  65  N.  Y.  Supp.  533 83,  117,  127 

Irish  V.  Smith,  8  Serg  &  R.  573,  11  Am.  Dec.  G48..117,  118,  371,  372,  374, 

378,  381,  383,  431,  435 

Irvin  V.  Deschamps,  11  W.  N.  C.  365 112,  114 

Irwin  V.  West,  81  Pa.  157 115 

Isaacs  V.  Jones,  121  Cal.  257,  53  Pac.  79.3,  1101 157 

Isle  V.  Cranby,  199  111.  39,  64  N.  E.  1065.       Reversing  101  111.  App.  221 158 

Tsler  V.  Baker,  G  Hump.  85 23 

Ivison  V.  Ivison,  80  App.  Div.  599,  80  N.  Y.  Supp.  1011 72,  114,  335 


J 

Jacklin  v.  National  Life  Asso.  75  Hun,  595,  27  N.  Y.  Supp.  1112 258,  259 

Jackson  v.  Hardin,  83  Mo.  175 72,  84,  114,  128,  130,  320,  331,  332,  335 

V.  Jackson,  39  N.  Y.  153 130 

V.  Jackson,   37    Hun,    306 148,  149 

V.  Moore,  14  La.  Ann.  209 136 

Jackson  ex  dem.  Merritt  v.  Guniaer,  2  Cow.  552 942 

Cadwell  v.  King.  4  Cow.  207,  15  Am.  Dee.  354 6,  17,  159,  320,  323 

Coe  v.  Knifien,  2  Johns.  31,  3  Am.  Dec.  390.  . 3G6 

Van  Dusen  v.  Van  Dusen,  5  Johns.  144,  4  Am.  Dec.  330.  .  134,  323,  335, 

913,  914 

Jacobs  v.  Cora.  121  Pa.  586,  6  Am.  St.  Rep.  802,  15  Atl.  465 176,  380 

V.  National  L.  Ins.  Co.  1  MacArth.  632 264 

v.  Richards,  18  Beav.  300,  5  DeG.  M.  &  G.  55,  23  L.  J.  Ch.  N.  S.  557, 

18  Jur.  527,  2  Eq.  Rep.  299 159 

Jaeobs's  Succession,  109  La.  1012,  34  So.  59 112,  119 

Jacott,  Re,  25  N.  Y.  S.  R.  712,  6  N.  Y.  Supp.  122 132,  399 

Jacox  v.  Jacox,  40  Mich.  473,  29  Am.  Rep.  547 18,  21,  36,  37,  147,  321,  324 

•Tames,  Re,  35  N.  J.  Eq.  58 149 

V.  James,  58  N.  H.  266 59 

v.  Langdon,  7  B.  Mon.  193 18,  35,  79 

James  White  Memorial  Home  v.  Ilaeg,  204  111.  422,  68  N.  E.  569.. 74,  104, 

133,  134,  337 

Jamison  v.  Culligan,  151  Mo.  410,  52  S.  W.  244 7,  9 

V.  Jamison,  3  Houst.   (Del.)   108 6.5,  70,  75,  76,  102,  321,  344,  392, 

412,  413,  432,  444,  44.5,  449,  450 

V.  People,  145  111.  357,  34  N.  E.  4S6 181,  182,  320,  327,  328,  419, 

426,  430,  433,  453 


xcvi  TABLE  OF  CASES  CITED. 

Jaques  v.  Pablic  Administrator,  1  Bradf.  499 40,  45,  46,  49 

Jarrett  v.  Jarrett,  11  W.  Va.  584,....  1:5,  15,  32-34,  36,  321,  324,  337,  338, 

412,  415,  443,  444 

Jarvis  v.  State,  70  Ark.  013,  Appx.,  67  S.  W.  76 195,  418 

Jauncey  v.  Tliorne,  2  Barb.  Cli.  40,  45  Am.  Dec.  424 447,  448 

J.  B.,  Re,  1  Myl.  &  C.  538 147,  151 

Jeffries  v.  State,  9  Tex.  App.  598 251 

Jenckes  v.  Probate  Court,  2  R.  I.  255 158,  341,  925 

Jenkins,  Re,  39  Misc.  OlS,  80  N.  Y.  Supp.  634 82 

V.  Hunkins,  98  Tenn.  545,  41  S.  W.  1028 277 

V.  Jenkins,  2  Dana,  103,  26  Am.  Dec.  437 40,  41,  42,  45,  4S 

V.  Morris,  L.  R.  14  Ch.  Div.  674,  42  L.  T.  N.  S.  817 6,  15,  16,  33 

V.  National  Union  (Ga.)  45  S.  E.  449 264 

V.  State,  93  Ga.  1,  IS  S.  E.  992 238,  239,  242,  243 

V.  Tobin,  31  Ark.  300 123,  334 

Jenkins's  Will,  43  Wis.  610 104,  452 

Jenners  v.  Howard,  6  Blackf.  240 24,  29,  30,  388 

Jennings  v.  Ilennessy,  2G  Misc.  265,  55  N.  Y.  Supp.  833 139,  160 

Jerry  v.  Townsliend,  9  Md.  145 16,  33,  361,  396,  398,  408,  454 

Jewell  V.  Clay,  107  Iowa,  52,  77  N.  W.  511 8 

V.  Colby,  66  N.  H.  399,  24  Atl.  902 .  , 275,  276 

Joest  V.  Williams,  42  Ind.  565,  13  Am.  Rep.  377 24 

John  Hancock  Jlut.  L.  Ins.  Co.  v.  Daly,  65  Ind.  6 273 

V.  Moore,  34  Mich.  41 260,  269,  270,  323,  336 

Johns  V.  Fritchey,  39  Md.  259 24,  27,  358,  360 

Johnson,  Re,  57  Cal.  .529 90,  121,  166,  167,  237 

Re,  7  Misc.  220,  27  N.  Y.  Supp.  649 94,  96,  119,  124,  925 

V.  Armstrong,  97  Ala.  731,  12  So.  72 377 

V.  Blane,  6  Notes  of  Cases,  442 107 

V.  Chadwell,  8  Humph.  1 45 19 

V.  Chicago,  R.  I.  &  P.  R.  Co.  58  Iowa,  348,  12  N.  W.  329 285 

V.  Cochrane,  91  Hun,  165,  36  N.  Y.  Supp.  283,  Affirmed  in  159  N.  Y. 

555,  54  N.  E.  1092 437,  438 

V.  Culver,  116  Ind.  278,  19  N.  E.  129 365,  372,  419,  426,  429,  435 

V.  Johnson,  35  Phila.  Leg.  Int.  70 50 

V.  Johnson,  10  Ind.  387 15 

V.  Kincade,  37  N.  C.  (2  Ired.  Eq.)  470 .41,  45,  46,  47,  48,  154,  150 

V.  Louisville  &  N.  R.  Co.  104  Ala.  241,  53  Am.  St.  Rep.  39,  16  So.  75.  . 

285,  286,  289 

V.  Medlicott,    3  P.  Wms.  130 25,  28,  30,  939 

V.  Moore,  1  Litt.    (Ky. )   371 81 

V.  Phifer,  6  Neb.  40l" 4,  14,  27,  29 

V.  Pomeroy,  31  Ohio  St.  247 299,  305 

V.  Rockwell,  12  Ind.  76 28,  29 

V.  State,  10  Tex.  App.  571 347,  396,  397 

V.  State,  100  Tenn.  254,  45  S.  W.  436 177,  185 

V.  State,  1  Tex.  App.  146 360 

Johnston  v.  Brown,  2  Shaw  &  D.  437 50 

V.  Given,  14  W.  N.  C.  320 969 

Jones,  Re,  2  Ohio  S.  &  C.  P.  Dec.  409 137,  333,  338 

V.  Collins.  94  Md.  403,  51  Atl.  398 08.  84.  395,  407,  409,  431,  4.46 


TABLE  OF  CASES  CITED.  xcvii 

Jones  V.  Com.  75  Pa.  403 195,  248,  978 

V.  Com.  30  Pittsb.  L.  J.  579 359 

V.  Consolidated  Invest.  Assur.  Co.  26  Beav.  256,  28  L.  J.  Cli.  N.  S.  60, 

5  Jur.  N.  S.  214 260 

V.  Crovvell,  143  Ind.  218,  42  N.  E.  612 305 

V.  Evans,  7  Dana,  96 15,  32,  451 

V.  Galbmith  (Tenn.  Ch.  App.)  59  S.  W.  350 10,  18,  383,  421 

V.  Goodrich,  5  Moore  P.  C.  C.  16 83,  104,  129,  451 

V.  Harris,  3  Rich.  L.  14 126 

V.  Hughes,  15  Abb.  N.  C.  141 15,  89,  159 

V.  Jones.  1  Cox,  C.  C.  184 315 

V.  Jones,  43  N.  Y.  S.  R.  434,  17  N.  Y.  Supp.  005.  .  13,  14,  321,  330,  331,  335 

V.  Learned,  1 7  Colo.  App.  76,  66  Pac.  107 1 ' 144,  149 

V.  Lloyd,  L.  R.  IS  Eq.  265,  43  L.  J.  Ch.  N.  S.  826,  30  L.  T.  N.  S.  487, 

22  Week.  Rep.  785 21,  32 

V.  McLellan,  76  Me.  49 305,  366 

V.  People,  23  Colo.  276,  47  Pac.  275 228,  382,  398 

V.  Perkins,  5  B.  Mon.  222 11,  17,  18,  24,  20,  30,  296,  444 

V.  Rice,  99  Wis.  459,  75  N.  W.  64 34,  324 

V.  Roberts,  37  Mo.  App.  163   335,  367 

V.  State,  13  Ala.  153 209,  212,  213,  221 

V.  State,  29  Ga.  594 244,  246,  249 

V.  State,  43  Tex.  Crim.  Rep.  201,  63  S.  W.  1021 317 

V.  Thompson,  5  Del.  Ch.  374  5,  13,  17,  19,  20,  141,  324,  345 

V.  White,  1  Strange,  68 385 

Jones's  Appeal,  1 1  W.  N.  C.  258 16 

Journeay,  Re,  15  App.  Div.  567,  44  N.  Y.  Supp.  548,  Affirmed  in  162  N.  Y. 

611,  57  N.  E.  1113 414 

Re,  80  Hun,  315,  30  N.  Y.  Supp.  SO 127 

Judd  V.  Gray,  156  Ind.  278,  59  N.  E.  849 9,  304 

Julke  V.  Adam,  1  Redf.  454 95,  96,  110,  123,  358,  443 

Juzan  V.  Toulmin,  9  Ala.  662,  44  Am.  Dec.  448 5,  17,  20 


K 

Kachline  v.  Clark,  4  WTiart.  316 367,  368,  372 

Kahl  V.  Schober,  35  N.  J.  Eq.  461 96,  358 

Kahn,  Re,  1  Connoly,  510,  5  N.  Y.  Supp.  556 115,  925 

Kane's  Estate,  206  Pa.  204,  55  Atl.  917 415 

Karow  v..  Continental  Ins.  Co.  57  Wis.  56,  46  Am.  Rep.  17,  15  N.  W.  27 269 

Kastell  V.  Hillman,  53  N.  J.  Eq.  49,  30  Atl.  535 16 

Kates'  Estate,  16  W.  N.  C.  100  ., 122 

Kean  v.  Baltimore  &  0.  R.  Co.  61  Md.  154 282 

V.  Detroit  Copper  &  Brass  Rolling  Mills,  66  Mich.  277,  11  Am.  St. 

Rep.  492,  33  N.  W.  305  270 

Kearney,  Re,  69  App.  Div.  481,  74  N.  Y.  Supp.  1045 414 

V.  People,  11  Colo.  258,  17  Pac.  782 199 

V.  State,  08  Miss.  233,  S  So.  292    184,  224,  41 1 

Vol.  I.  Med.  Jur. — vi. 


xcviii  TABLE  OF  CAfcES  CITED. 

Kearney's  Estate,   14S  Pa.  218,  23  Atl.  1058 131 

Keating'5  Appeal.  2  Monaghan  (Pa.)  4,  17  Atl.  207 112,  116 

Appeal.  36  Pittsb.  L.  J.  283 98 

Kechvard  v.  Campbell,  166  Pa.  SHo,  31  Atl.  114 20 

Kceble  v.  Cummins,  5  Haj'v.  (Tenn. )  43  17,  18 

Koogan,  Ke,  339  Cal.  123,  72  Pac.  S28  . 42>^ 

Keeler,  Re,  12  N.  Y.  S.  R.  148 81-84,  80 

V.  Keeler,  20  N.  Y.  S.  R.  439,  3  N.  Y.  Siipp.  629 328,  345 

Keels  V.  Mutual  Reserve  Fund  Life  Asso.  20  Fed.  198 265 

Keenan  v.  Com.  44  Pa.  55,  84  Am.  Dec.  414 236,  247,  249 

Keoton  v.  Com.  92  Ky.  522,  IS  S.  W.  359 239,  241,  243 

Keffer  v.  State  (Wye.)  73  Pac.  556 224 

Kcithley,  Ke,  134  Cal.  9,  66  Pac.  5 372,  42.", 

V.  Stafford,  126  III.  507,  18  N.  E.  740.  .  .  .67,  102,  368,  427,  435,  488, 

456,  457 

Keithly  v.  Keithly,  85  Mo.  217 5 

Kelch  V.  State,  55  Ohio  St.  146,  39  L.  R.  A.  737,  60  Am.  St.  Rep.  680,  45 

N.  E.  6    348,  340 

Keleher  v.  Putnam,  60  N.  H.  30,  49  Am.  Kep.  304 170 

Keller,  Re,  12  X.  Y.  S.  R.  148 8S 

Kelley  v.  Mutual  L.  Ins.  Co.  75  Fed.  637   264,  266 

'  V.  ]\Iutual  L.  Ins.  Co.  109  Fed.  56 264 

V.  State,  31  Tex.  Crim.  App.  216,  20  S.  W.  357 253,  254 

Kellogg  V.  Cochran,  87  Cal.  192,  12  L.  R.  A.  104,  25  Pac.  677.  .39,  155,  163,  172 

V.  United  States,  43  C.  C.  A.  179,  103  Fed.  200 337,  341,  358 

Kelly,  Re,  6  Ont.  Pr.  Rep.  220 150 

V.  Com.  1  Grant,  Cas.  484 246 

r.  :\IcGuire,  15  Ark.  600   12,  19,  445,  447 

V.  Miller,  .39  Miss.  19   89 

V.  Perrault,  5  Idaho,  221,  48  Pac.  45   399,  400,  415,  449 

V.  Stfite,  3  Smedes  &  M.  518 236,  239,  240,  243,  244 

Kemble  v.  Church,  3  Hagg.  Eccl.  Rep.  273 450 

Kcmpf  V.  Kempf,  34  Mo.  211   59 

Kerapsey  v.   McGinniss,  21   Mich.    123 70,  97,  100,  106,  330,  .396-.398,  402 

403,  405,  408.  416,  453,  456,  458 
Kempson  v.  Ashbee,  L.  R.  10  Ch.  15,  44  L.  J.  Ch.  N.  S.  195,  31  L.  T.  N.  S. 

525,  23  Week.  Rep.  38 IS 

Kendall  v.  May,  10  Allen,  59    8,  10,  30,  311,  313,  314,  316 

Kendrick,  Re,  130  Cal.  360,  62  Pac.  605 81,  82,  84,  85 

Kennedy  v.  Marrast,  46  Ala.  101   13,  344 

Kenney  v.  People,  27  How.  Pr.  206 248 

V.  Rhinelander,  28  App.  Div.  2^6,  50  N.  Y.  Supp.  1088 280 

Kenny  v.  People,  31  N.  Y.  330 245,  779 

Kenton,  Re,  5  Binn.  613   140 

Konworthy  v.  AMlliams,  5  Ind.  375   328,  338,  363,  376,  434,  446 

Keough  V.  Foreman,  33  La.  Ann.  1434   24,  26 

Kern  v.  Kern,  51  N.  J.  Eq.  594,  26  Atl.  837 43,  44,  46,  154 

Kernot  v.  Norman,  2  T.  R.  390 275 

Kerr  v.  Lunsford,  31  W.  Va.  659,  2  L.  R.  A.  668,  8  S.  E.  493 68,  72-75, 

127,  362,  372,  377,  384,  385,  398-400,  402,  415,  425,  443,  444,  4r^0 

Kessinger  v.  Keasinger,  37  Ind.  341 i2'J 


TABLE  OF  CASES'  CITED.  xeix 

Kettemann  v.  Metzger,  23  Ohio  C.  C.  Gl   72,  114,  3(y9,  431 

Kettletas  v.  Gardner,  1  Paige,  488   293 

K.evil  V.  Kevil,  2  Bush,  (314   109,  llU 

B:ey  V.  Davis,  1  Md.  32  10 

V.  Holloway,  7  Baxt.  575 94,  124,  126,  329 

Keyes  v.  Kejes,  22  N.  H.  553  41,  42,  44,  51 

Kej's  V.  Norris,  6  Rich.  Eq.  388   47,  49,  155 

Kidder  v.  Stevens,  60  Cal.  414   383 

Kiedaiseh,  Re,  2  Connoiy,  438,  13  N.  Y.  Siipp.  255 131,  392,  412,  415,  759 

Ku'hne  v.  Wessell,  53  Mo.  xVpp.  6G7   150,  157 

Kilburn  v.  Mullen,  22  Iowa,  498  309 

Kilgore  v.  Cross,  1  McCrary,  144,  1  Fed.  578 5,  12,  19,  420,  458 

Killiam  v.  Badgett,  27  Ark.  166   18,  321 

Kimball  v.  Cuddy,  117  111.  213,  7  N.  E.  589 13,  14,  75,  130,  324,  325 

V.  Fisk,  39  N.  H.  110,  75  Ain.  Dec.  213 144 

Kimberley's  Appeal,  08  Conn.  428,  37  L.  R.  A.  261.  57  Am.  St.  Rep.  101,  36 

Atl.  847 435 

King,  Re,  29  Misc.  268,  61  N.  Y.  Supp.  238 131 

V.  Bryant,  3  N.  C.   (2  Hayw.)   394 25 

V.  Cummings,  60  Vt.  502,  11  Atl.  727   34 

v.  Davis,  00  Vt.  502,  11  Atl.  727 12 

V.  Farley.  1  Hagg.  Eccl.  Rep.  502 112 

V.  Jones,  1  Leach  C.  L.  139   212 

v.  King,  19  Ky.  L.  Rep.  868,  42  S.  W.  347 331 

V.  King,  L.  R.  2  Rrob.  &  Div.  125  55 

V.  McLean  Asylum,  26  L.  R.  A.  784,  12  C.  C.  A.  14.5^  21  U.  S.  App. 

481,  64  Fed.  331   972- 

V.  Mercier,  1  Leach  C.  L.  183  210 

V.  Ohio  &  M.  R.  Co.  22  Fed.  413 285 

V.  Robinson,  33  Me.  1 14,  54  Am.  Dec.  614 .. 299,  300 

V.  Rowan   (Miss.)   34  So.  325   103,  109,  344 

V.  State,  90  Ala.  612,  8  So.  856 241,  244,  245,  247 

V.  State  (Tex.  Crim.  App. )  64  S.  VV.  245 247 

V.  State,  9  Tex.  App.  515   180,  198,  199,  326,  347,  351 

V.  State,  91  Tenn.  617,  20  S.  W.  109 ,320,  325,  352-. 354 

V.  Steel,  1  Leach  C.  L.  451   216,  323 

V.  Tuth,  1  Wheeler  C.  C.  52 176 

Kingsbury  v.  Howard,   Glaister,  Med.  Jurisp.   p.   377 929 

V.  Whitaker.  32  La.  Ann.  1055,  36  Am.  Rep.  278 69,  70,  79,  83,  96 

106,  133,  135,  332,  343 

Kings  County  Insane  Asylum,  Re,  7  Abb.  N.  C.  425 17t) 

Kingsley  v.  Blanchard,  ic<G  Barb.  317   113,  132 

Kingston  v.  Ft.  Wayne  &  P:.  R.  Co.  112  Mich.  40,  40  L.  R.  A.  131,  70  N.  W. 

315,  74  N.  W.  230 284 

Kinleside  v.  Harrison,  2  Phillim.  Eccl.  Rep.  449.  .  .70,  90,  91,  112,  131,  341,  444 

Kinloch  v.  Palmer,  1  Mill,  Const.  215   337,  33s 

Kinloch's  Case,  18  ?Iow.  St.  Tr.  395   207,  217,  221 

Case,  25  How.  St.  Tr.  891,  997   184,  186,  190,  226,  326 

Kinne  v.  Johnson,  60  Barb.  69 72,  90,  93,   105,  106 

V.  Kinne,  9  Conn.  102,  21  Am.  Dec.  732 68,  74,  75,  86,  100,  115,  118,  444 


€  TABLE  DF  cases  CITED. 

Kirby  v.  Carr,  3  Yoiinge  &.  C.  Exeh.  184,  8  L.  J.  Excli.  in  Eq.  N.  S.  31, 

2  Jur.  741 22 

Kirkwood  v,  Gordon,  7  Rich.  L.  478,  (32  Am.  Dec.  418 G8,  72,  75,  109,  414 

Kirsher  v.  Kirslier   (Iowa)   94  N.  W.  846 341,  399,  413 

Kiso  V.  Heath,  33  N.  J.  Eq.  239 129 

Kline  v.  Kline,  50  Mich.  438,  15  N.  W.  541 58 

Klock,  Re,  49  Hun,  450,  3  N.  Y.  Supp.  478 437 

Klohs  V.  Klohs,  61  Pa.  245   29,  157,  159,  IGG,  357 

Knapp  V.  Ileilly,  3  Dem.  427 76,  132 

Knauss's  Appeal,  114  Pa.  10,  6  Atl.  3'.>4 99 

Knecht  v.  Mutual  L.  Ins.  Co.  90  Pa.  118,  35  x\ni.  Rep.  G41 272 

Kncedler's  Appeal,  92  Pa.  428    8,  38 

JCnickeibocker  L.  Ins.  Co.  v.  Foley,  105  U.  S.  350,  26  L.  ed.  1055,  11  Fed. 

706,  note 270,  271,  443 

V.  Peters,  42  Md.  414   114,  260,  261,  263-265,  268,  269,  336 

Knight  V.  Young,  2  Ves.  &  B.  1 84 222 

Knights  V.  State,  58  Neb.  225,  76  Am.  St.  Rep.  78,  78  N.  W.  508.  .185,  187,  327 
luiights  Templars'  &  ]M.  Life  Indemnity  Co.  v.  Berry,  1  C.  C.  A.  561,  4  U.  S. 

App.  353,  50  Fed.  511   268 

V.  Jarman,  44  C.  C.  A.  03,  104  Fed.  638,  Affirmed  in  187  U.  S.  197, 

47  L.  ed.  139,  23  Sup.  Ct,  Rep.  108 265 

Knox  V.  ITaug,  48  j\Iinn.  58,  50  N.  W.  934 38 

V.  Knox,  95  Ala.  495,  36  Am.  St.  Rep.  235,  11  So.  125.. 72,  108,  110,  361 

V.  Knox,  30  S.  C.  377,  9  S.  E.  353 386 

Koegel  V.  Egner,  54  N.  J.  Eq.  623,  35  Atl.  394 117,  121,  124,  357,  358 

Koenig  v.  Globe  Mut.  L.  Ins.  Co.  10  Hun,  558 408,  454 

Koile  V.  Ellis,  16  Ind.  301   33,  361 

Koons  V.  Benscoter,  2  Kulp,  45 1 154 

Kostelecky  v.  Scherhart,  99  Iowa,  120,  GS  N.  W.  591 419,  424 

Kramer  v.  Weinert,  81  Ala.  414,  1  So.  2G 72,  75.  76,  361 

Kriel  v.  Com.  5  Bush,  363 198,   199,  204,  239,  240,  244,  347-349,  351 

Kroenung  v.  Goehri,  112  Mo.  641,  20  S.  VV.  661 18 

Krom  V.  Schoonmakcr,  3  Barb.  647    275 


La  Bau  v.  Vanderbilt,  3  Redf.  384 88,  109-111,  130,  367,  369 

Lackey  v.  Lackey,  8  B.  Mon.  107 149,  163 

Lacy,  Re,  35  Misc.  581,  71  N.  Y.  Supp.  1129 130 

V.  State,  30  Tex.  App.  119,  16  S.  W.  761 225 

Lady  Campbell,  The,  2  Hagg.  Adm.  15 31 

Lagay  v.  Marston,  32  La.  Ann.  170 10,  18,  38 

Laing  v.  Bruce,  1  Dunlop,  B.  &  M.  59 37,  137,  344 

V.  Laing,  21  N.  J.  Eq.  248 59,  60 

Lake  v.  People,  1  Park.  Crim.  Rep.  495,  Affirmed  in  12  N.  Y.  358 -326, 

364,  37S,  383,  392,  393,  399,  400-402,  408,  417,  425,  434 

Lake  Shore  &  M.  S.  R.  Co.  v.  Miller,  25  Mich.  274 282 

Lamb  v.  Lamb,  105  Ind.  456.  5  N.  E.  171 76,  108,  377,  42r> 

V.  Lippiricott,  115  Mich.  611,  73  N.  W.  887 430 


TABLE  OF  CASES  CITED.  ci 

Lambert,  Re,  134  Cal.  626,  55  L.  R.  A.  856,  86  Am.  St.  Rep.  296,  66  Pac.  851  170 

V.  Cooper,  29  Gratt.  61   104,  451 

Lamoree's  Case,  11  Abb.  Pv.  274,  32  Barb,  122,  19  How.  Pr.  375 162 

L'Amoureux  v.  Crosby,  2  Paige,  427,  22  Am.  Dec.  655 38,  156-158,  166,  305 

Lamprey  v.  Nudd,  29  N.  H.  299 299,  300,  303,  304 

Lancaster  v.  State,  2  Lea,  575 247,  248,  250,  25) 

Lancaster  County  Nat.  Bank  v.  Moore,  78  Pa.  407.  21  Am.  Rep.  24.  .10,  38, 

154,  275,  383,  936,  941,  942 

Lance  v.  McCoy,  34  W.  Va.  416,  12  S.  E.  728 144 

Landis  v.  Landis,  1  Grant,  Cas.  248 338,  367,  380,  407 

Lane  v.  Missouri  P.  R.  Co.  132  Mo.  4,  33  S.  W.  645,  1128 359 

Lanergan  v.  People,  6  Park.  Crim.  Rep.  209 238,  245,  775,  779 

Lang,  Re,  9  Misc.  521,  30  N.  Y.  Supp.  388 71,  79,  85 

V.  Whidden,  2  N.  H.  435   .' 6 

Lang's  Estate,  65  Cal.  19,  2  Pac.  491   27,  110,  113,  136,  165,  366 

Langdon  v.  People,  133  111.  .';82,  24  N.  E.  874.  .  .222,  322,  337-340,  342,  352,  370 

Langley,  Re,  cited  in  Shelford  on  Lunatics,  90 150 

Langley's  Estate   ( Cal. )   73  Pac.  824  129 

Laning  v.  New  York  C.  R.  Co.  49  N.  Y.  521,  10  Am.  Rep.  417.  .278-280,  289,  392 

Lansing  v.  Russell,  13  Barb.  521   141 

Lantis  v.  Davidson,  60  Kan.  389,  56  Pac.  745 149,  296 

Laros  v.  Com.  84  Pa.  200 189,  218,  219,  223,  363,  382,  731,  737,  739, 

740,  890,  951 
Laros  Cases.     See  Laros  v.  Com. 

La  Rue  v.  Gilkyson,  4  Pa.  375,  45  Am.  Dec.  700 6,  10,  935 

Laslier,  Re,  2  Barb.  Cli.  97   163 

Lassiter  v.  Lassiter,  23  Ky.  L.  Rep.  481,  63  S.  W.  477 19 

Latham  v.  Udell,  38  Mich.  238   90 

Latner  v.  Long   (Tenn.  Ch.  App.)   47  S.  W.  1111 37,  344 

Latour,  Re,  140  Cal.  414,  73  Pac.  1070,  74  Pac.  441 333,  334 

Latta,  Re,  43  Kan.  533,  23  Pac.  655 172 

Lavette  v.  Sage,  29  Conn.  577 17,  25 

Lawrence,  Re,  27  Misc.  473,  59  N.  Y.  Supp.  174 415 

Re,  28  N.  J.  Eq.  331    153 

Re,  48  App.  Div.  S3,  62  N.  Y.  Supp.  673  71,  107 

V.  Lawrence,  4  N.  Y.  Week.  Dig.  299 76,  128,  437 

V.  Steel,  66  N.  C.  5S4    72,  108 

V.  Willis,  75  N.  C.  471   14,  21 

Layer  v.  Layer,  110  Ky.  542,  62  S.  W.  15,  22 82 

Layer's  Case,  6  How.  St.  Tr.  265   957 

Layman,  Re,  40  Minn.  371,  42  N.  W.  286 329,  330,  424 

Lea  V.  Lea,  104  N.  C.  603,  17  Am.  St.  Rep.  692,  10  S.  E.  488 ,.  .  49 

Leach  v.  Marsh,  47  Me.  548,  78  Am.  Dec.  503 302,  304 

Leache  v.  State,  22  Tex.  App.  279,  58  Am,  Rep.  638,  3  S.  W.  539.  .179,  187, 

199,  337,  339,  341,  347,  397,  405,  407,  411 

Leaf  V.  Coles,  1  DeG.  M.  &  G.  175 21,  22 

Leake  v.  Linton,  6  La.  Ann.  262  61 

Le  Breton  v.  Fletcher,  2  Hagg.  Eccl.  Rep,  558   104,  4,52 

Leckoy  v,  Cunningham,  56  Pa,  373  154,  156,   166-168,  333,  342 

J^  Donne,  Re,  173  Mass.  5.50,  54  N.  E.  244 • 171 


eii  TABLE  OF  CASES  CITED. 

Lee,  Re,  46  N.  J.  Eq.  193,  18  Atl.  525 72,  94,   121 ,  35S 

Re   (N.  J.  Eq.)   55  Atl.  107 171 

V.  Dill,  11  Abb.  Pr.  214 92 

V.  Lee,  3  Wash.  236,  28  Pac.  355 60 

V.  1^0,  71  N.  C.  139 91,  92 

V.  Lee,  4  McCord  L.  18;J,  17  Am.  Dec.  722 86,  89,  lUO,  101,  109. 

322,  328,  33V>  338 

V.  Scudder,  31  N.  J.  Eq.  633 .. 81,  85 

T.  State,  43  Tex.  Crim.  Kep.  285,  64  S.  W.  1047 206 

V.  State,  116  Ga.  563,  42  S.  E.  759 225 

V.  State   (Ga.)   43  S.  E.  994 212,  213,  219 

V.  State   (Ga.)   45  S.  E.  628 214,  216,  220 

V.  Ware,  1  Hill  L.  313 27 

Leech  v.  Leech,  21  Pa.  67 126 

V.  Leech,  5  Clark    ( Pa. )    86 86,  87,  89,  96 

Leeper  v.  Taylor,  47  Ala.  221 65,  76,  91 

Legeyt  v.  O'JJrien,  Mihvard,  325 41,  50 

Legg  V.  Myer,  5  Redf .  628 66,  329 

Lei^gate  v.  Clark,   111  Mass.  308 39,  385 

Leggett  V.  State,  21  Tex.  App.  382,  17  S.  W.  159 255 

Leighton,  Ex  parte,  14  Mass.  207 275,  299,  300 

V.  Orr,  44  Iowa,  691 37 

Lemon  v.  Jenkins,  48  Ga.  313 15,  16,  36,  68,  139 

Lemont  v.  Washington  &  G.  R.  Co.  1  Mackey,  ISO,  47  Am.  Rep.  238 285 

Lenhard  v.  Lenhard,  59  Wis.  60,  17  N.  W.  877 .• 36 

Lennig's  Estate,  4  Pa.  Dist.  R.  94 131,  333 

Leonard,  Re,  95  Mich.  295,  54  N.  W.  1082 146 

V.  Leonard,  14  Pick.  280 ...  .' 156,  166,  941 

Leslie  v.  Leslie,  15  N.  Y.  Week.  Dig.  56,  Affirmed  in  92  N.  Y.  636 79,  83,  84 

Lester  v.  State,  32  Ark.  727 391 

Leverett  v.  Carlisle,  19  Ala.  SO 91 

Levet's  Case,  1  Hale  P.  C.  42 906 

I^vett's  Case,  Cro.  Car.  538 193 

Levis's  Estate,  140  Pa.  179,  21  Atl.  242 96 

Le\'y  V.  Lindo,  3  Meriv.  85 115 

Lewis,  Re,  33  N.  J.  Eq.  219 109,  110 

Re,  51  Wis.  101,  7  N.  W.  829 71,  104,  131,  450,  742 

V.  Arbuckle,  85  Iowa,  335,  16  L.  R.  A.  677,  52  N.  W.  237 37 

V.  Baird,  3  McLean,  56,  Fed.  Cas.  No.  8,316 27,  339,  358 

V.  Eagle  Ins.  Co.  10  Gray,  508 310 

V.  Jones,  50  Barb.  645 158,  166,   167,  333 

V.  Lewis,  6  Serg.  &  R.  496 97 

V.  Lewis,  44  Minn.  124,  9  L.  R.  A.  505,  20  Am.  St.  Rep.  559,  46  N.  W. 

323 43,  44 

V.  Mason,  109  Mass.  169 370,  374,  385,  403 

V.  Pead,  1  Vcfi.  Jr.  19 20,  34,  321 

Ley's  Case,  1  Lowin  C.  C.  239 212,  214 

Liddington,  Re,  20  N.  Y.  S.  R.  010,  4  N.  Y.  Supp.  648 112 

Liddy,  Re,  2  Silv.  S\ip.  Ct.  223,  5  N.  Y.  Supp.  636 109,  120 

Lide'v.  State,  133  Ala.  43,  31  So.  953 185,  198,   199,  203.  .348 

Life  Asso.  V.  Waller,  57  Ga.  5.'33 260 


TABLE  OF  CASES  CITED.  ciii 

Liglitfoot  V.  Heron,  3  Young-e  &  C.  Exch.  58G 24 

Lillibridge's  Estate,  133  Pa.  211,  I'J  Atl.  352 99,  119 

Lilly  V.  People,  148  111.  4G7,  36  N.  E.  95 175,  199,  327,  328,  355 

V.  Waggoner,  27  111.  395 G7,   134,  323,  333,  342,  344 

Lincoln,  Re,  1   Brewst.   (Pa.)   392 145,  152 

V.   Bucknuister,  32  Vt.  652  10,   18,  756,  936,  939 

V.  Norton,  36  Vt.  679   296 

Lindsey  v.  Lindsey,  50  III.  79,  99  Am.  Doc.  489 14 

Lindsley,  Re,  43  N.  J.  Eq.  9,  10  Atl.  549 149 

Re,  44  N.  J.  Eq.  564,  6  Am.  St.  Rep.  913,  15  Atl.  1 150 

Linglo.  V.  Lingle   (Iowa)   96  N.  W.  708 127,  128,  380 

Lins  V.  Lenhardt,  127  Mo.  271,  29  S.  W.  1025 324,  332 

Linton,  Re,  29  W.  N.  C.  650 384 

Linton's  Appeal,  104  Pa.  228 92,  131,  334 

Lisle's  Case,  4  Harg.  St.  Tr.  106 954 

Litchfield's  Appeal,  28  Conn.  127,  73  Am.  Dec.  662 302,  305 

Little  V.  Little,  13  Gray,  264 47,  48,  55,  156 

V.  State,  42  Tex.  Crim.  Rep.  551,  61  S.  W.  483 241,  251 

Little  Rook  &  Ft.  S.  R.  Co.  v.  Pankhurst,  36  Ark.  371 282 

Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Haynes,  47  Ark.  497,  1  S.  W.  774 282 

Livingston  v.  Kiersted,  10  Johns.  362 308-311,  313 

Livingston's  Appeal,  03  Conn.  68,  26  Atl.  470 330,  335 

Lloyd  V.  Albermarle  &  R.  R.  Co.  118  N.  C.  1010,  54  Am.  St.  Rep.  764,  24 

S.  E.  805   287,  288 

V.  Lloyd,  66  111.  87 51 

Lockridge  v.  Lockridge,  3  Dana,  28,  28  Am.  Dec.  52 60 

Lockwood.  Re,  2  Connoly,  118,  8  N.  Y.  Supp.  345 107 

Lodewyck  v.  Lacroix,  115  Mich.  590,  73  N.  W.  897 35 

Lodge  V.  Hullings,  63  N.  J.  Eq.  159,  51  Atl.  1015 83 

V.  Lodge,  2  Hoiist.    (Del.)   419   69,  74,  76,  128,  446 

Loeffner  v.  State,  10  Ohio  St.  598 187,  320,  347,  349,  351 

Loeser's  Estate,  3  Pa.  Dist.  R.  817 98,  90 

Lofnvenstine,  Re,  2  Misc.  323,  21  N.  Y.  Supp.  931 132 

Loewer  v.  Sedalia,  77  Mo.  431 358 

Loftus  v.  Maloney,  89  Va.  576,  16  S.  E.  749 26,  27 

Logan  V.  McGinnis,  12  Pa.  27 434,  446 

Long  V.  Long,  9  Md.  348 17 

V.  Long,  4  Ir.  Ch.  Rep.  106 320 

V.  State,  38  Ga.  491 210 

Longchamp   ex  dem.  Goodfellow  v.  Fish,  2  Bos.  &  P.  N.  R,  415,  9  Revised 

Rep.  670 127 

Longhead  v.  B.  F.  Coombs  &  Bro.  Commission  Co.   (1896)   2  Mo.  App.  Rep. 

1017 29 

Longley  v.  Com.  99  Va.  807,  37  S.  E.  339 236,  237 

Longmate  v.  Lodger,  2  Giff,  157,  6  Jur.  N.  S.  481,  8  Week.  Rep.  386 20 

Look  v.  Dean,  108  Mass.  116,  11  Am.  Rep.  323 169 

Loomis  V.  Spencer,  2  Paige,  153 305 

Looney  v.  State,  10  Tex.  App.  520,  38  Am.  Rep.  646 205 

I-rf)pez  v.  State,  30  Tex.  App.  4S7,  28  Am.  St.  Rep.  935,  17  S.  W.  1058 308 

Lord  V.  Beard,  79  N.  C.  5 313,  411 

Lord's  Wenman's  Case,  3  Atk.  173 487 


civ  TABLE  OF  CASES  CITED. 

Lorts  V.  Wash,  175  Mo.  487,  75  S.  W.  95 404 

Loit  V.  Sweet,  33  Mich.  308 170 

Louisville  &  N.  R.  Co.  v.  Cummins,  23  Ky.  L.  Rep.  681,  63  S.  W.  594.  .280,  281 
V.  Johnson,  92  Ala.  204,  25  Am.  St.  Rep.  35,  9  So.  269,  104  Ala.  241, 
53  Am.   St.  Rep.  30,   16  So.  75,   108  Ala.   62,  31   L.  R.  A.  372, 

19  So.  51   280,  285,  286,  289 

V.  Logan,  88  Ky.  232,  3  L.  R.  A.  80,  21  Am.  St.  Rep.  332,  10  S.  W.  655,  286 

Louisville,  C.  &  L.  R.  Co.  v.  Sullivan,  81  Ky.  624,  50  Am.  Rep.  186 285 

Lovatt  V.  Tribe,  3  Fost.  &  F.  9 409,  412 

Love  V.  Johnston,  34  N.  C.   ( 12  Ired.  L. )   355 372 

Lovegrove  v.  State,  31  Tex.  Ciini.  Rep.  491,  21  S.  W.  191 227,  348,  741 

Lowder  v.  Lowder,  53  Ind.  538 71,  76,  97,  372 

Lowe  V.  Joliffe,  1  W.  Bl.  365 104,  451,  452 

V.  State  (Wis.)   96  N.  W.  417 198.  400,  403,  404,  407,  428,  429^  461 

V.  Williamson,  2  N.  J.  Eq.  82 127,  444,  930,  931 

Lower  v.  Sehuniachc-r,  61  Kan.  625,  00  Pac.  538 157 

Loyd  V.  State,  45  Ga.  57 203 

Loza  V.  State,  1  Tex.  App.  488,  28  Am.  Rep.  416 242 

Lozear  v.  Shields,  23  N.  J.  Eq.  -509 5,  12,  15 

Lucas  V.  Cannon,  13  Bush,  650 110 

V.  Parsons,  23  Ga.  267 157 

V.  Parsons,  27  Ga.  595 109 

V.  Parsons,  24  Ga.  640,  71  Am.  Dec.  147 79,  81,  83,  98,  134,  925 

Ludlow  V.  Landgrove,  42  Vt.  137 294 

Ludwick  V.  Com.  18  Pa.  174 165,  166 

Limdberg  v.  Davidson,  72  Minn.  49,  42  L.  R.  A.  103,  74  N.  W.  1018 23 

Lyddy,  Re,  24  N'.  Y.  S.  R.  607,  5  N.  Y,  Supp.  636 331,  400 

Re,  17  N.  Y.  S.  R.  2,  4  N.  Y.  Supp.  408 415 

Lyle  V.  State,  31  Tex.  Crim.  Rep.  103,  19  S.  W.  903 231,  253 

LjTich,  Re,  5   Paige,   120 164 

V.  Clements,  24  N.  J.  Eq.  431 91 

V.  Com.  77  Pa.  205 177,  347,  348 

V.  Doran,  95  Mich.  395,  54  N.  W.  882 432 

V.  New  York,  47  Hun,  524 280,  281,  290 

Lynch's  Case.     See  Com.  v.  Linch. 

Lyon  V.  Home,  L.  R.  6  Eq.  65.'j,  37  L.  J.  Ch.  N.  S.  674,  18  L.  T.  N.  S,  451, 

16  Week.  Rep.  824 37,  88,  141 

Lyons  v.  New  York  C.  &  H.  R.  R.  Co.  39  Hun,  385 279,  388 

V.  Van  Riper,  20  N.  J.  Eq.  337 21,  93,  127 

Lyster  v.  Lyster,  111  Mass.  327 56,  59 

Lytle  V.  State,  31  Ohio  St.  196 386 


1^ 

Maas,  Re,  10  Okla,  302,  01  Pac.  1057 158,  221 

V.  Territory,  10  Okla.  714.  53  L.  R.  A.  814,  03  Pac.  960...  185,  221, 

320,  327,  353 

Mabic,  Re,  5  Misc.  179,  24  N.  Y.  Supp.  855 71 

M'Adams  v.  Walker,  1  Dow,  P.  C.  14S 33,  35,  42,  46,  391,  647,  650 


TABLE  OF  CASES  CITED.  cv 

McAlistor  v.  Lniicaster  County  Bank,  15  Neb.  25)5,  18  N.  W.  .57 299,  304 

McAllister   v.  State,   17   Ala.  434,  r)2  Am.  Dec.   180 18G,  3G0,  302,  395, 

39C),  409,  412 

V.  Tenitory,   1   VA'asli.   Terr.   SCO 227,  327,  354 

McArthur,  Ke,  36N.  Y.  S.  K.  292,  12  N.  Y.  Supp.  822 405 

McBee  v.  McBee,  22  Or.  320,  29  Am.  St.  Rep.  013,  29  Pac.  887. .' 57,  58 

McCabe,  Be,  70  Vt.  155,  40  Atl.  52 431,  432 

McCammon  v.  Cunninirhani,  lOS  Ind.  545,  9  X.  E.  455 147,  148 

McCann  v.  People,  3  Park.  Crim.  Rep.  272 68,  397,  403,  408 

McCarthy,  Re,  48  N.  Y.  S.  R.  3]  5,  20  N.  Y.  Supp.  581 132 

Re,  55  Hun,  7,  8  N.  Y.  Supp.  578 440,  445,  449,  450,  453,  456 

McCarty  v.  Com.  24  Ky.  L.  Rep.  1427,  71  S.  W.  656 196,  375,  376 

V.  Com.  14  Ky.  L.  Rep.  285,  20  S.  W.  229 232,  398 

V.  Kernan,  86  111.  291 344 

V.  State,  4  Tex.  App.  461 246,  248,  460 

McCIackey  v.  State,  5  Tex.  App.  320 395 

McClain  v.  Davis,  77  Ind.  419 302 

McClary  v.  Stull,  44  Neb.  175,  62  Pac.  501 82,  88 

McCleary  v.  Barcalow,  6  Ohio  C.  C.  481 47,  50,  154 

McClelland  v.  Louisville,  N.  A.  &  C.  R.  Co.  94  Ind.  276 286 

McClintock  v.  Curd,  32  Mo.  411 69 

McClun  V.  McClun,  176  ill.  376,  52  N.  E.  928 23 

McClure  v.  Mutual  L.  Ins.  Co.  55  N.  Y^  651 261,  269 

McConnell  v.  Wildes,  153  Mass.  489,  26  N.  E.  1114 26,  30,  72,  255,  372,  436 

McCormick  v.  Littler,  85  111.  62,  28  Am.  Rep.  610 10,  11,  19 

V,  McCormick,  109  Iowa,  700,  81  N.  W.  172 323 

V.  Malin,  5  Blackf.  509    29 

McCoy  V.  Jordan  ( Mass. )   C9  N.  E.  358 3G3 

McCracken  v.  Markesan.  70  Wis.  499,  45  N.  W.  323 291,  388 

M'Craine  v.  Clarke,  6  N.  C.   (2  Murph.)   317 370 

M'Creight  v.  Aiken,  Rice  L.  50 6,  38,  155,  384 

McCrillis  v.  Bartlett,  8  N.  H.  569 .10,  30,  31 

McCue,  Re,  17  N.  Y.  Week.  Dig.  501 83 

V.  Klein,  60  Tex.  168,  48  Am.  Rep.  200 :  281 

McCulloch  V.  Campbell,  49  Ark.  367,  5  S.  W.  590 70,  72,  76,  106,  328 

McCullough,  Re,  35  Pittsb.  L.  J.  169 69,  74 

V.  Expressmen's  Mut.   Ben.   Asso.   133   Pa.   142,   7   L.  R.  A.  210,    19 

Atl.  355 267 

McCuUough's  Will,  35  Pittsb.  L.  J.  169 116,  131,  138,  399,  400,  429 

McCurry  v.  Hooper,  12  Ala.  823,  46  Am.  Dec.  280 115,  144 

McCutchen  v.  Pigue,  4  Heisk.  565 309 

McCutcheon  v.  Currier,  !)4  Me.  362,  47  Atl.  923 296 

McDaniel  v.  Crosby,  19  Ark.  533 91,  99,  125,  333,  417,  445 

V.  McCoy,  68  Mich.  340,  36  N.  W.  84 36 

M'Daniel's  Will,  2  J.  J.  Marsh,  331 105,   106,  131,  444 

M'Diarmid  v.  IVC'Diarmid,  3  Bliph.  N.  R.  374 21,  124 

McDonald  v.  Chicago,  M.  &  St.  P.  R.  Co.  75  Wis.  121,  43  N.  W.  744.. 280,  282 

V.  McDonald,  16  Grant  Ch.    (U.  C.)   37 15 

McDonald's  Estate,  130  Pa.  480,  13  Atl.  617 112 

McDougal  V.  State,  88  Ind.  24 182,  326,  354 

McDowell  V.  Preston,  26  Ga.  528 317 


cvi  TABLE  OV  CASJCS  CITED. 

Mace  V  Reed,  89  Wis.  440,  62  X.  W.  18G 317 

McElroy  v.  McElroy,  5  Ala.  81 65,  68,  100 

M'Elroy's  Case,  6  Watts  &  S.  451 149,  151,  153,  964,  966 

McElwee  v.  Ferguson,  43  Md.  479 114,  115.  117 

McFaddin  v.  Vincent,  21  Tex.  47 20 

McFadin  v.  Catron,  138  Mo.  197,  38  S.  W.  932,  39  S.  W.  771 128,  331,  332 

McFalls  V.  Brown  (Tox.  Civ.  App.)  37  S.  W.  784 8 

Macfarland's  Trial,  8  Abb.  Pr.  N.  S.  57 186,  201,  203,  397,  411 

McGee  v.  Hayes,  127  Cal.  336,  78  Am.  St.  Rep.  57,  59  Pac.  767 14-1 

McGill  V.  McGill,  19  Fla.  341 57 

McGinley  v.  United  States  L.  Ins.  Co.  77  N.  Y.  495 271 

McGinnis,  Ex  parte,  14  W.  N.  C.  221 220,  952 

V.  Com.  74  Pa.  245   154,  166,  24(i 

V.  Kempsey,  27  Mich.  363 323.  331,  345,  364,  375,  392,  402,  410,  45S 

McGonegal  v.  McGonegal,  46  Mich.  66,  8  N.  W.  724 58 

McGovran's  Estate,  185  Pa.  203,  39  Atl.  816 83 

McGraw,  Re,  9  App.  Div.  372,  41  N.  Y.  Supp.  481 76,  130,  132 

McHugh  V.  Fitzgerald,  103  Mich.  21,  61  N.  W.  354 71,  395,  408,  456,  45'= 

V.  Schlosser,    159   Pa.  480,   23  L.  R.  A.   574,  39   Am.   St.  Rep.   699, 

28  Atl.  291 28] 

Mclntire  v.  Worthington,  68  Md.  203,   12  Atl.  251 136 

Mcintosh  V.  Moore,  22  Tex.  Civ.  App.  22,  53  S.  W.  611 75,  76,  36.S 

Mclntyre  v.  Kingsley,  1  Ch.  Chambers  Rep.   (Ont.)  281 153 

V.  McConn,  28  Iowa,  483   116,  118 

V.  People,  38  111.  514 238,  248,  249 

V.  Sholty,  121  111.  660,  2  Am.  St.  Rep.  140,  13  X.  E.  239.  .  .  .275,  276,  277 

Mack  V.  Handy,  39  La.  Ann.  491,  2  So.  131 57,  61 

McKay  v.  McKay,  18  B.  Mon.  8 58 

McKean,  Re,  31  Misc.  703,  06  N.  Y.  Supp.  44 84-87,  114,  131 

McKee  v.  Ingalls,  5   111.  30 277,  373 

V.  People,  36  N.  Y.  113   373 

McKelton  v.  State,  88  Ala.  181,  7  So.  38 309 

McKenzie  v.  Donnell,  151  Mo.  431,  .52  S.  W.  214 8 

V.  Handasyde,  2  Hagg.  Eccl.  Rep.  211 124 

V.  State,  26  Ark.  334   320,  326,  350 

McKillop  V.  Duluth  St.  R.  Co.  53  Minn.  532,  55  N.  W.  739 459 

McKim,  Re,  9  Pa.  Co.  Ct.  209 72 

McKim's  Estate,  27  W.  N.  C.  110 98 

Mackin  v.  State,  59  N.  J.  L.  495,  36  Atl.  1040 187,  200 

Macklin's  Case,  3  Coiiper,  257 184 

McKnight  v.  Wriglit,  12  Rich.  L.  232 125,  334 

McLane  v.  Elder  (Tex.  Civ.  App. )  23  S.  W.  758 383 

McLaughlin's  Will,  2  Redf.  504 .^  95 

McLean  v.  State,  16  Ala.  672 360,  364,  367,  373,  423 

McLeary  v.  Norment,  84  N.  C.  235 424 

Mcleod  V.  State,  31  Tex.  Crim.  Rep.  331,  20  S.  W.  749 229,  404,  415,  428 

McLeroy  v.  State,  120  Ala.  274,  24  So.  374 236,  239,  243 

Mc:\Tahon  v.  Ryan,  20  Pa.  329 91,  928 

McMaster  v.  Scriven,  85  Wis.  162,  39  Am.  St.  Rep.  828,  55  N.  W.  149 71, 

93,   100,  131,  334,  424 

McMasters  v.  Blair,  29  Pa.  298 73,   119,  333,  339 


TABLE  OF  CASES  CITED.  evii 

McAIocIien  v.  McMechen,  17  W.  Va.  68.3,  41  Am.  Rep.  082 7C,  106,  329, 

.330,  366,  379,  398,  402,  45.3 

McMeekiii  v.  McMeekin,  2  Bush,  79 104,  108,  4.'>1 

M'Naghten's   Case,    10   Clark  &   ¥.  200,   8   Scott   N.   R.   .595,    1    Car.   &  K. 
130n..  186-188,   194,  320,  347,  351,  397,  398,  403,  455,  458,  .509, 

520,  540,  541,  544-548,  550,  552,  554-558,  560,  562,  565,  566,  571,  583 

McNairy  County  v.  McCoin,  101  Tenn.  74,  41  L.  R.  A.  862,  45  S.  W.  1070.  .  10 

McNamara's  Case,  Arkley,  521   206 

McNee.s  v.  Thompson,  5  Bush,  686 299,  300,  301 

McNineh  v.  Charles,  2  Rich.  L.  229 126 

Maconnehey  v.  State,  5  Ohio  St.  77 234,  775 

McPhee  v.  Scully,  163  Mass.  216,  39  N.  E.  1007  .■ 279 

Macpherson,  Re,  1  Connoly,  223,  4  N.  Y.  Supp.  181 128 

McPherson's  Appeal  (Pa.)  9  Cent.  Rep.  408,  11  Atl.  205 96 

McQuirk  v.  State,  84  Ala.  435,  5  Ara.  St.  Rep.  381,  4  So.  775 205,  207 

McSorley  v.  MoSorley,  2  Bradf.   188 76,  96,  124 

McSparran  v.  Neeley,  91  Pa.  17 27 

McTa^gart  v.  Thompson,  14  Pa.  149 66,  74,  103,  372,  450,  528,  924 

3IcVickar  v.   MeVickar,   46  N.   J.   Eq.   490,   19   Am.   St.   Rep.   422,   19  Atl. 

249 56,  59,  60 

Maddox  v.  Maddox,  114  Mo.  35,  35  Am.  St.  Rep.  734,  21  S.  W.  499 68,  378 

V.  Simmons,  31  Ga.  512 5,  20 

Madison  County  v.  Moore  (Tnd.)  68  N.  E.  905 170 

Magahay  v.  Magahaj',  35  Mich.  210 57 

Magee  v.  McNeil,  41  Miss.  17,  90  Am.  Dec.  354 363 

Maguire,  Re,  114  Mich.  80,  72  N.  W.  15 221 

V.  Middlesex  R.  Co.  115  Mass.  239 281,  284 

Mahone  v.  Malione,  19  Cal.  627,  81  Am.  Dec.  91 57 

Mahoney,  Re,  34  N.  Y.  S.  R.  183,  12  N.  Y.  Supp.  122 Ill 

Main  v.  Ryder,  84  Pa.  217 123 

Mairs  v.  Freeman,  3  Redf.  181 . .- 74,  106 

Mallory  v.  Travelers'  Ins.  Co.  54  N.  Y.  651 265 

V.  Travelers'  Ins.  Co.  47  N.  Y.  52,  7  Am.  Rep.  410 258 

Malone  v.  State,  49  Ga.  210 239,  240 

Maloney  v.  Dewey,  127  111.  395,  11  Am.  St.  Rep.  131,  19  N.  E.  848 299,  304 

Maltass  v.  Maltass,  3  Curt.  Eccl.  Rep.  231 909 

Manatt  v.  Scott,  106  Iowa,  203,  68  Am.  St.  Rep.  293,  76  N.  W.  717 132, 

363,  365,  366,  371,  37.5,  376,  399,  434,  435 

Manby  v.  Bewicke,  3  Kay  &  J.  342 .- 295 

V.  Scott,  1  Sid.  Pt.  1,  p.  109   { 1659 ) 935 

Manhattan  L.  Ins.  Co.  v.  Broughtoii,  109  U.  S.  121,  27  L.  ed.  878,  3  Sup. 

Ct.  Rep.  99    73,  184,  263 

Manley  v.  Staples,  65  Vt.  370,  26  Atl.  630 85,  340,  343 

Mann  v.  Betterly,  21  Vt.  326 4,  5,  20 

v.  Keene  Guaranty  Sav.  Bank,  29  C.  C.  A.  547,  57  U.  S.  App.  634, 

86  Fed.  51   13,  37 

Manning  Case 615 

Mansfield  v.  Mansfield,   13  Mass.  409 56 

V.  Watson,  2  Iowa,  111,  115 24-30 

Mansfield  Case,  12  Coke,  124 299 

Mar's  Ca.se,  cited  in  2  Taylor  on  Principles  of  Med.  ,Tnr.  2d  ed.  627 271 


cviii  TABLE  OF  CASES  CITED. 

Marceau  v.  Travelers'  Ins.  Co.  101  Cal.  338,  35  Pac.  856,  3G  Pac.  813..  186, 

200,  259,  385,  407,  422,  452 
Margary  v.  Robinson,  L.  E.   12  Prob.  Div.  8,  56  L.  J.  Prob.  N.  S.  42,  57 

L.  T.  N.  S.  35,  35  Week.  Rep.  350,  51  J.  P.  407 818 

Markle  v.  Markle,  4  Johns.  Ch.  IGS 148 

Marks  v.  Bryant,  4  Hon.  &  M.  91 107 

Marlcr  v.  State,  67  Ala.  55,  42  Am.  Rep.  95 216,  315,  386 

Marmon  v.  Marmon,  47  Iowa,  121 6,  14,  20 

Marous  v.  Marcus,  86  111.  .4pp.  597 57 

Marquette  v.  Chicago  &  N.  W.  E.  Co.  33  Iowa,  563 289 

Marquette,  H.  &  O.  R.  Co.  v.  flanford,  39  Mich.  537 283 

Marsh  v.  Marsh,  28  L.  J.  Prob.  X.  S.  13,  1  Swabey  &  T.  312,  5  Jur.  N.  S. 

46,  7  Week.  Rep.  129 61 

V.  Tyrrell,  2  Hagg.  Eccl.  Rep.  84 69,  112 

Marshall  v.  Flinn,  49  N.  C.  (4  .Tones  L.)   199 91 

V.  Hanby,  115  Iowa,  318,  88  N.  W.  801 91,  456 

V.  Riley,  38  Misc.  770,  78  N.  Y.  Supp.  827 458 

V.  State,  59  Ga.  154 240 

Marshall's  Case,  1  Lewin  C.  C.  76 250 

Martin  v.  Baker,  135  Mo.  495,  36  S.  W.  369 20,  21,  380 

V.  Bowdern,  158  Mo.  379,  59  S.  W.  227 132 

V.  Johnston,  1  Fost.  &  F.  122. 377,  385,  403 

V.  Martin,  8  Week.  Rep.  307,  29  L.  J.  Prob.  N.  S.  106,  2  L.  T.  N.  S. 

118 54 

V.  Mitchell,  28  Ga.  3S2 109 

V.  Perkins,  56  Miss.  204 330.  331.  420,  445,  450,  452 

V.  State,  119  Ala.  1,  25  So.  255 326,  S49 

V.  Stewart   (Kan. )    73  Pac.  107 146 

V.  Thayer,  37  W.  Va.  38,  10  S.  E.  489 74,  76,  84,  102,  105,  113, 

128,  450 

V.  Wotton,  1  Lee  Ecel.  Eep.  130 135 

Martin's  Case,  Shelford  on  Lunatics,  407 184 

Martinez  v.  Moll,  46  Fed.  724 344,  441 

Marvin,  Ee,  1  Dill.  178,  Fed.  Cas.  No.  9,178 306 

V.  Marvin,  4  Koyes,  9 90,  122,  123 

V.  Marvin.  3  Abb.  App.  Dec.  192 90,  123 

Marx  V.  McGlynn,  88  N.  Y.  357,  .^airming  4  Redf.  455 367,  371 

Mason,  Re,  3  Edw.  Ch.  380 148 

Re,  GO  Ilun,  46,  14  X.  Y.  Supp.  434 150,  151,  163,  379,  400, 

410,  458 

Re,  I   Barb.  436 145,   149,  163 

V.  Dunbar,  43  Mich.  410,  38  Am.  Rep.  201,  5  N.  W.  432 20 

V.  Libbey,  2  Abb.  N.  C.  137 314 

V.  Mason,  1  Edw.  Ch.  278 59,  60 

V.  Mason,  131  Pa.  161,  18  Atl.  1008 56,  60 

Massengale  v.  State,  24  Tex.  App.  181,  5  S.  W.  650.  6  S.  W.  35 225,  321,  347 

Massie  v.  Com.  15  Ky.L.  Rep.  562,  24  S.  W.  Gil 399,  431 

Matchin  v.  Matchin,  6  Pa.  332,  47  Ajh.  Dec.  4(>6 52 

Matthews  v.  Baxter,  L.  R.  8  Exch.  132,  42  L.  J.  Exch.  K  S.  73,  28  L.  T.  X. 

S.  169,  21  Week.  Rep.  389 19 

Matthies.sen  &  W.  Ref.  Co.  v.  McMahon,  38  N.  J.  T-.  536 8,  10,  13,  19,  ^3 


TABLE  OF  CASES  CITED.  cix 

Maiipin  v.  Wools,  1  Duv.  223 104,  451 

Maverick  v.  Reynolds,  2  Bradf.  2G0 '5,  127 

Maw  V.  King  Twp.  ^  Ont.  App.  Rep.  248 288 

Maxwell  v.  Hannibal  &  St.  J.  R.  Co.  85  Mo.  95 279 

V.  Mountague,  3  Atk.  546 150 

V.  PiUinger,  3  N.  J.  Eq.  156 24 

V.  State,'  89  Ala.   150,  7  So.  824 349 

May  V.  Bradlee,  127  Mass.  414 94,  110,  SGii,  3G7,  436,  456 

Maynard  v.  Tyler,  IGS  Mass.  107,  46  N.  1^:.  413 83 

V.  Vinton,  59  Mich.  139,  60  Am.  Hep.  276,  26  N.  W.  401 415,  454 

Mayo  V.  Jones,  78  N.  C.  402 80,  321 

Mays  V.  Mays,  1 14  Mo.  536,  21  S.  W.  921 447 

Meaeham  v.  New  York  State  Mut.  Bon.  Asso.  46  Hun,  363.,  .  .261,  262,  269,  630 
V.  New  York  State  Mnt.  Ben.  Asso.  120  N.  Y.  238,  24  N.  E.  283.  .258, 

268,  270,  273 

Mead  v.  Coombs,  26  N.  J.  Eq.  173 28 

V.  Stegall,  77  111.  App.  679 7 

Means  v.  Means,  5  Strobh.  L.  167 102,  111,  450 

Meares,  Re,  L.  R.  10  Cli.  Div.  552,  48  L.  J.  Cli.  N.  S.  190,  40  L.  T.  N.  S. 

Ill,  27  Week.  Rep.  369 30 

Mears  v.  ilears,   15  Ohio  St.  90 335 

Meathe  v.  Meathe,  83  Mich.  150,  47  N.  W.  109 58 

Medill  V.  Snyder,  61  Kan.  1-5,  78  Am.  St.  Rep.  306,  58  Pnc.  062 81,  .399 

Medlock  V.  Cogbiirn,  1  Rich.  Eq.  477 145 

V.  Merritt,  102  Ga.  212,  29  S.  E.  185 45 

Meek  v.  Perry,  36  jMiss.  190 92 

Meeker  v.  Meeker,  75  111.  260 67,  97,  110,  382 

V.  Meeker,  74  Iowa,  3.52,  7  Am.  St.  Rep.  489,  37  N.  W.  773.. 68,  72, 

366,  399,  400,  415,  434,  454 

Meigs  V.  Dexter,  172  Mass.  217,  52  N.  E.  75 15 

Melanefy  v.  Morrison,  152  Mass.  473,  26  N.  E.  36 449 

Meleiidy  v.  Spaulding,  54  Vt.  517 402,  405,  435,  456 

Memphis  &  C.  R.  Co.  v.  Womack,  84  Ala.  149,  4  So.  618 282 

Mendenhall  v.  Tungate,  95  Ky.  208,  24  S.  W.  431 819 

Menkins  v.  Lightner,  18  111.  282 24,  29,  320,  323,  339,  359 

Mercer  v.  Kelso,  4  Gratt.  106 86,  114 

V.  State,  17  Ga.  146 317 

Merriam,  Re,  42  N.  Y.  S.  R.  619,  16  NT.  y.  Supp.  738,  Affirmed  in  136  N.  Y. 

5S,  32  N.  E.  621 114,  117 

M<-rrill  v.  Rolston,  5  Redf.  220 79,  85.  116 

V.  Rush,  33  N.  J.  Eq.  537 128 

Merriman,  Re,  108  Mich.  454,  66  N.  W.  372 81,  84,  362,  375,  376,  443 

Merritt  v.  Cotton  States  L.  Ins.  Co.  55  Ga.  103 144,  262,  268 

V.  Merritt,  27  App.  Div.  208,  50  N.  Y.  Supp.  604 9,  23 

V.  Merritt,  32  Misc.  21,  66  N.  Y.  Supp.  123 14 

V.  State,  39  Tex.  Crim.  Rep.  70,  45  S.  W.  21 192-194,  395,  428,  440 

Messenger  v.  Bliss,  35  Ohio  St.  587 154 

Messner  v.  Elliott,  184  Pa.  41,  39  Atl.  46 117,  322,  344 

Meyer  v.  King,  72  Miss.  1,  35  L.  R.  A.  474,  16  So.  245 280,  281,  291 

v.  Pacific  R.  Co.  40  Mo.  151 .281,  284,  285 

V.  People,  156  111.  126,  40  N.  E.  490 199,  227^  441 


ex  TABLE  OF  CASES  CITED. 

Meyers  v.  Com.  .S3  Pa.  141 349,  350 

V.  State,  37  Tex.  Crira.  Rep.  208,  39  S.  W.  Ill 317,  422 

Miehi^'an  C.  R.  Co.  v.  Gilbert,  46  Mich.  176,  9  N.  W.  243 279,  289 

Michigan  Mut.  L.  Ins.  Co.  v.  Naugle,  130  Ind.  70,  29  N.  E.  393 263 

Middleborough  v.  Rochester,  12  Mass.  363 40,  41,  294 

Middleditch  v.  Williams,  45  N.  J.  Eq.  726,  4  L.  R.  A.  738,  17  Atl.  826.  .69, 

81,  83,  88 

Middleton  v.  Sherburne,  4  Yoiinge  &  C.  358 122 

MiQiin  v.  Smedley,  3  Del.  Co.  Rep.  143 135,  331,  333 

Milks  V.  Milks,  129  Mich.  164,  88  N.  W.  402 14 

Miller,  Re,  179  Pa.  645,  39  L.  R.  A.  220,  36  Atl.  139 123,  819 

Re,  26  Pittsb.  L.  J.  N.  S.  428 393,  399 

Re,  36  Misc.  310,  73  N.  Y.  Supp.  508 90 

Re,  7  Pa.  Dist.  R.  209 101 

V.  Craig,  36  III.  109 5,  14 

V.  Finley,  26  Mich.  249,  12  Am.  Rep.  306 24,  27 

V.  Hart,  135  Ind.  201,  34  N.  E.  1003 10 

V.  Mutual  Ron.  L.  Ins.  Co.  31  Iowa,  218,  7  Am.  Rep.  122 271 

V.  Oestrich,  157  Pa.  270,  27  Atl.  742 114,  13S 

V.  Potter,  54  Vt.  207 304 

V.  Rutledgc,  82  Va.  863,  1  S.  E.  202 13,  14,  320 

V.  Smith,   112  Mass.   475 453 

V.  State   (Tex.  Crim.  App.)   71  S.  W.  20 379,  380 

V.  White,  5  Redf.  320 116,  136,  329,  345 

Milliman  v.  New  York  C.  &  IT.  R.  R.  Co.  4  Hun,  409,  6  Thomp.  &  C.  585, 

Affirmed  in  66  N.  Y.  642 28^ 

Mills  V.  Cook  (Tex.  Civ.  App.)  57  S.  W.  81 311,  455 

V.  Slook,  9  W.  N.  C.  379 385 

Mills's  Appeal,  44  Conn.  484 377 

Milne  v.  Bartlet,  3  Jur.  358,  8  h.  J.  Ch.  N.  S.  254 22 

Milner  v.  Turner,  4  T.  B.  I^Ion.  244 17 

Milton  V.  Hunter,  13  Bush,  163 331,  332,  368,  370 

Mims  V.  Miins,  33  Ala.  98 52 

Minard  v.  Minard,  Braytou   ( Vt. )   231 97 

Minder  v.  State,  113  Ga.  772,  39  S.  E.  284 351 

Minor  v.  Thomas,  12  B.  Mon.  106 118,  804 

Miskey's  Appeal,  107  Pa.  611 26,  154,  166,  324 

Missouri  P.  R.  Co.  v.  Brazzil,  72  Tex.  233,  10  S.  W.  403 4,  343,  344,  383 

V.  Evans,  71  Tex.  361,  1  L.  R.  A.  476,  9  S.  W.  325 280,  283,  286 

V.  Lovelace,  57  Kan.  195,  45  Pac.  590 393 

Mitchell  V.  Corpening,  124  N.  C.  472,  32  S.  E.  798 74,  118 

V.  Kingman,  5  Pick.  431 6,  24,  29 

V.  Spaulding,  20  Pa.  Super.  Ct.  296 150 

V.  Spaulding,  206  Pa.  220,  55  Atl.  968 157 

V.  Thomas,  6  Moore  P.  C.  C.  137,  12  Jur.  967,  5  Motes  of  Cases,  600, 

124,  125,  334 

Mix  V.  McCoy,  22  Mo.  App.  488 387 

Moett  V.  People,  85  N.  Y.  373 184.  186,  327,  353,  618 

Mohler  v.  Shank,  93  Iowa,  273,  34  L.  R.  A.  161,  57  Am.  St.  Rep.  274,  61  N. 

W.  981 54 

Molton  V.  Camroux,  2  Exch.  486,  Affirmed  in  4  Exch.  17 8,  19,  781.  933 


TABLE  OF  CASES  CITED.  cxi 

Molton  V.  Camroux,  2  Exch.  501,  18  L.  J.  Exch.  N.  S.  68.  12  Jur.  800 781 

Monahan,  He,  9  Ir.  Eq.  Rep.  253,  3  Jones  &  L.  258 148 

Monk  V.  Utrecht.  104  N.  Y.  552,  11  N.  E.  2(iS 291 

Monroe  v.  B:irclay,  17  Ohio  St.  302,  93  Am.  Dec.  G20 91 

Monroe  County  v.  Budlong,  51  Bnrb.  493 15S 

Montag  V.  People,  141  111.  75,  30  \L  E.  337 237,  32(5,  327,  353,  355 

Montague  v.  Allan,  78  Va.  592,  49  Am.  Rep.  384 75,  76,'  128,  412 

Montgomery  v.  Com.  88  Ky.  509,  11  S.  W.  475 199,  222,  360,  403,  404,  412 

Montgomery  County  v.  Ristine,  124  Ind.  242,  8  L.  R.  A.  461,  24  N.  E.  990.  .  169 

Moody  V.  Bibb,  50  Ala.  248 144,  146 

Moon  V.  State,  68  Ca.  687 240,  244 

Mooney  v.  Olsen,  22  Kan.  69 110,  123,  365,  366 

V.  State,  33  Ala.  419 250,  251 

Moore  v.  Allen,  5  Ind.  521 334,  335 

V.  Com.  <J2  Ky.  630,  18  S.  W.  833 320,  348,  350,  360 

V.  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp.  363,  Fed.  Cas.  No.  9,755.-260, 

262-264,  268,  323,  645 

V.  Heineko,  119  Ala.  627,  24  So.  374 118,  119 

V.  Hershey,  90  Pa.  196 18,  38,  154,  156 

V.  McDonald,  68  Md.  321,  12  Atl.  117 99 

V.  Moore,  41  Mo.  App.  176 .  58 

V.  Moore,  68  Cal.  281,  9  P.ac.  164 292 

V.  Moore,  2  Bradf.  265 112,  133,  364 

V.  Moore,  67  Mo.  192 21,  140,  425,  441 

V.  Spier,  SO  Ala.  120 361,  428 

Moors  V.  Sanford,  2  Kan.  App.  243,  41  Pae.  1064 418,  438 

Morain  v.  Devlin,  132  Mass.  87,   12  Am.  Rep.  423 276,  944 

Morduunt  v.  Moncriefle,  L.  R.  2  H.  L.  Sc.  App.  Cas.  375,  43  L.  J.  Prob.  49,  30 

L.  T.  N.  S.  649,  23  Week.  Rep.  12 52,  55 

V.  Mordaunt,  L.  R.  2  Prob.  &  Div.  103,  18  Week.  Rep.  845 52,  55,  624 

V.  Mordaunt,  39  L.  J.  Prob.  N.  S.  59 276 

V.  Mordaunt,  L.  R.  2  Prob.  &  Div.  382,  41  L.  J.  Prob.  N.  S.  42,  26  L.  T. 

]Si.  S.  812,  20  Week.  Rep.  553 52 

Morey's  Appeal,  57  N.  H.  54 151 

Morgan,  Re,  7  Paige,  236 147,   148,  163 

V.  Boys 370,  923 

Morris  v.  Clay,  53  N.  C.  ( 8  Jones  L. )  216 29 

V.  Great  Northern  R.  Co.  67  Minn.  74,  69  N.  W.  628 9 

V.  Morton,  14  K.y.  L.  Rep.  S60,  20  S.  W.  287 109,  344,  371 

V.  Nixon,  7   Humph.  579 29 

V.  Stokes.  21  (in.  552 65.  qq 

Morrison  v.  Maciline,  24  Scotch  Soss.  Cas.  626 454 

V.  McLeod,  22  N.  C.  (2  Dev.  &  B.  Eq.)  226 24,  26 

V.  Smith,  3  Bradf.  209 125,  333^  337 

V.  State,   84  Ala.  504,   4   So.  402 243,  249 

Morse  v.  Crawford,  17  Vt.  502,  44  Am.  Dec.  349 275,  393,  420,  433,  450 

V.  Scott,  4  Dem.  507 82,  107,  118,  343 

Morton  v.  Morton  (N.  J.  Eq.)  7  Cent.  Rep.  134,  8  Atl.  807 17,  20,  21,  324 

Mosby  V.  Gisborn,  17  Utah,  257,  54  Pac.  121 144 

Moss,  Re,  120  Cal.  695,  53  Pac.  357 161 

V.  Tribe,  3  Fost.   &  F. '297 27 


cxii  Table  of  cases  cited. 

Mosser  v.  Mosser,  32  Ala.  551 ■ 86,  1 10 

Motley  V.  Head,  43  Vt.  G33 23,  157 

Mc.tt  V.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  097 17,  18 

Motz,  Re,  136  Cal.  558,  69  Pac.  294 76,  328 

Mountain  v.  Bennet,  1  Cox  Ch.  Cas.  356 66,  90 

Mo^\Ty  V.  Home  L.  Ins.  Co.  9  R.  I.  346 273 

V.  Silber,  2  Bradf.  133 124,  125,  324,  334 

Mover  v.  Swygart,  125  111.  267,  17  N.  E.  450 99 

Mudway  v.  Croft,  3  Curt.  Eecl.  Rep.  671 87 

Muir  V.  Miller,  72  Iowa,  5S5,  34  N.  W.  429 122 

Mulhern  v.  Lehigh  Valley  Coal  Co.  IGl  Pa.  270,  28  Atl.  1087 27S 

Mull  V.  Carr,  5  Ind.  App.  491,  32  N.  E.  591 429,  43G 

Muller  V.  St.  Louis  Hospital  Asso.  5  Mo.  App.  390 92,  110,  365,  367 

V.  St.  Louis  Hospital  Asso.  73  Mo.  243 108,  371 

Mulligan  v.  Albertz,  103  AVis.  140,  7S  K  W.  1093 12,  29,  35 

MuUins  V.  Cottrell,  41  Miss.  291 81,  84,  86,  88,  101,  329,  343,  344,  377,  383 

Mulloy  V.  Ingalls,  4  Neb.  115 4,  14 

Munday  v.  Taylor,  7  Bash,  491 110 

Murfett  V.  Smitli,  L.  R.  12  Prob.  Div.  116,  57  L.  T.  N.  S.  498,  51  J.  P.  374. .  83 

Murley  v.  Templeman,  cited  in  Shelford  on  Lunatics,  495 315 

Murphree  v.  Senn,  107  Ala.  424,  18  So.  264 328,  339,  376,  427,  428 

Murphy,  Re,  41  App.  Div.  15.3,  58  N.  Y.  Supp.  450 72,  114,  128 

V.  Com.  92  Ky.  485,  18  S.  W.  163 222-224,  382,  395 

V.  People,  90  111.  59 165,  166 

V.  Union  R.  Co.  1  IS  Mass.  228 285,  289 

Murray  v.  Carlin,  67  111.  236 19,  27 

Murry  v.  Hennessey,  48  Nob.  COS,  67  N.  W.  470 329 

Musick  V.  Fisher,  96  Ky.  15,  27  S.  W.  812 141 

Musselman  v.  Cravens,  47  Ind.   1 7,  156 

Mutual  Ben.  L.  Ins.  Co.  v.  Daviess,  87  Ky.  541,  9  S.  W.  812 261,  336 

:\Iutual  F.  Ins.  Co.  v.  Showalter,  40  W.  N.  C.  80 944 

Mutual  L.  Ins.  Co.  v.  Hunt,  79  N.  Y.  541 8,  160 

V.  Leubrie,  18  C.  C.  A.  332,  38  U.  S.  App.  37,  71  Fed.  843 263,  420 

V.  Terry,  15  Wall.  580,  21  L.  ed.  236 198,  260,  262,  263,  264,  643,  644 

V.  WisweJl,  56  Kan.  765,  35  L.  R.  A.  258,  44  Pac.  996.  .157,  260,  268, 

339,  342 

Myatt  V.  Walker,  44  111.  485 5,  100,  323,  344 

Myers  v.  Hauger,  98  Mo.  433,  11  .S.  W.  974 67,  89 

V.  Knabe,  51  Kan.  720,  33  Pac.  602 383 

M}-nn  V.  Robinson,  2  Hagg.  Eccl.  Rep.  109 372 

Myrick  v.  Myrick,  67  Ga.  771 58 


\aanep  v.  State,  143  Ind.  299,  42  N.  E.  609 385 

Nace  V.  Boyer,  30  Pa.  99 5,  17 

X;igle  V.  Baylor.  3  Dru.  k  W.  60 25,  27 

Nailing  v.  Nailing,  2  Sneed,  630 110 

Nailor  v.  Nailor,  4  Dana,  340 146,  148 


TABLE  OF  CASES  CITED.  eriU 

Napfle's  Estate,  134  Pa.  492,  19  Atl.  fi79 98,  105,  128 

Estate,  46  Phila.  Leg.  Int.  57 75 

Nash  V.  Hmit,  11(5  Mass.  2^7 94,  364,  403,  422,  436,  446 

National  Loan  &  P.ldg.  Asso.  v.  Maloney,  22  Ky.  L.  Rep.  1094,  60  S.  W.  12.  .  5 

Naul  V.  Naul,  75  App.  Div.  292,  78  N.  Y.  Supp.  101 369 

Neodliam  v.  Ide,  5  Pick.  510 436,  445 

Nesly  V.  Shephard,  190  111.  639,  60  N.  E.  922,  Amiming  92  111.  App.  422 426 

Neill  V.  Morley,  9  Ves.  Jr.  478 10 

Neilon  v.  Kansas,  St.  J.  k  C.  B.  R.  Co.  85  Mo.  599 279 

Nelson,  Re,  39  Minn.  204,  39  N.  W.  143 457 

Re,  132  Cal.  182,  64  Pac.  294 75,  320,  321,  336,  394,  424* 

V.  Buncombe,  9  Eeav.  211,  15  L.  J.  Ch.  N.  S.  296,  10  Jur.  399 11 

V.  State,  43  Tex.  dim.  Rep.  553,  67  S.  W.  320 176 

Nevills  V.  Nevills,  6  Grant  Ch.  (U.  C.)   136 36 

Nevling  v.  Com.  98  Pa.  323.  .176,  177,  180,  184,  187,  196,  231,  232,  248,  .326, 

460,  975,  978 

Newberry  v.  State,  32  Tex.  Crim.  Rep.  1-15,  22  S.  W.  412 349 

Newcomb,  Re,  58  App.  Div.  338,  (>?■  N.  Y.  Supp.  988 164 

V.  Newcomb,  96  Ky.  120,  27  S.  W.  997 72,  100,  364,  430 

V.  Newcomb,  13  Bush,  544,  26  Am.  Rep.  222 51,  300 

V.  Stiite,  37  Miss.  383 176,  185,  320,  351,  355 

Newell  V.  Fisher,  11  Smedes  &  M.  431,  49  Am.  Dec.  66 25,  29 

V.  Smith,  23  Ga.   170 299 

New  England  Loan  &  T.  Co.  v.  Spitler,  54  Kan.  500,  38  Pac.  799 18 

Newhard  v.  Yundt,  132  Pa.  324,  19  Atl.  2S8 97,  328,  336,  344,  442 

New  Home  Life  Asso.  v.  Plagler,  29  111.  App.  437 263,  264,  268,  269 

Newhouse  v.  Godwin,  17  Barb.  236 65,  74,  75,  92 

Newlin's  Estate,  7  Pa.  Co.  Ct.  648 99 

New  Phoenix,  The,  1  Hagg.  Adm.  198 30 

Newton  v.  Carbery,  5  Cranch  C.  C.  626,  Fed.  Cas.  No.  10,189 88,  112,  114,  429 

V.  Central  Vermont  R.  Co.  80  Hun, '491,  30  N.  Y.  Supp.  488 281,  288 

V.  Mutual  Ben.  L.  Ins.  Co.  15  Hun,  595,  Affirmed  in  70  N.  Y.  426,  32 

Am.  Rep.  335 258.  259,  261,  262,  384,  385 

New  York,  C.  &  St.  L.  R.  Co.  v.  Luebeok,  157  111.  59.5,  41  N.  E.  897 421,  439 

New  Y'ork  L.  Ins.  Co.  v.  La  Boiteaux   (Ohio)   5  Bigelow  Life  &  Acci.  Ins. 

Rep.   395    271,  273 

Nexsen  v.  Nexsen,  2  Keyes,  232 442,  444 

Niblo  V.  Harrison,  9  Bosw.  668 166,  300,  301 

Nichol  V.  Thomas,  53  Ind.  42 10,  32,  38,  159,  36],  384 

Nicholas  v.  Kershner,  20  W.  Va.  251.  .68,  74.  75,  109,  127,  330,  412,  415,  443,  450 

V.  State,  S  Ohio  St.  435 240 

Nicholas  &  S.  Co.  v.  Hardman,  62  Mo.  App.  153 12 

Nichols  V.  Binns,  1  Swabey  &  T.  239 83.  100,  134 

V.  King,  24  Ky.  L.  Rep.  124,  68  S.  VV.  133 .  13,  ,34 

V.  Nichols,  31  Vt.  328,  73  Am.  Dec.  352 '.  52 

V.  State,  8  Ohio  St.  435 252 

Niell  V.  Morley,  9  Ves.  Jr.  478 160,  756.  937 

Nielson  v.  Lafflin,  50  N.  Y.  S.  R.  277,  21  N.  Y.  Supp.  731 '.  .28,  31 

Nieman  v.  Scimitker,  181  111.  400,  55  N.  E.  151 74,  305,  371  372 

Nimick  v.  Mutual  Ben.  L.  Ins.  Co.  3  Brewst.  (Pa.)  502 261  262 

Nino  Case.     See  PEOPr.K  v.  Ni.xo. 
Vol.  I.  Med.  Jur. — vii. 


cxiv  TABLE  OF  CASES  CITED. 

Nobles  V.  Georgia,  168  U.  S.  398,  42  L.  ed.  515,  18  Sup.  Ct.  Rep.  87 208, 

209,  215,  219,  220,  952 

.Voel  V.  Kaqjer,  53  Pa.  97 25,  155,  1G6,  168,  359,  376,  387 

V.  Modern  Woodmen,  61   111.  App.  597 267,  299 

Nonneniacher  v.  Nonneniacher,  159  Pa.  634,  28  Atl.  439..  ..43,  44,  46,  322, 

325,  350 

Norfleet  v.  State,  4  Snecd,  345 246,  247 

Norfolk  &  W.  R.  Co.  v.  Ferguson,  79  Va.  241 284 

V.  Hannan,  83  Va.  553,  8  S.  E.  251 282 

:i'orman.  Re,  72  lona,  84,  33  N.  W.  374 399,  400,  420,  421,  431,  439 

V.  Georgia  Loan  &  T.  Co.  92  Ga.  295,  18  S.  E.  27 12,  338 

Xorris  v.  Sheppard,  20  Pa.  475 112,   113,  366 

North  V.  Joslin,  59  Mich.  624,  26  N.  W.  810 144 

Northern  P.  R.  Co.  v.  Craft,  16  C.  C.  A.  175,  29  U.  S.  App.  687,  69  Fed.  124.  . 

281,  289,  290,  291,  387 

Northington,  Ex  parte,  37  Ala.  496,  79  Am.  Dee.  67 8,  11,  300 

Northwestern  Mut.  L.  Ins.  Co.  v.  Hazelett,  105  Ind.  212,  55  Am.  Rep.  192,  4 

N.  E.  582 272 

V.  Muskegon  Nat.  Bank,  122  U.  S.  501,  30  L.  ed.  1100,  7  Sup.  Ct.  Rep. 

1221 271,  273,  392,  460 

Norton  v.  Paxton,  110  Mo.  456,  19  S.  W.  807 67,  330,  335 

V.  F^lly,  2  Eden,  286 21,  88,  937 

Norwood  V.  Marrow,  20  N.  C.  578   (4  Dev,  &  B.  L.  442) 365,  367,  368 

V.  Raleigh  &  G.  R.  Co.  Ill  N.  C.  236,  16  S.  E.  4 288 

Nottidge  V.  Prince,  2  Giff.  246,  29  L.  J.  Ch.  N.  S.  857,  6  Jur.  N.  S.  1066,  8 

Week.  Rep.   742 140 

Nottridge  v.  Riplej',  2  Journal  of  Psychological  iled.  &  Med.  Jur.  630 169 

Nussear  v.  Arnold,  13  Serg.  &  R.  323 123,  369,  370,  377 

Nutt  V.  Verney,  4  T.  R.  121 275 


o 

Oak  Cliarter  L.  Ins.  Co.  v.  Rodel,  95  U.  S.  232,  24  L.  ed.  433 268 

Obear  v.  Gray,  73  Ga.  4r)5 151,  154,  362,  435,  458 

O'Brien  v.  Chicago,  M.  &  St.  P.  R.  Co.  89  Iowa,  644,  57  N.  W.  425 423 

V.  Dwyer,  45  N.  J.  Eq.  6S9,  17  Atl.  777 72,  76 

V.  O'Brien,  2  N.  Y.  Anno.  Cas.  1 17,  38  N.  Y.  Supp.  157 145 

V.  People,  36  N.  Y.  276,  Affirm.ing  48  Barb.  274 186,  232,  234,  247, 

353,  354,  437,  775,  779 

V.  Spalding,  102  Ga.  490,  60  Am.  St.  Rep.  202,  31  S.  E.  100 71,  424 

O'Brien  Case,  Joum.  of  Inebriety,  Oct.  1896 771 

Ockendon  v.  Barnes,  43  Ind.  615 384 

O'Conncll  v.  Beecher,  21  App.  Div.  208,  47  N.  Y.  Supp.  334 425 

V,  People,  87  N.  Y.  377,  41  Am.  Rep.  379 320,  327,  352,  355 

O'Connor  v.  Madison.  9S  Mich.  183,  57  N.  W.  105 128,  332,  426,  428,  432,  439 

V.  Rcmpt,  29  N.  J.  Eq.  150 28,  29 

Odd  Fellows  Mut.  L.  Ins.  Co.  v.  Rohkopp,  94  Pa.  59 273,  389 

O'Dea,  Re.  84  Ilun,  591,  33  N.  Y.  Supp.  463 83 

Od?H  V.  Buck.  21   WfiKl.  1 12 5,  14 


TABLE  OF  CASES  CITED.  cxv 

Odom  V.  Riddick,  104  N.  C.  515,  7  L.  R.  A.  118,  17  Am.  St.  Rep.  68G,  10  S. 

E.  G09 320,  321 

O'Donnell  v.  Rodiiiger,  7G  Ala.  222,  52  Am.  Rep.  322 321,  337,  338,  340,  341 

Offord's  Case.     See  Rex  v.  Offokd. 

Ogden,  Re,  2  N.  Y.  Supp.  345 1  IS 

Ogilvy  V.  Gregory,  4  Week.  Rep.  221,  25  L.  J.  CIi.  jST.  S.  32 22 

O'Grady  v.  State,  36  Neb.  320,  54  N.  W.  55G 230,  23G,  239,  240,  254 

O'Hagan  v.  Dillon,  10  Jones  &  S.  45G 287,  288,  290 

O'Herrin  v.  State,  14  Ind.  420 241,  242 

O'Keefe  v.  Chicago,  R.  I.  &  P.  R.  Co.  32  Iowa,  4G7 282 

OVwer  V.  Berry,  53  Me.  200,  87  Am.  Dec.  547 295 

V.  Pullara,  24  Fed.   127 29G 

(yNeall  V.  Farr,  1  Rich.  L.  80 91 

O'Neil  V.  Murray,  4  Bradf.  311 96 

O'Neill  V.  Nolan,  50  N.  Y.  S.  R.  641,  21  N.  Y.  Supp.  222 29 

Orchardson  v.  Cofiold,  171  111.  14,  40  L.  R.  A.  25G,  63  Am.  St.  Rep.  211,  49 

N.  E.  197 41,  43,  89,  90 

Orr  V.  Equitable  Mortg.  Co.  107  Ga.  499,  33  S.  E.  708 7,  9 

.  V.  Pennington,  93  Va.  268,  24  S.  E.  928 19 

( )rtt  V.  Leonhardy  ( Mo. )  74  S.  W.  423 132 

Ortwein  v.  Com.  76  Pa.  414,  18  Am.  Rep.  420.  .197,  20.5,  347-349,  550,  561, 

724,  838 

Osborn  v.  State  (Tex.  Crim.  App.)  26  S.  W.  625 237 

Osmond  v.  Fitzroy,  3  P.  Wms.  129 75 

Oster  V.  Meyer,  23  Ky.  L.  Rep.  2455,  67  S.  VV.  851 145,  146 

Osterhout  v.  Shoemaker,  3  Hill,  513 15,  38,  154,  155,  384 

Otis,  Re,  1  Misc.  258,  22  N.  Y.  Supp.  1060 69,  70,  75,  109,  127 

Otto  V.  Doty,  61  Iowa,  23,  15  N.  W.  578 88 

Ouachita  Baptist  College  v.  Scutt,  64  Ark.  349,  42  S.  W.  536 71 

Overall  v.  Bland.  11  Ky.  L.  Rep.  371,  12  S.  W.  273 91,  435,  458 

A-.  State,   15  Lea,  672 341 

Overton  v.  Overton,  IS  B.  IMon.  61 97,  105 

Owing's  Case,  1  Bland  Ch.  390,  17  Am.  Dec.  311 4,  20,  79,  149,  189,  865 

Ownby  v.  Supreme  Lodge,  K.  of  H.  101  Tenn.  16,  46  S.  W.  758 267 

Owston's  Goods,  2  Swabey  &  T.  461,  31  L.  J.  Prob.  N.  S.  177,  6  L.  T.  N.  S. 

3G8,  10  Week.  Rep.  410 133,  872 

Oxford  Case.     See  Reg.  v.  Oxford. 


Packer  v.  Windham,  2  Eq.  Cas.  Abr.  138,  Prec.  in  Ch.  412,  Gilb.  Eq.  Rep.  98.  49 

Page  V.  Beach  (Mich.)   10  Det.  L.  N.  337,  95  N.  W.  981 432,  456 

Paine  v.  Aldrich,  133  N.  Y.  544,  30  N.  E.  725 437,  438 

V.  Roberts,  82  ]^.  C.  451 68,  69 

Palmer  v.  Buck,  83  Mich.  528,  47  N.  W.  355 970 

V.  Hudson  River  State  Hospital,  10  Kan.  App.  98,  61  Pac.  506 11 

V.  Parkharst,  1  Ch.  Cas.  112 159 

Palmer    Case   , 489 

Palmer's  Estate,  24  W.  N.  C.  159 99 


cxvi  TABLE  OF  CASES  CITED. 

Palmer's   Estate,   5   W.   IS'.   C.   542 413 

Pancoast  v.  Graham,  15  N.  J.  Eq.  2<)4 94,  105.  106,  1 1 1 

Pannell  v.  Com.  86  Pa.  260 349-351,  408,  412,  416,  430 

Parfitt  V.  Lawless,  L.  R.  2  Piob.  &  Div.  462,  41  L.  J.  Prob.  N.  S.  68,  27  L.  T. 

N.  S.  215,  21  Vveek.  Rep.  200 91,  110,  122 

Parish  v.  Parish,  42  Barb.  274 76 

Park  V.  Barron,  20  Ga.  702,  65  Am.  Dec.  641 40 

Parker  v.  Davi.^,  53  N.  C.  (8  Jones  L.)  460 154,  156 

V.  Marco,  70  Fed.  510 13,  15 

V.  Parker,  52  ill.  App.  333 41,  47,  458,  459 

Parker's  Case,  1  Collinson  on  Lunacy,  477 184,  351,  531,  535 

Parkhurst  v.  Hosford,  10  Sa^\y.  401,  21  Fed.  829 IS,  420,  429 

Parkinson,  Re,  quoted  in  Beck's  Med.  Jurisp.  Vol.  I.,  p.  368 503,  916 

Parnell  v.  Parnell,  2  Phillim.  Eccl.  Rep.  158,  2  Hagg.  Consist.  Rep.  169 55 

Parramore  v.  Taylor,  II  Gratt.  220 .  131 

Parris  v.  Cobb,  5  Rich.  Eq.  450 140 

Parsons  v.  P.arsons,  60  Iowa,  754,  21  N.  W.  570.  24  N.  W.  564.  .366,  421,  422, 

429,  445 
V.  State,  81  Ala.  577,  60  Am.  Rep.  193,  2  So.  8.14..  176,  178,  190-192, 

198,  199,  348,  349,  519,  566,  722,  836 

Partello  v.  Holton,  79  INIich.  372,  44  N.  W.  610 150 

Paske  V.  Ollat,  2  Phillim.  Eccl.  Rep.  323 92 

Patrick  v.  Excelsior  L.  Ins.  Co.  4  Hun,  263 266 

Patterson,  -Re,  4  How.  Pr.  34 156-158,  166,  167 

Re,  36  N.  Y.  S.  R.  813,  13  N.  Y.  Supp.  463 76 

Re,  26  Abb.  N.  C.  425,  13  N.  Y.  Supp.  463 130 

V.  People,  46  Barb.  625 176,  435 

V.  State,  86  Ga.  70,  12  S.  E.  174 455 

V.  State,  66  Ind.  185 387 

Patton  V.  Patton,  5  J.  J.  Marsh,  389 114 

Paulus  v.  Reed  ( Iowa )  96  N.  W.  757 5,  14,  324 

Pavey  v.  Wintrode,  87  Ind.  379 363 

Payn,  Re,  8  How.  Pr.  220 145,  146,  154 

Payne  v.  Banks,  32  Miss.  292 321,  329 

V.  Burdette.  84  Mo.  App.  332 40,  1 5(1 

Peabody  v.  Kendall,  145  III.  519,  32  N.  E.  C74 13,  14 

Peacock  v.  Evans,  16  V?s.  Jr.  512,  10  Revised  Rep.  218 20 

Peake  v.  Van  Lewven,  59  Iowa,  764,  13  N.  W.  843 35 

Peiarl  v.  M'Dowell,  3  J.  J.  Marsh.  658,  20  Am.  Dec.  199 10,  942 

Pearman  v.  Pearman,  1  Swabey  &  T.  601,  29  L.  J.  Prob.  N.  S.  54,  8  Week. 

Rep.  274    59 

Pearson's  Case,  2  Lewin,  C.  C.  144 778 

Pease  v.  Burrowes,  86  Me.  153,  29  Atl.  1053 311,  312 

Peaslee  v.  Robbins,  3  Met.  164 33,  361 

Peasley  v.  Safety  Deposit  L.  Ins.  Co.  15  Hun,  227 259 

Peavy  v.  Georgia  R.  &.  Bkg.  Co.  81  Ga.  485,  12  Am.  St.  Rep.  334,  8  S.  E.  70.  .  285. 

Peck,  Re,  42  N.  Y.  S.  R.  898.  17  N.  Y.  Supp.  248 113 

V.  Gary,  27  N.  Y.  9,  84  Am.  Dec.  220 94,  96,  113,  116,  120 

Pedler  v.  Paige,  1  Moody  &  R.  258 448 

I'ocplcs  v.  Stevens,  8  Rich.  L.  198,  64  Am.  Dec.  750 369,  370 

I'cry  v.  Pocry,  94  Tenn.  328,  29  S.  W.  1 365,  366 


TABLE  OF  CASES  CITED.  cxvii 

Pelamourires  v.  Clark,  9  Iowa,  1 GO,  115,  422,  423,  453,  450 

Pence  v.  Auglie,  101  Ind.  317 49 

V.  Waugli,  135  Ind.  143,  34  N  .E.  8G0 439,  440 

Pendlay  v.  Eaton,  130  111.  09,  22  N.  E.  853 103,  331,  335 

Pendleton,  Re,  I  Connoly,  480,  5  N.  Y.  Supp.  849 Ill,  162,  333 

Penfold  V.  Universal  L.  Ins.  Co.  85  N.  Y.  317,  39  Am.  Rep.  000 204 

Penington  v.  Tliompson,  5  Del.  Ch.  328 3S 

Peninsular  Trust  Co.  v.  Barker,  IIG  Mich.  333,  74  N.  \V.  508 79,  82,  112 

i'cnnington  v.  Stanton,  125  Mo.  058,  28  S.  W.  1007 13 

Pennsylvania  v.  M'Fall,  I  Addison  ( Pa. )   255 247 

Pennsylvania  Co.  v.  Kewmeyer,  129  Ind.  401,  28  N.  E.  SCO 421,  429 

Pennsylvania  R.  Co.  v.  13ooks,  57  Pa.  339,  98  Am.  Dec.  229 279,  357 

Pennypacker  v.  Pennypacker  (Pa.)   7  Cent.  Rep.  532,  8  Atl.  034 320,  323 

Pensyl's  Estate,  157  Pa.  405,  27  Atl.  669 98,  105 

People  V.  Ah  Ying,  42  Cal.  IS 209,  210,  953 

V.  Allender,  117  Cal.  81,  48  Pac.  1014 350 

V.  Augsbury,  97  N.  Y.  501 400,  410 

V.  Barber,  115  N.  Y.  475.  22  N.  E.  182 224,  396,  454 

V.  Barberi,  12  N.  Y.  Criin.  Rep.  89,  47  N.  Y.  Supp.  108.  .327,  350,  354, 

414,  410 

V.  Barberi,  47  N.  Y.  Supp.  108 187,  227 

V.  Barthlenian,  120  Cal.  7,  52  Pac.  112.  .  .  .170,  185,  203,  348-350,  416, 

419,  425 

V.  Batting,  49  How.  Pr.  392 246,  779 

V.  Bawden,  90  Cal.  195,  27  Pac.  204 218,  349 

V.  Belencia,  21   Cal.  544 240,  246-248 

V.  Bell,  49  Cal.  485 348,  357 

V.  Best,  39  Cal.  690 190 

V.  Blake,  65  Cal.  275,  4  Pac.  1 243,  388 

V.  Borgetto,  99  Mich.  336,  58  N.  W.  328 405,  426,  430-432 

V.    Bumborger,  45   Cal.   050 182 

V.  Burgess,  153  N.  Y.  561,  47  N.  E.  889 185,  222,  227 

V.  Burns,  2  N.  Y.  Crim.  Rep.  415 779 

V.  Calton,  5  Utah,  451,  IG  Pac.  902 185,  239,  320 

V.  Carnel,  2  Edm.  Sel.  Cas.  200 177 

V.  Carpenter,  102  N.  Y.  245,  6  N.  E.  584,  AHlrmed    in  38  Hun,  490 .  . 

200,  201,  203,  307,  618,  721 

V.  Casey,  31   Hun,   158 018 

V.  Casey,  124  Mich.  279,  82  N.  W.  883 419 

V.  Casey.  2  N.  Y.  Crim.  Rep.  187 326,  619 

V.  Cassiano,  30  Hun,  388 243 

V.  Clendennin,  91  Cal.  35,  27  Pac.  418 189,  200,  222,  360 

V.  CofTman,  24  Cal.  230 188,  203,  349,  350 

V.  Coleman,  1  N.  Y.  Crim.  Rep.  1 200,  326,  353,  35.5,  618 

V.  Conroy,  97  N.  Y.  02 437 

V.  Conroy,  2  N.  Y.  Crim.  Rep.  247 246 

V.  Conroy,  33  Hun,  119 195,  779 

V.  Corey,  148  N.  Y.  476,  42  N.  E.  1066 779 

V.  Cummins,  47  Mich.  334,  11  N.  W.  184,  180 187,  242 

V.  De  Graff,  1  Wheeler,  C.  C.  203 182 

V.  Dillon,  8  Utah,  92,  30  Pac.  150 320,  326,  348 


cxviii  TABLE  OF  CASES  CITED. 

People  V.  Divine,  1  Edra.  f-Jel.  Cas.  594 177,  201 

V.  Dinfee.  02  AJieli.  487,  29  N.  W.  109 176,  200 

V.  Eastwood,  14  X.   If.  562 243,  779 

V.  Egnor,  175  N.  Y.  419,  t)7  X.  E.  906 200,  353 

V.  Ellsworth,   127  Cal.  595,  60  Pac.   161 365 

V.  Eubaiiks,  86  Cal.  295,  24  Pac.  1014 359 

V.  Farrell,  31  Cal.  576 209,  214,  217,  221,  360 

V.  Fellows,  122  Cal.  233,  54  Pac.  830 234 

V.  Feiraio,  161  N.  Y.  365,  55  N.  E.  931 192,  41.-> 

V.  Ferris,   55   Cal.   588 231,   234,  237 

V,  Findley,  132  Cal.  301,  64  Pac.  472 230,  358,  359 

V,  Fine,  77  Cal.  147,  19  Pac.  209 42(; 

V.  Finley,  38  Mich.  482 177,  198,  200,  328,  353,  392,  412 

V.  Fish,  125  N.  Y.  136,  20  N.  E.  310 241,  249,  437,  779 

V,  Ford,  138  Cal.  140,  70  Pac.  1075 19(t 

V.  Foy,  13S  N.  Y.  064,  34  N.  E.  396 * 177 

V.  Francis,  38  Cal.  183 339,  340 

T.  Fuller,  2  Park.  Crim.  Rep.  16 247 

V.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162.  .235,  230,  320,  327,  353,  360,  381 

V.  C4aynor,  33  App.  Div.  98,  53  N.  Y.  Supp.  86 389,  45S 

V.  Goldenson,  70  Cal.  328,  19  Pac.  161 399,  461 

V.  Goldsworthy,  130  Cal.  600,  62  Pac.  1074 176,  225,  40-1 

V.  Haight,  3  N.  Y.  Crim.  Rep.  60 21", 

V.  Haley,  48  Mich.  495,  12  N.  W.  071 240,  241 

V.  Hamilton,  62  Cal.  377 350,  35c. 

V.  Hammill,  2  Park.  Crim.  Rep.  223 243,  24." 

V.  Harper,  1  Edm.  Sel.  Cas.  ISO 3G9 

T.  Harris,  29  Cal.  678 239,  240,  241,  24:! 

V.  Hawkins,  109  N.  Y,  408,  17  X.  E.  371 305,  367,  40r. 

V.  Hettick,  120  Cal.  425,  58  Pac.  918 179,  182,  212,  210 

V.  Hill,  116  Cal.  502,  48  Pac.  711 399,  411,  425,  42t; 

V.  Hobson,  17  Cal.  424 19." 

V.  Hoch,  150  X.  y.  291,  44  N.  E.  976 394,  409,  410 

V.  Hoin,  62  Cal.  120,  45  Am.  Rep.  641 200 

V.  Holmes,  111  Mich.  364,  69  N.  W.  501 181,  400,  407 

V.  Hubert,  119  Cal.  216,  63  Am.  St.  Rep.  72,  51  Pac.  329 194,  200, 

203,  351,  355,  42.) 

V.  Hurley.  8  Cal.  390 176,  177 

V.  Hurtado,  63  Cal.  288 190,  195,  376,  38.S 

V.  Jones,  2  Edm.  Sel.  Cas.  86 245,  779 

V.  Jones,  63  Cal.   168 389 

V.  Kemmler,  119  X.  Y.  5S0,  24  X.  E.  9 242.  394,  396,  403,  414 

V.  Kernaghan,  72  Cal.  609,  14  Pac.  506 203 

V.  King,  27  Cal.  507,  87  Am.  Dec.  95 243,  246 

V.  Kleim,  1  Edm.  Sel.  Cas.  13 188,  201,  211,  214,  215,  351,  402 

V.  Kloss,  115  Cal.  567,  47  Pac.  459 182,  235,  243,  389 

V.  Knott,  122  Cal.  410,  55  Pac.  154 212 

V.  Koerner,  154  X.  Y.  355,  48  X.  E.  730 382,  394,  409,  423,  437 

V.  Krist,  168  X.  Y.  19,  60  X.  E.  1057 185,  237,  406,  408 

V.  Lake,  2  Park.  Crim.  Rep.  215.211,  21.5,  217,  224,  225,  376,  413,  414,  953 


TABLE  OF  CASES  CITED.  cxix 

People  V.  Lake,  12  N.  Y.  358,  Affirmed  in  1  Park.  Crim.  Rep.  495.  .  .397,  398, 

410,  412 

V.  Lane,  100  Cal.  379,  34  Pac.  856 244 

V.  Lane,  101  Cal.  513,  30  Pac.  16 375,  420 

V.  Langton,  67  Cal.  427,  7  Pac.  843 247 

V.  Lavelle,  71  Cal.  351,  12  Pac.  226 42-i 

V.  Lee  Fook,  85  Cal.  300,  24  Pac.  054 212,  215,  3Q0 

V.  Leonardi,  143  X.  Y.  360,  38  N.  E.  372 239,  248,  779 

V.  Lewis,  3G   Cal.   531 237,  244 

V.  McCann,  3  Park.  Crini.  Rep.  272 346,  453,  459 

V.  McCann,  16  N.  Y.  58,  69  Am.  Lee.  642 352,  353 

V.  McCarthy,  115  Cal.  255,  46  Pac.  1073.  .182,  325,  423,  425,  426,  427,  441 

V.  McDonell,  47  Cal.  134 203,  350,  351 

V.  McElvaine,  125  N.  Y.  596,  26  N.  E.  929 208,  210,  212,  213,  220,  402 

V.  MeCee,  1  Denio,  19 310,  367,  873 

V.  McNuIty,  93  Cal.  427,  26  Pac.  597,  29  Pac.  61 320 

V.  Marcli,   6   Cal.   543 222 

.     V.  Marseiler,  70  Cal.  98,  11  Pac.  503 241 

V.  Martin,  33  App.  Div.  282,  53  N.  Y.  Supp.  745 779 

V.  Mossersmith,   57    Cal.   575 349,  351 

V.  Messersmith,   61    Cal.   246 ,. 224,  350 

V.  Methever,  132  Cal.  326,  64  Pac.  48 203,  236*  239,  243,  347,  349 

V.  Meyers,  20  Cal.  518 348,  349 

V.  Miles,  143  N.  Y.  383,  38  N.  E.  456 237,  375 

V.  Mills,  98  N.  Y.   176 200,  235,  241,  244,  247 

V.  INloice,   15   Cal.   329 216,  221 

V.  Monteith,  73  Cal.  7,  14  Pac.  373 459 

V.  Montgomery,  13  Abb.  Pr.  N.  S.  207..  179,  186,  200,  203,  227,  228, 

337,  382,  383,  412 

V.  Mortimer,  48  Mich.  37,  11  N.  W.  776 177,  200 

V.  Myers,  20  Cal.  518 325 

V.  Nichol,  34  Cal.  211 236,  241,  243,  246,  247,  255 

V.  .Nino,  149  N.  Y.  317,  43  N.  E.  853 352,  353,  406,  557,  558 

V.  O'Connell,  62  How.  Pr.  436,  Affirmed  in  87  N.  Y.  377,  41  Am.  Rep. 

379 179,  234,  326,  353 

V.  Odell,  1  Dak.  197,  46  N.  W.  601 236-238,  240,  250,  251 

V.  O'Donnell,  51  App.  Div.  115,  64  N.  Y'.  Supp.  256 418 

V.  Osmond,  138  N.  Y.  80,  33  N.  E.  739 227,  378,  440,  455,  619 

V.  Owens,  123  Cal.  482,  56  Pac.  251 203,  226 

V.  Packenham,  115  N.  Y.  200,  21  N.  E.  1035 437,  438,  459 

V.  Parker,  67  Mich.  222,  11  Am.  St.  Rep.  578,  34  N.  W.  720 243 

V.  Pearce,  2  Edm.  Scl.  Cas.  76 779 

V.  Phelan,  93  Cal.  Ill,  28  Pac.  855 243 

V.  Pico,   62   Cal.   50 182,   186,  187,  218,  382,  425,  423 

V.  Pine,  2  Barb.  566 181,  180,  191-193,  228,  229,  326,  347 

V.  Porter,  2  Park.  Crim.  Rep.  14 241,  779 

V.  Quimby  (Mich.)   10  Det.  L.  N.  618,  96  N.  VV.  1061 228 

V.  Rhinelander,  2  N.  Y.  Crim.  Rep.  335 210 

V.  Pvobinson,  2  Park.  Crim.  Rep.  235 239,  240,  245,  255,  326 

V.  Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484 231,  249,  779 

T.  Sanford,  43  Cal.  29 419,  43 1 


cxx  TABLE  OF.  CASES  CITED. 

People  V.  Schmitt,  106  Cal.  49,  39  Pac.  204 189,  219,  223,  340,  383,  425, 

426,  434,  952 

V.  Schuyler,  106  N.  Y.  298,  12  N.  E.  783 394 

V.  Scott,  59  Cal.  341 209 

V.  Shuff   (Idalio)    72  Pac.  664 442 

V.  Slack,  90  Mich.  448,  51  N.  W.  533 226,  386 

V.  Smiler,  125  N.  Y.  717,  20  N.  £.  312 400 

V.  Smith.   57    Cal.    130 , 337 

V.  Smith,  31  Cal.  466 382 

V.  Spraf,'ue,  2  Park.  Crim.  Rep.  4S 201,  229 

V.  Strait,  154  N.  Y.  165,  47  X.  E.  1090 411 

V.  Strait,  148  N.  Y.  566,  42  N.  E.  1045 406,  437 

V.  Sutton,   73   Cal.   24.3,   15   Pac.   86 410 

V.  Taylor,  138  N.  Y.  398,  34  N.  E.  275..  190,  191,   193-195,  437,  549, 

618,  836,  838 

V.  Thiirstou,  2  Park.  Crim.  Rep.  49 398,  399,  454 

V.  Tobin   (X.  Y.)    68  N.  E.  359 212,  213 

V.  Travers,  88  Cal.  233,  26  Pac.  SS 231,  232 

V.  Tripler,  1  Wheeler  C.  C.  48 222 

V.  Truck,  170  N.  Y.  203,  63  iSl.  E.  281 365,  395,  396 

V.  Vincent,  95  Cal.  425,  30  Pac.  581 247 

V.  Walker,  38  Mich.  156 239,  242 

V.  Walter,  1  Idaho,  386 188,   191,  320,  325,  347 

V.  Waltz,  .50  How.  Pr.  204 181,  184,  195,  200,  203,  618 

V.  Walworth,  4  N.  Y.  Crim.  Rep.  355 617,618,  667 

V.  Ward,  105  Cal.  335,  38  Pac.  945 200,  349,  385 

V.  Webster,  59  llun,  .398,  13  N.  Y.  Supp.  414 181,  191,  406,  416 

V.  Whedon,  2  N.  Y.  Crim.  Rep.  318 360 

V.  Williams,  43  Cal.  344 237,  246-248,  775 

V.  Wilson,  55  Mich.  506,  21  N.  W.  905 242 

V.  Wilson,  49  Cal.  13 349,  350 

V.  Wood,  126  X.  Y.  251,  27  X.  E.  362 373,  378,  380,  409 

V.  Worthington,  105  Cal.  166,  38  Pac.  689 379,  405,  423 

V.  Wreden,  59   Cal.   392 356,  421,  460 

V.  Young,  103  Cal.  411,  36  Pac.  770 240 

V.  Youngs,  151  X.  Y.  210,  45  X.  E.  460 .393,  396,  411,  43a 

People  ex  rel.  Fullerton  v.  Gilbert,  115  III.  59,  3  X.  E.  744 171,  172 

Clough  V.  Levj',  71  Cal.  618,  12  Pac.  791 182,  425,  426 

Flood  V.  Martin,  15  Misc.  6,  36  N.  Y'.  Supp.  437 45a 

Xorton  V.  Xew  York  Hospital,  3  Abb.  N.  C.  229 309,  311,  312,  342 

Sullivan  v.  Wendel,  33  Misc.  496,  68  N.  Y.  Supp.  948 170,  17) 

Perkins,  Re,  2  Johns.  Ch.  124 384 

V.  Concord  R.  Co.  44  X.  H.  223 453 

V.  Mitchell,   31    Barb.   461 971 

V.  Perkins,  116  Iowa,  253,  90  X.  W.  55 73,  107,  114,  371 

V.  Perkins,  39  X.  H.   163 320,  329,  330,  332,  448,  452 

V.  Scott,  23  Iowa,  237 18 

Perrin  Case,  Spitzka,  Insanity,  1883,  p.  202 701 

Perrine,  Re,  41  X.  J.  Eq.  409,  5  Atl.  579 148,   150,  872 

Perry  v.  Pearson,  135  111.  218,  25  X.  E.  636 4,  1"2 

V.  State,  87  Ala.  30,  6  So.  425 222 


TABLE  OF  CASES  CITED.  cxxi 

Person  v.  Warron,  14  Barb.  488 301 

Persse,  PtC,  1  Molloy,  219 145,  153 

Petefish  v.  liecker,  170  111.  448,  52  N.  E.  71 82,  99,  363,  431 

Peters,  Re,  10  Kulp,  93 292 

V.  Peters,  101  Mich.  291,  59  N.  W.  G09 33 

Petit,  Ee,  2  Paige,   174 152 

Petrie  v.  Petrie,  2  Silv.  Sup.  Ct.  438,  6  N.  Y.  Supp.  831 437,  442,  444,  446 

Pettes  V.  Birigliani,  10  N.  H.  515 ,. 321,  913 

Pettigrew  v.  State,  12  Tex.  App.  225 226 

Pettitt  V.  Pettitt,  4  Humph.  191 115 

PfeilTer  v.  Vi'eishaupt,  13  Daly,  161 267 

Pflueger  v.  State,  40  Neb.  493,  04  N.  W.  1094 227,  420,  435,  458 

Phadenhauer  v.  Germania  L.  Ins.  Co.  7  Heisk.  507,  19  Am.  Rep.  623.  .  .  .260, 

202,  203,  323,  330,  643 

Phebe  v.  Prince,  Walk.    (Miss.)    131 308,  309 

Phelan  v.  Gardner,  43  Cal.  306 24,  29,  390 

Phelps  V.  Com.  17  Ky.  L.  Rep.  706,  32  S.  W.  470 223,  349,  403,  419,  42u 

V.  Hartwell,  1  Mass.  71 330,  308,  369 

Philadelphia  Trust  &  S.  D.  Co.  v.  Drinkhouse,  17  Phila.  23 73,  74,  81, 

85,  95,   116,  344,  302,  363 

Phillips  V.  Chater,  1  Dem.  533 85,  87 

V.  Louisiana   Equita])le   L.   Ins.   Co.   26  La.  Ann.   404,   21    Am.   Rop. 

549 200,  264,  336 

V.  Moore,  11  Mo.  600 29 

V.  Phillips,   81   Ky.   329 72 

V.  Starr,  26  Iowa,  349 453 

Phipps  V.  Van  Klecek,  22  Hun,  544 334 

Physio-Medical  College  v.  Wilkinson,  108  Ind.  314,  9  X.  E.  107 14,  342 

Pickerell  v.  Morss,  97   111.   220 5,  324 

Pickett  V.  Sutler,  5  Cal.  412 27 

V.  Wilmington  &  W.  R.  Co.  117  N.  C.  610,  30  L.  R.  A.  257,  53  Am. 

St.  Rep.  611,  23  S.  E.  264 287,  288 

Pidcoek  v.  Potter,  OS  Pa.  348,  8  Am.  Rep.  181 72,  73,  79,  302,  383,  392, 

397,  399 

Pienovi's  Case,  3  N.  Y.  City  Hall  Rec.  123 223 

Pierce  v.  Pierce,  38  Mich.  412 94,  95,  97,  120,  126,  358,  373,  458 

V.  State,  53  Ga.  365   389,  459 

V.  Travelers'  L.  Ins.  Co.  34  Wis.  389 261,  264,  265 

Pigg  V.  State,  43  Tex.  108 392,  395 

Piggot  V.  Killick,  4  Dowl.  P.  C.  287,  1  H.  &  W.  518 301 

Pignian  v.  State.  14  Ohio,  555,  45  Am.  Dee.  558 236,  237,  239,  243,  ?,46 

Pike,  Re,  83  Hun,  327,  31  N.  Y.  Supp.  689 75,  122,  130 

V.  Badmering,  cited  in  2  Strange,  1096,  1  Wms.  Exrs.  290 452 

V.  Pike,  104  Ala.  642,  16  So.  689 35,  36,  134,  324,  336,  338,  342 

Pile  V.  Pile,  94  Ky.  308,  22  S.  W.  215 51,  53 

Pilkington  v.  Gray,  68  L.  J.  P.  C.  N.  S.  63    (1899)   A.  C.  401 114,  451 

Pilling  V.  Pilling,  45  Barb.  86 105 

Pingree  v.  Jones,  80  111.  177 : 93 

Pinney,  Re,  27  Minn.  280,  6  N.  W.  791,  7  N.  W.  144.  .  .  .362,  371,  372,  384. 

418,  435,  457 

Piper  V.  Hoard,  107  N.  Y.  07,  1  Am.  St.  Rep.  785,  13  N.  E.  032 296 


cxxii  TABLE  OF  CASES  CITED. 

Pirtle  V.  State,  9  Humph.  G63 246,  247 

Pistorius  v.  Com.  84  Pa.  158 195 

Pitt  V.  Smith,  3  Campb.  33,  13  Kevised  Rep.  741 24,  25,  27-29,  781 

Pittard  v.  Foster,  12  111.  132 69,  154,  155,  158,  399,  432,  433,  441 

Pitteiiger  v.  Pittenger,  3  N.  J.  Eq.  156 30 

Pittsburgh  &  C.  R.  Co.  v.  Pillow,  76  Pa.  510,  18  Am.  Pvep.  424 285 

Pittsbuigli  &   W.  R.  Co.  V.  Thompson,  27   C.  C.  A.  333,  54  U.  S.  App.  222, 

82  Fed.  720   .■■ 156,  308,  313 

Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Vandyne,  51  Ind.  576,  26  Am.  Rep.  68 284 

Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Hinds,  53  Pa.  512,  91  Am.  Dec.  224.  .284,  285 

Plake  V.  State,  121  Ind.  435,  16  Am.  St.  Hep.  408,  23  N.  E.  273 181,  199,  723 

Plr.nk,  Re,  5  Clark  (Pa.)  35 162 

Pliuiley  V.  Plindey.  35  N.  J.  Eq.  18 59 

Plympton  v.  Hall,  55  Minn.  22,  21  L.  R.  A.  075,  56  N.  W.  351 147 

Poirier  v.  Caroll.  .-jS  La.  Ann.  099 279 

Polin  V.  State,  14  Neb.  540,  16  N.  W.  898 426 

Polk  V.  State,  19  Ind.  172,  81  Am.  Dec.  382 353,  355 

Pollock  V.  Horn,  13  Wash.  626,  52  Am.  St.  Rep.  66,  43  Pac.  885.  .299,  300.  304 

Pool  V.  Pool,  35  Ala.  12 91 

Poole  V.  Dean,  152  Mass.  589,  26  N.  E.  406 454,  455 

V.  Richardson,  3  Mass.  330 422,  434,  436,  445 

Pooler  V.  Christman,  145  111.  405,  34  X.  E.  57 804 

Porritt  V.  Porritt,  16  Mich.  140 56 

Porter  v.  Campbell,  2  Faxt.  81 126 

V.  Porter,  3  Humph.  586 295 

V.  Pitch,  70  Conn.  235,  39  L.  R.  A.  353,  39  Atl.  169 170 

V.  State,  135  Ala.  51,  33  So.  694.. 320,  325,  339,  349,  351,  375,  380, 

389,  398 

V.  Throop,  47  Mich.  313,  11  N.  W.  174 458 

Portsmouth  v.  Portsmouth,  1  Ilagg.  Eccl.  Rep.  355 44,  154,  489,  798,  867 

Potter,  Re,  17  App.  Div.  267,  45  N.  Y.  Supp.  563 445 

Re,  161  X.  Y.  84,  55  N.  E.  387 373 

V.  Jones,  20  Or.  239,  12  L.  R.  A.  161,  25  Pac.  769 81,  83,  84 

V.  McAlpine,  3   Dem.   108 83,  85,   112,  329 

V.  Woodruff,  92  Mich.  8,  52  N.  W.  S3 35 

Potts  V.  House,  6  Ga.  .324,  .50  Am.  Dec.  329 65,  66,  68,  75,  79,  87,  108, 

110.  118,  335,  392,  395,  396,  417,  420,  432,  44:s,  440,  800.  819,  873 

Powell  V.  Powell,  27  Miss.  783 40,  322 

V.  Powell,  18  Kan.  371,  26  Am.  Rep.  774 41,  45,  48,  51,  53 

V.  State,  37  Tex.  348 176 

V.  State,  25  Ala.  21    422,  426,  428,  429,  438.  455,  457 

Power  V.  Power,  11  Jur.  N.  S.  800,  4  Swabey  &  T.  173,  34  L.  J.  Prob.  N.  S. 

137,  12  L.  T.  X.  S.  S24,  13  Week.  Rep.  11 13    60 

Powers  V.  Powers,  21  Ky.  L.  Rep.  597,  52  S.  W.  845 79.  101 

V.  Powers,  20  Xeb.  529,  31  X.  W.  1 60.  61' 

Prather  v.  McClelland,  76  Tex.  574,  13  S.  W.  543.  .  .  .68,.  70-72,  80,  82,  97, 

98,  100,  369,  400,  433 

V.  Naylor,   1  P.  Mon.  244 12,  36,  384 

Pratte  v,  Coffman,  33  Mo.  76 367 

Prentice  v.  .\cliorn,  2  Paige,  30 29,  30 


TABLE  OF  CASES  CITED.  cxxTli 

Prentis  v.  Bates,  88  Mich.  o67,  50  N.  W.  637 68,  74,  76,  87,   117,   121, 

128,   130,  345,  399,  405,  406,  411,  432,  454 
V.  Bates,  93  Mich.  234,  17  L.  R.  A.   194,  53  N.  W.   ]53...<121,  130, 

329,  330,  381,  400,  405,  410 

Prewett  v.  Coopwood,  30  Miss.  309 21 

Price  V.  Berrington,  7  Hare,  394 ". 8,  18 

V.  Berrington,  2  Beav.  286 38,  154,  155 

V.  Philadelphia,  W.  &  B.  R.  Co.  84  Md.  506,  36  L.  R.  A.  213,  36  Atl. 

263 280,  282 

V.  Price,  1  DeC.  M.  &  G.  308 21 

V.  Richmond  &  D.  R.  Co.  3b  S.  C.  199,  17  S.  E.  732 398,  408,  419 

Prine  v.  Prine,  36  Fla.  676,  34  L.  R.  A.  87,  18  So.  781 41,  49,  50 

Prinsep  v.  Dyce  Sombre,  10  Moove  P.  C.  C.  232 81,  107,   156,  342,  413 

Probst's  Will,  2  Lane.  L.  Rev.  97 86 

i'ugh  V.  State,  2  Tex.  App.  539 251 

Purdon  v.  Longford,  Ir.  Rep.  1 1  C.  L.  209 9] 

I'urnell  v.  Gandy,  46  Tox.   190 453 

Puryear  v.  Reese,  6  Coldw.  21 79,  83,  337,  339,  392,  395,  418,  420,  446 

Putnam  v.  Broadway  &  S.  Ave.  R.  Co.  55  N.  Y.  108,  14  Am.  Rep.  190 284,  285 

i*yott  V.  Pyott,  90  111.  App.  210 43,  77 


Q 


Queen  v.  Crouch,  1  Cox  C.  C.  94 461 

V.  Dwerryhouse,  2  Cox  C.  C.  440 209,  210 

V.  Goode,  7  Ad.  &  El.  536 209,  210,  213 

V.  Israel,  2  Cox  C.  C.  263 .  .  .- ; 209 

V.  Ryan,  2  Cox  C.  C.  115 206 

V.  Tucket,  1  Cox  C.  C.  103,  4  L.  T.  50 381 

V.  Vaughan,  1  Cox  C.  C.  80 177,  186 

V.  Whitehead,  L.  R.  1  C.  C.  33 311 

Queenan  v.  Oklalioma,  190  U.  S.  548,  47  L.  ed.  1175,  23  Sup.  Ct.  Rep.  762.  .  428 

V.  Territoiy,  11  Okla.  261,  61  L.  R.  A.  324,  71  Pac.  218 360,  419,  438 

Quisenberry  v.  Quisenberry,  14  B.  Mon.  481 113,  367 


Rabb  V.  Graham,  43  Tnd.  1 91 

Rafferty  v.  People,  66  111.  118 239,  241 

Ragland  v.  State,  125  Ala.  12,  27  So.  983 375,  417,  426,  433 

Railway  Co.  v.  Valleley,  32  Ohio  St.  S45,  30  Am.  Rep.  601 285 

Ealston  v.  Tiirpin,  129  U.  S.  663,  32  L.  ed.  747.  9  Sup.  Ct.  Rep.  420.  .28,  34, 

37,  139 

Rambler  v.  Tryon,  7  Serg.  Sc  R.  90,  10  Am.  Dee.  444 67,  366,  427,  440 

Ramsdell,  Re,  20  N.  Y.  S.  R.  466,  3  N.  Y.  Supp.  499 107 

V.  Ramsdell.  128  Mich.  110,  87  N.  W.  81 11.  432 

T.  Viele,  6  Dem.  244,  16  N.  Y.  S.  R.  2S1,  Affirmed  in  20  N.  Y.  S.  R. 

446,  3  N.  Y.  Supp.  499,  117  N.  Y.  636,  22  N.  E.  1130.  .  .103,  329,  44S! 


cxxiv  TABLE  OF  CASES  CITED. 

Rankin  v.  Rankin,  61  Mo.  295 93,  110,  372.  412 

Rannells  v.  Gerner,  80  Mo.  475 157.  386 

Ranney  v.  Mutual  Ben.  L.  Ins.  Co.  U.  S.  C.  C.  First  Jud.  Dist.  Mass.  May 

on  Insurance,  3d  ed.  §  302 271 

Eapplee,  Re,  CO  Hun,  .558,  21  N.  Y.  Supp.  801 131,  437,  925- 

Rarick  v.  Ulmer,  144  Ind.  25,  42  N.  E.  1099 418,  421,  432,  44& 

Ratlibun  v.  Rathbun,  40  How.  Pr.  328 : 52,  S^ 

Rather  v.  State,  25  Tex.  App.  624,  9  S.  W.  69 254,  358 

Ratigan  v.  Judge,  181  Mass.  572,  64  N.  E.  204 434 

Ran  V.  Katz,  20  La..  Ann.  463 301,  302 

Raub  V.  Carpenter,  17  App.  D.  C.  505 395,  404,  405 

Rawdon  v.  Rawdon,  28  Ala.  565 40,  41,  42,  44,  48,  322,  325,  338 

Ray  V.  Hill,  3  Strobh.  L.  297,  49  Am.  Dec.  647 127 

Raymond  v.  Vauglm,  128  III.  256,  4  L.  R.  A.  440,  15  Am.  St.  Rep.  112,  21 

X.  E.  566,  Affirming  17  III.  App.  144 22 

V.  Wathen,  142  Ind.  367,  41  N.  IC.  815 338 

Raynett  v.  Baluss,  54  Mich.  469,  20  N.  W.  533 12 

Raynor,  Re,  44  N.  Y.  S.  R.  468,  18  N.  Y.  Supp.  426 132,  81f> 

Read  v.  Legard,  6  Exeh.  636,  20  L.  J.  Exch.  X.  S.  309,  15  Jur.  494 11 

Reading  v.  Ludloxi",  43  Vt.  628 , 41,  48 

Reagan  v.  State,  28  Tex.  App.  227,  19  Am.  St.  Rep.  833,  12  S.  W.  601 .  .  .252,  254 

Real  V.  People,  42  N.  Y.  270 3S9,  434,  437 

V.  People,  55  Rarb.  551 775 

Reals  V.  Weston,  28  Misc.  67,  59  X.  Y.  Supp.  807 160 

Reason  v.  Jones,  119  Mich.  672,  7G  X.  W.  899 17,  144 

Redden  v.  Baker,  80  Ind.  191 156,  157 

Redfleld,  Re,  116  Cal.  637,  48  Pac.  794 82,  394,  413,  416,  417 

Reece  v.  Pressey,  2  Jur.  X.  S.  3S0 " 12.> 

Reed,  Re,  2  Connoly,  403,  20  X.  Y.  Supp.  91 94,  124 

V.  Harper,  25  Iowa,  87,  95  Am.  Dee.  774 277,  387,  388 

V.  Mclntyre,  86  ]\Iinn.  163,  90  X.  W.  319 114 

V.  State,   62  Miss.   405 398,  404,  408,  427,  455 

Reed's  Will,  2  B.  Mon.  79 .67,  127 

Reel  V.  Reel,  8  X.  C.   ( 1  Hawks)  248,  9  Am.  Dec.  632 365 

Rees  V.  Stille,  38  Pa.  138 97 

Reese  v.  Reese,  89  Ga.  645,  15  S.  E.  846 IS 

Reeve  v.  Bonwill.  5  Del.  Ch.  1 323 

Reg.  V.  Alison,  8  Car.  as  P.  418 638.  640,  70S 

V.  Barratt,   12  Cox  C.  C.  498,  43  L.  J.  Mag.  Cas.  X.  S.  7,  L.  R.  2 

C.  C.  81,  29  L.  T.  X.  S.  409,  22  Week.  Rep.  130 206,  207 

V.  Barton,  3  Cox  C.  C.  275 201,  202,  204,  721 

V.  Berry,  34  L.  T.  X.  S.  598,  L.  R.  1  Q.  B.  Div.  447,  45  L.  J.  Mag.  Cas. 

X.  S.  12.3,  13  Cox  C.  C.  189 208,  209,  21 1 

V.  Bishop,  14  Cox  C.  C.  404,  49  L.  J.  Mag.  Cas.  X.  S.  45,  L.  R.  5  Q.  B. 

Div.  250,  42  L.  T.  X.  S.  240,  28  Week.  Rep.  475.  44  J.  P.  330.  .  171 

V.  Blampied.  Taylor,  Med.  Jur.  12th  ed.  p.  762 552,  674 

V.  Brooks,  6  Cox  C.  C.  149 695 

V.  Burgess,  Leigh  &  C.  258,  32  L.  J.  ISIag.  Cas.  X.  S.  55,  9  Jur.  X.  S. 

28,  7  L.  T.  X.  S.  472,  11  Week.  Rep.  96.  9  Cox  C.  C.  247 636 

V.  Burton.  3  Fost.  &  F.  772 193,  200,  202,  455,  840 

T.  Byron,  Winchester  Winter  .-Xss.  1863 -906 


TABLE  OF  CASES  CITED.  cxxv 

R«Sr    V.  Camplin,  1  Car.  &  K.  74G,  Den.  C.  C.  89,  1  Cox  C.  C.  220 256 

V.  Cockroft,  Leeds  Aut.  Assizes,  1SG5 .*.  .  552 

V.  Cole,  C.  C.  C.  1S83 552 

V.  Connolly,  20  U.  C.  Q.  B.  317 20G,  207 

V.  Cruse,  S  Car.  &  P.  541,  2  Moody,  C.  C.  53 778 

V.  Dart,  14  Cox  C.  C.  143 412 

V.  Davies,  6  Cox  C.  C.  320,  3  Car.  &  K.  328 215,  217 

V.  Davies,  1  Fost.  &  F.  09 184,  187 

V.  Davis,  14  Cox  C.  C.  503 232,  234 

V.  Davis,  Mcllraitli,  LaAV  Relating  to  Drunkenness,  p.  12 775 

V.   Dixon,  11  Cox  C.  C.  311    224,  236,  245,  391,  844 

V.  Doody,  0  Cox  C.  C.  403 187,  253,  030,  778 

V.  Edwards,  C.  C.  C.  1S72 843 

V.  Farley 647 

V.  Fletcher,  8  Cox  C.  C.  131,  Bell  C.  C.  03,  28  L.  J.  Mag.  Cas.  N.  S. 

85,  5  Jur.  N.  S.  179,  7  Week.  Rep.  204 205-207 

V,  Francis,  4  Cox  C.  C.  57 250,  398,  400,  403,  453 

V.  French,  Dorset  Aut.  Ass 907 

V.  Ganilen,  1  Fost.  &  F.  90 240,  250 

V.  Gathcrode,  Westcott,  Suicide,  p.  48 637 

V.  Goode,  7  Ad.  &  El.  530 202 

V.  Ha.vnes,  1  Fost.  &  F.  600 200,  202 

V.  Hioginson,  1  Car.  &  K.  129. 184,  202,  453,  523 

V.  Hill,  5  Cox  C.  C.  259,  5  Eng.  L.  &  Eq.  547,  2  Den.  C.  C.  254,  Temp. 

&  M.  582,  20  L.  J.  Mag.  Cas.  N.  S.  222,  15  Jur.  470.  .308-310,  313,  314 

V.  Hodges,  8  Car.  &  P.  195 208 

V.  Israel,  2  Cox  C.  C.  203 949 

V.  Jackson,  Liverpool  Aut.  Ass.  1847 . 907 

V.  Jessop,  10  Crim.  Law  Mag.  802 637 

V,  Kcary,  13  Cox  C.  C.  143 950 

V.  Law,  2  Fost.  &  F.  830 227 

V.  Layton,  4  Cox  C.  C.  149 185-187,  202,  320,  347,  455,  839 

V.  Leddington  [1S39J  9  Car.  &  P.  79 041 

V.  Leigh,  4  Fost.  &  F.  915 202,  226,  235,  844 

V.  M'Leod,  2   SAvinton,   88 226 

V.  Manchester,  2  Jur.  N.  S.  1205 294 

V.  Marshall,  Car.  &  M.  147 315 

V.  Mary  R.  (1887)  Palles,  C.  B.  cited  by  JST.  Kerr  on  Inebriety,  2d  ed. 

395 255 

V.  Monkhouse,  4  Cox  C.  C.  55 238,  240,  249,  250,  357,  380,  389 

V.  Moore,  3  Car.  &  K.  319,  10  Jur.  750 253 

V.  Mountain,  Leed's  Assizes,  April,  1888,  Pollock,  B 235 

V.  Oxford,  9  Car.  &  P.  525 187,  202,  217,  523,  531,  532,  535, 

536,  550,  649,  722,  730,  744 

V.  Palmer,  Stephen,  History  Crim.  Law,  p.  408 550 

V.  Pate,  cited  in  Bennett  &  H.  Lead.  Cas.  90 201,  202 

V.  Pate,  cited  in  Ray  on  Med.  Jur.   §  309 193-195 

V.  Pearce,  9  Car.  &  P.  007 209,  222,  841 

V.  Pressy,  10  Cox  C.  C.  035,  17  L.  T.  N.  S.  295,  16  Week.  Rep.  142. .  .  207 

V.  Richards,  1  Fost.  &  F.  89 181,  190,  191,  453,  454 

V.  Robertson,  1  Swinton,   15 212 


cxxvi  TABLE  OF  CASES  CITED. 

Reg.    V.    Rumball     647 

V.  Sehloter,  10  Cox  C.  C.  409 216 

V.  Southey,  4  Fost.  &  F.  864 210,  222,  413 

V.  Stokes,^  3  Car.  &  K.  1S5 201,  202,  326,  347,  350 

V.  Stoimonth   (Q.  B.  Div. )   61  J.  P.  729 63S 

V.  Townley,  3  Fost.  &  F.  839 186,   187,  192,  193,  202,  205 

V.  Tuvton,  G  Cox  C.  C.  385 210,  215,  326 

V.  Vyse,  3  Fost.  &  F.  247 228 

V.  Whitneld,  3  Car.  &  K.   121 170,  216 

Reiehai  d  v.  Manhattan  L.  In;;.  Co.  31  Mo.  518 272 

Reichenbaeh  v.  Ruddach,   127   Pa.  564,  18  Atl.  4,32 70,  74,  89,  90,   100, 

116,   119,   122,  340,  382 

Reinicker  v.  Smith,  2  Harr.  &  J.  421,  423 24 

Reinskopf  v.  Rogge,  37  Ind.  209 28,  29 

Renfro  v.  \\'aco   (Tex.  Civ.  App.) 33  S.  VV.  760 23 

Renihan  v.  Denniu,  103  N.  Y.  574,  57  Am.  Rep.  770,  9  N.  E.  320 132,  394 

Renn  v.  Ramos,  33  Tex.  760 124,  334 

Reunie's  Case,  i  Lewin,  C.  C.  70 231,  232,  234,  775,  778 

Restine,  Re,  3  VV.  N.  C.  27 69,  70 

Revels  v.  Revels,  64  S.  C.  256,  42  S.  E.  Ill 18 

Revoir  v.  State,  82  Wis.  295,  52  N.  W.  84 186,  188,  352 

Rex  V.  Arnold,  16  flow.  St.  Tr.  895 183,   187,  510,  540,  556,  578,  680, 

834,  954 

V.  Bellingham,   1   Collinson,  Lunacy,  636 186,  187,   191,   192,  223, 

346,  351,  515,  528,  531-535,  838,  841,  919 

V.  Carroll,  7  Car.  &  P.  145 246,  247,  778 

V.  Chater,  13  Shaw's  J.  P.  700 .  206 

V.  Dyson,  7  Car.  &  P.  305,  1  Lewin,  C.  C.  64 208,  211,  212,  873,  949 

V.  Grindley 246,  778 

V.  Kelly,  Shelford,  Lunatics,  339 ; 43 

V.  Kinlocli,  25  How.  St.  Tr.  891 537 

V.  Little,  Russ.  &  R.  C.  C.  430 217 

V.  Meakin,  7  Car.  &  P.  207 234,  245,  778 

V.  Oli'ord,  5  Car.  &  P.  168 186,   187,  346,  347,  531,  535 

V.  Pritchard,  7  Car.  &  P.  303 209,  211,  217,  873,  949 

V.  Rodgers,  Journal  of  Mental  Science,  July,  1904,  p.  588 856 

V.  Searle,  1  bloody  &  R.  75 397 

V.  Spilsbury,  7  Car.  &  P.   187 391 

V.  Thomas,  7  Car.  &  P.  817 234,  248-250,  778 

V.  Tyson,  1  Russ.  &  R.  C.  C.  523 638 

V.  Wright,  Russ.  &  R.  C.  C.  456 397 

Reynolds  v.  Adams,  90  111.  134,  32  Am.  Rep.  15 110,  366,  375 

V.  Dechaums,  24  Tex.  174,  76  Am.  Dec.  101 24,  27 

V.  Reynolds,  44  Minn.  132,  46  N.  W.  230 56 

V.  Robinson,  04  N.  Y,  589 453 

V.  Root,  02  Barb.  250 72,  70,  91,  108,  122,  123,  129 

V.  United  States,  98  U.  S.  145.  25  L.  ed.  244 194 

Rhoades  v.  Fuller,  139  Mo.  179,  40  S.  W.  700 9,  156,  385 

Rhodes  v.  Bate,  L.  R.   1   Ch.  252 16,  20 

V.  Vinson,  9  Gill.  169,  52  Am.  Dec.  085 137 

Rhude  v.  Rhude,  8  Ohio  S.  &  C.  P.  Dec.  648 56 


TART.E  OF  CASES  CITED.  csxvu 

Rice  V.  Peet,  15  Johns.  503 6,  24 

V.  Rice,  127  Pa.  181,  14  Am.  St.  Rep.  831,  17  Atl.  888 365,  367,  372 

V.  Rice,  53  Mich.  432,  19  N.  W.  132 S3,  374,  385,  395,  435,  458 

V.  Rice,  50  Mich.  448,  15  N.  W.  545,  53  Mich.  432,  19  N.  W.  132.  .68, 

75,  83,   109,   130,  159,  418,  433 

Rich  V.  Bowker,  25  Kan.  7 335 

Richards  v.  Pitts,  124  Mo.  002,  28  S.  W.  88 20 

V.  Richards,   19  111.  App.  465 57,  58 

Richardson,  Re,  51  App.  Div.  6.37,  04  N.  Y.  Supp.  944 71 

V.  Adams,  110  Ga.  425,  35  S.  E.  648 13,   14,  137 

V.  Bly,  181  Mass.  97..  63  N.  E.  3 321,  329 

V.  Uu  Bois,  L.  R.  5  Q.  B.  51,  10  Best  &  S.  830,  39  L.  ,T.  Q.  B.  N.  S. 

69,  21  L.  T.  N.  S.  63.5,  18  Week.  Rep.  62 11 

V.  Medbury,  107  Mich.  176,  65  N.  W.  4 37 

V.  Moore,  30  Wash.  406,  7 1  Pac.  18 412 

V.  Smart,  65  Mo.  App.   14 139,  341 

V.  Strong-,  35  N.  C.    (13  Ired.  L.)    106,  55  Am.  Doc.  430 10,  24 

Richmond's  Appeal,  59  Conn.  226,  21  Am.  St.  Rep.  85, -22  Atl.  82.  .129,  409,  434 

Estate,  206  Pa.  219,  55  Atl.  970 102,  413 

Rioketts  v.  JoUiff,  62  Miss.  440 .11,  13,   134,  320,  323,  337,  338 

Riddell  v.  Johnson,  26  Gratt.  152 92,  329,  330,  345 

Rider  v.  Miller.  86  :N.  Y.  507 38,  154,  159,  384,  385,  437 

Ridgeway  v.  Darwin,  8  Ves.  Jr.  05,  6  Revised  Rep.  227 148,  150,  490 

Ridley  v.  Lamb,  10  U.  C.  Q.  B.  354 281,  286 

Rigg  V.  Wilton,  13  111.  15,  54  Am.  Dec.  419 104,  329,  344,  449,  451 

Rjggin  V.  Green,  80  N.  C.  236,  30  Am.  Rep.  77 7,  8 

V.  Westminster  College,  160  Mo.  570,  61   S.  W.  803 109,  128 

Riggs  V.  American  Home  Missionary  Soc.  35  Hun,  656 81,  84 

V.  American  Tract  Soc.  95  N.  Y.  503 81,   140,  148 

Rigney  v.  Plaster,  88  Fed.  686,  Affirmed  in  38  C.  C.  A.  25,  97  Fed.  12 23 

Riley  v.  Carter,  76  Md.  581,  19  L.  R.  A.  4S9,  35  Am.  St.  Rep.  443,  25  Atl. 

667 7,  306 

V.  Hartford  Life  &  Annuity  Ins.  Co.  25  Fed.  315 264,  265 

V.  Sherwood,  144  Mo.  354,  45  S.  W.  1077 114,  116,  127,  128 

V.  State  (Tex.  Crim.  App.)  44  S.  W.  498 190,  243,  348 

Ring  V.  Lawless,  190  111.  520,  00  N.  E.  881 13,  71,  72,   113,  429 

V.  Ring,  112  Ga.  854,  38  S.  E.  330 56,  60 

Rinkard  v.  State,  157  Ind.  534,  62  N.  E.  14 210,  222,  356 

Ripley  v.  Babcock,  13  Wis.  425 35,  37,  338 

Rippy  V.  Gant,  39  N.  C.   (4  Ired.  £q.)  443 5,  19,  38,  154,  160 

Ritter  v.  Mutual  L.  Ins.  Co.  169  U.  S.  139,  42  L.  ed.  693,  18  Sup.  Ct.  Rep. 

300 643 

V.  Mutual  L.  Ins.  Co.  42  L.  R.  A.  583,  17  C.  C.  A.  537,  28  U.  S.  App. 

612,  70  Fed.  550 203 

Ritter's  Appeal,  59  Pa.  9 95,  113 

Rivara  v.  Ghio,  3  E.  D.  Smith,  264 313 

llivard  v.  Rivard,  109  jMich.  9S,  63  Am.  St.  Rep.  566,  66  N.  W.  681.  .81,  82, 

107,  401,  405,  407,  416,  419,  457 

Roberts  v.  People,  19  Tvlich.  401 235,  236,  240,  245,  25-0,  ,  251 

V.  State,  3  Ga.  3i0 185,   192,  19S 

V,  Trawick,  13  Ala.  68 108,  364,  369,  372,  421,  458 


exxviU  TABLE  OF  CASES  CITED. 

Robert's  Estate,  197  Pa.  621,  47  Atl.  987 168 

Robertson  v.  Lain,  19  Wend.  650 299,  300,  301,  304 

V.  Lyon,  24  S.  C.  206 149 

Robeson  v.  Martin,  93  Ind.  420 164 

Robinett  v.  The  Exeter,  2  C.  Rob.  261 30 

Robinson  v.  Adams,  02  Me.  369,  16  Am.  Rep.  473.  .81,  83,  84,  89,  98,  330,  331, 

345,  362,  435,  436,  446 

V.  Allbee,  1  Ohio  Doc.  19 34 

V.  Uana,    16   Vt.   474 310,  311 

V.  Fifcehburg  &  VV.  R.  Co.  7  Gray,  92 388 

V.  Hutchinson,  20  Vt.  38,  60  Am.  Dec.  298 305,  367 

V.  Kind,  25  Nev.  261,  59  Pac.  863.  62  Pac.  705 7,  S 

V.  State,  113  Ind.  510,  16  N.  E.  184 242 

Roblin  V.  Roblin,  28  Grunt  Ch.    (U.  C.)   439 ". 50,  61 

Rock  Ishind  v.  Vanhindsclioot,  78  111.  485 287 

Rodd  V.  Lewis,  2  Lee  Eccl.  Rep.  176 154,  162 

Rodgers  v.  Rodgers,  56  Kan.  483,  43  Pac.  779 342 

V.  State  (Ttx.  Crim*.  App.)  28  S.  W.  685 183 

Rodger's  Estate,  19  W,  N.  C.  383 70,  73,  79,  101 

Rodman  v.  Rodman,  20  Grant  Ch.   (U.  C. )   448 61 

V.  Zilley,  1  N.  J.  Eq.  320 26 

Rodriguiz  v.  State,  20  Tex.  App.  542 206 

Roe  V.  Taylor,  45  111.  485 82,  429,  439 

R«gers,  Re,  5  N.  J.  Eq.  40 163,  164 

Re,  9  Abb.  N.  G.  141 149 

V.  Allunt 721 

V.  Blackvvell,  49  Mich.  192,  13  N.  W.  512 7 

V.  Diamond,   13  Ark.  474 91,  99 

V.  People,  3  Park.  Crim.  Rep.  633 243,  244 

V.  Rogers,  2  B.  Mon.  324 370 

V.  State,  33  Ind.   543 167,  257,  379,  409,  881 

V.  Walker,  6  Pa.  371.  47  Am.  Dec.  470 9,  155,  338,  942 

V.  Warren,  75  Mo.  App.  271 26,  390 

Rohe,  Re,  22  Misc.  415,  50  N.  Y.  Supp.  392 88,  127,  130 

Roller  V.  Kling,  150  Ind.  159,  49  N.  E.  948 339 

Rollwagen  v.  Rolhvagen.  5  Thomp.  &  C.  402 112,  441 

V.  Rclhvagen,  3  Hun,   121 437 

V.  Rolhvagen,  63  N.  Y.  504 91,  93 

Jlommel  v.  Sehambacher,  120  Pa.  579,  6  Am.  St.  Rep.  732,  11  Atl.  779 278 

Ronan  v.  Bluhm,  173  111.  277,  50  N.  E.  694 10,  16 

Ronkcr  v.  St.  John,  21  Ohio  C.  0.  39 280 

Pu>ot  V.  Davis,  10  ]\lont.  228,  25  Pac.  105 293 

Rose  V.  Rose,  9  Ark.  507 56 

Roseman  v.  Carolina  C.  R.  Co.   112  X.  C.  709,  19  L.  R.  A.  327,  34  Am.  St. 

Rep.  524,  16  S.  E.  760 285,  286 

Ross,  Re,  87  N.  Y.  514 433,  437,  438 

Re,  12  N.  Y.  Week.  Dig.  34 743,  759 

V.  Chester,  1  Hagg.  Eccl.  Rep.  227 112 

.   V.  Chri.stman,  23  N.  C.  (1  Ired.  L.)  209 109,  110 

V.  McQui.iton,  45  Iowa,   145 302,  368,  371 

V.  State,  02  Ala.  224 232,  237,  &50 


TABLE  OF  CASES  CITED.  cxxix 

Rothrock  v.  Gallagher,  91  Pa.  108 315 

V.  Rothrock,  22  Or.  551,  30  Pac.  453 131,  819 

Rottenburgh  v.  Fowl   (N.  J.  Eq.)   20  Atl.  33S 2.5,  27,  28 

Rounds,  Re,  25  Misc.  101,  54  N.  Y.  Supp.  710 87,  108,  132,  925 

Roush  V.  Wensel,  15  Ohio  C.  C.  133,  8  Ohio  D.  C.  14G 369,  418 

Rowland  v.  Sullivan,  4  Desauss,  Eq.  518 110 

Rowson's  Estate,  4  Pa.  Dist.  R.  91,  AiKrraed  in  175  Pa.  154,  34  Atl.  433.  ..  .  98 

Royer,  Re,  6  Pa.  Super.  Ct.  401,  41  V\.  N.  C.  428 74 

Rozwadosfskie  v.  International  &  G.  N.  R.  Co.  1  Tex.  Civ.  App.  487,  20  S.  W. 

872 284,  280 

Rubenstein  v.  Cruikslianks,  54  Mich.  199,  52  Am.  Rep.  800,  19  N.  W.  954.  .  .  281 

Rudy  V.  IJlrich,  69  Pa.  177,  8  Am.  Rep.  238 123 

Rule  V.  Maupin,  84  Mo.  5S7 3G7 

Rundell  v.  Dov^ning,  5  N.  Y.  S.  R.  253 131 

Runkle  v.  Gates,  11  Ind.  95 69,  76 

Runyan  v.  Price,  15  Ohio  St.  1,  80  Am.  Dec.  459 330,  434.  438,  452,  456,  913 

Rusli,  Re,  53  N.  Y.  Supp.  581 150,  154,  45S 

V.  Magee,  36  Ind.  69.  .11,  71,  81,  83,  SO,  114,  134,  320,  383,  401,  414, 

439,  444,  457 

Rusk  V.  Fenton,  14  Bush,  490,  29  Am.  Rep.  413 8,  1© 

Rassell,  Re,  1   Barb.  Ch.  38 152-154,  163 

V.  Lef rancois,  8  Can.  S.  C.  335 333 

V.  State,  53  Mise.  307 186,  326,  352,  360,  404,  413,  433 

Rust,  Re,  177  Pa.  340,  35  Atl.  023 144,  171,  972 

Rutherford  v.  Morris,  77  111.  397 67,  75,  109,  112,  123,  367,  415 

V.  Ruff,  4  Desauss,  Eq.  350 16,  18,  28,  30,  141 

Rutland  v.  Gleaves,  1  Swan,  198 137,  334,  357 

Rynn  v.  Ryan,  0  Mo.  539 58 

Ryder  v.  State,  100  Ga.  528,  38  L.  R.  A.  721,  62  Am.  St.  Rep.  334,  28  S.  E. 

240 325,  348,  350,  416,  417,  419,  442,  443 

Ryerson  v.  Adams,  6  N.  J.  Eq.  618 29,  142 


s 

Sabalot  v.  Populus,  31  La.  Ann.  854 41,  47 

Sabin  v.  Senate  of  National  Union,  90  Mich.  177,  51  N.  W.  202 265 

Sacramento  Sav.  Bank  v.  Spencer,  53  Cal.  737 299 

Sadler  v.  Lee,  6  Beav.  324,  12  L.  J.  Ch.  N.  S.  407,  7  Jur.  476 21,  22 

Sage  v.  State,  91  Ind.  141 175,  195,  379,  429 

St.  George  v.  Biddcford,  76  Me.  593 40,  43,  46,  457 

St.  Joseph's  Convent  v.  Garner,  CO  Ark.  623,  53  S.  W.  298 75 

St.  Leger's  Appeal,  34  Conn.  450,  91  Am.  Dec.  735 68,  71,  92 

St.  Louis,  A.  &  T.  H.  R.  Co.  v.  Carr,  47  111.  App.  353 284 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Wilkerson,  46  Ark.  513 282,  288 

St.  Louis  Mut,  L.  Ins.  Co.  v.  Graves,  6  Bush,  208 261,  264,  433 

Salcntine  v.  Mutual  Ben.  L.  Ins.  Co.  24  Fed.  159 264 

Salina  v.  Trosper,  27   Kan.  544 288 

Salisbury  v.  Aldrich,  118  111.  199,  8  N.  E.  777 108,  110 

Samuel  v.  Marshall,  3  Leigli.  567 28,  29,  141,  142 

Vol.  I.  Med.  Jub. — viii. 


atsx  TABLE  OF  CASES  CITED. 

Sanchez  v.  People,  22  N.  Y.  147 '. 376,  406 

Sander  v.  Savage,  75  App.  Div.  333,  78  N.  Y.  Supp.  189 17,  IS 

Sanders  v.  Blakley,  21  Ky.  L.  Rep.  1321,  55  S.  W.  10 100 

V.  State,  18  Tex.  App.  372 321,  35}. 

V.  State,  94  Ind.  147 177,  182,  199,  325,  326,  415,  410 

Sanderson  v.  Sanderson,  52  N.  J.  Eq.  243,  30  Atl.  320 109,  116,  120 

Sands  v.  Potter,  59  111.  App.  206 12 

V.  Sands,  112  111.  225 2J 

Sanford  v.  Sanford,  62  N.  Y.  553 290 

Sankey  v.  Lilley,  1  Curt.  Ecel.  Rep.  391 106 

Sapp  V.  Sapp,  71  Tex.  348,  9  S.  W.  258 54 

Sarbach  v.  .Jones,  20  Kan.  499 309,  311,  313 

Sargent  v.  Burton,  74  Vt.  24,  52  Atl.  72 375,  419 

Sasser  v.  Davis,  27  Tex.  656 296 

Savage  v.  Bulger,  25  Ky.  L.  Rep.  763,  76  S.  W.  361 102,  106 

Sawyer  v.  Lufkin,  56  Me.  309 10,  30 

V.  Sauer,  10  Kan.  466 278,  360 

V.  State,  35  Ind.  SO 197,  227,  376 

Saxton  V.  Whitaker,  30  Ala.  237 343 

Say  V.  Barwiek,  1  Yes.  &  B.  190 24,  29 

Sayer  v.  Bennet,  1  Cox.  Ch.  Cas.  107'. 22 

Sayres  v.  Com.  88  Pa.  291 197,  200,  370,  558,  724 

Scalf  v.  Collin  County,  80  Tex.  514,  10  S.  VV.  314 457 

Scanlan  v.  Cobb,  85  111.  296 10,  24,  30,  97 

Scarborough  v.  Baskin,  65  S.  C.  558,  44  S.  E.  63 114,  329,  419,  426 

Scarth  v.  Security  Mut.  L.  Ins.  Soc.  75  Iowa,  346,  39  N.  W.  658 265 

Schalkr  v.  State,  14  Mo.  502 249 

Schaps  V.  Lehner,  54  Minn.  208,  55  N.  W.  91 1 38 

Schefi'cr  v.  National  L.  Ins.  Co.  25  Minn.  534 260,  261 

Schick  v.  Stuhr   (Iowa)   94  N.  W.  915 150 

SchielTelin  v.  Schieffelin,  127  Ala.  14,  28  So.  087 71,  111,  410 

Schildnect  v.  Rompf,  9  Ky.  L.  Rep.  121,  4  S.  W.  235 89 

Schlencker  v.  State,  9  Neb.  241.  1  N.  W.  857 237,  246,  419,  429,  442 

Schmidt  v.  Pfeil,  24  Wis.  4.52 387 

v.  Schmidt,  201  111.  191,  66  N.  E.  371 84 

Sclmeider,  Ex  parte,  21  D.  C.  433 219,  432,  433,  444 

V.  Manning,  121  111.  370,  12  N.  E.  267.  .13,  67,  68,  82,  86,  87,  110,  396, 

455,  456 

Schoellhamer  v.  Rometsch,  26  Or.  394,  38  Pac.  344 17 

School  District  v.  Sheidley,  138  Mo.  072,  37  L.  R.  A.  406,  60  Am.  St.  Rep. 

576,  49  S.  W.  656 376 

Schramm  v.  O'Connor,  98  111.  539 27,  28 

Schrciber,  Re,  22  N.  Y.  S.  R.  892,  5  N.  Y.  Supp.  47 113,  110 

Schuenke  v.  Pine  River,  84  Wis.  669,  54  N.  W.  1007 289 

Schuir  v.  Ransom,  79  Ind.  458 13 

Schultz  V.  Insurance  Co.  40  Ohio  St.  217,  48  Am.  Rep.  676.. 263,  264,  269, 

325,  336 

Schusler's  Estate,  198  Pa.  81,  47  Atl.  960 95 

Schwartz  v.  State  (Neb.)   91  N.  W.  190 203,  204,  327 

Schwilke's  Appeal,  100  Pa.  628 98,  99 

Scoland  v.  Scoland,  4  Wa?h.  118.  29  Pac.  930 .  54 


TABLE  OF  CASES  CITED.  cxxxi 

Scott,  Re,  128  Cal.  57,  60  Pac.  527 81,  84,  85,  328 

V.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec.  461 198,  199,  204,  205 

V.  McKee,  105  Ga.  2o6,  31  S.  E.  183 440 

V.  Paquet.  17  Lower  Can.  Kep,  283 50 

V.  Scott,  29  L.  J.  Piob.  N.  S.  64 59 

V.  State,  12  Tex.  App.  31 239-241,  252,  254 

V.  Wakem,  3  Fost.  &  F.  328 170,  173 

V.  Winningham,  79  Ga.  492,  4  S.  E.  390 300 

Scribner  v.  Crane,  2  Paige,  147,  21  Am.  Dec.  81 93,  102,  445,  912 

Scruby  v.  Fordham,  1  Addams  EccL  Rep.  74 106,  136,  137 

Seagrist,  Re,  1  App.  Div.  615,  37  N.  Y.  Snpp.  496 68,  69,  76,  414 

Searle  v.  Galbraith,  73  111.  269 6,  15,  19 

Searles  v.  Harvey,  G  Hun,  658 158 

Sears  v.  Sliafer,   1   Barb.  408 34,  434,  437 

V.  State,  112  Ga.  382,  37  S.  E.  443 212,  213,  216,  219 

Seaver  v.  Plielps,  11  Pick.  304,  22  Am.  Dec.  372 6,  7,  935 

Sechrest  v.  Edwards,  4  Met.    (Ky.)    163 76,  91,  104,  451 

Seccr  V.  Secor,  1  MacArth.  630 41,  42 

iBedgwiek  v.  Jack,  111  Iowa,  745,  82  N.  W.  1027 90 

Seebrock  v.  Fedawa,  30  Neb.  425,  40  N.  W.  650 335 

Seeley  v.  Price,  14  Mich.  541 16,  18,  29 

Seerley  v.  Sater,  68  Iowa.  376,  27  N.  W.  262 5 

Sefton  V.  Hopwood,  1  Fost.  &  F.  578 72,  109 

Seguine  v.  Seguine,  4  Abb.  App.  Dec.  191 90 

V.  Seguine,    3    Keyes,    663 109 

Segur,  Re,  71  Vt.  224,  44  Atl.  342 82 

Sehr  V.  Lindemann,  153  Mo.  276,  54  S.  W.  537 76,  99,  114,  331 

Selah  V.  Selah,  23  N.  J.  Eq.  1S5 50 

Selby  V.  -lackson,  13  L.  J.  Ch.  N.  S.  249,  6  Beav.  192 39 

Selden  v.  Myers,  20  How.  506,  15  L.  ed.  976 21 

Sellars  v.  Sellars,  2  Heisk.  430 102,  369,  452 

Sellick's  Case,  1  N.  Y.  City  Hall  Rec.  185 340 

Sentance  v.  Poole,  3  Car.  &  P.  1 17 

Sergeson  v.  Sealy,  2  Atk.  412,  9  Mod.  370 38,  154-156,  384 

Severin  v.  Zack,  55  Iowa,  28,  7  N.  W.  404 425,  434 

Sewall  V.  Robbing,  139  Mass.  164,  29  N.  E.  650 119,  452 

Seward  v.  Seward,  59  Kan.  387,  53  Pac.  63 30 

Seymer  v.  Lake,  66  Wis.  651,  29  N.  W.  554- 281,  357 

Seymour  v.  Delancy,  3  Cow.  445,  15  Am.  Dec.  270 24,  26,  30 

Seyner  v.  Lake,  66  Wis.  G51,  29  ]SJ'.  W.  554 290 

Shackelton  v.  Sebree,  86  111.  616 28 

Shader  v.  Railway  Pass.  Assur.  Co.  5  Thomp.  &  C.  643 272,  273 

ShaelTer  v.  State,  61  Ark.  241,  32  S.  W.  679 418,  427,  429,  431 

Shailer  v.  Burastead,  99  Mass.  112 90,  97,  120,  363,  369,  381,  382 

Shakespeare  v.  Markham,  72  N.  Y.  400 4,  18' 

Shanley's  Appeal,  62  Conn.  325,  25  Atl.  245... 362,  420,  426,  435,  445 

Shannahan  v.  Com.  8  Bush,  464,  8  Am.  Rep.  465 199,  236,  244 

Shapter  v.  Pillar.  28  Colo.  209,  63  Pac.  302 144,  147,  148,  161,  419,  453 

Sharkey  v.  State,  4  Ohio  C.  C.  101,  2  Ohio  C.  D.  443 349,  350,  399,  413 

Sharp  V.  Kansas  City  Cable  R.  Co.  114  Mo.  94,  20  S.  W.  93 419,  443 


cxxxii  TABLE  OV  CASES  CITED. 

Sharp  V.  State  ( Ind. )   68  N.  E.  286 182,  356 

V.  Stephens  Committee,  21  Ky.  L.  Rep.  687,  52  S.  VV.  979 296 

Shaul,  Re,  40  How.  Pr.  204 147,  148,  150,  153 

Shaver  v.  McCarthy,  110  I'a.  339,  5  Atl.  614 09,  72,  73,  75,  97,  458 

Shaw,  Re,  2  Redf.  107 73,  81,  118 

V.  Dixon,  6  Bush,  644 147,  149 

V.  State,  32  Tex.  Crim.  Rep.  155,  22  S.  W.  588 218,  224 

V.  Thackray,  23  Eng.  L.  &  Eq.  Rep.   18,   1   Smale  &  G.  537,   17  Jur. 

1045 24,  30 

Shaw's  Will,  2  Redf.  107 110 

Sheafe  v.  Rowe,  2  Lee  Eccl.  Rep.  415 444 

Sheehan  v.  Kearney  (Miss.)   35  L.  R.  A.  102,  21  So.  41.. 329.  330,  365,  418,  421 

Sheldon  v.  Dow,  1  Dem.  503 : 69,  102,  119 

Shelleig,  Re,  11  Ohio  S.  &  C.  P.  Dec.  81 150.  320,  324,  397 

Shelly  V.  Brunswick  Traction  Co.  65  N.  J.  L.  639,  48  Atl.  562 281,  390 

Shelton  v.  State,  34  Tex.  066 392 

Shepard  v.  Wood.  1  Lane.  L.  Rev.  175 944 

Sherar  v.  State,  30  Tex.  App.  349,  17  S.  W.  621 253 

Sherley  v.  Sherley,  81  Ky.  240 90,  111,  116 

Sherman,  Re,  17  R.  I.  356,  22  Atl.  276 , 170,  172,  412 

.Sherwood  v.  Sanderson,  19  Ves.  Jr.  280,  13  Revised  Rep.  193 147-149,  483 

Shirley  v.  Taylor,  5  B.  Mon.  99 160,  418 

V.  Whitehead,  36  N.  C.   ( 1  Ired.  Eq. )    130 141 

Shorb  V.  Brubaker,  94  Ind.   165 101,  369 

Shorter  v.  People,  2  N.  Y.  193,  51  Am.  Dec.  296 203 

Shortlidge's  Case 936 

Shotwell,  Re,  1  Pa.  Dist.  R.  257 112 

Shoulters  v.  Allen,  51  Mich.  529,  16  N.  W.  888 4 

Shreiner  v.  Shreiner,  178  Pa.  57,  35  Atl.  974 83 

Shropshire,  Re,  4  .1.  J.  Marsh,  15 72 

V.  Reno,  5  J.  .1.  Marsh.  91 112 

Shuck  v.  Shuck.  7  Bush,  306 58 

Shufflin  v.  People,  4  Hun,  16 389,  391 

Shults  V.  State,  37  Neb.  481,  55  N.  W.  1080 427,  438,  455 

Shultz  V.  State,  13  Tex.  401 216,  951 

.Shurte  v.  Fletcher,  111  Mich.  84,  69  N.  W.  233 34 

Shutt  v.  Shutt,  71  Md.  193,  17  Am.  St.  Rep.  519,  17  Atl.  1024 56,  60 

Shuttleworth,  Rs,  11  Jur.  41,  2  New  Sess.  Cas.  470,  9  Q.  B.  051,  16  L.  J. 

Mag.  Cas.  N.  S.  18 172 

Sibley  v.  Somers,  62  N.  J.  Eq.  595,  50  Atl.  321 76,  86 

Sickles'  Case 616 

Siemon  v.  Wilson,  3  Edw.  Ch.  36 36 

Sill  v.  M'Knight.  7  Watts  &  S.  245 293 

Sills  V.  Brown,  9  Car.  &  P.  601 408 

v.  Brown,  9  Car.  &  P.  604 453 

Silverthorn's  Will,  68  Wis.  372,  32  N.  W.  287 134,  328,  331 

Sim  V.  Russell,  90  Iowa,  656,  57  N.  W.  601 108,  111,  376,  380 

Simon  v.  Craft,  182  U.  S.  427,  45  L.  ed.  1105,  21  Sup.  Ct.  Rep.  836 145 

Simonton  v.  Bacon,  49  Miss.  582 6,   19-21 

Sims  V.  McLure,  8  Rich.  Eq.  236,  70  Am.  Dee.  196 8 


TABLE  OF  CASES  CITED.  cxxxik 

Sims  V.  Sims,  121  N.  C.  297,  40  L.  R.  A.  737,  61  Am.  St.  Rep.  665,  28  S.  E. 

407 41,  48,  49,  155,  163 

Sindram  v.  People,  1  N.  Y.  Crim.  Rep.  448 177,  192,  195,  226,  373,  380 

V.  People,  88  N.  Y.  J 96 177,  192,  195,  226,  373,  380 

Singer  v.  Isbey,  4  Lane.  L.  Rev.  193 105,  106,  108 

Singleton  v.  State,  71  Miss.  782,  42  Am.  St.  Rep.  488,  16  So.  295 224 

Sinks  V.  Reese,  19  Ohio  St.  306,  2  Am.  Rep.  397 292 

Sisson  V.  Conger,  1  Thomp.  &  C.  564 317,  366,  433 

Sizer  v.  Syracuse  B.  &  N.  Y.  R.  Co.  7  Lans.  67 279 

Skaats,  Re,  74  Kmi,  462,  26  "N.  Y.  Supp.  494 71 

Skidmore  v.  Romaine,  2  Bradf.  122 8,  10 

Skinner's  Will,  40  Or.  571,  62  Pac.  523,  67  Pac.  951 84,  117 

Slais  V.  Slais,  9  Mo.  App.  M 43,  46,  413 

Slinger's  Will,  72  Wis.  22,  37  N.  W.  236 123,  158 

Sloan  V.  Maxwell,  3  N.  J.  Eq.  563 72,  344,  444 

Small  IT.  Champeny,  102  Wis.  61,  78  N.  W.  407 160,  342,  361 

V.  Reeves,  104  Ky.  289,  46  S.  W.  726,  Reversing  37  S.  W.  682 305 

Smart,  v.  Taylor,  9  Mod.  98 - 41 

Smee  v.  Smee,  L.  R.  5  Prob.  Div.  84,  28  Week.  Rep.  703,  44  J.  P.  220,  49  L. 

J.  Prob.  N.  S.  8 78,  80,  82,  83,  118,  328,  329,  341,  801,  931 

Smith,  Re,  j52  Wis.  543.  38  Am.  Rap.  756,  8  N.  W.  616,  9  N.  W.  665 88 

Re,  22  Pa.  Co.  Ct.  487 415 

Re,  53  N.  Y.  S.  R.  658,  24  N.  Y.  Supp.  928 84,  101,  927,  930 

V.  Beatty,  37  N.  C.   (2  Ired.  Eq.)  456,  40  Am.  Dec.  435 14,  20 

v.  Burnham,  1  Aik.   (Vt.)    84 146 

V.  Com.  1  Duv.  224 198,  199,  204,  240,  255,  352-354 

V.  Day,  2  Penn.   ( Del. )  245,  45  Atl.  396 69 

v.  Elliott,  1  Patton  &  H.   ( Va.)   307 28 

V.  Eenner,  1  Gall.  170,  Fed.  Cas.  No.  13,046 366 

V.  Henline,  174  111.  184,  51  N.  E.  227 377,  819 

V.  Hickenbottom,  57  Iowa,  733,  11  N.  W.  664 148,  151,  153,  378, 

402,  433,  454 

V.  James,  72  Iowa,  514,  34  N.  W.  309 99.  109 

V.  Knights  of  Father  Mathcw,  36  Mo.  App.  184 273 

V.  Kramer,  5  Clark   ( Pa. )   226 122 

V.  McClme,  146  Ind.  123,  44  N.  E.  1004 323,  325 

V.  Norfolk  &  S.  R.  Co.  114  N.  C.  728,  25  L.  R.  A.  287,  19  S.  E.  863 

277,  282 

V.  People,  65   111.  375 170 

V.  Smith,   4  Baxt.  293 329 

V.  Smith   (Ga.)  46  S.  E.  106 59 

V.  Smith,  47  Miss.  211 41-43,  47,  51 

V.  Smith.  117  N.  C.  326,  23  S-  E.  270 420,  422,  455 

V.  Smith.  60  Wis.  329,  19  N.  W.  47 20,  21,  122,  324 

V.  Smith,  75  Ga.  477 74 

V.  Smith,  108  N.  C.  365,  12  S.  E.  1045,  13  S.  E.  113 39,  333 

V.  Smith.  48  N.  J.  Eq.  566,  25  Atl.  11 72,  73,  81,  111 

V.  Smith,  33  N.  J.  Eq.  458 54 

V.  Smith,  157  Mass.  389,  32  N.  E.  348 436,  458 

V.  State,  55  Ark.  259,  IS  S.  W.  237 177,  194,  199,  435,  457 

V.  State,  4  Neb.  277 244,  246,  353,  359 


cxxxiv  TABLE  OF  CASES  CITED. 

Smith  V.  State,  22  Tex.  App.  317,  3  S.  W.  084 175,  186,  189,  190,  341 

V.  State,  19  Tex.  App.  95 175,  188,  351,  35(^ 

V.  Tebbitt,  L,  R.  1  Prob.  &  Div.  398,  16  L.  T.  N.  S.  841,  16  Week,  Rep. 

18,  30  L.  J.  Prob.  2s.  S.  97 73,  78,  80,  83,  85,  100,  101,  337,  920 

V.  Wait,  4  Barb.  28 130 

V.  Williamson,  8  Utah,  219,  30  Pac.  753 27 

Smith's  Appeal,  12  Pa.  Super.  Ct.  649,  22  Pa.  Co.  Ct.  487 151 

Case,  15  L.  I,  33 546,  559,  561,  836 

Case 977 

Case,  12  Pa.  Super.  Ct.  649 964 

Case,  22  Pa.  Co.  Ct.  487 148,  152 

Will.  52  Wis.  543,  38  Am.  Rep.  756,  8  N.  W^  616,  9  N.  W.  665 88 

Smurr  v.  State,  88  Ind.  504 241 

Snell  V.  United  States,  16  App.  Dec,  501 382,  383,  385,  411 

Snelling,  Re,  136  N,  Y.  515,  32  N.  E.  lOOG 69,  109 

Re,  44  ]S'.  Y.  S.  R.  477,  17  N.  Y,  Supp.  G83 128 

Snider  v.  State,  56  Xeb.  309,  76  N.  W.  574 327,  418 

Snodgrass  v.  Knight,  43  W.  Va.  204,  27  S,  E.  233 321 

Snook  V,  Watts,  11  Bear.  105,  12  Jur.  444 38,  156,  225,  333 

Snow  V.  Benton,  28  111.  306 109,  121,  338,  343,  382 

Snyder  v.  Nations,  5  Blackf .  295 309 

V.  Sherman,  23  Hun,  1 39 72,  90,  93,  12:i 

V.  Snyder,  142  111.  60,  31  N.  E.  303 148 

Soberanes  v.  Soberanes,  97  Cal.  140,  31  Pac.  910 140 

Soden,  Re,  38  JNIisc.  25,  76  N.  Y.  Supp.  877 129 

Sombre  v.  Solaroli,  1  Deane  &  S.  110 11 

Soraers  v.  Burke  County,  123  N,  C.  583,  68  Am.  St,  Rep.  834,  31  S,  E.  873. .  292 

V.  Pumphrey,  24  Ind.  231 4,  6,  12,  14,  36,  324 

Somes  V.  Skinner,  16  Mass.  348 6,  15,  19 

Soule,  Re,  22  Abb.  N.  C.  236 75 

Re,  1  Connoly,  18,  3  N.  Y.  Supp.  259 108,  128,  804 

Soules  V.  Robin&on,  158  ind.  97.  92  A:n.  St.  Rep.  301,  62  N.  E.  999,  Affirming 

(Ind.  App.)   60  N.  E.  726 144,  15(1 

Southconibe  v.  Merriman,  Car.  &,  M.  256 271 

Southerlin  v.  M'Kinuey,  Rice    L.  35 913 

Southern  Tier  Masonic  Relief  Asso.  v.  Laudenbach,  5  N.  Y.  Supp.  901.. 5, 

.  156,  160 

South^\esteru  R,  Co,  v,  Ilankerson,  72  Ga.  182 282,  28s 

Southworth  v.  South  worth,  173  Mo.  59,  73  S.  W.  129 72,  99,  451 

Spann  v.  State,  47  Ga.  549 176,  184,  209,  213,  215,  221 

Sparks  v.  Knights  Templars'  &  M.  Life  Indemnity  Co.  61  Mo.  App.  109 265 

Spear  v.  Richardson,  37  N.  li.  23 40S 

V.  Sweeney,  88  Wis.  545,  60  iV.  W.  1060 380 

Speck  V.  Phillips,  5  Mees.  &  W.  279,  7  Dowl,  P.  C.  470,  8  L.  J.  Exch.  N.  S. 

249,  277 30 

V.  Pullman  Palace  Car  Co.  121  111.  33,  12  N.  E.  213 299,  302,  303 

Speedling  v.  Worth  County,  68  Iowa,  152,  26  N,  W,  50 169 

Speers  v,  Sewell,  4  Bush,  239 37 

Spellier's  Estate,  2  Pa.  Dist,  R,  513 130 

Spence  v.  Spence,  4  Watts,   165 114,  452 

V.  State,   15  Lea,  539 235 


TABLE  OF  CASKS  CITED.  cxxxv 

Spencer,  Re.  9G  Cal.  448,  31  Pac.  453 86,  88 

V.  Moore,  4  Call   (Va.)   423 75,  127,  452 

V.  Reynolds,  9  Pa.  Co.  Ct.  249 301 

V.  State,  69  Md.  28,  13  Atl.  809 187,  200,  203,  360 

V.  Terry,  127  Mich.  420,  S6  N.  W.  998 72,  106,  107,  111 

V.  Terry   (Mich.)    10  Det.  L.  N.  82,  94  N.  VV.  372 107,  302 

Spittle  V.  Walton,  L.  R.  11  Eq.  420,  40  L.  J.  Ch.  N.  S.  368,  24  L.  T.  N.  S.  18, 

19   Week.  Rep.  405 308,   313,  314 

Spivey  v.  State   (Tex.  Crim.  App.)    77  S.  W.  444 406 

Sponable  v.  Hanson,  87  Mich.  204.  49  N.  W.  644 32,  161,  412 

Spoonemore  v.  Cables,  66  Mo.  579 367 

Sprague  v.  Duel,  Clarke  Ch.  90 18 

V.  Duel,  11  Paige,  480 14,  32 

Spratb  V.  Spratt,  76  Mich.  384,  43  N.  W.  627 71,  73,  105,  109,  114,  376,  378 

Springfield  v.  State,  96  Ala.  SI,  38  Am.  St.  Rep.  85,  11  So.  250 250 

Springstead,  Re,  28  N.  Y.  S.  R.  186,  8  N.  Y.  Supp.  596 109 

Spurlock  V.  Noe,  19  Ky.  L.  Rep.  1321,  39  L.  R.  A.  775,  43  S.  W.  231 303 

Squire  v.  Pershall,  8  Vin.  Apr.  169 910 

Stackhouse  v.  Horton,  15  N.  J.  Eq.  202 79,  84,  97,  413 

Stacy  V.  Portland  Pub.  Co.  68  Me.  279 459 

Stancell  v.  Kenan,  33  Ga.  56 72 

vStandard  Life  &  Acci.  Ins.  Co.  v.  Jones,  94  Ala.  434,  10  So.  530 273 

Stannard  v.  Burns,  63  Vt.  244,  22  Atl.  460 155 

Stanton  v.  Wetherwax,  16  Borb.  259 73,  81 

Staples  V.  Wellington,  58  Me.  453 H,  15,  339,  340,  341 

Starnes  v.  Marten,  1  Curt.  Eccl.  Rep.  294 103,  448 

Starrett  v.  Douglass,  2  Y^eates,  48 94,  95,  96,  111,  112,  121 

Staser  v.  llogan,  120  Tnd.  227,  21  N.  E.  911,  22  N.  E.  990.  .362,  378,  383,  417, 

431,  440,  425,  434,  439 

State  V.  Abraras,  11  Or.  169,  8  Pac.  327 256,  418,  421 

V.  Alexander,  30  S.  C.  74,  14  Am.  St.  Rep.  879,  8  S.  E.  440.  .176,  186, 

200,  349,  712,  721,  741 

V.  Archer,  54  N.  H.   465 436 

V.  Arnold,  12  Iowa,  479 211,  213,  215 

V.  Ashley,  45  La.  Ann.  1036,  13  So.  738 244,  254 

V.  Atherton,  50  Iowa,  189,  32  Am.  Rep.  134 205 

V.  Avery,  44  N.  H.  392 240,  247 

V.  Baber,  74  Mo.  292,  41  Am.  Rep.  314 399,  401 

V.  Barbee,  92  N.  C.  820 240,  241,  251 

V.  Barry,  11  N.  D.  428,  92  X.  W.  809 182,  431,  432 

V.  Bartlett,  43  N.  H.  224.  80  Am.  Dec.  154 198,  327,  352,  353,  354 

V.  Bell,   29    Iowa,   316 241-243,  349 

V.  Bowen,  Houst.  Crim.  Rep.   (Del.)   91 248,  251,  359 

V.  Boyce,  24  Wash.  514,  64  Pac.  719 403,  404 

v.  Bradford,  156  Mo.  91,  56  S.  W.  898 414 

V.  Brandon,  53  N.  C.  (8  Jones  L.)  463 186,  200,  203,  347 

V.  Brinyea,  5  Ala.  241 218,  219,  220,  225,  346,  433 

V.  Brooks,  4  Wash.  328,  30  Pac.   147 364,  428,  432 

V.  Brooks,  23  Mont.  146,  57  Pac.  1038 177,  185,  365 

V.  Bro\vn,  12  Minn.  538,  Gil.  448 325 

T.  Brown,  Houst.  Crim.  Rep.   (Del. )   539 198,  199,  337 


«xxTi  TAliLE  OF  CASES  CITED. 

State   V.  Brown,  2  Marv.   (Del.)   .380,  36  Atl.  458 308,  310,  311,  314,  31.^> 

V.  Bruce,  48  Iowa,  533,  30  Am.  Rep.  403 347,  341) 

V.  Bryant,  93  Mo.  273,  6  S.  W.  102 376,  427 

V.  Buckley,  72  N.  C.  358 250 

V.  Bullock,  13  Ala.  403 237,  248 

V.  Bundy,  24  S.  C.  439,  58  Am.  Rep.  203.  .179,  187,  201,  203,  236,  348,  350 

V.  Burns,  25  La.  Ann.  302 348,  351 

V.  Castello,  62  Iowa,  404,  17  X.  W.  605 317 

V.  Cather   (Iowa)   96  N.  W.  722 240,  459 

V.  Champoux    ( Wash. )    74  Pac.  557 2]'(i 

V.  Christmas,  51  N.  C.   (0  Jones  L.)   471 382 

V.  Clements,  47  La.  Ann.  1088,  17  So.  502 , .  346 

V.  Cole,  2  Penn.   (Del.)  344,  45  Atl.  391 198,  325,  347 

V.  Coleman,  20  S.  C.  441 223,  353,  354,  398,  407,  460,  46; 

V.  Coleman,  27  La.  Ann.  691 189,  201,  203,  231,  236,  326,  346,  429 

V.  Cory 531 

V.  Crawford,  11  Kan.  32 327,  352,  355 

V.  Crisp,  126  Mo.  607,  29  S.  W.  699 396,  403,  404,  418,  427 

V.  Cross,  72  Conn.  722,  46  Atl.  148 419 

V.  Cross,  27  Mo.  334 238,  240 

V.  Cross,  42  W.  Va.  253,  24  S.  E.  996 238,  359 

V.  Crow,  1  Ohio  Dec.  Keprint,  586 205 

V.  Cunningham,  72  N.  C.  469 228,  382 

V.  Danby,  Houst.  Crim.  Rep.    (Del.)    166 185,  190,  325,  326,  347 

V.  Davis,  9  Houst.   (Del.)  407,  33  Atl.  55 234,  248 

V.  Davis,  109  N.  c.  780,  14  S.  E.  55 347,  348 

V.  Davis,  27  S.  C.  609,  4  S.  E.  567 342 

V.  Dearing,  65  Mo.  533 249 

v.  Del  Bello,  S  Ohio  S.  &.  C.  P.  Dec.  455 416 

V.  De  Ranee,  34  La.  Ann.  186,  44  Am.  Rep.  426 346 

T.  Desmond,  109  Iowa,  72,  80  N.  W.  214 231 

V.  De  Wolf,  8  Conn.  93,  20  Am.  Dee.  90 310,  873 

T.  Di  Gnglielmo   (Del.)    55  Atl.  350 240 

v.  Dillahunt,  3  Harr.    (Del.)    551 231,  234 

V.  Donovan,  61  Iowa,  369,  16  N.  W.  206 238-240,  252 

V.  Douglass,  28  W.  Vo.  297 248,  348 

V.  Draper,  Houst.  Crim.  Rep.   ( Del.)   201 320,  323,  873 

V.  Dreher,  137  Mo.  11,  38  S.  \V.  567 182,  225 

T.  Duestrow,  70  Mo.  App.  311 146 

V.  Duestrow,  137  Mo.  44,  38  S.  W.  554,  39  S.  W.  206.  .347,  388,  510, 

564,  775 

V.  Dunn  (Mo.)  77  S.  W.  848 200,  367,  400,  401 

V.  Edwards,  71  Mo.  321 238 

V.  Enright,  90  Iowa,  520,  58  N.  W.  901 205-207 

V.  Erb,  74  Mo.  199 176,  186,  200,  232,  348,  419 

V.  Faino,  1  Marv.    (Del.)   492,  41  Atl.  134 239 

V.  Felter,  32  Iowa,  53 326,  347,  348,  350 

V.  Felter,  25  Iowa,  67.  .175,  177,  198,  199,  200,  360,  381,  395,  402,  403, 

409,  455,  566 

V.  Feltes,  51  Iowa,  495,  1  N.  Vv.  755 392,  45'J 

V.  Fiester,  32  Or.  254,  50  Pae.  561 427,  429 


TABLE  OF  CASES  CITED.  cxKnrn 

State   V.  Fiske,  63  Conn.  388,  28  Atl.  372 239,  250,  359 

V.  Flowers,  58  Kan.  702,  50  Pac.  938 380 

V.  Ford   ( S.  D. )   92  N.  W.  18 237 

V.  Gardiner,  Wright  (Ohio)   392 175,  203 

V.  Garvej',  11  Minn.  154,  Gil.  95 230,  239,  240,  252,  441 

V.  Geddis,  42  Iowa,  268 176.  321,  323,  344,  347,  418 

V.  Geier,  111  Iowa,  706,  83  N.  W.  718 181 

V.  Gould,  40  Kan.  258,  19  Pac.  739 218,  396,  398 

V.  Graviotte,  22  La.  Ann.  5S7 227 

V.  Grear,  28  Minn.  426,  41  Am.  Rep.  296,   10  N.  W.  472.. 251,  252, 

349,  356,  359,  391 

V,  Greer,  22  W.  Va.  800 250 

V.  Gut,  13  Minn.  343,  Gil.  315.  .186,  187,  188,  192,  198,  245,  347,  348, 

383,  434 

V.  Ilaab,  105  La.  230,  29  So.  725 237 

V.  Hagt,  47   Conn.  518,  36  Am.  Rep.  89 326 

V.  Halloway,  S  P.lackf.  45 310 

V.  Hand,  1  Marv.   (Del.)   545,  41  Atl.  192 234 

V.  Hanley.  34  Minn.  430,  26  N.  W.  397 348,  400,  41 1 

V.  Hansen,  25  Or.  391,  35  Pac.  976,  36  Pae.  296.  .199,  245,  248,  346, 

367,  425,  426 

V.  Harlow,  21  Mo.  446 238 

V.  Harrigan,  9  Roust.   (Del.)   369,  31  Atl.  1052 230,  232,  320,  360 

V.  Harris,  100  Iowa,  188,  69  N.  W.  413 389 

V.  Harris,  53  N.  C.  (8  Jones  L.)   130,  78  Am.  Dec.  272 209,  210,  214 

V.  Harrison,  36  W.  Va.  729,  18  L.  R.  A.  224,  15  S.  E.  982.  .190,  191, 

201,  208,  212-215,  668,  721,  723,  953 

V.  Hart,  29  Iowa,  268 236,  242,  389 

V.  Hartley,  22  ISTev.  342,  28  L.  R.  A.  33,  40  Pac.  372 320 

V.  Hayden,  51  Vt.  296 396,  397,  426,  442 

V.  Hays,  22  La.  Ann.  39 189,  360,  364,  373 

V.  Hays,  16  Mo.  App.  560 22T 

V.  Hayward,  02  Minn.  474,  65  N.  W.  63 312,  337,  339,  382 

V.  Haywood,  61  N.  C.   (Phill.  L.)   376 185,  187,  347 

V.  Helm,  09  Ark.  107,  61  S.  W.  915 211,  218 

V.  Hill,  65  N.  J.  L.  626,  47  Atl.  814 320,  325 

V.  Hill,  46  La.  Ann.  27,  49  Am.  St.  Rep.  316,  14  So.  294 356,  359 

V.  Hockett,  70  Iowa,  442,  30  N.  W.  742.  .176,  179,  229,  349,  351,  380,  413 

V.  Hollow.ay,  156  Mo.  222,  56  S.  W.  734 195,  354,  364,  430 

V.  Holme,  54  Mo.   153 181,  182 

V.  Home,  9  Kan.  119 256 

V.  Howard,  118  Mo.  127,  24  S.  W-  41 227,  307,  310,  314,  339,  342,  870 

V.  Hoyt,   40    Conn.   330 354,  460 

V.  Hoyt,  47  Conn.  518,  36  Am.  Rep.  89 .325,  354,  373,  381,  382 

V.  Handley,  46  Mo.  414 191,  199,  231,  236,  237,  347,  349,  351,  416 

V.  Hurley,  Roust.  Crim.  Rep.   (Del.)   28 234,  240,  349,  359,  391 

V.  lluting,  21  Mo.  464 190,  192,  348 

V.  Huxford,  47  Iowa,  16 165,  459 

V.  Hyde,  29  Conn.  564 145,  384 

V.  John,  30  N.  C.   (8  Ired.  L.)   330,  49  Am.  Dec.  396 236,  367 

V.  Johnson,  40  Conn.  130 198,  230,  244,  246,  247,  336,  337,  352 


cxxxviii  TABLE  OF  CASES  CITED. 

State  V.  Johnson,   41   Conn.   584 23G,  247 

V.  Johnson,  91  Mo.  439,  3  S.  W.  SGS .'34S 

V.  Jones,  50  N.  H.  309,  9  Am.  Rep.  242.  .175,  178,  191,  192,  198,  199, 

200,  35.3,  531,  567,  571,  S.SG 
V.  Jones,  64  Tow.i,  350,  17  K  W.  911,  20  N.  W.  470.. 327,  349,  350, 

360,  442 

V.  Kalb,  7  Ohio  X.  P.  547,  5  Ohio  S.  &  C.  P.  Dec.  738 179,  198 

V.  Kalb.  2  Ohio  Legal  News,  304 186,  199,  228,  412,  413,  443 

V.  Kale,  124  N.  C.  816,  32  S.  E.  892 236,  241 

V.  Kavannugh  (Del.)  53  Atl.  335 185,  230,  234.  357 

V.  Kelley,  57  N.  H.  549 310,  312,  360,  373 

V.  Kelley,  74  Vt.  278,  52  Atl.  434 185 

V.  Ketchey,  70  N.  C.  G21 419,  426 

V.  King,  86  N.  C.  606 315 

V.  Klinger,  46  Mo.  224 213,  396,  428,  433,  455 

V.  Klinger,  43  Mo.  127 181,  188,  349,  351 

V.  Klusenian,  53  Minn.  54U,  55  N.   \V.  741 222,  367 

V.  Knight,  95  Me.  467,  55  L.  R.  A.  373,  50  Atl.  270 185,  200 

V.  Koerner,  8  N.  D.  202,  78  N.  VV.  981 236,  239,  242,  380 

V.  Kotovsky,  11  Mo.  App.  584 195 

V.  Kotovsky,  74  Mo.  247 200 

V.  Kring,   64   Mo.   591 370,  371 

V.  Langford,  45  La.  Ann.  1177,  40  Ain.  St.  Rep.  277,  14  So.  181.. 309,  310 

V.  Larkins,  5  Idaho,  200,  47  Pac.  945 348,  349,  403 

V.  Lawrence,  57  Me.  574 188,   190-192,  202,  320 

V.  Leehnian.  2  S.  I).  171,  49  N.  W.  3.  .419.  421.  432,  438,  440,  441,  453,  455 

V.  Lewis,  136  Mo.  84,  37  S.  W.  806 347 

T.  Lewis.  20  Nev.  333,  22  Pac.  241 .  .  185,  186,  192,  223,  325,  346,  348- 

351,  361,  405,  426 

r.  Lowe,  93  Mo.  .547,  5  S.  W.  889 237,  241,  337,  358 

V.  aicCants,   1   Speers  L.  389 249 

V.  ilcCoy,  34  Mo.  530,  86  Am.  Dec.  121 320,  325,  348,  349 

V.  McDaniel,  1 15  X.  C.  807,  20  S.  E.  022 248,  249 

V.  McDonough,  104  low.a,  6.  73  N.   W.  357 200,  372 

V.  McGonigal,  5  Harr.   (Del.)  510 232,  234 

V.  Mcintosh,  39  S.  C.  79,  17  S.  E.  440 185,  186,  325,  352,  353 

V.  McMurray,  61  Kan.  87,  58  Pac.  901 . 384 

V.  McNinch,  12  S.  C.  89 316 

V.  Malin,  25  Kan.   182 256,  881 

V.  Maier,  36  W.  Va.  757,  15  S.  E.  991 179,  ISO,  398,  419,  426,  435,  441 

V.  Marler,  2  Ala.  43,  30  z\m.  Dec.  398 346,  355 

V.  Mar.shall,  35  Or.  265,  57  Pac.  902 374 

V.  Martin,  4  N.  J.  L.  .J.  252,  3  Crim.  L.  Mag.  44.  .185,  188,  231,  236, 

237,  244,  320,  351,  360 

V.  Mcdlicott,  9  Kan.  257 453 

V.  Mewhfrtcr,  46  Iowa,  88 175,  192,  194,  199,  200 

V.  iVIcyers,  40  Neb.  152,  37  L.  R.  A.  423,  64  N.  W.  697 309 

V.  Michael,  57  W.  Va.  505,  21  L.  R.  A.  605,  10  S.  E.  803 311 

V.  Miller,  111  Mo.  542,  20  S.  W.  243 203,  722 

V.  Miller.  7  Ohio  N.  P.  458 175,  190,  192,  412-414 

V.  Moats,  108  Iowa,  13,  7H  N.  W.  701 312 


TABLE  OF  CASE8  CITED.  cxxxix 

Stale    V.  Morphy,  33  Towa,  270,  11  Am.  Rop.   122 .127 

V.  Mowry,  37  Kan.  3G9,  15  Pac.  282 185,  186,  200,  239,  241,  24fi 

V.  Mullen,  14  La.  Ann.  577 249 

V.  Murphy,  118  Mo.  7,  25  S.  W.  95 •.  .  .238,  252 

V.  Mmiay,  11  Or.  413,  5  Pac.  55..  176,  179.  185,  192,  346,  390,  418, 

427,  428,  430,  434 

V.  Newman,   7   Ala.   69 34(') 

V.  Nixon,  32  Kan.  205,  4  Pac.  159 190,  200,  352,  355 

V.  Norwcod,  115  N.  C.  791,  44  Am.  St.  Rep.  498,  20  S.  E.  712 32(i 

V.  O'Connor,    11   Nev.   416 250 

V.  O'Grady,  3  Ohio    Legal  Nev;s,  137,  5  Ohio  .S.  &  C.  P.  Dec.  654.  .208, 

214-217,  326,  348 
V.  O^Neil.  51  Kan.  651,  24  L.  R.  A.  5!55,  33  Pac.  287.  .187,  201,  225, 

232,  234,  230,  241 
V.  Pagels,  92  Mo.  300,  4  S.  W.  931.  .179,  186,  190,  200,  347,  350,  368, 

400,  401,  721 

V.  Paine,  49  La.  Ann.  1092,  22  So.  316 393,  952 

V.  Palmer,  161  Mo.  152,  61  S.  W.  651 176,  320,  325,  341,  347,  400,  407 

V.  Parks,  93  Me.  208,  44  Atl.  899 325,  348 

V.  Pasnau,  118  Iowa,  501,  92  M.  W.  682 239,  251,  356 

V.  Patten,  10  La.  Ann.  299,  63  Am.  Dec.  594 209,  210 

V.  Patton,   12   La.   Ann.   2SS 952 

V.  Payne,  86  N.  C.  609 356 

V.  Peacock,  50  N.  J.  L.  34,  11  Atl.  270 207,  210-212,  214,  375 

V.  Peel,  23  Mont.  .358,  75  Am.  St.  Rep.  529,  ,59  Pac.  169.  .198,  3.52,  399, 

433,4.34,  441 

V.  Pennyman,  68  Iowa,  216,  26  N.   W.  82 421 

V.  Peterson,  129  N.  C.  556,  85  Am,  St.  Rep.  756,  40  S.  E.  9 241 

V.  Peterson,  24  Mont.  81,  60  Pac.  809 208,  213,  214 

V.  Pike,  49  N.  H.  399,  6  Am.  Rep.  533..  178,  181,  193,  198,  231,  232, 

353,  4,34,  436,  458,  531,  567,  569,  570,  571,  836 

V.  Porter,  34  Iowa,  131 368,  440,  458 

V.  Potts,  100  N.  C.  457,  6  S.  E.  657.  .187,  200,  202,  20,3,  234,  236,  348, 

358,  359,  395,  396,  419,  427,  433 

V.  Powell,  7  N.  ,L  L.  244 453 

V.  Pratt,  Jlou.st.  Crim.  Rep.   (Del.)  249 189,  190,  ,326,  .346 

V.  Pratt,   34   Vt.   323 165,  166 

V.  Prcscott ^ 531 

V.  Pritchett,  106  N.  C.  167,  11  S.  E.  357 221,  360,  373 

V.  Privitt,  175  Mo.  207,  75  S.  W.  457 373,  396,  399,  400 

V.  Ramsey,   82   Mo.    133 238 

V.  Reddick,  7  Kan.  143 11,  337,  352,  358,  403,  410 

V.  Redenieier,  71  Mo.  173,  36  Am.  Rep.  462 184,  185,  187,  347 

V.  Redemtier,  8  Mo.  App.   1 ' 187,  328 

V.  Reed,  41  La.  Ann.  581,  7  So.  132 207-210,  213-215 

V.  Reideil,  9  Hou.^t.    (Del.)   470.  14  Atl.  5.50..  185,  193,  199,  222,  326, 

352,  41S 

V.  Richards,  39  Conn.  591 183,   185,  202 

V.  Rigley,  7  Idaho,  292,  62  Pac.  679 359 

V.  Riley,  100  Mo.  493,  13  S.  W.  1063 227,  231,  232 

V.  Rippy,  104  N.  C.  752.  10  S.  E.  259 2.32,  235.  256,  881 


cxl  TABLE  OF  CASES  CITED. 

State  V.  Roan  (Iowa)  97  N.  W.  997 236,  243,  250 

V.  Robbins,  109  Iowa,  G50,  80  N.  W.  1061 325,  326,  341,  348,  429 

V.  Robinson,  27  S.  C.  615,  4  S.  E.  570 217 

V.  Robinson,  20  W.  Va.  713-,  43  Am.  Rep.  799.  .230,  236,  246-248,  254, 

347,  348 

V.  Roselot  (Ohio)  68  N.  E.  825,  Affirming  23  Ohio  C.  C.  370 212 

V.  Ryan,  cited  in  Jarman  on  Wills,  p.  122  note 435 

V.  Schaefer,  116  Mo.  96,  22  S.  VV.  447 224,  337,  338,  347 

V.  Schingen,  20  Wis.   75 242,  243 

V.  Scott,  49  La.  .-Vnn.  253,  36  L.  R.  A.  721,  21  So.  271.  .182,  320,  325, 

346,  348 

V.  Scott,  8  N.  C.   (1  Hawks)  24 307,  351,  367 

V.  Scott,  41  Minn.  365,  43  N.  W.  62 201,  400,  402 

V.  Sewell,  48  N.  C.   (3  Jones.  L.)   250 235,  358 

V.  Shippey,  10  Minn.  223,  88  Am.  Dec.  70,  Gil.  178.  .  .  .177,  187,  188,  220 

V.  Shoultz,  25  Mo.  128 176 

V.  Shuflf   (Idaho)   72  Pac.  664 353,  354,  426 

V.  Sigler,  114  Iowa,  408,  87  N.  W.  283 356 

V.  Simms,  68  Mo.  305 222,  228,  381 

V.  Simms.  71   Mo.  538 192,  205 

V.  Smith,  26  Wash.  354,  67  Pac.  70 314 

V.  Smith;  49  Conn.  376 179,  243,  245,  247 

V.  Smith,  53  Mo.  267 347,  351,  354 

V.  Smith,  31  Tex.  App.  Crim.  14,  19  S.  W.  252 351 

V.  Snow,  3  Penii.  ( Del.)  259,  51  Atl.  607 236 

V.  Sneed,   SS  Mo.   138 238 

V.  Soper,  148  Mo.  217,  49  S.  W.  1007 .  .  .  .200,  355,  3S1,  406,  430,  461,  722 

V.  Soplier,  70  Iowa,  494,  30  N.  W.  917 246,  255 

V.  Spencer,  21  N.  J.  L.  196.  .  .  .18.5,  203,  337,  338,  343.  346,  .351,  368, 

528,  564 

V.  Spivey,  132  N.  0.  989,  43  S.  E.  475 185,  325,  347 

V.  Stark"!  1  Strobh.  L.  479 181,  223,  347,  363 

V.  Starling,  51  N.  C.  (6  Jones  L.)  366 320,  325,  349,  350 

V.  Stickley,  41  Iowa,  232 176,  177,  200,  421,  428,  431 

V,  Strauder,  11  W.  Va.  745,  27  Am.  Rep.  606 348 

V.  Sweet,  21  R.  I.  87,  41  Ati.  1011 10 

V.  Swift,  57  Conn.  496,  18  Atl.  664 179,  180,  186,  378,  459,  562 

V.  Tarr,  28  Iowa,  397 205,  206,  207 

V.  Tatro,  50  Vt.  483 236,  245,  248,  367 

V.  Thiele  ( Iowa)  94  N.  W.  256 350 

V.  Thomas,  Houst.  Crim.  Rep.  (Del.)  511 185.  22.5,  236,  359,  413,  414 

V.  Thompson,  28  Or.  296,  42  Pac.  1002 157 

V.  Thompson,  Wright   (Ohio).  617 236-238 

V.  Till,  Houst.  Crim.  Rep.   (Del.)  233 237 

V.  Tilly,  25  N.  C.  (3  Ired.  L.)  424 367 

V.  Trivas,  32  La.  Ann.  1086,  36  Am.  Rep.  293 239-241 

V.  Trout,  74  Iowa,  545,  7  Am.  St.  Rep.  499,  38  N.  W.  405 350 

V.  Trusty  ( Iowa)  97  N.  W.  989 205 

V.  Turn'..>r,   Wright    \, Ohio)    26 385 

V.  Tyler,  7  Ohio  N.  P.  443,  5  Ohio  S.  &  C.  P.  Dec.  588 179,  197,  320 

T.  Underwood,  28  X.  C.   ( 0  1  rod.  L. )  96 316 


TABLE  OF  CASES  CITED.  exii 

Stat^  V.  Vami,  84  N.  C.  722 218,  219,  221.  SOT 

V.  Van  Tassel,  103  Iowa,  6,  72  N.  Vv .  497 ^«^ 

V.  Wade,  161  Mo.  441,  61  S.  W.  800 175,  207,  221,  337 

V.  Weaver,  35  Or.  415,  58  Pac.  109 246,  247 

V.  Welch.  22  Minn.  22 241,  243 

V.  Wells,  54  Kan.  161,  37  Pac.  1005 237 

V.  Welsh,  109  Iowa,  19,  79  N.  W.  369 293 

V.  Welsor,  117  Mo.  570,  21  S.  W.  443 368,  373,  401 

V.  West,  157  Mo.  309,  57  S.  W.  1071 236 

V.  West,  Houst.  Crim.  Rep.   (Del.)   371..  187,  188,  198,  199,  346,  373, 

460,  461 

V.  White,  14  Kan.  538 240,  242,  244,  251 

V.  White,  10  Wash.  611,  39  Pac.  160,  41  Pac.  442 317,  880 

V.  Williams   (Iowa)   97  N.  W.  992 243,  246 

V.  Williainson,  106  Mo.  162,  17  S.  W.  172..  ..200,  348,  349,  351,  418,  432 

V.  Wilner,  40  Wis.  304 337,  339 

V.  Wilson,  104  N.  C.  868,  10  S.  E.  315. 23.5-237,  244 

V.  Windsor,  5  Harr.   (Del.)   512....  192,  198,  199,  203,  381,  382,  383, 

396,  397 

V.  Winter,  72  Iowa,  627,  34  N.  W.  475 407,  421,  461 

V.  Wright,  134  Mo.  404,  35  S.  W.  1145 186,  222,  346,  347,  349,  357, 

399,  400 

V.  Wright,  112  Iowa,  436,  84  N.  W.  541 373,  379,  380,  381,  386, 

390,  422 

V.  Yarborough,  39  Kan.  581,  18  Pac.  474 200,  203 

V.  Zorn,  22  Or.  591,  30  Pac.  317 186,  187,  246 

State  ex  rel..  Chandler,  45  La.  Ann.  696,  12  So.  884 208,  210,  214,  217,  218 

Blaisdell  v.  Billings,  55  Minn.  467,  43  Am.  St.  Rep.  524,  57  N.  \Y. 

206,    794 144,  171 

Stone  V.  Grand  Lodge,  A.  O.  U.  W.  78  Mo.  App.  546 12 

Yilek  V.  Jehlik,  60  Kan.  301,  61  L.  R.  A.  265,  71  Pac.  572 298 

Kelly  V.  Kilbourne,  68  Minn.  320,  71  N.  W.  396 144,  145 

Board  of  Health  v.  Lederer,  52  N.  J.  Eq.  675,  29  Atl.  444 320 

Kelly  V.  Probate  Court,  83  Minn.  58,  85  N.  W.  917 164 

Setzer  v.  Setzer,  97  Ivi.  C.  252,  2  Am.  St.  Rep,  290,  1  S.  E.  558 50 

Palmer  v.  South,  7  Ohio.  N.  P.  442,  5  Ohio  S.  &  C;  P.  Dee.  588 144 

Kennedy  v.  Uniacke,  48  La.  Ann.  1230,  20  So.  749 170 

State  Bank  v.  McCoy,  69  Pa.  204,  8  Am.  Rep.  246 6,  27 

cStaufier  v.  Young,  39  Pa.  455 384 

Staunton  v.  Parker,  19  Hun,  56 394,  395 

Stebbins  v.  Hart,  4  Dem.  501 100,  115 

Stedham  v.  Stedham,  32  Ala.  525 69,  97,  137 

Steed  V.  Calley,  1  Keen,  620 101,  134,  344,  647 

Steele  v.  Helm,  2  Marv,  (Del,)  237,  43  Atl.  153.  .69,  328,  348,  392,  413,  419,  445 

Stein  V.  Swensen,  46  Minn.  360,  24  Am.  St.  Rep.  234,  49  N,  W.  55 315 

Stephani    Case 970 

Stephen  v.  State,  11  Ga,  225 207 

Stephenson  v,  Stephenson,  62  Iowa,  163,  17  N.  W.  456 328,  452 

Sternbergh  v.  Schoolcraft,  2  Barb.  153 299,  300,  304 

Stevens  v.  Leonard,  154  Ind.  67,  77  Am.  St.  Rep.  446,  56  N.  E.  27.  .131,  375, 

395.  451 


cslii  TABLE  OF  CASES  CITED. 

Stevens  v.  San  Francisco  &  X.  P.  R.  Co.  100  Cal.  554,  35  Pac.  165 279 

V,  State,  31  Ind.  48G,  99  Am.  Dec.  634 178,  190,  192,  197,  352 

V.  Stevens,  127  Ind.  500,  26  N.  E.  1078 156,  161,  344 

V.  Vancleve,  4  Wash.  C.  C.  202 914 

iStevenson  v.  Kingley,  S  Pa.  Dist.  R.  245 74,  127,  369 

V.  Stevenson,  33  Pa.  469 7;; 

Stewart,  Re,  39  X.  Y.  S.  R.  801,  15  N.  Y.  Supp.  GOl 117 

Re,  36  N.  Y.  S.  R.  56,  13  N.  Y.  Supp.  219 76,  128 

V.  Curtis,  85  Mich.  490,  48  X.  W.  872 35 

V.  Elliott.  2  Mackey,  307 68 

V.  Flint,  59  Vt.  144,  8  Atl.  801 13,  340 

V.  Lispenard,  26  Wend.  255 65,  6S.  158,  803,  868,  924,  930,  931 

V.  Redditt,  3  Md.  67 339,  367,  432 

V.  Spedden,  5  Md.  433 420,  458 

V.  State,  58  Ga.  577 3S;; 

V.  Taylor,  23  Ky.  L.  Rep.  577,  03  S.  W.  783 14 1 

Stigers  v.  Drent,  50  Md.  214,  33  Am.  Rep.  317 299,  304 

Stiles  v.  West,  Sid.  PI.  1,  p.  112 40 

Stirling  v.  Stirling,  64  Md.  138.  21  Atl.  273 451 

Stockmeyer  v.  Tobin,  139  U,  S.  176,  35  L.  ed.  123,  11  Sup.  Ct.  Rep.  504 8 

Stokes  V.  Miller,  10  W.  X.  C.  241 92,  99,  334,  432 

V.  Shippen,  13  Bush,  ISO 107,  372,  379 

Stone  V.  Conrad,  105  Iowa,  21,  74  X.  W.  910 20s 

V.  Damon.  12  Mass.  487 38,  157,  158,  33;: 

V.  Wilbern,  S3  III.  105 13  14 

Storer,  Re,  28  Minn.  9,  8  X.  W.  827 110,  397,  40S 

Storey,  Re,  20  111.  App.  183 67,  76,  SO,  89,  101,  104,  124,  451 

Storiek,  He,  64  Mich.  685,  31  X.  W.  5S2 148-15(;- 

Storniont  v.  Waterloo  Life  i  C.  Assur.  Co.  1  Fost.  &  F.  22 260,  269,  330 

Storrs  V.  Scougale,  48  Mich.  387,  12  N.  W.  502 20 

Story  V.  Norfolk  &  S.  R.  Co.  133  X.  C.  59,  45  S.  E.  349 387 

Stoutenburgh  v.  Hopkins,  43  N.  J.  Eq.  577,  12  Atl.  689 72,  70,  130 

Stover  V.  Com.  92  Va.  780,  22  S.  E.  874 21!.= 

Strand  v.  Chicago  &  W.  M.  R.  Co.  67  Mich.  380,  34  X.  W.  712 280,  284 

Strang  v.  People,  24  Mich.  1 317 

Stratford  v.  Stratford,  92  X.  C.  297 52,  55,  5(5 

Strutton  Claimants  v.  Morris  Claimants,  89  Tenn.  497,  12  L.  R.  A.  70,  15  S. 

W.  87    07 

Streeter  v.  Western  Union  ilut.  Life  &  Acci.  Soc.  65  Mich.  199,  8  Am.  Rep. 

882,  31  N.  W.  779 265.  2Gs 

StreifT,  Re   (Wis.)   97  N.  W.  189 147-150 

Streitwolf  v.  Streitwolf   (X.  J.  Eq.)   47  Atl.  14 60 

Strickland  v.  Parlin  &  O.  Co.  (Ga.)   44  S.  E.  997 24,  29 

Stringfellow  v.  Hanson,  25  Utah,  480,  71  Pac.  -1052 13,  14,  34 

Stuart  v.  Machias  Port,  48  Me.  477 281,  286-288,  290 

v.  State,  1  Ba.\t.  17S 184,  186,  187,  234,  235 

Stubbs  V.  Houston,  33  Ala.  555 66,  67,  69,  364,  374,  376,  427,  430 

Stuckey  v.  Eellah,  41  Ala.  700 4.53,  458 

v.  Mathes,  24  Hun,  461 41,  49,  935 

StudKtill  v.  State,  7  Ca.  2 170 

StuU  v.  gtull   (Neb.)  96  X.  W.  190 76,  8^ 


TABLE  OF  CASE8  CITED.  cxliii 

•Stulz  V.  Scliaeffie,  IS  Eng.  L.  &  Eq.  Rep.  .570,  10  Jur.  909 91,  93 

Stuniph  V.  Millor,  142  Ind.  442,  41  N.  E.  812 420,  430 

Stuidevaiit's  Appeal,  71  Conn.  392,  42  Atl.  70 69,  106,  328 

Stuyvesant  v.  Wilcox,  92  Mich.  228,  52  N.  W.  017 105 

Sullivan  v.  Flynn,  9  Mackey,  390 160 

V.  IMurphy,  2    Miles  { Pa. )  29S 277 

V.  Old  Colony  R.  Co.  148  Mass.  119,  1  L.  R.  A.  513,  18  N.  E.  078 285 

V.  Wilson,  101  Ky.  427,  41  S.  W.  200 302 

Suanners  v.  Copeland,  125  Ind.  466,  25  N.  E.  555 303,  304 

Suppiger  v.  Covenant  Mut.  Ben.  Asso.  20  111.  App.  595 204 

Supreme  Commandery,  K.  of  G.  R.  v.  Ainsworth,  71  Ala.  430,  40  Am.  Rep. 

332 204 

Sutherland,  Re,  28  :Misc.  424,  59  N.  Y.  Supp.  989 . 08,  94,  90,  120 

V.  Hankins,  50  Ind.  343 432 

V.  Standard  Life  &  Acci.  Ins.  Co.  87  Iowa.  505,  54  N.  W.  453 274 

Sutton  V.  Morgan,  30  N.  J.  Eq.  629 443,  450 

V.  Saciler,  3  C.  B.  N.  S.  87,  26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  S.  11.50, 

5  Week.  Rep.  880 134,  323.  330,  331,  330,  345,  365,  360 

.V.  Sutton,  5  liarr.   (Del.)  459 09,  70,  90,  370,  378,  380 

Suydam,  Re,  84  Hun,  514,  32  N.  Y.  Supp.  449,  Allirmed  in  152  N.  Y.  039,  40 

N.   E.    1152 85,  86 

Swails  V.  White,  149  Pa.  201,  24  Atl.  292 362 

Swan  V.  State,  4  Humph.  130 239,  240,  240 

Swank  v.  Swank,  37  Or.  439,  61  Pac.  846 13,  14,  34 

Swayze  v.  Swayze,  37  N.  J.  Eq.  ISO 323 

Sweeney,  Re,  81  App.  Div.  231,  81  N.  Y.  Supp.  47 145 

Swenarton  v.  Hancock,  9  Abb.  N.  C.  326 103,  448 

Svvick  v.  Home  L.  Ins.  Co.  2  Dill.  160,  Fed.  Cas.  No.  13,692 270,  273 

Sydncr  v.  Cunningham,  13  Ky.  L.  Rep.  24,  16  S.  W.  130 417,  452 

Symes  v.  Green,  1  Swabey  &  T.  401,  5  Jur.  N.  S.  742,  28  L.  J.  Prob.  N.  S. 

83 , 87,  106,  107,  135,  330,  332 

Symm  v.  Fraser,  3  Fost.  &  F.  859 173 


T 

Tabb  V.  Gist,  6  Call   ( Va. )  279 302 

Tacke,  Re,  17  N.  Y.  S.  R.  805,  3  N.  Y.  Supp.  198 110 

Tali'  v.  Hosmer,  14  Mich.  300 332 

Taffe  V.  State,  23  Ark.  34 207,  208,  211,  952 

Taggard  v.  Innes,  12  U.  C.  C.  P.  77,  1  Hale  P.  C.  15,  1  Hank  P.  C,  chap.  1,  § 

5,    Baron  Abr 275 

Talbot  V.  Chamberlain,  149  Mass.  57,  3  L.  R.  A.  254,  20  N.  E.  305 294 

Tallman's  Estate,  31  Pa.  359,  23  Atl.  986 99 

Tally  V.  Smith,  1  Coldw.  290 17,  19,  20 

Tasker's  Estate,  205  Pa.  455,  55  Atl.  24 94,  95 

Tatham  v.  Wright,  2  Russ.  &  M.  1 420,  434,  911,  912,  932 

Tawney  v.  Long,  76  Pa.  100 76,  82,  91 

Taylor,  Re,  1  Edm.  Sel.  Cas.  375 158,  333 

Re,  92  Cal.  564,  28  Pac.  003 456 


exliv  TABLE  OF  CASES  CITED. 

Taylor  v.  Atwood,  47  Conn.  498 19 

V.  Barker,  20  Ky.  L.  Rep.  582,  47  S.  W.  217 146 

V.  Com.  109  Pa.  2G2 .  179,  199,  203,  205,  213,  549,  560,  836 

A-.  Creswell,   45   Md.   422 338-340 

V.  Kelly,  31  Ala.  59,  68  Am.  Dec.  150 76,  128 

V.  Moore,  23  Ky.  L.  Rep.  1572,  65  S.  W.  612 .  150 

V.  Patrick,  1  Bibb.  168 12,  18,  27 

V.  Piucell,  60  Ark.  606,  31  S.  W.  567 27 

V.  State,  105  Ca.  746,  31  S.  E.  764 185,  19S 

V.  State,  S3  Ga.  647,  10  S.  E.  442 395,  430 

V.  Trich,  165  Pa.  586,  44  Am.  St.  Rep.  679,  30  Atl.  1053.  . .  .77,  83,  80, 

89,  457 

V.  United  States,  7  App.  D.  C.  27 227,  428,  430 

Tebout  Case,  9  Abb.  Pr.  211 163 

Teegarden  v.  Lewis,  145  Ind.  98,  40  N.  E.  1047,  44  N.  E.  9 140,  325,  328 

Temple  v.  Temple,  1  Hen  &  M.  476 94,  96,  108,  120,  138,  331,  332,  357 

Tenbrook  v.  Lee,  5  Clark   (Pa.)   37 75 

Territory  v.  Davis  (Ariz.)   10  Pac.  359 231,  234,  459 

V,  Davis  (Ariz.  Super.  Ct.)  6  Lawson  Crim.  Def.  636 231,  248 

V.  Duran,  3  N.  M.  194,  3  Pac.  53 873 

V.  Franklin,  2  X.  M.  307 236,  237,  245,  316 

V.  Hart,  7  Mont.  489,  17  Pac.  718 419,  421 

V.  Manton,  8  Mont.  95,  19  Pac.  387 236,  237,  256 

V.  Padilla,  8  N.  M.  510,  46  Pac.  346 312,  313,  436 

v.  Roberts,  9  Mont.  12,  22  Pac.  132 426 

Terry  v.  Buaington,  11  Ga.  337,  56  Am.  Dec.  423.  .74,  118,  119,  342,  361,  362,  800 

V.  Life  Ins.  Co.  1  Dill.  403,  Fed.  Cas.  No.  13,839 263 

Te.xas  &  P.  R.  Co.  v.  Edmond  (Tex.  Civ.  App.)  29  S.  W.  518 281 

Texas  Mut.  L.  Ins.  Co.  v.  Davidge,  51  Tex.  244 ' 389 

Thayer  v.  Boyle,  30  Me.  475 317 

v.  Thayer,  9  R.  I.  377 45,  46,  55,  412 

Thomas  v.  Carter,  170  Pa.  272,  50  Am.  St.  Rep.  770,  33  Atl.  81 79,  82,  108 

v.  Hatch,  3  Sumn.  170,  Fed.  Cas.  No.  13,899 384 

v.  Hunsucker,  108  N.  C.  720,  13  S.  E.  221 301 

V.  State,  40  Te.x.  60 180,  426 

V.  State,  7 1  Miss.  345,  15  So.  237 226 

v.  Stump,  62  Mo.  275 110,   114,   130,  379 

Thomas's  E.statc,  20  W.  N.  C.  336 136 

Thomasson  v.  Kercheval,  10  Humph.  322 155 

Thompson,  Re,  16  Montg.  Co.  L.  Rep.  102 164 

v.  Bowie,  4  Wall.  463,  18  L.  ed.  423 388 

v.  Davitte,  59  Ga.  472 91 

v.  Hawks,  11  Biss.  440,  14  Fed.  902 89 

V.  Ish,  99  Mo.  160,  17  Am.  St.  Rep.  552,  12  S.  W.  510.. 76,  119,  367, 

371,  383,  394 

V.  Kyner,  65  Pa.  368 67-69,  72,  74,  76,  91,  95,  108,  110,  118,  122, 

130,  335,  340,  341,  369,  797,  800,  802,  803,  804,  914,  927,  928,  930 

V.  j:x?ach,  3  Salk.  300,  Comb.  468,  3  Mod.  301,  2  Ventr.  198 6,  9,  940 

.     V.  Quimby,  2  Bradf.  449 88,  89 

T.  Stat<>,  33  Tex.  Crim.  Rep.  472,  26  S.  \V.  987 206 

v.  Tliorap.son,   13  Ohio  St.  356 ^69 


TABLE  OF  CAS]']S  CITED.  cxIt 

Thompson  v.  Thompson,  21  Barb.  107 83,  88 

V.  Updegraff ,  3  W.  Va.  029 3G5,  360 

Thompson's  Case,  2  Lewin,  C.  C.  137 873 

Thomson,  Re,  92  Me.  563,  43  Atl.  511 329 

Thoni  V.  Thorn,  51  Mich.  167,  IG  N.  W.  324 iil 

Thornton  v.  Thornton,  39  Vt.  122 103,  115,  372,  405,  449-452 

Thorp  V.  Amos,  1  Sanclf.  Ch.  20 i41 

V.  Brookfield,  36  Conn.  320 286,  290 

Thorpe  v.  Hanscom,  64  Minn.  201,  66  N.  W.  1 7,  156,  157 

Thrash  v.  Starbuek,  145  Ind.  673,  44  N.  E.  543 « 

rhurman  v.  State,  32  Neb.  224,  49  N.  W.  33S 194 

Tidwell  V.  State,  70  Ala.  33 241,  244 

I  iflany  v.  Tiffany,  84  Iowa,  122,  50  N.  W.  554 51,  53 

rilhnan  v.  Hatcher,  1  Rice,  L.  271 97,  99,  913 

Tilton  V.  Tilton,  16  Ky.  L.  Rep.  538,  29  S.  W.  290 50 

ringley  v.  Cowgill,  48  Mo.  291 92,  93,  110,  329,  335,  367,  397,  398 

rippett  V.  State,  37  Tex.  Crim.  Rep.  186,  3  S.  W.  120 254 

Titcomb  v.  Vantyle,  84  111.  371 4,  13,  19,  147,  321,  324,  344 

Titlow  V.  Titlow,  54  Pa.  216,  93  Am.  Dec.  691 155,  159,  329,  366,  369,  372, 

434,  446 

Titus  V.  Gage,  70  Vt.  14,  39  Ath  246 374,  382 

I'obin  V.  Jenkins,  29  Ark.  151 68,  90,  91,  93,  108,  111,  361,  303,  371,  375 

Todd  V.  Fenton,  60  Ind.  25' 91,  1 10,  366 

roledo,  r.  &  W.  R.  Co.  v.  Riley,  47  111.  514 ' 283 

rome  V.  Stump,  89  Md.  264,  42  Atl.  902 164 

Uomkins  v.  Tomkins,  1  Bail.  L.  92,  19  Am.  Doc.  656.  .  .67,  75,  105,  107,  117, 

124,  334,  413 

Tomlinson,  Ex  parte,  1  Ves.  &  B.  57,  12  Revised  Rep.  191 156 

V.  Devore,  1  Gill,  348 . ' 301 

V.  Tomlinson,  103  Iowa,  740,  72  N.  ^\.  604 17 

Tompkins  v.  Oswego,  40  N.  Y.  S.  R.  4,  15  N.  Y.  Supp.  371 281,  288 

Toomes's  Estate,  54  Cal.  516,  35  Am.  Rep.  83 361,  403 

Topeka  Water  Supply  Co.  v.  Root,  56  Kan.  187,  42  Pac.  715 157 

Topshara  v.  Chelsea,  60  Vt.  219,  13  Atl.  861 294,  322 

Totten,  Re,  21  N.  Y.  S.  R.  950,  3  N.  Y.  Supp.  153 804 

Towart  v.  Sellare,  5  Dow  P.  C.  231 11,  15,  33,  34,  448,  498,  932 

Townsend  v.  Bogart,  5  Redf.  93 66,  70,  71,  118,  160 

V.  Pepperell,  99  Mass.  40 294,  383,  406,  436 

V.  Price,  19  Wash,  415,  53  Pac.  668 303 

Townshend  v.  Townshend,  7  Gill,  10 81,  98,  339,  341,  343,  422,  426,  458 

V.  Townshend,  9   Gill,   506 370,  452 

Tozer  v.  Saturlee,  3  Grant,  Cas.  162 11,  159,  166,  167,  942 

Tracy,  Re,  11  N.  Y.  S.  R.  103 86,  110,  120 

Re,  1  Paige,  580 162,   164-166 

V.  Sacket,  1  Ohio  St.  54,  59  Am.  Dec.  610 19,  20 

Travelers'  Ins.  Co.  v.  McConkey,  127  U.  S.  661,  32  L.  ed.  308,  8  Sup.  Ct.  Rep. 

1360 265 

Trezevant  v.  Rains,  85  Tex.  329,  23  S.  W.  890 73,  75,  97,  110 

Tribe  v.  Tribe,  13  Jur.  733 92 

Trice,  Ex  parte,  53  Ala.  546 169,  208,  213,  217,  222 

Vol.  I.  Med.  Jue. — rx. 


oxlvi  TABLE  OF  CA8E8  CITED. 

Trigg  V.  .State,  49  Tox.  045 292,  293 

Trimbo  v.  Trimbo,  47  Minn.  389,  50  N.  W.  350 5,  12,  340 

Tiish  V.  Newell.  62  III.  19li,  14  Am.  Rep.  79 67,  69,  71,  335,  341 

Tritehler  v.  Jie.ystone  Mut.  Ben.  Asso.  5  Northampton  Co.  Rep.  301 265 

True  V.  Ranney,  21  N.  11.  52,  53  Am.  Dee.  104 43,  44 

Truitt  V.  Cullen,  3  Penn.  (Del.)  311,  50  Atl.  174 95 

Tucker  v.  Hyatt,  151  Ind.  332,  44  L.  R.  A.  129,  51  N.  E.  400 275 

V.  Shaw.  158  111.  320,  41  iV  E.  914 SOS,  31.3,  314 

V.  United  States,  151  U.  S.  164,  38  L.  ed.  112,  14  fJup.  Ct.  Rep.  299.  .  244 

Tudor  V.  Tudor,  17  B.  Mon.  383 , 377 

Tuincll  V.  Constable,  3  Knapp,  P.  C.  122 74 

Tuile  V.  Hart,  71  App.  Div.  619,  75  N.  Y.  Siipp.  1098 14,  321,  323 

Tuni?on  v.  Tunison,  4  Bradf.  138 106,  367 

Turing,  Ex  parte,  1  Ves.  &  B.  1 40 41,  48 

Turner  v.  Clieesraan,  15  N.  J.  Eq.  243 09,  70,  94,  95,  337,  338,  362,  449,  913 

V.  Couk,  36  Ind.   129 335,  366 

V.  Hand,  3  Wall.  Jr.  120,  Fed.  Cas.  No.  14,257 37,  87,  88,  117 

V.  Houpt,  53  N.  J.  Eq.  526,  33  Atl.  28 5 

V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  23  Mo.  App.  12 428,  431 

V.  Meyers,  1  Hagg.  Consist.  Rep.  414 40-42,  46-4S 

V.  Rusk,  53  Md.  65 19,  32,  S3,  88,  98,  338,  339,  378,  341 

V.  Turner,  1   Litt.    ( Ky. )    102 322 

V.  Union  Nat.  Bank,  10  Utah,  77,  37  Pac.  95 .  .  .' 20 

V.  Utah  Title  Ins.  &  T.  Co.  10  Utali,  01,  37  Pac.  91 20 

Turners  Appeal,  72  Conn.  305,  44  Atl.  310 75,  417,  424,  425,  456 

Case,  Cited  in  Shelford,  on  Lvmatics,  409 217 

Tyler  v.  Gardiner,  35  N.  Y.  559 93 

Tyra  v.  Com.  2  Met.   (Ky.)    1 250 

T^son  V.  Tyson,  37  Md.  567 08,  91,  805,  927,  930 


XJ 

Ulmer's  Appeal   (Pa.)   11  Cent.  Rep.  403,  12  Atl.  686 99,  103,  448 

Underhill,  Be,  21  Ohio,  L.  J.  279 137,  886 

Underwood,  Re,  30  Mich.  502 221 

V.  People,  32  Midi.  1,  20  Am.  Rep.  033 170.  209,  222 

Union  Cent.  L.  Ins.  Co.  v.  Hollowell,  14  Ind.  App.  Oil,  43  N.  E.  277 205 

Union  Mut.  L.  Ins.  Co.  v.  Payne.  45  C.  C.  A.  193,  105  Fed.  172 265 

V.  Rcif,  36  Ohio  St.  596,  38  Am.  Rep.  613 270,  271 

Union  P.  R.  Co.  v.  Diehl,  33  Kan.  422,  6  Pac.  506 288 

United  Brethren  Mut.  Aid  Soc.  v.  O'liara,  120  Pa.  250,  13  Atl.  932.  .271,  389,  460 

United  States  v.  Bowen,  4  Cranch  C.  C.  604,  Fed.  Cas.  No.  14,629 250 

V.  Clarke,  2  Cranch  C.  C.  158,  Fed.  Cas.  No.  14,811 231,  232 

V.  Claypool,    14   Fed.    127 238,  255 

V.  Cornell,  2  Mason,  91,  Fed.  Cas.  No.  14,868 176,   177,  238 

V.  Dr(!W,  5  Mason,  28,  Fed.  Cas.  No.  14,993 231.  234,  775 

V.  Faulkner,  35  Fed.  730 176,  177,  187,  200,  201,  204,  400 

V.  Forbes,  Ciabbe,  558,  Fed.  Cas.  No.  15,129 231,  234,  238 

V.  (Jerman,   ]  15   Fed.  987 214 


TABLE  OF  CASES  CITED.  cxlvii 

United  Stales  v.  Guiteau,  1  Mackoy,  498,  47  Am.  Rep.  247 200,  375,  408, 

425,  435,  158 

V.  Haskell,  4  Wasli.  C.  C.  402,  Fed.  Cas.  No.  i5,.321 307 

V.  Hewson,  Bruiiner,  7   Law  Hep.  3G1,  Col.  Cas.  532,  Fed.   Cas.   No. 

15,3C0    198,   023,  725 

V.  Holmes,  1  ClilL  98,  Fed.  Cas.  No.  15.382 ..  .190,  191,  200,  202,  3G4. 

3(55,  373,  375,  441,  721 

V.  King,  34  Fed.  302 182,   192,  250 

V.  Lancaster,  7  Biss.  440,  Fed.  Cas.  No.  15,555 207,  211.  218,  320, 

353,  952 

V.  Lawrence,  4  Cranch  C.  C.  514,  Fed.  Cas.  No.  15,576 326 

V.  Lea,  4  Mackey,  489,  54  Am.  Rep.  293 195,  223 

V.  McGlue,  1  Curt.  C.  C.  1,  Fed.  Cas.  No.  15,679 232,  234,  236,  347, 

357,  398,  408 

V.  Meagher,  37  Fed.  S75 240,  244 

V.  Ridgeway,  31   Fed.   144 190,   192,  226 

V,  Roudcnlmsh,  Baldw.  514,  Fed.  Cas.  No.  16,198 243 

y.  Sharp,  Pet.  C.  C.  118,  Fed.  Cas.  No.  16,264 371 

V.  Shiilts,  6  McLean,  122,  Fed.  Cas.  No.  16,280,  185,  202,  203,  224,  225,  414 

V.  Young,  25  Fed.  710 177,  188,  200,  201,  22(1 

Unity  V.  Belgrade,  76  Me.  410 41,  45,  48,  50 

Upstone  V.  People,  109  HI.  169 231,  23G,  237,  241,  355,  356,  380 


Valpey  v.  Rea,  130  Mass.  384 7,  10 

Van  Alst  v.  Hunter,  5  Johns.  Ch.  148 75,  76,  127,  927 

Van  Alstine,  Re  (Utah)  72  Pac.  942 329,  330,  392.  394,  419,  425,  45S 

Vanauken,  Re,  10  N.  J.  Eq.  186 128,  144,  151,  152,  171,  418,  420,  422,  440 

Vance  v.  Com.  2  Va.  Cas.  132 185,  203.  361 

V.  Up^on,  66  Tex.  476,  1  S.  W.  179.  .68,  82,  97,  105,  107,  112,  329,  330, 

338,  345,  363.  371,  375,  378,  397,  457 

V.  Vance,  74  Ind.  370 383 

Van  Dusen  v.  Newcomer,  40  Mich.  90 109,  170,  372,  971 

V.  Rowley,  S  N.   Y.  358 139 

V.  Sweet,  51  N.  Y.  378 9,   13,  38,   154,  158 

Vane  v.  Vane,  L.  R.  2  Ch.  Div.   124 146 

Van  Guysling  v.  Van  Kviren,  'So  N.  Y.  70 71 

Van  Horn  v.  Hann,  39  N.  J.  L.  207 10,  11,  30 

V.  Kcenan,  28  111.  448 14,  28,  414 

Van  Huss  v.  Rainbolt,  2  Coldw.  139 430,  446 

Vann  v.  State,  83  Ga.  44,  9  S.  E.  945 239,  249 

Van  Pelt  v.  Van  Pelt,  30  Barb.  134 109,  1 10,  324 

Vanvalkenberg  v.  Vanval  ken  berg,  90  Ind.  433 412 

Van  Valkenburgh  v.  American  Popular  L.  Ins.  Co.  9  Hun,  583 270,  357 

Van  Wyck  v.  Brasher,  81  N.  Y.  260 28 

Van  Zandt  v.  Mvitual  Ben.  L.  Ins.  Co.  55  N.  Y.  169,  l4  Am.  Rep.  21 5.. 261, 

262,  264,  454 

Vamer  v.  Varner.  16  Ohio  C.  C.  386 372.  381 

Vamum,  Re,  70  Vt.   147,  40  Atl.  43 161 


cxlviii  TABLE  OF  CASES  CITED. 

VeJdor,  Re,  C  Dem.  92 83,  89,  840,  923 

Vick  V.  Volz,  47  La.  Ann.  42,  16  So.  568 = 301 

Vinton  v.  Middlesex  R.  Co.  11  Allen,  304,  87  Am.  Dec.  714 285 

Violet's  Will,  1  Bibb,  617 94,  105,  120 

Virginia  Midland  E.  Co.  v.  Boswell,  82  Va.  932,  7  S.  E.  383 282 

Vogleson^''s  Eskite,  19G  Pa.  194,  46  Atl.  424 114 

Von  Dc  Veld  v.  Judv,  143  Mo.  348,  44  S.  W.  1 117 08,  337,  339,  362 


Waehliolz  v.  Wachholz,  75  Wis.  375,  44  N.  W.  506 60 

Waddell  v.  Waddell,  2  Swab.  Eq.  &  T.  584,  31  L.  J.  Prob.  N.  S.  123,  8  Jur. 

N.  S.  62.3,  6  L.  T.  N.  S.  552 60 

Waddington  v.  Bui:by,  45  N.  J.  Eq.  173,  14  Am.  St.  Rep.  706,  16  Atl.  690.  .  .  75 

Wade  V.  Colvert,  2  Mill  Const.  27,  12  Am.  Dec.  652 25,  28,  29 

V.  Holbrook,  2  Redf.   378 72,  75 

V.  State,  37  Ind.  180,  10  Am.  Rep.  86 337,  338 

Wadsworth  v.  Sharpsteen,  8  N.  Y.  388,  59  Am.  Dec.  499 156,  157,  166,  167 

V.  Sherman,  14  Barb.  171 38,  156,  16(; 

Wagener  v.  Harriott,  20  Abb.  N.  C.  283 39 

Wager  Re,  6  Paige,   11 152,  162 

V.  Rcid,  3  Thomp.  &  Co.  332 24,  28,  30 

V.  Wagoner,  53  Neb.  511,  73  N.  W.  937 5 

Wagner  v.  People,  2  Keyes,  684 184 

Wainwright's  Appeal,  89  Pa.  220 94,  123 

Wait  V.  Breeze,  18  Hun,  403 94 

V.  Westfall   ( Ind. )   68  N.  E.  271 82,  333 

Waite  V.  Maxwell,  5  Pick.  217,  16  Am.  Dec.  391 156 

Walcot  V.   Alleyn,  Milward,   65 88 

Waleott  V.  Metropolitan  L.  Ins.  Co.  64  Vt.  221,  33  Am.  St.  Rep.  923,  24  Atl. 

992 646 

Walker,  Re,  57  App.  Div.  1,  67  N.  Y.  Supp.  647 171 

V.  Clay,  21   Ala.   797 299,  361 

V.  Davis,  1  Gray,  506 24 

V.  Hunter,   17   Ga.  413 920 

V.  Jones,  23  Ala.  448 369 

V.  People,  88  N.  Y.  81 175,  200,  203,  327,  353,  355 

V.  People,   26   Hun,   67 184.   187.  326,  327,  352,  353,  355 

V.  State,  46  Neb.  25,  64  N.  W.  357 215 

V.  State,  85  Ala.  7,  7  Am.  St.  Rep.  17,  4  So.  686.  , 251 

V.  State,  91  Ala.  76,  9  So.  87 245 

V.  State,  97  Ala.  85,  12  So.  83 308,  309,  312 

V.  Stiite,  102  Ind.  502.  1  N.  E.  856 189,  197,  199,  383 

V.  Walker,  34  Ala.  469 445,  456 

V.  Walker,   3   111.   291 448 

V.  Walker,   14   Ga.  242 447 

Wall  V.  Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578 38,  154-156.  158.  159,  162, 

323,  344,  350 

Wallace  v.  Frey,  27  Misc.  29,  56  N.  Y.  Supp.  1051 156,   .  157 


TABLE  OF  CASES  CITED.  cxiix 

Wallace  v.  Whitman,  201  111.  59,  06  N.  E.  311 433,  434 

Wallis  V.  Hodgeson,  2  Atk.  .50 910 

V.  Luhring,  134  Ind.  447,  34  N.  E.  231 320,  337,  368 

V.  Manhattan  Co.  2  Hall,  495 23 

Walsh  V.  Consumnes  Tribe,  j\o.  14  I.  0.  R.  M.  108  Cal.  490,  41  Pae.  418  267 

V.  People,  88  N.  Y.  458 381,  382,  741 

V.  Porterlield,  87   Pa.   370 280 

Walter  v.  People,  32  N.  Y.  147 327,  353 

Walther,  Re,  20  N.  Y.  S.  R.  427,  7  N.  Y.  Supp.  417 110 

Walton  V.  Nortliington,  5  Sneed.  282 20,  34 

V.  Walton,  34  Kan.  195,  8  Pae.  110 57,  58,  165 

Wampler  v.  Warapler,  9  Md.  540 133 

Ward  V.  Brown   (W.  Va.)   44  S.  E.  488..  120,  364,  413,  415,  416,  443,  451,  452 

V.  Chicago,  St.  P.  M.  &  ().  R.  Co.  85  Wis.  601,  55  N.  W.  771 281,  283 

V.  Conatser,  4  Baxt.  64 275 

V.  Dulaney,  23  Miss.  410 40,  41,  43-46 

V.  State,  19  Tex.  App.  664 231,  232,  2.54,  339 

Ware  v.  Ware,  S  Me.  42 97,  309.  370,  383,  434,  439 

Waring  v.  Waring,  12  Jur.  947,  6  Moore,  P.  C.  C.  341 80,  81,  341 

V.  Waring,  6  Moore,  P.  C.  C.  341,   12  Jur.  947 77,  78,  499,  548, 

649,  693,  739,  835,  919,  921,  931 

Warlick  v.  Plonk,  103  N.  C.  81,  9  S.  E.  190 295,  290 

Warner  v.  New  York  C.  R.  Co.  44  N.  Y.  405 388 

V.  State,  114  Ind.  137,  16  N.  E.  199 175,  189,  418 

V.  State,  56  N.  J.  L.  680,  44  Am.  St.  Rep.  415,  29  Atl.  505 245 

Warnock  v.  Campbell,  25  N.  J.  Eq.  485 28,  142 

Warren  v.  Com.  37  Pa.  45 308,  387,  978 

V.  O'Connell,  23  Ky.  L.  Rep.  202,  62  S.  W.  890 107 

V.  State,  9  Tex.  xVpp.  619,  35  Am.  Rep.  745 ISO,  198,  300 

Wartemberg  v.  Spiegel,  31  Micli.  402 20,  324 

Wartena  v.  State,  105  Ind.  445,  5  S.  W.  20 176 

Waskam  v.  Waskam,  31  Miss.   154 00 

Waterman  v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71 .365-367 

Waters  v.  Connecticut  Mut.  L.  Ins.  Co.  2  Fed.  892 263,  204,  330 

V.  Cullen,  2  Bradf .  354 102 

V.  Taylor,  2  Ves.  &  B.  299,  13  Revised  Rep.  91 21 

V.  Waters,  .35  Md.  531 328,  33.5,  370,  379,  383,  418,  432,  458 

Watson,  Re,  34  X.  Y.  S.  R.  900,  12  ISi".  Y.  Supp.  115 94 

V.  Anderson,  1 1  Ala.  43 33,  374,  435 

V.  Anderson,    13   Ala.    202 415 

V.  Donnelly,  28   Barb.   653 109,  128 

V.  Smith,   7   Or.   448 IS 

V.  Watson,  2  B.  Mon.  74 105 

Watson's  Case,  Times,  Jan.   13th,   1872 202 

Interdiction,  31  La.  Ann.  757 146,  150,   153,  413 

Watt  V.  Brookover,  35  W.  Va.  323,  29  Am.  St.  Rep.  811,  13  S.  E.  1007 299 

Watts,  Re,  1  Curt.  Ecel.  Rep.  594 162 

V.  Bullock,   1   Litt.    (Ky.)    252 76 

Waugh  V.  Moan,  200  111.  298,  65  N.  E.  713 72,  114.  374 

Wax,  Re,  106  Cal.  343,  39  Pae.  624 372,  383,  422,  425,  420 

Waymire  v.  Jetmore,  22  Ohio  St.  271 41,  48 


d  TABLE  OF  CASES  CITED. 

Weaver,  Re,  1 IG  Pa.  225,  9  Atl.  323 151 

V.  Brenner,  145  Pa.  299,  21  Atl.  1010 300 

V.  Ward,  Hob.  134 275 

V.  Weaver,  20  Pa.  Co.  Ct.  392,  28  Pittsb.  L.  J.  N.  S.  367.  .7,  503,  801,  91.3 

Webb  V.  State,  5  Tex.  App.  .596 20,  188,  341,  343,  351 

V.  State,  9  Tex.   App.  490 .*.  .  .  351,  355,  397-400 

Webber  v.  Com.  119   Pa.  223,  4  Am.  St.  Rep.  G.34,  13  Atl.  427 ...  .212-214, 

217,  220,  3G3,  548,  836,  837,  949,  951,  953,  954,  959 

V.  Sullivan,  58  Iowa,  260,  12  N.  W.  319 G9,  70,  72,  87 

Webber  Case.     See  Webber  v.  Com. 

Weber  v.  Weitling,   18  N.  J.  Eq.  441 299,  300 

Webster  v.   Wootlford,  3   Day,   90 <• 

Weed  V.  Mutual  Btn.  L.  Ins.  Co.  3  Jones  &  S.  38G 26S 

V.  Mutual  Bon.  L.  Ins.  Co.  70  N.  Y.  561 114,  261,  26.^^ 

Weeks  v.  New  Orleans  &  C.  R.  Co.  32  La.  Ann.  615 282,  283,  28(i 

Weeras  v.  Weenis,  19  Md.  334 74,  425,  427 

Weil,  Re,  16  N.  Y.  S.  R.  1,  1  N.  Y.  Supp.  91 lOS 

Weir  V.  Fitzgerald,  2  Bradf.  42 125,   133,  324 

Weir's  Will,  9  Dana,  434 88,   105,   106,  108,   111,  134,  37! 

Weisman,  Re,  45  Phila.  Leg.  Int.  274 9."- 

Weisman  s  Estate,  5  Pa.  Co.  Ct.  561 9(i 

Welch,  Re,  108  Wis.  387,  84  N.  W.  550 152,  431 

V.  Stipe,  95  Ga.  762,  22  S.  E.  670 429 

v.  W are,  32  :\Iieli.  77 176,  177 

Weld  V.  Sweeney,  85  ill.  50 102,  44!) 

Wellman,  Re,  3  Kan.  App.  100,  45  Pac.  726 171 

Wells,  Re,  96  Me.  161,  51  Atl.  968 103,  113 

Welsh  v.  Stipe,  05  Ga.  762,  22  S.  E.  670 42S 

Welty  V.  Indianapolis  &  V.  R.  Co.  105  Ind.  55,  4  N.  E.  410 280 

Wenciel,  Re,  33  Misc.  532,  68  N.  Y.  Supp.  904 , 14fi 

Wendell,  Re,   1  Johns.  Ch.  600 146,  154 

Wenman's  Case,  3  Atk.   173 864 

Case,   1   P.  Wins.  701 ." 154 

Wenz  V.  State,  1  Tex.  App.  36 242 

Werner  v.  Citizens'  R.  Co.  SI  Mo.  363 287,  28S 

Werstler  v.  Custer,  46  Pa.  502 329,  331,  332 

Wertz  V.  Wertz,  43  Iowa,  534 51,  5:! 

Wesley  v.  State,  37  Miss.  327,  75  Am.  Dec.  62 , 194 

West  Chicago  Street  R.  Co.  v.  Fishman,  169  HI.  196,  48  N.  E.  447,  AfTirming 

68  111.  App.  445    411,  421,  422 

Westcott  V.  Sheppard,  51  N.  J.  Eq.  315,  30  Atl.  428 72,  76 

\^'estniore  v.  SlieDield,  56  Vt.  239 294,  440,  45G 

Westmoreland  v.  State,  45  Ga.  225 35.1 

Weston  V.  Higgins,  40  Me.   102 337,  339,  340 

Westover  v.  /Etna  L.  Ins.  Co.  99  N.  Y.  56,  52  Am.  Rep.  1,  1  N.  E.  104.  .394. 

395,  424 

Wetherbec  v.  Wetherbee.  38  Vt.  45 1 397,  405,  40G 

Wetmore,  Re,  6  Wash.  271,  33  Pac.  615 165 

W^clter  V.  Habersham,  60  Ga.  194 79,  329 

Wennirc  v.  Wolfe,  52  Iowa,  533,  3  N.  W.  541 281,  282 

Wlialen  V.  St.  Louis,  K.  C.  &  N.  R.  Co.  60  Mo.  323 2«i 


TABLE  OF  CASES  CITED.  di 

Wheeler,  He,  5  :Misc.  279,  25  N.  Y.  Supp.  313 72,   127,  322 

V.  Alderson.  3  Hagg.  Ecd.  Rep.  602 11.  73,  95,   118,  120,  358, 

419,  448,  781 

V.  Alderson,    3  Hagg.  Eccl.  Rep.  574 119 

v.  State,  153  Ind.  087,  63  N.  E.  975. 3.52,  355,  394,  406,  411,  434 

V.  State,   34   Ohio   St.   394,   32   Am.   Rep.  372 39,  384.  385 

V.  Wheeler,  53  Iowa,  511,  36  Am.  Rep.  240,  5  N.  W.  689 60 

Wheeloek  v.  Godfrey,  100  Cal.  578,  35  Pac.  317 395,  403,  411,  425,  426 

Whelpley  v.  Loder,   1   Dem.  368 125,  414 

Whipple  V.  Eddy,  161  111.  114,  43  N.  E.  789 88 

Whitaker  v.  Homilton,  126  N.  C.  465,  35  S.  E.  815 12,  420,  422 

V.  Marsh,  62  N.  H.  477 315 

Whitcomb  v.  Hall,  1  Rep.  in  Ch.  40 33 

V.  Hardy,  73  Minn.  285,  76  N.  W.  29 7 

White,  Re,  121  N.  Y.  406,  24  N.  E.  935 81,  86,  87 

V.  Bailey,  10  Mich.  155 395,  456 

V.  British  Empire  Mut.  Life  Assur.  Co.  19  L.  T.  N.  8.  306,  17  Week. 

Rep.  26,  L.  R.  7  Eq.  394,  38  L.  J.  Ch.  N.  S.  53 266 

V.  Cox,  3  Hayw.    (Tenn.)    82 25,  30 

V.  Davis,  42  N.  Y.  S.  R.  901,  17  N.  Y.  Supp.  548 360,  437 

V.  Driver,  1  Phillim.  Eccl.  Rep.  84 117,  134,  338,  339 

V.  Farley,  81  Ala.  563,  8  So.  215 75,  117,  277,  323 

V.  Graves,  107  Mass.  325,  9  Am.  Rep.  38 361 

V.  Hinton,  3  Wyo.  753,  17  L.  R.  A.  60,  30  Pac.  953 299,  303 

V.  McPherson,  183  Mass.  533,  67  N.  E.  643 342,  403 

V.  Palmer,  4  Mass.  147 155,  157 

V.  Ross,  48  N.  Y.  S.  R.  599,  20  N.  Y.  Supp.  520 105 

V.  State,  103  Ala.  72,  16  So.  63 239,  241,  244,  390,  4.59,  460 

V.  State,  32  Tex.  Crim.  Rep.  625,  25  S.  W^  784 .391 

V.  White,  60  N.  J.  Eq.  104,  45  Atl.  707 18 

v.  Wh.its,  1  Swabey  &  T.  592,  6  Jur.  N.  S.  28,  1  L.  T.  N.  S.  197 61 

V.  Wilson,  13  Ves.  Jr.  88 74,  338,  925 

Whitelaw  v.  Sims,  90  Va.  588,  19  S.  E.  113 420 

Whitenack   v.    Stryker,   2    N.   J.    Eq.    8 94,  95,  102,  116,  120,  1.54,  328, 

338,  362,  384,  444,  449 

Whitman  v.  Morey,  63  N.  H.  448,  2  Atl.  899 363,  364,  378,  380 

Y/hitney  v.  State,  8  Mo.  165 387 

V.  Twombly,  136  Mass.  145 67,  72.  82 

Whittaker,  Re,  4  Myl.  Si  C.  441,  8  L.  J.  Ch.  N.  S.  313,  3  Jur.  693 941 

VVhitten  v.  State,  115  Ala.  72,  22  So.  483 252 

Wickwire's  Appeal,  30  Conn.   86 375 

Widmayer,  Re,  74  App.  Div.  330,  77  N.  Y.  Supp.  663,  AfTirming  34  Misc. 

439,  69  N.  Y.  Supp.  1014 158 

Wiets  V.  Union  Nat.  Bank,  101  N.  Y.  563,  54  Am.  Rep.  743,  5  N.  E.  457 50 

Wigglesworth  v.  Steers,  1  Hen.  &  M.  70,  3  Am.  Dec.  602 24,  25,  29.  30 

Wightman  v.  Stoddard,  3  Bradf.  393 110 

v.  Wightman,  4  Johns.  Ch.  343 40,  41,  4S 

Wilbur  v.  Wilbur,  129  111.  392,  21  N.  E.  1076 103,  321,  331 

Wilcox  V.  State,  94  Tenn.  106,  28  S.  W.  312 184,  192,  199,  201,  236, 

237,  393,  412,  444 

Wilde,  Re,  38  Misc.  149,  77  N.  Y.  Supp.  164 Ill 


clii  TABLE  OF  CASES  CITED. 

Wilder  v.  Weakley,  34  Ind.  181 38 

Wiley  V.  Ewalt,  6G  111.  26 13,  14,   113,  142 

Wilkerson  v.  Com.  S8  Ky.  29,  9  S.  W.  836 237,  244 

Wilkinson  v.  Jloseley,  30  Ala.  562 408 

V.  Pearson,  23  Pa.  117 361,  3G5,  307,  422,  431,  435,  458 

V.  Wilkinson,  129  Ala.  279,  30  So.  578 9 

Willeox  V.  Jackson,  51  Iowa,  208,  1  N.  W.  513 25,  27 

Wille  V.  Wille,  57  S.  C.  413,  35  S.  E.  804 16 

Willomin  v.  Dunn,  93  111.  511 4,   14,  19,  20,  34 

Willctt  V.  Porter,  42  Ind.  250 06,  78,  376,  379 

Willey  V.  Portsmouth,  35  N.  H.  303 453 

Williams,  Re,  24  App.  Div.  247,  48  N.  Y.  Supp.  475 149 

V.  Edmunds,  75  Mich.  92,  42  N.  W.  534 387,  388 

V.  Goss,  43  La.  Ann.  868,  9  So.  750 57,  61 

V.  Goude,  1  Hagg.  Eccl.  Rep.  577 91,   112,  135 

V.  Haid,  118  N.  C.  481,  24  S.  E.  217 321,  322 

V.  Hays,   143  N.   Y.  442,  26  L.  R.  A.   153,  42  Am.   St.  Rep.  743,  38 

N.  E.  449    , 275,  276 

V.  Hays,   157   N.  Y.  541.  43  L.  R.  A.  253,  08  Am.  St.  Rep.  797,  52 

N.  E.  589   276,  277,  944 

V.  Imnbnet,  1  Bail.  I;.  343 24,  29 

V.  Le  Bar,  141  Pa.  149,  21  Atl.  525 969,  970 

V.  Lee,  47  Md.  321 113,  420,  431,  446,  448,  449 

V.  Missouri  P.  R.  Co.  109  Mo.  485,  18  S.  W.  1098 279,  280,  289,  290 

V.  Robinson,  39  Vt.  207 155 

V.  Robinson,  42  Vt.  658,  1  Am.  Rep.  359 329,  345 

V.  Sapieha,  94  Tex.  430,  01  S.  W.  115 7,  9 

V.  Sapieha  (Tex.  Civ.  App.)  62  S.  W\  72 361,  379 

V.  Spencer,  150  Mass.  340,  5  L.  R.  A.  790,  15  Am.  St.  Rep.  206,  23 

N.  E.  105    436,  439,  449 

V.  State,  50  Ark.  511,  9  S.  W.  5 177,  182,   199,  348,  412,  562 

V.  State   (Fla.)   34  So.  279 213,  410 

V.  State,   12  Lea,  211 .    391 

V.  State,  25  Tex.  App.  76,  7  S.  W.  661 246,  253 

V.  State  ( Tex.  Crim.  App. )  53  S.  W.  859 254,  399,  400 

V.  State,  37  Tex.  Crim.  Rep.  348,  39  S.  W.  087 347,  348,  360,  397, 

,399,  418,  421,  422,  428,  429 

V,  Wentworth,  5  Beav.  325 11 

V.  Williams,  90  Ky.  28,  13  S.  W.  250 97,  425 

Williamson  v.  Williams,  56  N.  C.  (3  Jones  Eq.)  446 45,  48 

Willis  V.  Com.  32  Gratt.  920 195.  238,  246,  248,  249,  254,  391 

V.  People,  5  Park.  Crim.  Rep.  621 193 

V.  People,  32  N.  Y.  715,  Affirming  5  Park.  Crim.  Rep.  621.  .  .177,  185, 

186,  226,  618.  722 

V.  Willis,  12  Pa.  159 154-150,  159 

Willwerth  v.  Leonard,  150  Mass.  277,  31  N.  E.  299 150,  157 

Wilson,  Ex  parte,  19  W.  N.  C.  37 220 

V.  Bigger,  7  Watts  &  S.  Ill 24,  28 

V.  Mitch-ll,  101  Pa.  495 89,  98,  99,   124.  333,  334,  337 

V.  Moran,   3   Bradf.    172 92 

V.  Oldham,  12  B.  Mon.  .55 5,  6,   17,  18,  20 


TABLE  OF  CASES  CITED.  cliii 

Wilson  V.  State,  60  N.  J.  L.  171,  37  Atl.  954,  38  Atl.  428 240,  241 

Wilson's  Appeal,  99  Pa.  545 334 

Appeal,  11  W.  N.  C.  333 90 

Wiltshire  v.  Marshall,  14  Week.  Rep.  602,  14  L.  T.  N.  S.  390 26 

Windisch  &  M.  Browing  Co.  v.  Opp,  17  Ohio  C.  C.  465 361 

Winslow  V.  Troy,  97  Me.  130,  53  A*l.  1008 41,  45,  48,  49,  55,  144,  294 

Wintermute,  Re,  27  N.  J.  Eq.  447 76,  110,  128 

V.  Wilson,  28  N.  J.  Eq.  437 76,  109 

Wirebach  v.  Bank  of  Easton,  10  W.  N.  C.  1-13 8,  18 

V.  First  Nat.  Bank,  97  Pa.  549,  39  Am.  Rep.  821 20 

Wisdom  V.  Shanklin,  74  I\Io.  App.  428 23 

Wise  V.  Foote,  81  Ky.  10 68,  97,  371,  420,  427 

V.  State,  34  Ga.  348 357 

Wisener  v.  Maupin,  2  Baxt.  342 69,  93,  456 

Wiser  V.  Lockwood,  42  Vt.  720 41,  45,  48 

Withinton  v.  Withinton,  7  Mo.  589 103,  448 

Withrow  V.  Smithson,  37  W.  Va.  757,  19  L.  R.  A.  702,  17  S.  E.  316.  .299,  300,  304 

Wogan  V.  Small,  1 1  Serg.  &  R.   141 458 

Wolf,  Re,  9  Kulp,  523 .  101.  275 

V.  Edwards,  106  La.  477,  31  So.  58 160 

Wolf's  Case,  195  Pa.  438,  46  Atl.  72 154,  161 

Wolff  V,  Connecticut  Mut.  L.  Ins.  Co.  2  Flipp.  355,  Fed.  Cas.  No.  17,929..  .  114 

Wood  V.  Andes,  11  Hmi,  543 291 

V.  Bayard,  63  Pa.  320 299 

V.  Carpenter,  106  Mo.  405,  66  S.  W.  172 105,   131,  369,  443 

V.  Lane,  102  Ga.  199.  29  S.  E.  180 71,  87 

V.  Sawyer,  61  N.  C.    (Phill.  L.)    251 118,  371,  375,  406 

V.  State,  34  Ark.  341,  3*5  Am.  Rep.  13 242,  419,  421,  426,  443 

V.  Wood,  4  Brewst.    (Pa.)   75 74,  87.  159 

V.  Wood,  1  Phillim.  Eccl.  Rep.  357 , 136 

Wood's  Estate,  13  Phila.  236 = 76,  91 

Woodbury  v.  Obear,  7  Gray,  467 367,  398,  453 

V.  Woodbury,  141  Mass.  330,  55  Am.  Rep.  479,  5  N.  E.  275 141 

Woodcock  V.  Johnson,  36  Minn.  217,  30  N.  W.  894 365,  420,  427 

Woodfall,  Re,  7  Phila.  528 76,  128 

Woodford  v.  Buckner,  23  Ky.  L.  Rep.  627,  03  S.  W.  617 107,  329,  331 

Woodgate  v.  Taylor,  2  Swabey  &  T.  512,  30  L.  J.  Prob.  N.  S.  197,  5  L.  T. 

N.  S.  ]  19    55 

Woodhull  V.  Whittle,  63  Mich.  565,  30  N.  \V.  3u8 309,  310,  376 

Woods  V.  Browai,  93  Ind.  164,  47  Am.  Rep.  369 299,  305 

V.  Pindall,  Wriglit    ( Ohio )    507 28 

V.  Tipton  County,  128  Ind.  298,  27  N.  E.  611 287 

W^oodson  V.  Gordon,  Peck  (Tenn.)    196,  14  Am.  Dec.  743 27 

Woolsey,  Re,  17  Misc.  547,  41  N.  Y.  Supp.  263 114,  120,   121,  130 

Wortliington  v.  Major,  94  Mich.  329,  54  N.  W.  303 34 

V.  Mcncer,  96  Ala.  310,  17  L.  R.  A.  407,  11  So.  72 309,  311,  323 

Worthy  v.  Worthy,  36  Ga.  45,  91  Am.  Dec.  758 54 

Wrage  v.  State   (Tex.  Crim.  App.)   60  S.  W.  55 .-^86 

Wray  v.  Wray,  19  Ala.  522 52 

V.  Wray,  32  Ind.   128 17,  19.  .324 

V.  Wray,  33  Ala.   187 53 


eliv  TABLE  OF  CASES  CITED. 

Wright  V.  Com.  24  Ky.  L.  Eep.  183S,  72  S.  W.  340. .  .^. 237,  353,  382,  407 

V,  Doe  ex  dem.  Tathara,   1  Ad.  &  El.  3.  3  Nev.  &  M.  268,  3  L.  J. 

Exch.  N.  S.  3GG 383 

V.  Doo  ex  dem.  Tatliam,  7  Ad.  &  El.  313,  2  Nev.  &  P.  305,  7  L.  J. 

Exch.  N.  S.  340 370 

V.  Fisher,  05  Mich.  275,  8  Am.  St.  Rep.  886,  32  N.  W.  005 28,  295,  297 

v.  Hardy,  22  Wis,  348 408 

V.  Howe,  52  N.  C.  (7  Jones  L.)  412 91,  92 

V.  .Jackson,  r,Q  Wis.  569,  18  N.  W.  480 13,  37,  343 

V.  Lewis,  5  Rich.  L.  212,  55  Am.  Dec.  7 14 133 

V.  Market  Bank  (Tenn.  Ch.  App.)   60  S.  W.  623 11,  339,  341 

V.  People,  4  Neb.  407 201,  326,  353 

V.  Tatliam,  5  Clark  &  F.  692,  6  Scott,  58,  4  Bing.  N.  C.  489 370,  420 

V.  Waller,  127  Ala.  557,  54  L.  R.  A.  440,  29  So.  57 26,  27 

V.  Wright,  139  Mass,  177,  29  N.  E.  380 15,   16,  337,  339,  341,  361 

Wright's  Appeal,  8  Pa.  57 301 

Estate,  202  Pa.  395,  51  Atl.  1031 105,  114 

Wurzell  V.  ]:5eckman,  52  Mich.  478,  IS  N.  W.  226 367 

VVyman  v.  Gould,  47  Me.  159 407,  436 

Wynn  v.  Allard,  5  Watts  &  S.  525 289,  387 

Wynne  v.  Newman,  75  "\'a.  816 299,  302,  303,  30:> 

Wyse  V.  Wyse,  155  N.  Y.  367,  49  N.  E.  942,  Affirming  13  Misc.  773,  34  N.  Y. 

Supp.  ]  151 437,  45:% 


Y'anger  v.  Skinner,  14  N.  J.  Eq.  389 3S 

Yanke  v.  State,  51  Wis.  464,  5  N.  W.  276 418,  421,  43:: 

Vardley  v.  Cutlihortson.  lOS  Pa.  305,  ^G  ,\m.  Pvep.  21S,  1  Atl.  765 92,  98, 

125,  333.  396,  398,  45:; 

Varnall,  Re,  4  Rawle,  46,  26  Am.  Dec.  115 13(; 

Yarnell  v.  St.  Louis,  K.  C.  &  N.  R.  Co.  75  Mo.  575 282,  28'- 

Yarrow  v.  Yarrow    (1892)   P.  92,  61  L.  J.  Prob.  N.  S.  69.  6(j  L.  T.  N.  S. 

3S3 52,  5;; 

Yates  V,  Boen,  2  Strange,  1 104 6,  154 

Yauger  v.  Skinner,  14  N.  J.  Eq.  3Ji9 154,   150,   158,  1.59,  384 

Yeates  v.  Reed,  4  Blackf.  463,  32  Am.  Dec.  43 276,  38:5 

Yglesias  v.   Dyke,  Prerogative  Court    (1S.52)    cited  in  2  Taylor,  Principles 

of  Mod.  Jur.  556 78,  118 

Yoe  V.  iMcCord,  74  111.  33 66,  67.  69,  70,  74,  76,  77 

Yong  V.  Sant,  1  Dyer,  56a 323 

Youn  V.  Lamont,  56  Minn.  2H),  57  N.  W.  478 26,  28,  357,  358 

Young  V.  Earner,  27  Gratt.  96 104,  108,  444,  445,  451 

V.  Miller,  145  Ind.  652,  44  N.  E.  757 66,  79,  333,  335 

V.  Otto,  57  Minn.  307,  59  N.  W.   199 72,  140 

V.  Ridenbaugh,  67  Mo.  574 66,  69,  70,  71,  lOO 

V    Stevens,  48  N.  H.  133,  2  Am.  Rep.  202,  97  Am.  Dec.  592 8,   12,  100 

V.  Wilmington  k  W.  R.  Co.  116  N.  C.  932,  21  S.  E.  177 278 

V.  Young,  10  Grant  Ch.   (U.  C.)   305 16,  337,  •  338 


1 


TABLE  OF  CASES  CITED.  civ 

Youngs  V.  Youngs,  130  111.  230,  6  L.  R.  A.   548,  17  Am.  St.  Rep,  313,  22 

N.  E.  806  53,  57 

Yount  V.  Turnpaugh,  33  Ind.  46 304 

Youtsey  v.  United  States,  38  C.  C.  A.  562,  97  Fed.  937 185,  195 

Yturburru,  Ke,  134  Cal.  568,  66  Pac.  729 10 


z 

Zeigler,  Re,  47  N.  Y.  S.  R.  491,  19  iV.  Y.  Supp.  947 84 

Zeltner  v.  Bodman  German  Protestant  Widows'  Home,  1   Ohio  S.  &  C.  P. 

Dec.  306 69,  75,  139 

Zimmerman  v.  Masonic  Aid  Asso.  75  Fed.  236 261,  266,  646 

V.  Zimmerman,  23  Pa.  375 93 

Zumwalt  V.  Chicago  &  A.  R.  Co.  35  Mo.  App.  661 279 

Zwicker  v.  State,  27  Tex.  App.  539,  11  S.  W.  633 , 391 


BOOK  T. 

MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONa 


You  I.  Med.  Jur.—I. 


MEDICAL  JURISPRUDENCE. 


BOOK  I. 

MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


CHAPTEE  L 

CONTRACTS. 


I.  Lunacy,  generally. 

1.  General  view. 

2.  By  early  authorities  lunacy  no  ground  for  avoidance  of. 

3.  Subsequent  tendency  to  hold  all  contracts  with  lunatics  void. 

4.  Modern  rule  voidable,  not  void. 

5.  Contracts  executed  in  good  faith  will  be  sustained. 

6.  Conflict  as  to  whether  deeds  are  voidable. 

7.  On  rescission,  parties  to  be  placed  in  statu  quo. 

8.  Liable  for  necessaries. 

9.  Also  liable  for  contracts  during  lucid  intervals. 

10.  Prevailing  modern  rule;  tests. 

11.  Delusion  as  a  test. 

12.  Time  of  application  of  tests. 

13.  Monomania  as  to  unrelated  subject-matter. 

14.  Question  conditioned  by  fraud. 

15.  Better  opinion  that  contracts  by  lunatics  are  voidable  at  option. 

16.  What  weakness  incapacitates. 

17.  Abuse  of  confidential  relations. 

II.  Lunacy  which  will  terminate  continuing  contkact. 

18.  Partnership  contracts. 

19.  Agency. 
III.  Intoxication. 

20.  Intoxication,  unless  excessive,   no  ground   for  avoiding  contract. 

21.  Otherwise  when   combined  with   fraud. 

22.  Tests,  generally. 

23.  Conveyances. 

24.  Rule  in  equity. 

3 


4  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  ) 

25.  Drunkard  liable  for  necessaries. 

26.  Discharge  of  servant  for  drunkeunes?. 

IV.    MOKPHIJflSM    AND   OTHER   ADDICTIONS. 

27.  Effect,  generally. 
V.  Who  may  avoid. 

28.  Who  may  avoid — administrators,  heirs,  etc 

29.  So,  of  representatives  and  guardians. 

30.  And  so,  of  a  party  himself. 

31.  Partnership   contracts. 
VI.  Proof  of  incompetency. 

32.  Sufficiency,  generally. 

33.  Previous  and  subsequent  derangement. 

34.  Age,  weakness,  and  disease. 

35.  Rationality  of  the  act  itself. 
30.  Conduct  of  party. 

37.  Conduct  of  others. 

38.  Inquisition  only  prima  facie  proof  as  to  third  parties. 

39.  Other  adjudications  of  unsoundness. 

I.  Lunacy,  genekally. 

1.  General  view. —  Per='ons,  not  only  apparently,  but  actually,  des- 
titute of  reason,  are  incapable  of  dealing  contractually.  Hence  the 
incapacity  of  idiots,  when  complete,  is  absolute.  Mere  imbecility, 
however,  is  not  sufficient  to  invalidate  a  contract  where  there  is  not 
an  essential  privation  of  the  reasoning  faculties,  or  an  incapacity  to 
understand  and  act  with  discretion  in  the  ordinary  affairs  of  life. 
The  law  cannot  undertake  to  measure  the  validity  of  contracts  by  the 
greater  or  less  strength  of  the  understanding;  and,  if  the  party  be 
compos  mentis,  the  mere  weakness  of  his  mental  powers  does  not 
incapacitate  him  ;^  nor  does  imbecility  not  amounting  to  an  essential 
privation  of  the  reasoning  powers.-  The  incapacity  must  have  been 
such  as  to  render  the  party  incapable  of  understanding  and  protect- 
ing his  interests.^      To  sustain  a  contract  made  by  him,  there  being 

'(Somers   v.    Pumphrey,   24   Ind.   231;  this  last  case  it  was  said  that  wherever 

Mann  v.  Belterly,  21  Vt.  326;  Farnam  inadequacy  of  consideration  and  mental 

V.  Brooks,  9  Pick.  212;  Baldicin  v.  Dun-  weakness  concur,  the  contract  should  be 

ion,  40  111.  18S;  Titcomb  v.  Vanti/le,  84  annulled.      And     see     Owing's     Case,    1 

111.  371;  Willemin  v.  Dunn,  93  111.  511;  Bland,  Ch.  370,  390,  17  Am.  Dec.  311. 
Campbell  v.  Hooper.  3  Smale  &  G.  153,        ".S'o»ie»-s   v.   Pumplirey,   24    Ind.    231; 

24  L.  J.  Ch.  N.  S.  644,  1  Jur.  N.  S.  670,  Farnam  v.  Brooks,  9  Pick.  212;  Cain  v. 

3  Eq.  Rep.  727,  3  Week.  Rep.  528;  Hen-  Warford,  33  ^Id.  23;  SJioulfers  v.  Allen, 

derson  v.   McGregor,  30  Wis.  78;   Hale  51  Mich.  529,  16  N.  W.  888;  Johnson  v. 

V.  Brovon,  11  Ala.  87.  Phifcr,   6  Neb.  401;    Mulloy  v.   Ingalls, 

The   jury   may   consider   how    far   the  4  Neb.  115;  Missouri  P.  R.  Co.  v.  Braz- 

party  was  liable  to  be  deceived,  though  zil,  72  Tex.  233,  10  S.  W.  403;  Harmon 

the  incapacity  was  only  partial.     Galpin  v.  Harmon,  51  Fed.  113. 
V.  Wilson,  40  Iowa,  90.    See  also  Shakes-        "Perry  v.  Pearson,  135  111.  218,  25  N. 

peare  v.    Markhnm.   72   N.   Y.   400,   and  E.  036. 
Cadtcallader  v.   West,   48  Mo.   483.     In        Under  the  older  rule,   imbecility  not 


§  IJ 


CONTRACIS. 


no  undue  advantage,  it  is,  in  general,  sufficient  to  show  tliat  the  party 
contracting  knew  what  he  was  about.^  If  he  is  incapable  of  such 
knowledge, — if,  in  other  words,  he  is  either  an  idiot  or  a  maniac,  not 
capable  of  knowing  what  he  is  about, — then  he  is  incapable  of  con- 
tracting; the  capacity,  according  to  the  modern  view,  being  required 
to  correspond  ^ith  the  difficulty  of  the  matter  in  hand.'"* 

2.  By  early  authorities  lunacy  no  ground  for  avoidance  of. — The 
early  common-law  authorities  inclined  to  the  position  that,  as  no 
man  could  be  allowed  to  stultify  himself,  so  no  man  could  set  up  his 
own  insanity  at  the  time  of  a  contract  as  the  gTOund  of  avoiding  it.® 
At  the  same  time  it  was  conceded  that  this  right  of  avoidance  be- 
longed to  the  alleged  lunatic's  heirs  and  administrators.''  The  restric- 
tion, therefore,  was  purely  personal,  and  was  based  on  a  mistaken 
view  of  insanity.  Insanity  was  deemed  to  be  perpetual.  If  it 
existed  at  the  time  of  the  contract,  it  existed  when  suit  was  brought. 
If  it  did  not  exist  when  suit  w^as  brought,  it  did  not  exist  at  the  time 
of  the  contract. 

The  progress  of  this  idea  is  traced  by  Blackstono,^  so  far  as  it 
relates  to  the  convevances  of  lunatics.      It  seems  to  have   rested 


amounting  to  idiocy  or  a  total  want  of 
understanding  was  not  sufficient  to  void 
a  deed  in  the  absence  of  fraud.  Odell  v. 
Buck,  21  Wend.   142. 

*Lozear  v.  Shields,  23  N.  J.  Eq.  509; 
Clearwater  v.  Kimler,  43  111.  272;  My- 
att  V.  M^alker,  44  111.  485;  Emery  v. 
Hovt,  46  111.  258 ;  Cadivallader  v.  West, 
48  "^Mo.  483;  Ball  v.  Mannin,  3  Bligh 
N.  R.  1,  1  Dow  &  C.  880;  Jusan  v.  Toiil- 
min,  9  Ala.  6G2,  44  Am.  Dec.  448 ;  Hem- 
ingway V.  Coleman,  49.  Conn.  390,  44 
Am.  Dee.  243;  Jones  v.  Thompson,  5 
Del.  Ch.  374;  Maddox  v.  Simmons,  31 
Ga.  512;  Piclcerell  v.  Morss,  97  111.  220; 
Miller  V.  Craig,  36  111.  109;  Graham  v. 
Castor,  55  Ind.  559 ;  Harris  v.  Wamsley, 
41  Iowa,  671;  Des  Moines  Nat.  Bank  v. 
Chisholm,  71  Iowa,  675,  33  N.  W.  2.34; 
Wilson  V.  Oldham,  12  B.  Mon.  55;  Davis 
V.  Phillips,  85  Mich.  198,  48  N.  W.  513; 
Trimho  v.  Trimho,  47  Minn.  389,  50  N. 
W.  350;  Simonton  v.  Bacon,  40  Miss. 
582;  Keithley  v.  Keithley,  85  Mo.'  217; 
Hall  V.  Knappenherger,  97  Mo.  509,  11 
S.  W.  239;  Dennett  v.  Dennett,  44  N. 
H.  531,  84  Am.  Dec.  97;  Rippy  v.  Gant, 
39  N.  C.  (4  Ired.  Eq.)  443;  Ainian  v. 
SI  out,  42  Pa.  114;  Graham  v.  Pancoast, 
30  Pa.  89;  Nace  v.  Boyer,  30  Pa.  99; 
Dodds  V.  Wilson,  3  Brev.  389;  Dodds  v. 
Wilson,  1  Treadway  Const.  448;  Mann 
V.  Betterly,  21  Vt.  326;  Kilgore  v.  Cross, 


1  Fed.  578;  Barker  v.  Northern  P.  R. 
Co.  05  Fed.  460;  Gartside  v.  Isherwood, 
1  Bro.  Ch.  560. 

To  render  a  deed  invalid  for  want  of 
capacity  in  the  grantor,  it  is  not  neces- 
sary that  he  should  have  been  without  a 
glimmer  of  reason,  or  that  the  incapac- 
ity should  have  amounted  to  idiocy  in 
the  strict  legal  sense.  Ball  v.  Mannin, 
3  Bligh  N.  R.  1,  1  Dow.  &  C.  880. 

Nor  is  it  necessary  that  there  should 
have  been  fraud.  Wager  v.  Wagoner,  53 
Neb.  511,  73  N.  W.  937. 

''Dennett  v.  Dennett,  44  N.  H.  531,  84 
Am.  Dec.  97 ;  FiiUoider  v.  Ingels,  87  Ind. 
414;  Seerley  v.  Sater,  68  Iowa,  376,  27 
N.  W.  262;  Paulas  v.  Reed  (Iowa)  96 
N.  W.  757 ;  Turner  v.  Houpt,  53  N.  J. 
Eq.  526,  33  Atl.  28;  Southern  Tier  Ma- 
sonic Relief  Asso.  v.  Laudenbaeh,  5  N. 
Y.  Supp.  901;  Glasscock  v.  Tate,  107 
Tenn.  486,  64  S.  W.  715;  Hanley  v.  Na- 
tional Loan  &  Invest.  Co.  44  W.  Va. 
450,  29  S.  E.  1002. 

An  incurable  lunatic  confined  in  an 
asylum  is  not  competent  to  abandon  a 
homesteaJ  right.  National  Loan  & 
Bldg.  Asso.  v.  Maloney,  22  Ky.  L.  Rep. 
1094,  60  S.  W.  12. 


«Co.  Litt.  247a. 
^Co.   Litt.   247  &y 
Coke.  123&. 

^2  Bl.  Com.  291. 


Beverley's    Case,  4 


6  AIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  2 

cliiefly  on  the  authoritv  of  Lord  Coke,  as  Fitzlierbert,  Britten,  and 
Bracton  were  directly  opposed  to  liim.^  Bnt  it  cannot  be  said  ever 
to  have  been  law  in  America,^  ^  and  has  been  eirploded  in  England, 
thongh  followed  bj  Lord  Tenterden  in  1827.^^ 

3.  Subsequent  tendency  to  hold  all  contracts  with  lunatics  void. — 
The  early  doctrine,  then,  was  that  the  contract  of  a  lunatic  could 
only  be  avoided  after  his  death  by  his  heirs  or  representatives;  but 
the  cases  of  Thompson  v.  LeacJi^^  and  Yates  y.  Boen}^  overthrew 
this,  and  took  the  ground  that,  with  the  exception  of  feoffments, 
which  from  their  solemn  nature  could  be  only  voidable,  the  deeds  and 
contracts  of  persons  incompetent,  not  only  from  insanity,  but  from 
dninkenness,^*  were  void.  In  this  country,  several  early  cases  took 
the  gTOund  that  the  contracts  of  a  lunatic,  executed  or  unexecuted, 
are  per  se  void,  unless  for  necessaries.-^^  This  is  unquestionably  cor- 
rect in  cases  where  the  absence  of  mental  capacity  is  so  obvious  as  to 
make  dealing  with  the  lunatic  a  fraud.  But  unless  tliere  is  such  a 
total  deficiency  in  capacity,  it  is  not  reasonable  to  hold  that  a  contract 
entered  into  in  good  faith  with  a  lunatic  is  void.  If  all  contracts  of 
persons  mentally  unsound  are  void,  no  matter  what  may  be  the  degree 
of  the  unsoundness,  no  title  to  property  of  any  kind  would  be  secure. 
And  even  against  a  party  contracting  immediately  with  the  alleged 
lunatic,  the  contract,  if  bona  fide  and  fair  on  both  sides,  ought  not  to 
be  set  aside  on- the  ground  of  latent  lunacy.-^'' 

•Nat.  Brev.  202;   Bracton,  fol.  100a;  Am.    Dec.    372;    Somes   v.    Slcinner,    16 
Britton,  cliap.  28,  folio  66.  Mass.  348;  Grant  v.  Thompson,  4  Conn. 
"See    Den    ex    dem.    State    Bank    v.  208,  10  Am.  Dec.  110;  Rice  v.  Feet,  15 
Moore,  5  N.  J.  L.  470;  Webster  v.  ^yood-  Johns.  503;  La  Rue  v.  Gilkyson,  4  Pa. 
ford,  3  Day,  90;  Fitzlmgh  v.  Wilcox,  12  375,    45    Am.    Dec.    700;    Fitzgerald   v. 
Barb.    235;     Bensell    v.    Chancellor,    5  Reed,  9  Smedes  &  M.  di;  Hines  v.  Potts, 
Whart.  370,  34  Am.  Dec.  561;  M'Creight  56  Miss.   346;   Farley  v.  Parker,  6  Or. 
V.  Aiken,  Rice  L.  56.  105,  25  Am.  Rep.  504;   Cook  v.  Parker, 
^^Bromn  v.   Jodrell,   3   Car.   &   P.   30,  4  PhiLa.  265;  State  Bank  v.  McCoy,  69 
Moody  &  M.  105.     Mr.  Pollock  says  that  Pa.  209,  8  Am.  Rep.  246;  Hope  v.  Ever- 
the  doctrine  was  exploded  long  before  it  hart,  70  Pa.  231;  Jackson  ex  dem.  Cad- 
was  adopted   by   Lord   Tenterden.      See  it-ell  v.  King,  4  Cow.  207,  15  Am.  Dec. 
Pollock,   Contr.,   p.   78.      Stephen,   how-  354;  Somers  v.  Pumphrey,  24  Ind.  231; 
ever  (1  Com.,  7th  ed.  475),  considers  the  Marmon  v.  Murmon,  47  Iowa,  121;  Wil- 
maxim  still  to  be  one  of  law  as  regards  son  v.  Oldham,  12  B.  Men.  55;  Encking 
transactions  merely  voidable;  though  it  v.  Simmons,  28  Wis.  272.     And  see  the 
has,  he  says,  no  application  to  transac-  remarks  of  Strong,  J.,  in  Dexter  v.  Hall, 
tions   absolutely   void,   such   as   convey-  15  Wall.  20,  21  L.  ed.  73. 
ances  other  than  feoffments.                   *  Under   this   rule   the   test   of   mental 
"3  Salk.  300,  Comb.  408,  2  Ventr.  198.  capacity    was   not   whether   the   person 
"2  Str.-inge,  1104.  Lad    sufficient    understanding    to    know 
"  Cole  v.  Robbins,  Bull.  N.  P.  17?-.  what  ho  was  doing,  but  whether  he  had 
''-Lang    v.    Whidden,    2    N.    IT.    435;  the   right   use   of   his   reason.     Hale   v. 
Burke  v.  Allen,  29  N.  II.   106,  61  Am.  Hills,  8  Conn.  39. 

Doc.  042;   Mitchell  v.  Kingman,  5  Pick.  '"Searle  v.  Calbraith,  73  111.  260.     In 

431;  Scorer  v.  PhcljiS,  11  Pick.  304,  22  Jenkins  v.    Morris,   L.   R.    14   Ch.   I?iv. 


§  4] 


CONTRACTS. 


4.  Modern  rule  voidable,  not  void.— By  a  great  preponderance  of 
modern  aiitliority,  subject  to  bnt  few  exceptions,^ '^  the  contracts  ol 
lunatics  are  regarded  as  voidable  in  a  proper  case,  but  not  void.^* 
In  many  jurisdictions,  however,  this  rule  applies  only  to  lunacy  not 
judicially  determined,  the  contracts  of  lunatics  being  avoided  from 
the  period  at  which  an  inquisition  finds  lunacy  to  have  commenced.^^ 
But  whetlaer  void  or  voidable  they  may  be  set  aside  at  the  instance 
of  either  party,  even  after  restoration  to  sanity,^*'  or  at  the  instance 
of  the  heirs  or  legatees  of  the  insane  party.^^  And  they  may  be 
ratified  after  recovery  or  during  a  lucid  interval.^^ 


674,  42  L.  T.  N.  S.  817,  the  lessor  of 
a  farm  believed  that  it  was  impregnated 
with  sulphur,  and  was  at  the  pains  to 
try  many  experiments  to  rid  liimself  of 
it.  A  jury  found  him  of  sufficient 
business  capacity  to  make  a  valid  lease 
thereof  and  the  court  refused  to  disturb 
the  verdict. 

So,  insanity  is  no  defense  to  a  promis- 
sory note  unless  it  is  shown  that  the 
note  was  obtained  by  fraud  or  without 
a  proper  consideration  or  with  knowl- 
edge of  insanity.  Weaver  v.  Weaver, 
20  Pa.  Co.  Ct.  392,  28  Pittsb.  L.  J.  N. 
S.   3G7. 

"In  Indiana  there  is  a  statute  pro- 
viding that  contracts  by  persons  of  un- 
sound mind  are  void.  But  it  applies 
only  to  persons  found  to  be  of  unsound 
mind  in  the  mode  prescribed  by  the 
statutes.  Grouse  v.  Holman,  19  Ind.  30; 
Copenrath  v.  Kienhy,  83  Ind.  18;  Mus- 
selman  v.  Cravens,  47  Ind.  1. 

"  Among  the  many  cases  supporting 
this  proposition  are  the  following:  Orr 
V.  Equitable  Mortg.  Co.  107  Ga.  499,  33 
S.  E.  708;  Beasleij  v.  Bcasley,  180  111. 
163.  54  N.  E.  187;  ^tna  L.  Ins.  Co.  v. 
Sellers,  154  Ind.  370,  77  Am.  St.  Rep. 
481,  56  N.  E.  97;  Arnett  v.  Owens,  23 
Ky.  L.  Rep.  1409,  65  S.  W.  151;  Riley 
V.  Carter,  76  Md.  581,  19  L.  R.  A.  489, 
35  Am.  St.  Rep.  443,  25  Atl.  667;  Allis 
V.  Billings,  6  Met.  415,  39  Am.  Dec.  744; 
Rogers  v.  Blachwell,  49  Mich.  192,  13 
N.  W.  512;  Thorpe  v.  Hanscom,  64 
Minn.  201,  66  N.  W.  1 ;  Jamison  v.  Cul- 
ligan,  151  Mo.  410,  52  S.  W.  224;  Rob- 
inson V.  Kind,  25  Nev.  201,  59  Pac.  863, 
62  Pac.  705;  Ingraham  v.  Baldwin,  9 
N.  Y.  45;  Riggin  v.  Green.  80  N.  C.  236, 
30  Am.  Rep.  77;  Re  Desilver,  5  Rawle, 
111,  28  Am.  Dec.  645;  Williams  v.  Sa- 
pieha,  94  Tex.  430,  61  S.  W.  115;  French 
Lumbering   Co.   v.   Theriault,    107   Wis. 


627,  51  L.  R.  A.  910,  81  Am.  St.  Rep. 
856,  83  N.  W.  927. 

'"See  post,  chapter  VI.,  §  150. 

A  deed  is  a  contract  within  tlie  mean- 
ing of  the  Illinois  statute,  making  con- 
tracts of  lunatics  after  inquisition  void 
as  against  the  lunatic  and  liis  estate  and 
providing  that  those  made  before  the 
finding  of  lunacy  may  be  avoided  except 
in  favor  of  a  person  fraudulently  mak- 
ing the  same.  Biirnham  v.  Kidwell,  113 
111.  425. 

-"Clay  v.  Hammond,  199  111.  370,  9.3 
Am.  St.  Rep.  146,  65  N.  E.  352. 

But  the  sane  party  cannot  take  ad- 
vantage of  the  insanity  of  the  other  for 
the  purpose  of  relieving  himself  from 
the  performance  of  the  contract.  Mead 
V.  Stegall,  77  111.  App.  679. 

And  there  must  have  been  an  actual 
disaihrmance.  /Etna  L.  Ins.  Co.  v.  Sel- 
lers, 154  Ind.  370,  77  Am.  St.  Rep.  481, 
56  N.  E.  97. 

And  ignorance  of  the  insanity  is  no 
defense  to  an  action  for  the  recovery  of 
the  subject-matter  of  a  contract.  Sea- 
ver  V.  Phelps,  11  Pick.  304,  22  Am.  Dec. 
372. 

""^Valpey  v.  Rea,  130  Mass.  384.  And 
see  Rogers  v.  Blaclcioell,  49  Mich.  192, 
13  N.  W.  512. 

It  can  be  done,  however,  only  by 
privies  in  blood  or  legal  representatives. 
Hunt  v.  Rahitoay,  125  Mich.  137,  84  Am. 
St.  Rep.  563,  84"  N.  W.  59. 

"Whitcomb  v.  Hardy,  73  Minn.  285, 
76  N.  W.  29;  Blakeley  v.  Blakeley,  33 
N.  J.  Eq.  502;  Blinn  v.  Schwarz,  63 
App.  Div.  25,  71  N.  Y.  Supp.  343;  Cock- 
rill  V.  Gockrill,  79  Fed.  143,  affirmed  in 
34  C.  C.  A.  254,  92  Ped.  811. 

So,  a  contract  made  by  an  insane  per- 
son who  afterwards  dies,  from  which  his 
estate  realizes  property  of  value,  may  be 
ratified,  either   expressly   or   impliedly. 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  5 


5.  Contracts  executed  in  good  faith  will  be  sustained. —  It  seems  to 
be  settled  by  the  weight  of  authority,  that  a  contract  made  with  a 
lunatic  in  good  faitli  and  in  ig-norance  of  his  incapacity  cannot,  after 
the  property  has  been  obtained  and  enjoyed  by  the  lunatic,  be  set 
aside  or  defeated  by  the  lattxir  or  his  representatives,  unless  the  par- 
ties can  be  put  in  statu  quo.  Or,  to  adopt  the  words  of  Pollock, 
C.  B.  r^  "When  a  person,  apparently  of  sound  mind,  and  not  known 
to  be  otherwise,  enters  into  a  contract  for  the  purchase  of  property, 
which  is  fair  and  bona  fide,  and  which  is  executed  and  completed,  and 
the  property,  the  subject-matter  of  the  contract,  has  been  paid  for  and 
fully  enjoyed,  and  caimot  be  destroyed  so  as  to  put  the  parties  in  statu 
quo,  such  contract  cannot  afterwards  be  set  aside,  either  by  the  al- 
leged lunatic  or  those  who  represent  him." 

This  conclusion  is  sustained  in  America  by  numerous  adjudica- 
tions.^*    And,  in  order  to  warrant  a  rescission,  the  party  asking  it 


by  his  personal  representatives;  and  in 
such  case  the  estate  is  bound  therebv. 
Bunn  V.  Postell,  107  Ga.  490,  33  S.  E. 
707. 

A  ratification  is  effected  by  bringing 
an  action  for  the  recovery  of  the  pro- 
ceeds of  sale  after  recovery  and  notice 
of  the  facts.  Blinn  v.  Schroarz,  63  App. 
Div.  25,  71  N.  Y.  Supp.  343. 

In  Nebraska,  neither  the  county  court, 
nor  the  person  under  guardianship,  nor 
his  guardian,  nor  all  together,  can 
ratify  or  confirm  a  conveyance  of  land 
made  by  the  ward  previous  to  the  guard- 
ianship, but  while  he  was  insane.  Ging- 
rich V.  Rogers  (Neb.)   96  N.  W.  156. 

^Molion  V.  Camrovx,  2  Exch.  503. 

"Among  the  adjudications  adopting 
this  rule  are  Kendall  v.  May,  10  Allen, 
59;  Young  v.  Sevens,  48  N.  H.  133, 
2  Am.  Rep.  202;  Beals  v.  See,  10  Pa. 
56,  49  Am.  Dec.  573 ;  Kneedler's  Appeal, 
92  Pa.  428;  Eldredge  v.  Palmer,  185 
111.  618,  76  Am.  St.  Rep.  59,  57  N.  E. 
770;  Thrash  v.  Starbuck,  145  Ind.  073, 
44  N.  E.  543;  Jewell  v.  Clay,  107  Iowa, 
52,  77  N.  W.  511;  Gribhen  v.  Maxwell, 
34  Kan.  8,  55  Am.  Rep.  233,  8  Pac.  584; 
/•7acfc  V.  Gottschalk,  88  Md.  368,  42  L. 
R.  A.  745.  71  Am.  St.  Rep.  418.  41  Atl. 
908:  McKensie  v.  Donnell,  151  Mo.  431, 
52  S.  W.  214;  Robinson  v.  Kind,  25  Nev. 
261,  59  Pac.  863,  62  Pac.  705;  Mnflhies- 
sen  d  W.  Ref.  Co.  v.  McMahon,  38  N.  J. 
L.  536;  Mutual  L.  Ins.  Co.  v.  Hunt,  7!) 
X.  Y.  541;  Hardy  v.  Berger,  76  App. 
Div.  393,  78  N.  Y.  Supp.  109;  Rigcjin 
V.  Green,  80  N.  C.  236,  30  Am.  Rep."  77 ; 


McFalls  V.  Brown  (Tex.  Civ.  App.)  37 
S.  W.  784 ;  Encking  v.  Simmons,  28  Wis. 
272;  Stockmeyer  v.  Tobin,  139  U.  S.  176, 
35  L.  ed.  123,  11  Sup.  Ct.  Rep.  504. 

But  see  Bates  v.  Hyman  (Miss.)  28 
So.  567;  Sims  v.  McLure,  8  Rich.  Eq. 
286,  70  Am.  Dec.  196;  Rusk  v.  Fenton, 
14  Bush,  490,  29  Am.  Rep.  413;  Ex 
parte  Northington,  37  Ala.  496,  79  Am. 
Dee.  67;  Beller  v.  Jones,  22  Ark.  92; 
Carr  v.  Holliday,  40  N.  C.  (5  Ired.  Eq.) 
167. 

If  the  contract  be  executory  it  will 
not  be  upheld.  Story,  Contr.  5th  ed. 
§  83 ;  Skidmore  v.  Romaine,  2  Bradf. 
122. 

But  see  Beavan  v.  M'Donnell,  9  Exch. 
309,  2  C.  L.  Rep.  474,  23  L.  J.  Exch.  N. 
S.  94,  22  L.  T.  243,  affirmed  in  10  Exch. 
184,  23  L.  J.  Exch.  N.  S.  326.  In  a  late 
case  (1881)  in  Pennsylvania,  Judge 
Trunkey,  in  holding  the  accommodation 
indorsement  of  a  promissory  note  by  a 
lunatic  void,  laid  down  the  general  prin- 
ciple "that  there  can  be  no  binding  ex- 
ecutory agreement  where  one  of  the 
parties  is  bereft  of  reason."  Wirebach 
V.  Bank  of  Easton,  10  W.  N.  C.  145. 
For  other  English  cases  following  Mol- 
ton  V.  Camroux,  2  Exch.  487,  affirmed 
in  4  Exch.  17,  see  Price  v.  Berrington, 
7  Hare.  394;  Dane  v.  Kirkicall,  8  Car. 
&  P.  679;  Beavan  v.  M'Donnell,  10 
Exch.  184,  23  L.  J.  Exch.  N.  S.  326; 
JIassard  v.  Smith,  Ir.  Rep.  6  Eq.  429. 

One  dealing  with  an  insane  person 
not  judicially  determined  to  be  so  is  not 
chargeable,    as    matter    of    law,    with 


6J 


CONTRACTS. 


must  sliow  willingness  and  ability  to  put  tno  other  in  statu  quo,  or 
show  that  tlie  other  knew  of  the  insanity  and  took  advantage  of  it,^'' 
though  the  rule  has  been  laid  down  that  the  burden  rests  with  the 
sane  party  to  show  fair  dealing  and  ignorance  of  the  insanity  f^  and 
that  it  must  appear  that  the  lunatic  still  has  the  consideration  or  has 
spent  it  for  necessaries.-^ 

6.  Conflict  as  to  whether  deeds  are  voidable. —  While,  however,  the 
prevalent  opinion  now  is  that  an  ordinary  business  contract  with  a 
lunatic,  when  fair,  and  by  a  party  having  no  notice  of  his  mental 
disability,  will  be  sustained,  there  is  still  much  difference  of  opinion 
as  to  whether  title  to  real  estate  can  be  passed  by  a  person  at  the  time 
a  lunatic,  no  matter  how  completely  his  lunacy  may  have  been  dis- 
guised. Some  of  tlie  earlier  authorities  recognize  the  distinction 
taken  in  Thompson  v.  Leach,^^  between  a  deed  of  feoffment  and  a 
deed  of  bargain  and  sale,  holding  the  latter  absolutely  void.^^  The 
Supreme  Court  of  the  United  States  has  accepted  this  position.^'* 


knowledge  of  his  mental  condition. 
Judd  V.  Gray,  156  Iiid.  278,  59  N.  E. 
849. 

And  one  who  has  sufficient  mental 
capacity  to  comprehend  the  making  and 
execution  of  a  mortgage  and  its  use  is 
precluded  from  interposing  a  plea  of 
usury  against  a  person  purchasing  it 
upon  the  faith  of  his  affidavit  that  tlie 
mortgage  was  a  good  and  valid  security. 
Hirsch  v.  Trainer,  3  Abb.  N.  C.  274. 

-^Jamison  v.  Culligan,  151  Mo.  410, 
52  S.  VV.  244;  Rhoades  v.  Fuller,  139 
Mo.  179,  40  S.  W.  760. 

Where  an  executed  contract  has  been 
made  in  good  faith  for  a  valuable  con- 
sideration and  without  notice  of  insan- 
ity, with  a  person  of  unsound  mind,  the 
latter  must  elect  within  a  reasonable 
time  after  regaining  his  mental  capac- 
ity, whether  he  will  affirm  or  disaffirm 
the  contract;  and,  if  he  elects  to  do  the 
latter,  he  must  return  tlie  consideration 
which  he  received,  whether  it  proceeded 
from  a  third  party  or  not.  Morris  v. 
Great  Northern  R.  Co.  67  Minn.  74,  69 
N.  W.  628. 

-°  See  Mcrritt  v.  Merritt,  43  App.  Div. 
68,  59  N.  Y.  Supp.  357:  Hardxj  v.  Ber- 
ger,  76  App.  Div.  393,  78  N.  Y.  Supp. 
709. 

^^ Williams  v.  Sapieha,  94  Tex.  430, 
61  S.  W.  115. 

^3  Salk.  300,  Comb.  468,  2  Ventr. 
198. 

By  statute  in  England  the  feoffments 
of  a  lunatic  are  now  void.    See  1  Steph- 


en, Com.  7th  ed.  475.     See  also  Pollock, 
Contr.  Am.  ed.  pp.  80,  406. 

'"Re  Desilver,  5  Rawle,  111,  28  Am. 
Dec.  645;  Roqers  v.  Walker,  6  Pa.  371, 
47  Am.  Dec.  470. 

^Wexter  v.  Hall,  15  Wall.  9,  21  L.  ed. 
73. 

Other  cases  holding  the  deed  of  a 
lunatic  absolutely  void  do  not  seem  to 
notice  the  distinction.  Van  Detisen  v. 
Sioeet,  51  N.  Y.  378;  Farley  v.  Parker, 
6  Or.  105.  25  Am.  Rep.  504. 

So,  in  German  Sav.  d  Loan  Soc.  v.  De 
Lashmutt,  67  Fed.  399,  it  was  held  that 
a  deed  of  a  lunatic  is  not  merely  void- 
able, but  absolutely  void. 

And  the  same  was  held  in  Wilkinson  v. 
Wilkinson,  129  Ala.  279,  30  So.  578: 
Dougherty  v.  Poive,  127  Ala.  577,  31  So. 
524;  Galloway  v.  tiendon,  131  Ala.  280, 
31  So.  603. 

And  in  Alabama  the  fact  that  lands 
were  purchased  without  notice  of  the 
grantor's  insanity  does  not  prevent  such 
insanity  from  rendering  the  conveyance 
wholly  void.  Galloicay  v.  Eendon,  131 
Ala.  280,  31  So.  603:  Wilkinson  v.  Wilk- 
inson, 129  Ala.  279,  30  So.  578; 
Dougherty  v.  Poice,  127  Ala.  577,  30  So. 
524. 

And  the  rule  seems  to  be  the  same  in 
Georgia.  Orr  v.  Fquiiable  Mortg.  Co. 
107  Ga.  499,  33  S.  E.  708. 

And  in  Nebraska  the  deed  of  an  in- 
sane person  may  be  avoided  even  against 
a  grantee  for  value  witliout  notice  of 
his  grantor's  insanity.     Gingrich  v.  Rog- 


10 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


L§   6 


It  Las  been  held,  however,  that  while  a  deed  of  bargain  and  sale 
is  in  this  coimtry  equivalent  to  a  feoffment,  and  of  an  equal  solem- 
nity, the  deeds  of  lunatics,  like  the  deeds  of  infants,  though  voidable, 
may  be  ratified.'"'^  To  tlie  extent  of  holding  the  deed  of  a  lunatic 
not  under  guardianship  voidable  only,  this  is  sustained  by  numerous 
other  authorities,^-  though  the  appointment  of  a  guardian  may  avoid 
subsequent  deeds.^"* 

7.  On  rescission,  parties  to  be  placed  in  statu  quo. —  It  has  been  held 
that,  on  suit  for  avoidance  brought,  restitution  of  the  consideration  by 
the  lunatic  is  unnecessary  as  a  condition  precedent,  unless  the  lunatic 
be  restored  to  reason,  and  seeks  inequitably  to  use  his  prior  lunacy 
as  an  engine  of  fraud."^  But  the  better  opinion  is  that  the  parties 
must  be  placed  in  statu  quo,  unless  there  has  been  actual  fraud.^^ 

8.  Liable  for  necessaries. —  But  in  any  view  it  may  be  regarded  as 
settled,  both  at  law  and  in  equity,  that  a  lunatic's  estate  is  liable  for 
necessaries  furnished  to  him  f^  and  the  lunatic  himself,  or  his  admin- 
istrator, and  not  his  gTiardian,  must  be  sued  on  such  debts.^'^ 


er«  (Neb.)  96  N.  W.  156;  Dewey  v. 
Allgire,  37  Neb.  6,  40  Am.  St.  Rep.  468, 
55  N.  W.  276. 

^'Allis  V.  BillinffS,  6  Met.  415,  39  Am. 
Dec.  744 ;  Arnold  v.  Richmond  Iron 
Works,  1  Gray,  434;  Gibson  v.  Soper, 
6  Gray,  279,  66  Am.  Dec.  414;  Hoive  v. 
Hoice,  99  Mass.  88;  Valpey  v.  Rea, 
130  Mass.  384;  Craioford  v.  Scovel,  8 
W.  N.  C.  364, 

^-Hovey  v.  Eohson,  53  Me.  451,  89 
Am.  Dec.  705;  Eaton  v.  Eaton,  37  N. 
J.  L.  108,  18  Am.  Rep.  716;  Key  v. 
Davis,  1  Md.  32:  Chew  v.  Bank  of  Balti- 
more, 14  Md.  299 ;  Evans  v.  Eoran,  52 
Md.  602 ;  Rusk  v.  Fenton,  14  Bush,  490, 
29  Am.  Rep.  413;  Ashcraft  v.  De  Ar- 
mond,  44  Iowa,  229;  'Stchol  v.  Thomas, 
53  Ind.  42 ;  Freed  v.  Brown,  55  Ind. 
310:  Elston  v.  Jasper,  45  Tex.  409; 
Scanlan  v.  Cobb,  85  111.  296. 

■^See  infra,  chapter  VI.,  §  150. 

^*Gibson  v.  Soper,  6  Gray,  279,  66  Am. 
Dec.  414;  Jones  v.  Galbraith  (Tenn.  Ch. 
App.)   59  S.  W.  350. 

To  same  effect,  Crawford  v.  Scovel, 
8  W.  N.  C.  364;  llovey  v.  Hobson,  53 
Me.  451,  89  Am.  Dec.  705;  Nichol  v. 
Thomas,  53  Ind.  42;  Layay  v.  Marston, 
.32  La.  Ann.  170. 

So,  in  Roma/n  v.  Bluhm,  173  111.  277, 
50  N.  E.  694,  it  was  said  that  the  doc- 
trine that  restoration  was  necessary  in 
case  of  rescission  of  a  contract  is  appli- 
cable in  general  only  to  contracts  by 
persona  compos  mentis. 


^Eaton  V.  Eaton,  37  N.  J.  L.  108,  18 
Am.  Rep.  716;  Evans  v.  Eoran,  52  Md. 
602:  Scanlan  v.  Cobb,  85  111.  296;  Ash- 
eraft  v.  De  Armond,  44  Iowa,  229;  Rusk 
V.  Fenton,  14  Bush,  490. 

And  see  cases  cited  with  relation  to 
statu  quo  with  reference  to  general  con- 
tracts, supra,  §  5. 

This  is  especially  so  when  there  is 
no  notice  and  the  party  had  not  been 
judicially  declared  insane.  Ronan  v. 
Bluhm,  173  111.  277,  50  N.  E.  694. 

'^Baxter  v.  Portsmouth,  5  Barn.  &  C. 
170,  7  Dowl.  &  R.  614,  2  Car.  &  P.  178; 
Neill  V.  Morley,  9  Ves.  Jr.  478;  Dane  t. 
Kirktuall,  8  Car.  &  P.  679;  Sawyer  v, 
Lnfkin,  56  Me.  308:  McCrillis  v.  Bart- 
lett,  8  N.  H.  569;  Lincoln  v.  Buckmas- 
ter,  32  Vt.  652;  Kendall  v.  May,  10  Al- 
len, 59 ;  Skidmore  v.  Romaine,  2  Bradf. 
122;  La  Rue  v.  Gilkyson,  4  Pa.  375,  45 
Am.  Dec.  700;  Lancaster  County  Nat. 
Bonk  V.  Moore,  78  Pa.  407,  21  Am.  Rep. 
24;  Matthiessen  &  W.  Ref.  Go.  v.  Mc- 
Mahon,  38  N.  J.  L.  537;  Van  Born  v. 
Hann,  39  N.  J.  L.  207;  McCormick  v. 
Littler,  85  111.  62,  28  Am.  Rep.  610; 
Borum  v.  Bell,  132  Ala.  85,  31  So.  454; 
Re  Yturburru,  134  Cal.  568,  66  Pac. 
729;  Miller  v.  Eart,  135  Ind.  201,  34  iS. 
E.  1003;  State  v.  Sioeet,  21  R.  I.  87,  41 
Atl.  1011;  McN airy  County  v.  McCoin, 
101.  Tenn.  74,  41  L.  R.  A.  862,  45  S.  W. 
1070;  Pearl  v.  M'Doicell,  3  J.  J.  Marsh. 
658,  20  Am.  Dec.  199;  Coleman  v.  Fraz- 
er,  3  Bush,  300;   Richardson  v.  Strdng, 


9] 


CONTRACTS. 


11 


9.  Also  liable  for  contracts  during  lucid  intervals. —  Where  the  dis- 
ease is  of  such  a  character  that  lucid  intervals  exist,  the  power  to  con- 
tract returns  with  the  return  of  reason,  and  a  contract  or  deed  made  in 
a  lucid  interval  is  valid.^^  Since,  how^ever,  as  will  presently  he  seen 
more  fully,  insanity  of  a  permanent  type  is  continuous,  the  party  al- 
leging a  lucid  interval  will  be  required  to  prove  its  actual  existence.^^ 
On  the  other  hand,  w^here  the  disease  is  in  its  nature  periodic  or  tem- 
porary, the  presumption  of  incapacity  does  not  apply.'*^  By  a  lucid 
interval,  moreover,  is  not  meant  "a  perfect  restoration  to  reason,  but 
a  restoration  so  far  as  to  be  able,  beyond  doubt,  to  comprehend  and  to 
do  the  aci  with  such  reason,  memory,  and  judgment  as  to  make  it  a 
legal  act,"^^  But  it  must  be  a  restoration  of  the  faculties,  and  not  a 
mere  cessation  of  tlie  violent  symptoms,  and  requires  as  strong  evi- 
dence to  establish  it  as  does  insanity.^^  It  is  sufficient  to  establish 
such  lucid  intervals  to  prove  that  the  party  had  sufficiently  recovered 
his  reason  to  know  what  he  was  about.  A  discharge  from  a  lunatic 
asylum  is  only  prima  facie  evidence  of  restoration  to  sanity.'*^ 

10.  Prevailing  modern  rule;  tests. —  The  more  recent  rule  now  pre- 


35  N.  C.  (13  Ired.  L.)  100,  55  Am.  Dec. 
430 ;  Ex  parte  'Northington,  37  Ala.  496, 
79  Am.  Dec.  67. 

And  there  need  be  no  express  promise. 
Palmer  v.  Hudson  River  State  Hospital, 
10  Kan.  App.  98,  61  Pac.  506. 

In  Read  v.  Legard,  6  Exch.  636,  20 
L.  J.  Exch.  N.  S.  309,  15  Jur.  494,  it 
was  decided  that  the  maintenance  and 
support  of  a  wife  is  a  necessary;  where, 
however,  the  husband  gives  his  wife  a 
suitable  allowance,  he  is  not  liable  for 
her  debts  contracted  with  a  party  who 
knew  of  his  lunacy.  Richardson  v.  Dn 
Bois,  L.  R.  5  Q.  B.  51.  10  Best  &  S.  830, 
39  L.  J.  Q.  B.  N.  S.  69,  21  L.  T.  N.  S. 
635,  18  Week.  Rep.  62. 

The  expenses  of  a  commission  are  a 
necessary  protection  for  the  party  and 
his  estate,  even  though  he  is  foimd  sane 
thereby.  Nelson  v.  Duncomhe,  9  Beav. 
211,  15  L.  J.  Ch.  N.  S.  296,  10  Jur.  399; 
Williams  v.  Wenticorth,  5  Beav.  325. 

"  See  Van  Horn  v.  Hann,  39  N.  J.  L. 
207. 

^  Storv,  Contr.  §  74 ;  Hall  v.  Warren, 
9  Ves.  Jr.  605;  Tozer  v.  Saturlee,  3 
Grant  Cas.  162 ;  Frazer  v.  Frazer,  2 
Del.  Ch.  260;  McCormick  v.  Littler,  85 
111.  62.  28  Am.  Rep.  610;  Jones  v.  Per- 
kins,  5  B.  Mon.  222 ;  Blakeley  v.  Blake- 
ley,  83  N.  J.  Eq.  502 ;  Towart  v.  Sellars, 
5  Dow  P.  C.  231 ;  Ramsdell  v.  Ramsdcll, 
128  Mich.  110,  87  N.  VV.  81;  Wright  v. 


Market  Bank    (Tenn.  Ch.  App.)    60  S. 
W.  623. 

^^Staples  V.  Wellington,  58  Me.  454; 
Frazer  v.  Frazer,  2  Del.  Ch.  260;  Au- 
rentz  v.  Anderson,  3  Pittsb.  310;  Rush 
V.  Magee,  36  Ind.  69 ;  State  v.  Reddick, 
7  Kan.  143;  Atty.  Gen.  v.  Parnther,  3 
Bro.  Ch.  441. 

The  same  rule  applies  to  an  aliena- 
tion of  land  by  one  wh©  was  of  sound 
memory  before  he  became  non  compos 
mentis  as  that  applicable  to  an  aliena- 
tion by  an  idiot.  Beverley's  Case,  4 
Coke,  125. 

*°Brown  v.  Riggin,  94  III.  560. 

So,  of  epileptic  fits.  Carpenter  v. 
Carpenter,  S  Bush,  283 ;  Aurentz  v.  An- 
derson, 3  Pittsb.  310. 

^Frazer  v.  Frazer,  2  Del.  Ch.  260; 
Ricketts  v.  Jolliff,  62  Miss.  440;  Ekin 
V.  McCracken.  11  Phila.  534:  Crcagh  v. 
Blood,  8  Ir.  Eq.  Rep.  435,  2  Jones  &  L. 
509:  Bannatyne  v.  Bannatyne,  14  Eng., 
L.  &  Eq.  Rep.  581,  10  Jur.  864,  2  Rob. 
Eecl.  Rep.  472 :  Sombre  v.  Solardli,  1 
Deanc  &  S.  110. 

^Ricketts  v.  Jolliff,  62  Miss.  440;  Au- 
hert  v.  Auiert,  6  La.  Ann.  104;  EJcin  v. 
McCracken,  11  Phila.  534;  Atty.  Gen. 
v.  Parnther,  3  Bro.  Ch.  441;  Wheeler  v. 
Alder  son,  3  Hagg.  Eccl.  Rep.  574.  And 
see  Ramsdell  v.  Ramsdcll,  128  Mich. 
110,  87  N.  W.  81. 

*'Haynes  v.  Sicann,  6  Heisk.  560. 


12 


MEXTAL  L.\8UL'NDi\E«S  IN  1T«  LEGAL  RELATIONS. 


[§   10 


vailing,  as  has  boon  seen,  is  tliat  a  party  is  not  bound  by  a  contract 
entered  into  when  lie  was  in  such  a  mental  condition  as  to  prevent  a 
reasonable  exercise  of  his  faculties,  though  his  mind  was  not  totally 
ecJipsed.^^  And  tlie  test  of  capacity  as  to  contracts  generally  is 
whether  the  person  whose  contract  is  in  question  possessed  sufficient 
mind  to  reasonably  understand  the  nature  of  the  act  he  was  doing  or 
the  business  he  was  transacting,  and  the  consequences  tliereof  ;^^  or, 
as  it  is  sometimes  expressed,  whether  he  was  capable  of  transacting 
ordinary  business  and  of  acting  rationally  in  the  ordinary  affairs  of 
life.^^  And  the  more  usual  test  as  to  capacity  to  make  a  deed  or  con- 
veyance is  likewise  whether  the  grantor  possessed  sufficient  ability 
to  understand  in  a  reasonable  manner  the  nature  and  effect  of  his 


^Kilgore  v.  Cross,  1  Fed.  578. 

*^Keily  V.  McGuire,  15  Ark.  555; 
BaldvAn  v.  Dunton,  40  111.  188;  Perry 
V.  Pearson,  135  111.  218,  25  N.  E.  636; 
Sands  v.  Potter,  59  111.  App.  206;  Cof- 
fey V.  Coffey,  74  111.  App.  241 ;  Behrens 
x.'^McEeyirAe,  23  Iowa,  333,  92  Am.  Dec. 
428 ;  Elv.ood  v.  O'Brien,  105  Iowa.  239, 74 
N.  W. 740;  Taylor  v.  Patrick,  1  Bibb,  108 ; 
Hall  V.  Mutual  L.  Ins.  Co.  19  Ky.  L. 
Rep.  1240,  43  S.  W.  194;  Hovey  v. 
Chase,  52  Me.  304,  83  Am.  Dec.  514: 
Bond  V.  Bond,  7  Allen,  1 ;  Davis  v.  Phil- 
lips, 85  Mich.  198,  48  N.  VV.  513:  Rai/- 
nett  V.  Baluss,  54  Mich.  409,  20  N.  W. 
533;  Trimho  v.  Trimho,  47  Minn.  389, 
50  N.  W.  350;  Hill  v.  McLaurin,  28 
Miss.  288;  Nicholas  d  S.  Co.  v.  Hard- 
man,  62  Mo.  App.  153;  State  ex  rel. 
Stone  V.  Grand  Lodge,  A.  0.  U.  W.  78 
Mo.  App.  546;  Dennett  v.  Dennett,  44 
N.  H.  531,  84  Am.  Dec.  97;  Young  v. 
Stevens,  48  N.  H.  133,  2  Am.  Rep.  202, 
97  Am.  Dec.  592;  Hill  v.  Day,  34  N.  J. 
Eq.  150;  Lozear  x.  Shields,  23  N.  J.  Eq. 
509;  Uiett  v.  Shull,  36  W.  Va.  561,  15 
S.  E.  140;  ^Vhitalccr  v.  Hamilton,  126 
N.  C.  465,  35  S.  E.  815;  Mulligan  v.  Al- 
bertz,  103  Wis.  140,  78  N.  W.  10y3 ; 
Henrizi  v.  Kehr,  90  Wis.  344,  63  N.  W. 
2B5;  Edwards  v.  Davenport,  20  Fed. 
756;  Hall  v.  Vnger,  2  Abb.  (U.  S.) 
50T,  Fed.  Cas.  No.  5,949. 

An  assifjnment  of  an  expectancy  by 
one  whose  mind  was  so  impaired  by  age 
that,  thougli  she  understood  its  effect. 
ehe  did  not  understand  its  nature,  and 
was  not  able  to  distinguish  between  her 
own  debts  and  those  of  others,  or  to  un 
derntand  whether  or  not  she  was  equit- 
ably re(|uired  to  pay  them  is  invalid 
and  will  be  set  aside.  King  v.  Davis, 
GO  Vt.  502,  11   Atl.  727. 


An  instruction  in  an  action  on  con 
tract  that  one  who  has  mind  and  reason 
cnougl;  to  clearly  understand  the  nature 
and  consequences  of  his  act  is  to  be 
considered  sane  is  not  objectionable  be- 
cause of  the  omission  to  state  that  one 
who  lacks  that  capacity  is  to  be  con- 
sidered insane,  since  that  would  be  un- 
derstood. Xorman  v.  Geort/ia  Loan  d 
T.  Co.  92  Ga.  295,  18  S.  E.  27. 

But  an  instruction  in  a  contract  ac- 
tion that  one  is  disqualified  to  contract, 
when,  from  old  age,  infirmity,  or  other 
misfortune,  he  is  reduced  to  a  state  of 
imbecility  which  disqualifies  him  from 
the  proper  exercise  of  his  reasoning 
faculties  and  ttie  ordinary  prudential 
management  of  his  affairs,  is  too  in- 
definite and  uncertain.  Prather  v.  l^ay 
lor,   1  B.  j\Ion.  244. 

*"Dominick  v.  Randolph,  124  Ala.  557, 
27  So.  481;  Perry  v.  Pearson,  135  111. 
218,  25  N.  E.  636;  Somers  v.  Pumphrey, 
24  Ind.  231;  Prather  v.  'Naylor,  1  B. 
Mon.  244;  Young  v.  Stevens,  48  N.  H. 
133.  2  Am.  Rep.  202,  97  Am.  Dec.  597; 
Doe  ex  dem.  Mo/fit  v.  Witherspoon,  32 
N.  C.  (10  Ired.  L.)   185. 

The  test  is,  that  the  party  has  sufTi- 
cient  intelligence  to  carry  on  business, 
not  that  he  has  sufficient  intelligence  to 
carry  on  business  in  a  proper  and  pru- 
dent manner.  Hovey  v.  Chase,  52  Me. 
305,  83  Am.  Dec.  514. 

And  where  goods  are  sold  by  a  per- 
son alleged  to  be  a  lunatic,  the  sale  be- 
ing invalid  for  noncompliance  with  the 
statute  of  frauds,  and  the  subsequent 
delivery  is  relied  upon  to  validate  it. 
the  test  of  capacity  is  whether  tlie  seller 
was  competent  to  make  the  bargain, 
and,  if  so,  whether  his  competency  con- 
tinued so  as  to  enable  him  to  perfect  it 


i   10  J  CONTRACTS.  13 

act  or  of  the  business  he  was  transacting,  and  the  legal  consequences 
iikelj  to  flow  from  it.'*'^ 

Capacity  to  transact  ordinary  business,  however,  and  to  act  ration- 
ally in  the  ordinary  aifairs  of  life,  has  been  held  to  be  the  test  in  some 
of  the  cases  ;"'^  and  so  has  capacity  to  understand  and  protect  one's 

by  delivery.     Mattliicssen  d-  W.  Rcf.  Co.    Kennedy  v.  Marrast,  46  Ala.  IGl;  Furry 
V.  McMaJwn,  38  N.  J.  L.  530.  v.  Bartling    (Iowa)    94  N.  W.  471. 

"Doe  ex  dem.  Guest  v.  Becson,  2  Capacity  on  the  part  of  a  grantor  to 
Houst.  (Del.)  246;  Jones  v.  Thotnpson,  know  that  he  was  transferring  title  to 
5  Del.  Ch.  374;  Frazer  v.  Frazer,  2  Del.  the  grantee  is  necessary  to  sustain  his 
Ch.  200;  Dicken  v.  Johnson,  7  Ga.  4S4 ;  deed.  Ilovey  v.  TIobson,'5ry  Me.  256.  But 
Richardson  v.  Adams,  110  Ga.  425,  35  that  alone  is  not  sufficient.  Schnff  v. 
S.  E.  648;  Ring  v.  Lmoless,  190  111.  520,  Ransom,  79  Ind.  458. 
60  N.  E.  881;  Kimhall  v.  Cuddy,  117  It  may  be  regarded  as  a  test  of  ca- 
111.  213,  7  N.  E.  589;  Titcomb  v.  Van-  pacity  to  make  a  deed,  that  the  grantor 
iyle,  84  111.  371;  Burt  v.  Quisenberry,  was  capable  of  understanding  what  he 
132  111.  385,  24  N.  E.  622;  Guild  v.  Hull,  was  doing  in  executing  it  when  its  pur- 
127  111.  523,  20  N.  E.  665;  Peabody  v.  port  Avas^  fully  explained  to  him.  Ball 
Kendall,  145  111.  519,  32  N.  E.  674;  v.  Mantiin,  3  Bligh  N.  R.  1,  1  Dow  & 
Wiley  V.  Ewalt,  66  111.  26;  Carpen-  C.  880;  Stewart  v.  Flint,  59  Vt.  144,  8 
ter      V.     Carpenter,       8       Bush,      283;    Atl.  801. 

Riclcetts  V.  Jol!(i^,  62  Miss.  540;  More  mental  capacity  is  required  to 
Hovey  v.  HoLson,  55  Me.  250;  Dar-  make  a  valid  deed  than  to  mr.ke  a  valid 
by  V.  Hay  ford,  56  Me.  246;  Hovey  v.  will.  Jarrett  v.  Jarrett,  11  W.  Va.  584. 
Chase,  52  Me.  305,  83  Am.  Dec.  5i4;  But  see  i/cH  v.  [/n<7er,  2  Abb.  (U.S.) 
Bogyess  v.  Boggess,  127  Mo.  305,  29  S.  507,  Fed.  Cas.  No.  5,949. 
W.  1018;  Pennington  v.  ^tant07i,  125  Much  less  capacity  is  required,  how- 
Mo.  658,  28  S.  W.  1067;  Cutler  v.  Zol-  ever,  for  the  execution  of  a  mortgage 
linger,  117  Mo.  92,  22  S.  W.  895;  Den-  which  was  proposed,  discussed,  and  de- 
nett  V.  Dennett,  44  N.  H.  531,  84  Am.  termined  upon  previously,  when  the 
Dec.  97;  Dav/ren  v.  White,  42  N.  J.  Eq.  mortgagor  was  of  unimpaired  capacity, 
569,  7  Atl.  682;  Earle  v.  Norfolk  <&  N.B.  leaving  nothing  to  be  done  but  to  sign, 
Hosiery  Co.  36  N.  J.  Eq.  188;  Eaton  v.  than  would  be  required  for  the  execu- 
Eaton,  37  N.  J.  L.  108,  18  Am.  Rep.  tion  of  a  complicated  contract.  Parker 
716;  Blakeley  v.  Blakeley,  33  N.  J.  Eq.  v.  Marco,  76  Fed.  510. 
508;  Aldrich  v.  Bailey,  132  N.  Y.  85,  30  *^Franeis  v.  Wilkinson,  147  111.  370, 
N.  E.  264;  Van  Deusen  v.  Hweet,  51  N.  35  N.  E.  150;  Peabody  v.  Kendall,  145 
Y.  378;  Jones  v.  Jones,  43  N.  Y.  S.  R.  111.  519,  32  N.  E.  674;  Schneider  v. 
434,  17  N.  Y.  Supp.  905;  Goodyear  v.  Manning,  121  111.  376,  12  N.  E.  267; 
Adams,  1  Silv.  Sup.  Ct.  185,  24  N.  Y.  S.  English  v.  Porter,  109  111.  285;  Titcomb 
R.  317,  5  N.  Y.  Supp.  275;  Creagh  v.  v.  Vantyle,  84  111.  371;  Stone  v.  Wil- 
Blood.  2  Jones  &  L.  509,  8  Ir.  Eq.  Rep.  bern,  83  111.  105;  Nichols  v.  King,  24 
434;  Carnaqie  v.  Diven,  31  Or.  366,  49  Ky.  L.  Rep.  124,  68  S.  VV.  133;  ilovey 
Pac.  891;  Swank  v.  Swank,  37  Or.  439,  v.  Chase,  52  Me.  30.5,  83  Am.  Dec.  514; 
61  Pac.  846;  Bowman  v.  Van  Baum,  17  Ball  v.  Mannin,  3  Bligh  N.  R.  1,  1  Dow 
Phila.  633,   14  W.  N.  C.  185;  Stringfel-    &  C.  880. 

low  V.  Hanson,  25  Utah,  480,  71  Pac.  But  see  Matin  v.  Keene  Guaranty  Sav. 
1052;  Day  v.  Seeley,  17  Vt.  542;  Miller  Bank,  29  C.  C.  A.  547,  57  U.  S.  App. 
v.   Rutlcdge,   82   Va.   863,    1    S.   E.   202;    034,    86    Fed.    51. 

Buckey  v.  Buckey,  38  W.  Va.  168,  18  S.  Buying  and  selling  property,  settling 
E.  383;  Jarrett  v.  Jarrett,  11  W.  Va.  accounts,  collecting  and  paying  out 
584:  Wright  v.  Jackson,  59  Wis.  569,  IS  money,  or  borrowing  or  loaning  money, 
N.  W.  486;  Hall  v.  Unger,  2  Abb.  (U.  constitute  the  transaction  of  "ordinary 
S.)  507,  Fed.  Cas.  No.  .5,949;  Parker  v.  business,  the  capacity  to  do  which  shows 
Marco,  76  Fed.  510;  Davies  v.  Grindlcy,  sufficient  capacity  to  dispose  of  property 
She!  ford,  Lunatics,  266;  Mann  v.  Keene  by  deed.  Francis  v.  Wilkinson,  147  111. 
Guaranty  Sav.  Bank,  29  C.  C.  A.  .547,  370,  35  N.  E.  150. 
57  U.  S.  App.  034,  SO  Fed.  51.    And  see        And  one  who  retains  a  knowledge  of 


u 


MENTAL  UNSOUNDNEHS  IN  ITS  LEGAL  RELATIONS. 


[§   10 


OAvn  interest.^^  The  mere  fact  that  the  mental  powers  of  a  person 
are  somewhat  impaired  by  age,  disease,  or  otlierwise,  will  not  affect 
his  deed  or  contract,  where  he  retains  full  comprehension  of  the  mean- 
ing and  effect  of  his  acts  f^  nor  will  imbecility  or  weakness  of  mind  ;^^ 
nor  mere  physical  weakness.^^  But  weakness  of  mind  is  bound  to 
be  taken  into  consideration  as  a  circumstance  in  determining  whether 
a  contract  should  be  enforced  or  relieved  against.^* 


liis  property  and  of  tlie  character  of  his 
acts  may  make  a  valid  deed,  though  he 
may  not  have  capacity  to  transact  all 
the  ordinarv  business  of  life.  BucJcey 
V.  Buckey,  38  W.  Va.  168,  18  S.  E.  383. 

It  is  immaterial  on  the  question  of 
capacity  to  make  a  deed  whether  the 
grantor  had  native  business  capacity  to 
understand  it,  or  whether  he  learned 
from  competent  sources  what  would  be 
for  his  interests,  or  had  obtained  advice 
from  others  so  that  by  their  explana- 
tion he  must  have  been  made  to  under- 
stand.    Doty  V.  Hubhard,  55  Vt.  278. 

*'Kimball  v.  Cuddy,  117  III.  213,  7  N. 
E.  580;  Wiley  v.  EtoaU,  66  111.  26; 
Lindscij  v.  Lindsey.  50  111.  79,  99  Am. 
Dec.  489 ;  Guild  v.  Warne,  149  III.  105, 
36  N.  E.  635. 

To  be  valid,  a  ratification  of  a  deed 
made  while  insane  must  be  the  intelli- 
gent act  of  the  grantor,  knowing  that  he 
is  acting  under  the  contract  contained 
in  the  deed,  and  understanding  it  and 
availing  himself  of  it.  Bond  v.  Bond, 
7   Allen,   1. 

'-"Guild  v.  Warne,  149  111.  105,  36  N. 
E.  635;  Kimlall  v.  Cuddy,  117  111.  213, 
7  N.  E.  589;  Burnham  v.  Kidtcell,  113 
111.  425 ;  EnfiUsh  v.  Porter,  109  111.  285 : 
Wile)/  v.  Email,  60  111.  26;  Lindsey  v. 
Lindsey,  50  111.  79,  99  Am.  Dec.  489; 
Stone  v.  Wilhern.  83  111.  105;  Francis  v. 
Wilkinson,  147  111.  370,  35  N.  E.  150; 
Guild  V.  Hull,  127  111.  523,  20  N.  E.  665; 
Physio-Medical  Colleije  v.  Wilkinson, 
108  Ind.  314,  9  N.  E.  167;  Hovey  v. 
Uobson,  55  Me.  256;  Eovcy  v.  Chase.  52 
Me.  305,  83  Am.  Dee.  514:  Milks  v. 
Milks,  129  Mich.  164,  88  N.  W.  402; 
Cutler  V.  Zollinger,  117  Mo.  92,  22  S. 
W.  895;  Sprague  v.  Dueh  11  Paige,  480; 
Merrill  v.  Merritt,  32  Misc.  21,  66  N. 
Y.  Supp.  123;  Carnagie  v.  Diven,  31  Or. 
366,  49  Pac.  891;  f^wank  v.  Bwank,  37 
Or.  439,  61  Pac.  846;  Stringfellow  v. 
Hanson,  25  Utah,  480,  71  Pac.  1052; 
Buckey  v.  Buckey,  38  W.  Va.  168,  18 
S.  E.  383;  Delaplain  v.  Gruhb.  44  W. 
Va.  612,  67  Am.  St.  Rep.  788,  30  S.  E. 
201. 


The  general  rule  tliat  a  deed  or  other 
conveyance  of  an  insane  person  is  void 
or  voidable  does  not  refer  to  insanity 
in  its  technical  meaning.  Boggess  v. 
Boggess,  127  Mo.  305,  29  S.  W.  1018. 

And  a  deed  may  be  upheld  under  prop- 
er circumstances  without  reference  to 
the  abstract  question  whether  the  grant- 
or was  sane  or  insane.  Jones  v.  Jones, 
43  N.  Y.  S.  R.  434,  17  N.  Y.  Supp.  905. 

And  the  fact  that  a  grantor  did  not 
perfectly  comprehend  the  result  of  the 
bargain  he  was  making  and  did  not 
know  that  the  deed  given  by  him  would 
constitute  a  mortgage  would  not  be  suf- 
ficient to  invalidate  it.  Darby  v.  Hay- 
ford,  56  Me.  246. 

''^Richardson  v.  Adams,  110  Ga.  425, 
35  S.  E.  648:  Peabody  v.  Kendall,  145 
111.  519,  32  N.  E.  674:  Somers  v.  Pum- 
rhrey,  24  Ind.  231 ;  Wiley  v.  Ewalt,  66 
111.  26;  Burt  v.  Quisenberry,  132  111. 
385,  24  N.  E.  622;  Willemin  v.  Dunn, 
93  111.  511;  Miller  v.  Craig,  36  111.  109; 
Van  Horn  v.  Keenan,  28  111.  445;  Dea 
Moines  Nat.  Bank  v.  Chisholm,  71  Iowa, 
075,  33  N.  W.  234;  Corbitt  v.  Smith,  7 
Iowa,  60,  71  Am.  Dec.  431;  Paulus  v. 
Reed  (Iowa)  96  N.  W.  757;  Marmon  v, 
Marmon,  47  Iowa,  121;  Darby  v.  Hay- 
ford,  56  Me.  246:  Deicey  v.  Allgire,  37 
Neb.  6.  40  Am.  St.  Rep.  468,  55  N.  W. 
276;  Hay  v.  Miller,  48  Neb.  156,  66  N. 
W.  1115;  Johnson  v.  Phifer,  6  Neb.  401; 
Mulloy  V.  Inqalls,  4  Neb.  115;  Davren 
V.  White.  42  N.  J.  Eq.  560,  7  Atl.  682: 
Odell  V.  Buck,  21  Wend.  142;  Lawrence 
V.  Willis,  75  N.  C.  471;  Smith  v.  Beatty, 
37  N.  C.  (2  Ired.  Eq.)  456,  40  Am.  Dec. 
435;  Aiman  v.  Stout,  42  Pa.  114;  An- 
thony  v.  Hutching,  10  R.  I.  165;  Beville 
v.  Jones,  74  Tex.  148,  1  S.  W.  1128; 
Miller  v.  Rutledge,  82  Va.  863,  1  S.  E. 
202;  Ernes  v.  Ernes,  11  Grant  Ch.  (U. 
C.)    325. 

''-Txdte  V.  Hart,  71  App.  Div.  619,  75 
N.  Y.  Supp.  1098. 

^^Bellcr  V.  Jones.  22  Ark.  92;  Doughtjf 
V.  Doughty,  7  N.  J.  Eq.  227. 


§  11] 


CONTRACTS. 


15 


11.  Delusion  as  a  test. —  Delusion,  consisting  of  belief  in  things  as 
real  which  do  not  in  fact  exist,  and  which  a  rational  person  would  not 
believe,  is  not  necessarily  the  true  legal  test  of  insanity,  or  incapacity 
to  contract -^^  But  a  delusion  as  to  the  subject-matter  of  a  contract, 
M^hich  was  the  cause  of  its  execution,  will  invalidate  it.^^  The  ques- 
tion is  whether  the  insane  delusion  was  the  moving  cause  of  the  act 
in  question.^® 

12.  Time  of  application  of  tests. —  The  time  to  be  considered  in  the 
application  of  the  tests  of  capacity  to  make  a  contract  or  deed  is  the 
exact  time  of  the  performance  of  the  act  in  question.^'^ 

13.  Monomania  as  to  unrelated  subject-matter. — Delusions  or  hal- 
lucinations do  not  avoid  capacity  if  they  do  not  touch  the  subject-mat- 
ter of  a  contract  f^  nor  do  monomania  or  partial  insanity.^^  It  must 
appear  that  the  transaction  was  affected  thereby.^"     While  every  man 


^*Wright  v.  Wright,  139  Mass.  177,  29 
N.  E.  380. 

^^Furry  v.  Bartling  (Iowa)  94  N.  W. 
471. 

^"Meigs  v.  Dexter,  172  Mass.  217,  52 
N.  E.  75. 

"■'Francis  v.  Wilkinson,  147  111.  370, 
35  N.  E.  150;  Emery  v.  Hoyt,  46  111. 
258;  Fay  v.  Burditt,  81  Ind.  433,  43  Am. 
Rep.  142;  Cutler  v.  Zollinger,  117  Mo. 
02,  22  S.  W.  895 ;  Bucket/  v.  Buckey,  38 
W.  Va.  1G8,  18  S.  E.  383;  Jarrett  v. 
Jarrett,  11  W.  Va.  584;  Deki plain  v. 
Grubh,  44  W.  Va.  613,  67  Am.  St.  Rep. 
788,  30  S.  E.  201 ;  Anderson  v.  Cranmer, 
11  W.  Va.  562;  Fnrnsworth  v.  Noff sing- 
er, 46  W.  Va.  410,  33  S.  E.  246;  Tolv- 
art  V.  Hellars,  5  Doav,  P.  C.  231. 

An  instrument  executed  upon  terms 
originated  by  the  parties  when  both 
were  unquestionably  sane  will  not  be 
set  aside  on  the  ground  of  the  subse- 
quent mental  unsoundness  of  one  of  the 
parties,  where  he  retained  capacity  to 
recollect  and  understand  its  terms  as  be- 
fore agreed  upon,  though  a  new  trans- 
action then  for  the  first  time  proposed 
would  be  set  aside.  Jones  v.  Evans,  7 
Dana,  96;  Parker  v.  Marco,  76  Fed. 
510. 

'^Staples  V.  Wellington.  58  Me.  453; 
Dennett  v.  Dennett,  44  iST.  H.  531,  84 
Am.  Dee.  97 ;  Somes  v.  Skinner,  16 
Mass. '348;  Osterhout  v.  Shoemaker,  3 
Hill,  513;  Banks  v.  Goodfellow,  L.  R. 
5  Q.  B.  549,  39  L.  J.  Q.  B.  N.  S.  237. 
22  L.  T.  N.  S.  813;  Lozear  v.  Shields,  23 
N,  J.  Eq.  509;  Emery  v.  Hoyt,  46  III. 
258;  Boyce  v.  Smith,  9  Gratt.  704,  60 
Am.  Dec.  313;  Lemon  v.  Jenkins,  48  Ga. 


313;  Searle  v.  Galbraifh,  73  111.  269; 
Johnson  v.  Johnson,  10  tnd.  387;  Mc- 
Donald V.  McDonald,  16  Grant.  Ch.  (U. 
C.)  37;  Campbell  v.  Hill,  23  U.  C.  C. 
P.  473;  Jones  v.  Hughes,  15  Abb.  N.  C. 
141. 

Suspicions  entertained  by  a  party, 
arising  from  observations  made  by  him 
and  founded  upon  facts  upon  which  he 
was  satisfied  to  act,  though  exaggerated 
and  extremely  absurd,  are  not  insane 
delusions  which  would  legally  disqualify 
him  from  transferring  his  property. 
Jones  V.  Hughes,  15  Abb.  N.  C.  141. 

'"^Burqess  v.  Pollock,  53  Iowa,  273, 
36  Am.  Rep.  218,  5  N.  W.  179;  Dominick 
V.  Randolph,  124  Ala.  557,  27  So.  481; 
Cutler  V.  Zollinger,  117  Mo.  92,  22  S. 
W.  895;  Benoist  v.  Murrin,  58  Mo.  307; 
Ekin  V.  McCracken,  1 1  Phila.  534 ; 
Boyce  v.  Smith,  9  Gratt.  704,  60  Am. 
Dec.  313. 

^"Blakeley  v.  Blakeley,  33  N.  J.  Eq. 
508;  Jenkins  v.  Morris,  L.  R.  14  Ch. 
Div.  674,  42  L.  T.  N.  S.  817. 

A  mortgage  given  by  a  person  com- 
petent to  comprehend  what  he  wns  do- 
ing is  valid,  though  he  was  afflicted 
with  religious  enthusiasm,  and  was  :•. 
person  of  eccentric  habits.  Campbell  v. 
Hill,  23  U.  C.  C.  P.  473. 

And  a  deed  given  by  a  woman  will 
not  be  set  aside  on  the  ground  of  in- 
capacity, where  she  knew  the  nature  of 
her  act  and  knew  the  character  of  her 
property  and  had  definite  wishes  with 
reference  thereto,  because  she  believed 
that  thei'e  were  devils  and  spirits  in  her 
room,  and  that  they  crawled  over  her 
and    made    her    bed    an    abiding    place. 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   13 


is  presumed  to  be  sane,  chronic  insanity,  when  once  proved  to  exist. 
is  presumed  to  continue.*'^  But  there  is  no  such  presumption  of  law 
as  to  the  continuance  of  a  temporary  hallucination  or  delusion  aris- 
ing from  disease.  The  party  seeking  to  avoid  a  contract  by  reason 
of  an  hallucination  must  show  its  existence  at  the  time  of  making  the 
contract,  and  that  the  hallucination  was  of  a  character  affecting  his 
capacity.  Whether  an  existing  delusion  as  to  the  subject-matter  of 
the  contract  affects  the  capacity  to  contract  is  a  question  for  the 
jury  f^  but  when  the  delusion  or  hallucination  goes  to  the  essence  of 
the  contract,  and  sways  the  party  making  it,  then  he  must  be  regarded 
in  this  relation  as  without  contracting  power. *'^ 

14.  Question  conditioned  by  fraud. —  A  party  dealing  with  notice 
with  an  insane  person,  except  for  necessaries,  is  chargeable  with 
fraud ;  and  where  tliere  is  fraud  independently  shown,  a  compara- 
tively slight  degree  of  mental  debility  will  suffice  to  sustain  a  decree 
setting  aside  a  contract  with  the  party  imposed  upon.^^  Imbecility, 
or  partial  hallucination  if  there  be  fraud,  will  be  a  ground  for  setting 


Cutler  V.  Zollinger,  117  Mo.  92,  22  S. 
W.   89.5. 

"Wharton,  Ev.  §  1252. 

AVhere  a  grantor  had  labored  under 
permanent  or  liabitual  insane  delusions 
with  reference  to  the  subject-matter  of 
the  transaction  in  question,  the  burden 
of  proof  rests  with  the  party  claiming 
under  his  deed  to  establish  that  he  was 
free  from  such  delusions  at  the  time 
the  deed  was  given.  Jerry  v.  Toicn- 
shenil,  9  Md.   145. 

'^■Jenkins  v.  Morris.  L.  R.  14  Ch.  Div. 
674,  42  L.  T.  N.  S.  817. 

Tlie  question  whether  a  party  was  of 
insane  mind  and  incapable  of  under- 
standing and  deciding  upon  the  terms 
of  a  contract  should  be  submitted  to 
the  jury  in  general  terms  in  an  action  in- 
volving it.  Wrifiht  V.  Wright,  139  Mass. 
177.  29  N.  E.  380. 

"Banls  V.  Goodfellow,  L.  R.  5  Q.  B. 
549,  39  L.  J.  Q.  B.  N.  S.  237.  22  L.  T. 
N.  S.  813;  Alston  v.  Boyd.  G  Humph. 
504;  Young  v.  Young,  10  Grant  Ch.  (U. 
C.)  305:  Dominick  v.  Randolph,  124 
Ala.  557.  27  So.  481 ;  Lemon  v.  Jenkins, 
48  Ga.  313;  Hay  v.  Miller,  48  Neb.  156, 
CO  N.  W.  1115;  Dewey  v.  AlUiire,  37 
Neb.  6,  40  Am.  St.  Rep.  408.  55  N.  W. 
270:  Kastell  v.  Jlillmnn,  53  N.  J.  Eq. 
49,  30  Atl.  535;  Jones's  Appeal,  11  W. 
N.  C.  258. 

An  insane  delusion  which  was  such 
that,  though  the  person  entertaining  it 


knew  he  was  making  a  deed  and  what 
its  nature  would  l)c.  yet  rendered  him 
entirely  indifferent  to  property,  inca- 
pacitating him  from  a  rational  care  of 
his  own  interests  or  those  of  others,  is 
aufRcient  to  warrant  setting  aside  the 
deed.     Bond  v.  Bond.  7  Allen,  1. 

"Gartside  v.  Tshenrood,  1  Bro.  Ch. 
558;  Dane  v.  Kirkvall,  8  Car.  &  P.  079; 
Dent  v.  Bennett.  7  Sim.  539;  Rhodes 
V.  Bate,  L.  R.  1  Ch.  252;  Grant  v. 
Thompson,  4  Conn.  208,  10  Am.  Dec. 
119:  Ronan  v.  Bhihm.  173  111.  277,  50 
N.  E.  694;  Clay  v.  Hammond,  199  111. 
370,  93  Am.  St.  Rep.  146,  65  N.  E. 
352;  Seeley  v.  Price,  14  Mich.  541; 
Creekmore  v.  Baxter,  121  N.  C.  31,  27 
S.  E.  994;  Wille  v.  Wille.  57  S.  C.  413, 
35  S.  E.  804:  Rutherford  v.  Ruff,  4 
Desauss.  Eq.  350;  Bible  v.  Wisecarver, 
(Tenn.  Ch.  App.)  50  S.  W.  670;  Ed- 
wards V.  Edwards.  14  Tex.  Civ.  App. 
87,  36  S.  W.  1080 ;  Encking  v.  Simmons. 
28  Wis.  272 ;  Henderson  v.  McGregor, 
30  Wis.   78. 

One  who  contracts  jointly  with  an- 
other known  to  him  to  be  incompetent, 
in  consideration  of  a  conveyance  of  land 
to  the  latter,  and  who  is  compelled  to 
perform  his  contract,  cannot  attack  the 
conveyance  to  the  incompetent  party 
after  the  death  of  tlie  grantor,,  on  the 
ground  of  such  incompetencj'.  Burk- 
hardt  v.  Burkhardt,  107  Iowa,  309,  77 
N.   W.    10G9. 


8  14] 


CONTRACTS. 


17 


aside  a  contract  which  would  have  been  sustained  without  such 
fraud.*'^  Though  mere  weakness  of  mind  be  not  of  itself  a  sufficient 
ground  to  warrant  setting  aside  a  contract,  it  is  a  material  ingi-edient 
of  the  question  whether  the  contract  was  obtained  by  fraud,  imposi- 
tion, or  undue  influence  f^  and  it  is  an  item  of  proof  tending  to  estab- 
lish fraud  f"^  and  it  may  be  controlling,  when  connected  with  other 
facts  tending  to  establish  fraud,  in  giving  character  to  the  transac- 
tion/'^ So,  with  deeds  and  conveyances,  as  with  contracts  generally, 
much  less  mental  incapacity  is  sufficient  to  invalidate  them  when  the 
transaction  is  accompanied  by  fraud  or  undue  influence  f^  and  a  con- 
veyance by  a  grantor  whose  mental  condition  was  such  as  to  render 
him  an  easy  victim  to  imposition  and  fraud  will  be  set  aside  when 
such  influences  were  successfully  exerted  ;^*^  or  where  tlie  considera- 


"'Benls  V.  (iee,  10  Pa.  50,  49  Am.  Dec. 
573;  Jones  v.  Perkins,  5  B.  Mon.  222; 
Keeble  v.  Cummins,  5  Hayw.  (Tenn.) 
43;  Wrajj  v.  Wrmj,  32  Ind.  126;  Har- 
ris V.  Wamslej/,  41  Iowa,  671;  Wilson 
V.  Oldham,  12  B.  Mon.  55;  Farnam  v. 
Brools,  9  Pick.  212:  Sander  v.  Savage, 
75  App.  Div.  333,  78  N.  Y.  Supp.  189; 
Schoellhamcr  v.  Romeiscli,  20  Or.  394, 
38  Pac.  344:  Hunt  v.  Moore,  2  Pa.  St. 
105;  Tally  v.  Smith,  1  Coldw.  290;  Bird- 
song  V.  Birdsong,  2  Head,  289 ;  Sen- 
tance  v.  Poole,  3  Car.  &  P.  1 ;  Gartside 
V.  IsJiencood,  1  Bro.  Cli.  560;  Green  v. 
Wood,  2  Vern.  633:  Dunnage  v.  White, 
1  Swanst.  137,  1  Wils.  67,^  18  Revised 
Rep.  33. 

Insanity  or  imbecility  will  avoid  a 
contract  when  taken  advantage  of, 
though  no  sentence  of  interdiction  had 
been  pronovmced.  Holland  v.  Miller,  12 
La.   Ann.    624. 

"'■Juzan  V.  Tonlmin,  9  Ala.  662,  44  Am. 
Dec.  448;  Jones  v.  Thompson,  5  Del.  Ch. 
374;  Dennett  v.  Dennett,  44  N.  H.  531, 
84  Am.  Dec.  97 ;  Nace  v.  Boijer,  30  Pa. 
99;  Tallti  V.  Smith,  1  Coldw.  290;  El- 
lis V.  Mathews,  19  Tex.  390,  70  Am.  Dec. 
353. 

That  a  grantor  was  of  feeble  intellect, 
and  that  the  relation  of  principal  and 
general  agent  existed  between  him  and 
his  grantee,  and  that  the  price  paid 
for  the  land  was  inadequate,  are  all  cir- 
cumstances calculated  to  impeach  the 
ileed  as  fraudulent.  Brooke  v.  Berry,  2 
Gill.  83;  Berry  v.  Hall,  105  N.  C.  155, 
10   S.   E.   903. 

"'Jackson  ex  dem.  Cadicell  v.  King,  4 
Cow.  207,  15  Am.  Dec.  354;  Milner  v. 
Turner,  4  T.  B.  Mon.  244;  Galpin  v. 
Wilson,  40  lown,  90. 

Vol.  I.  Mui.  Jlr. — 2. 


The  burden  of  proof  rests  with  the 
grantee  of  an  ignorant  or  weak-minded 
grantor  to  show  that  the  contents  of 
his  deed  were  made  known  to  him.  Hyer 
V.  Little,  20  N.  J.  Eq.  443. 

"^Darnell  v.  Rowland,  30  Ind.  342; 
Jones  V.  Thompson,  5  Del.  Ch.  374. 
And  see  Good  v.  Floyd  (Tenn.  Ch.  App.) 
48  S.  W.  687. 

But  fraud  must  appear ;  the  mere 
fact  that  a  person  incapable  of  prop- 
erly managing  his  own  afi'airs  was  in- 
duced to  sell  his  land  to  another  does 
not  entitle  him  to  relief.  Devereaux  v. 
Huhbard,  117  Mich.  119,  75  N.  W.  450. 

Though  it  need  not  be  active  framl, 
when  the  transaction  was  detrimental 
to  the  interests  of  the  grantor.  Reason 
V.  Jones,  119  Mich.  672,  78  N.  W.  899. 

'^"Corbit  V.  Smith,  7  Iowa,  60,  71  Am. 
Dec.  431;  Anthony  v.  Hutchins,  10  R.  I. 
105;  Hayes  v.  Candee,  75  Conn.  131,  52 
Atl.  820;  Blachford  v.  Christian,  1 
Knapp  P.  C.  73. 

A  deed  may  be  set  aside  because  of 
a  degree  of  weakness  of  mind  on  the 
part  of  the  grantor  far  less  tlian  that 
which  would  be  necessary  to  justify  the 
issuing  of  a  commission  or  a  verdict  of 
lunacy,  where  such  weakness  has  been 
taken  advantage  of  to  procure  its  exe 
cution.  Blachford  v.  Christian,  1  Knapp 
P.  C.  73;  Craddock  v.  Cabiness.  1  Swan, 
474:   Greer  v.  Greer,  9  Gratt.'330. 

'°Ga^s  V.  Mason,  4  Sneed,  497  ;  Tom- 
lifison  V.  Tomlinson,  103  Iowa,  740,  72 
N.  W.  064;  Long  v.  Long,  9  Md.  348; 
Frnsh  v.  Green,  86  Md.  494,  39  A -I. 
863:  Bennett  v.  Bennett  CNeb.)  91  >'. 
W.  409;  Moit  v.  Mott,  49  N.  J.  Eq.  192, 
22  Atl.  997;  Morton  v.  Morion  (N.  J. 
Eq.)    7  Cent.  Rep.   134,  8  Atl.  807;  La- 


IS 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   14 


tion  was  grossly  inadequate.'^  Where  the  grantor  is  weak-minded, 
equity  will  take  such  steps  as  may  be  necessary  to  protect  his  rightsJ^ 
15."  Better  opinion  that  contracts  by  lunatics  are  voidable  at  option.— 
That  when  a  contract  has  been  produced  by  fraud,  acting  upon  men- 
tal debility  or  eccentricity,  it  will  be  set  aside  in  equity,  is  settled. '^^ 
And  it  is  further  settled  that  the  mere  act  of  contracting  with  a  luna- 
tic, except  for  necessaries,  is  fraudulent  in  all  cases  where  the  lunacy, 
to  the  knowledge  of  the  other  contracting  party,  extends  to  the  subject- 
matter  of  the  contract.'^ •^  On  the  theory  that  in  the  case  of  lunatics 
there  is  an  absence  of  consenting  mind,  the  contracts  of  a  lunatic, 
made  under  the  circumstances  given  above,  have  been  considered  to 


i-etfe  V.  Sage,  29  Conn.  577 ;  Sprague  v. 
Dtiel  Clarke  Ch.  90:  AUore  v.  Jewell, 
94  U.  S.  506,  24  L.  ed.  260:  Harding  v. 
Handy,  11  Wheat.  103,  6  L.  ed.  429; 
Kempson  v.  Ashbee,  L.  R.  10  Ch.  15, 
'44  L.  J.  Ch.  N.  S.  195,  31  L.  T.  N.  S. 
525,  23  Week.  Rep.  38.  And  see  Combs 
V.  Combs,  23  Kv.  L.  Rep.  1264,  65  S.  W. 
13:  Revels  v.  Revels,  64  S.  C.  256,  42 
S.  E.  Ill;  Clarkson  v.  Hanway,  2  P. 
Wms.  203. 

''^Clark  V.  Lopez,  75  Miss.  932,  23  So. 
648;  Rehearing  denied  in  75  Miss.  938, 
23  So.  957;  Bennett  v.  Bennett  (Neb.) 
91  N.  W.  409;  White  v.  White,  60  N. 
J.  Eq.  104,  45  Atl.  767;  Sander  v.  Sav- 
age, 75  App.  Div.  333,  78  N.  Y.  Supp. 
189;  Hoeh  v.  Hoeh,  197  Pa.  387,  47  Atl. 
351;  Jones  v.  Galbraith  {Tenn.  Ch. 
App.)   59  S.  W.  3.50. 

An  impaired  mind,  together  with  in- 
adequacy of  consideration  and  decep- 
tion and  threats,  is  sufficient  to  warrant 
setting  aside  a  deed  as  having  been  ob- 
tained by  fraud  and  undue  influence. 
Kroenung  v.  Goehri,  112  Mo.  641,  20  S. 
W.  661 ;  James  v.  Langdon,  7  B.  Mon. 
193;  Churchill  v.  Scol't,  65  Mich.  485, 
32  N.   W.   737. 

And  a  conveyance  for  a  grossly  in- 
adequate consideration,  obtained  by  tak- 
ing advantage  of  a  delusion  under  which 
the  grantor  labored,  will  be  set  aside 
though  the  grantee  was  not  responsible 
for  the  delusion.  Purklturst  v.  Hosford, 
21  Fed.  829. 

^■\VatS07i  V.  Sinith,  7  Or.  448:  Ben- 
nett V.  Bennett  (Neb.)  91  N.  W.  409; 
Mott  V.  Molt,  49  N.  J.  Eq.  192,  22  .Atl. 
997:  Spraquc  v.  Duel,  Clarke  Ch.  90; 
Hock  V.  Hoeh,  197  Pa.  387,  47  Atl.  351; 
Per  I:  ins  v.  Scott,  23  Iowa,  237. 

'^Shakespeare  v.  Itfarkhnm,  72  N.  Y. 
400;  darrnw  v.  Brown,  60  N.  C.  (Winst. 
Eq.)    46,  49,  86  Am.  Dec.  450;  Ruther- 


ford V.  Riiff,  4  Desauss.  Eq.  350;  Seeley 
V.  Price,  14  Mich.  541;  Jacox  v.  Jacox, 
40  Mich.  473,  29  Am.  Rep.  547;  Tay- 
lor V.  Patrick,  1  Bibb,  168:  Wilson  v. 
Oldham,  12  B.  ^lon.  55;  Birdsong  v. 
Birdsong,  2  Head,  289 :  Killian  v.  Bad- 
gett,  27  Ark.  166;  Henderson  v.  Mc 
Gregor,  30  Wis.  78;  Keeble  v.  Cummins, 
5  Havw.  (Tenn.)  43;  Reese  v.  Reese, 
89  Ga.  645,  15  S.  E.  846;  A^eip  England 
Loan  <C-  T.  Co.  v.  Spitler,  54  Kan.  560, 
38  Pac.  799;  Gates  v.  Woodson,  2  Dana, 
452;  Breckenridge  v.  Ormsby,  1  J.  J. 
Marsh.  245,   19  Am.  Dec.  71. 

In  Moore  v.  Hershey,  90  Pa.  196, 
Paxson,  J.,  held  that  the  indorsement 
of  a  promissory  note  by  a  lunatic 
could  be  inquired  into,  and  fraud,  knowl- 
edge of  the  lunacy,  or  want  of  consid- 
eration set  up  as  a  defense. 

See  also  Wirebach  v.  Bank  of  Easton, 
10  W.  N.  C.   143. 

''*Price  V.  Berrington,  7  Hare,  402; 
Lincoln  v.  Buckmaster,  32  Vt.  652; 
Henderson  v.  McGregor,  30  Wis.  78 ; 
Lagay  v.  Mnrston,  32  La.  Ann.  170; 
Jones  v.  Perkins,  5  B.  Mon.  222;  Story, 
Contr.  §  83. 

But  see  Curtis  v.  Brotonell,  42  Mich. 
165,  171,  3  N.  W.  936,  where  it  seems 
to  be  hinted  that  this  presumption  of 
fraud  may  be  overcome  by  conduct  of 
the  lunatic  indicating  a  restoration  to 
reason. 

And  the  presumption  may  be  rebutted, 
and  equity  will  not  interfere  except  on 
equitable  principles.  Where  the  lunatic 
lias  had  the  benefit  of  the  contract,  it 
will  be  upheld.  Canfield  v.  Fairbanks, 
03  Barb.  461;  Jones  v.  Perkins,  5  B- 
Mon.  222. 

In  Illinois  an  action  to  set  aside  a 
deed  on  the  ground  of  lunacy  of  tho 
grantor  must  be  brought  by  his  con- 
eervator.      Covington    v.    Neftzger,  '  140 


§   15]  CONTRACTS.  19 

1)6  void  J  ^  A  more  satisfactory  coucliision,  however,  is  established  by 
the  English  cases  of  Molton  v.  Camroux,''^  and  Matthews  v.  Baxter,'''^ 
to  the  effect  that  contracts  of  lunatics  are  not  void,  but  voidable,  when 
it  is  shown  that  their  incapacity  was  known  or  practised  upon,  since 
the  transaction  of  business  is  assisted  by  the  opportimity  given  in 
lucid  intervals,  or  upon  recovery,  for  the  ratification  of  contracts 
I'cally  conducive  to  the  interests  of  both  parties.  In  this  country 
there  is  a  growing  tendency  to  adopt  the  English  rule,  both  as  more 
fair  and  more  philosophical.'^^ 

16.  What  weakness  incapacitates. —  To  warrant  the  cancelation  of 
u  contract  or  conveyance  in  any  event,  however,  there  must  have  been 
such  mental  weakness  as  to  render  the  party  unable  to  guard  against 
imposition,  or  to  resist  importunity  or  undue  influence  ;^^  and  the 
transaction  and  his  position  must  have  been  such  as  to  warrant  the 
inference  that  he  had  not  exercised  deliberate  judgment,  but  had  been 
imposed  upon  or  overcome  by  cunning,  artifice,  or  undue  influence,^*^ 
which  would  not  have  prevailed  had  he  had  the  free  use  and  exer- 
cise of  his  deliberate  judgment.^^  And  the  question  with  relation 
to  such  a  contract  is  not  whether  the  bargain  was  bad  and  disadvan- 
tageous, but  whether  the  person  with  deficient  mind  was  led  into  it 
by  unfair  means,  and  whether  the  other  had  obtained  an  improper 

111.  COS,  33  Am.  St.  Rep.  2G1,  30  N.  E.  ex    dem.    Guest    v.    Beeson,    2    Houst. 

764.  (Del.)    246;   Baldwin  v.  Diinton,  40  111. 

'"'See  supra,  §§  3.  6.  189;    Coleman  v.  Frazer,   3  Bvis'h,   300; 

'■"2  Exch.  486,  Affirmed  in  4  Excli.  17.  Bennett   v.    Bennett    (Neb.)    91    N.    W. 

"L.  R.  8  Exch.  132,  42  L.  J.  Exch.  N.  409;   Rippy  v.  Gant,  39  N.  C.    (4  Ired. 

S.  73,  28  L.  T.  N.  S.  169,  21  Week.  Rep.  Eq.)  443;  Tally  v.  Smith,  1  Coldw.  290; 

389.  Johnson  v.  Chadwell,  8  Humph.   145. 

"See  Murray  v.   Carlin,  67   111.   286;  ^'Taijlor    v.    Aticood,    47    Conn.    498; 

Searle   v.    Galhraith,    73    111.    269:    Tit-  Somes  v.  SJdn?ier,  IQ  Mans.  2iS;  Simon- 

comh   V.    Yantyle,   84   111.   371;    MeCor-  Ion  v.  Bacon,  49  Miss.  582;  Connelly  v. 

riich  V.  Littler,  85  111.  62,  28  Am.  Rep.  Fisher,  3  Tenn.  Ch.  382;  Tally  v.  Smith, 

610;    Willemin   v.    Dtinn,    93    111.    511:  1  Coldw.  290;  Orr  v.  Pennington,  93  Ya. 

Freed  v.  Broivn,  55  Ind.  310;  Turner  v.  268,  24  S.  E.  928;   Kilcjore  v.  Cross,   1 

Rush,  53  INId.  65 ;  Matthiessen  £  W.  Ref.  McCrary,    144,    1    Fed.    578.      And    see 

Go.  V.  McMahon,  38  N,  J.  L.  537.     And  Lassiter  v.  Lassiter,  23  Ky.  L.  Rep.  481, 

see  also  supra,  §  4.  63  S.  W.  477;   Frush  v.  Green,  86  Md. 

The  doctrine  that  a  deed  obtained  by  494,  39  Atl.  863. 

fraud   is   not   void   ab   initio,   but   only  Where  advantage   has  been   taken   of 

voidable  at  the  election  of  the  grantor,  mental  weakness  the  cause  of  such  weak- 

and  that  if  she,  knowing  of  the  fraud,  ness  is  immaterial.    Jones  v.  Thompson, 

took   no    steps    during   her    lifetime    to  5    Del.    Ch.    374.      But    see    Tracey    v. 

have  the  deed  set  aside,  her  privies  in  Sachet,  1  Ohio  St.  54,  59  Am.  Dec.  610. 

!)lood  or  estate  cannot  question  its  va-  ^^Wray  v.  Wray,  32  Ind.  126;  Chides- 

lidity  after   her  death,  has  no  applica-  ter  v.   Turnbull,   117   Iowa,    168,   90  N. 

tion  where  it  is  claimed  that  the  grantor  W.    583 ;    Somes   v.    Shinner,    16   Mass. 

was   mentally   incompetent   to   contract  348;  Delaplain  v.  Gruhh,  44  W.  Va.  612, 

the   day   she    signed   the   deed   and   v«3-  67    Am.    St.    Rep.    788,    30    S.    E.    201; 

mained  so  until  she  died.     Boynton  v.  Farnsworth    v.    N  off  singer,    46    W.    Va. 

Reese,  112  Ga.  354,  37  S.  E.  437.  410,  33  S.  E.  246. 

^^Kelly  V.  McGuire,  15  Ark.  555;  Doc 


20 


MENTAL  UNSOUNDNESS    IN  ITS  LEGAL  RELATIONS.  [§10 


advantiige.^-  Fraud  will  not  be  presumed  merely  from  the  making 
of  a  contract,  though  by  an  aged  man  or  one  feeble  in  body  and 
mind.^-^  Nor  does  the  fact  that  the  grantor  was  in  such  a  condition 
as  to  be  likely  to  yield  to  importunity,  or  to  suffer  imposition,  invali- 
date a  contract  or  conveyance,  when  they  are  not  shown  to  have  been 
actually  and  successfully  exerted.^^  But  imbecility,  though  not  abso- 
lute, upon  the  part  of  a  party,  subjects  a  contract  made  by  him  to 
strict  examination,  and  requires  scrutiny  into  its  fairness  f''  and  tlie 
fact  that  the  contract  or  conveyance  was  rash  and  improvident,  or 
that  other  circumstances  existed  indicating  undue  influence  and  im- 
proper advantage,  gives  rise  to  a  presumption  of  fraud,  where  the 
party  was  of  weak  understanding.^*'  And  great  weakness  of  mind 
concurring  with  gross  inadequacy  of  consideration  or  circumstances 
of  suspicion  gives  rise  to  a  presumption  of  undue  influence,^''  and  will 
defeat  the  transaction  in  the  absence  of  anything  to  show  that  it  was 
understood  or  explained.^®  Likewise,  old  age  of  a  grantor,  combined 
with  weakness  and  fraud,  may  warrant  setting  aside  a  deed.^^ 


^'-Himonion  v.  Bacon,  49  Miss.  582; 
Storrs  V.  ^cougale,  48  Mich.  387,  12  N. 
W.  502;  Rhodes  v.  Bate,  L.  R.  1  Ch. 
252. 

^^Wireiach  v.  First  Nat.  Bank,  97  Pa. 
549,  .39  Am.  Rep.  821;  Cowee  v.  Cornell, 
75  N.  Y.  91,  31  Am.  Rep.  428;  Leivis  v. 
Pead,  1  Ves.  Jr.  19. 

"^Walton  V.  'Northingion,  5  Sneed, 
282;  ^yiUem^n  v.  Dunn,  93  111.  511; 
Harmon  v.  Marmon,  47  Iowa,  121 ; 
BevUle  v.  Jones.  74  Tex.  148,  1  S.  W. 
1128;  Day  v.  Heeley,  17  Vt.  542. 

''^Cruise  v.  Christopher,  5  Dana,  181; 
■Jones  v.  Thompson,  5  Del.  Cli.  374; 
Chevalier  v.  Whatley,  12  La.  Ann.  651; 
ilason  V.  Dunbar,  43  Mich.  410,  38  Am. 
Rep.  201,  5  N.  W.  432;  Martin  v.  Baker, 
135  Mo.  495,  3G  S.  W.  369;  Morton  v. 
Morion  (N.  J.  Eq.)  7  Cent.  Rep.  174,  8 
Atl.  807. 

^Ju-an  V.  Toidmin,  9  Ala.  6G2,  44 
Am.  Dec.  448;  Chevalier  v.  Whatleij.  12 
La.  Ann.  051;  Tally  v.  Smith,  1  Coldw. 
290;  Ellis  v.  Mathews,  19  Tex.  390,  70 
Am.  Dec.  353 ;  Wartemberg  v.  Spiegel, 
31  Micl).  402;  Duncomhe  v.  Richards.  46 
Mich.  1G6.  9  N.  W.  149;  Craicford  v. 
nocfl,  58  Mich.  1,  23  N.  W.  27,  24  N. 
W.  64.5,  25  N.  W.  .567,  20  N.  W.  870: 
Smith  V.  Smith,  GO  Wis.  329,  19  N.  W. 
47. 

*''Crui.<ie  v.  Christopher,  5  Dana,  181  : 
Jones  V.  Thompson,  5  Del.  Ch.  374: 
Maddo.r  v.  Simmons,  31  Ga.  512;  Cad- 
naltadrr  v.  M'cst,  48  Mo.  483;  Richards 
V.    I'ills,    124    Mo.    002,    28    S.    W.    88: 


Tracey  v.  Sacket,  1  Ohio  St.  54,  59  Am. 
Dec.  610;  Mann  v.  Betterly,  21  Vt.  326; 
Fishburne  v.  Ferguson,  84  Va.  87,  4  S. 
E.  575;  Turner  v.  Utah  Tiile  Ins.  d  T. 
Co.  10  Utah,  61,  37  Pac.  91;  Turner  v. 
Union  Nat.  Bank,  10  Utah,  77,  37  Pac. 
95 ;  German  Sav.  d-  L:  Soc.  v.  De  Lash- 
mutt,  83  Fed.  33;  Peacock  v.  Evans,  16 
Ves.  Jr.  512,  10  Revised  Rep.  218; 
Longmate  v.  Ledger.  2  Giff.  157,  6  Jur. 
N.  S.  481,  8  Week.  Rep.  386;  Davies  v. 
Cooper,  5  Myl.  &  C.  276;  Gariside  v. 
Isheruood.  1  Bro.  Ch.  560;  Clark  v. 
Malpas,  31  Beav.  80.  4  DeG.  F.  &  J.  401, 
8  Jur.  N.  S.  734,  10  Week.  Rep.  670. 
And  see  Gates  v.  Cornett,  72  Mich.  435, 
40  N.  W.  740;  Cockell  v.  Taylor,  15 
Beav.  115,  21  L.  J.  Ch.  N.  S.  545. 

"^Kedward  v.  Campbell,  166  Pa.  365, 
31  Atl.  114;  Wilson  v.  Oldham,  12  B. 
Mon.  55;  Oicings's  Case,  1  Bland  Ch. 
370,  17  Am.  Dec.  311:  Bunch  v.  Hurst, 
3  Dcsanss.  Eq.  273,  5  Am.  Dec.  551; 
McFaddin  v.  Vincent,  21  Tex.  47;  Al- 
lore  V.  Jewell,  94  U.  S.  506.  24  L.  cd. 
200;  Conley  v.  Nailor,  118  U.  S.  127, 
30  L.  cd.  112,  6  Sup.  Ct.  Rep.  1001; 
German  Sav.  &  L.  Soc.  v.  DeLashmutt, 
S3  Fed.  33.  And  see  Hale  v.  Brown,  11 
Ala.  87. 

But  each  case  must  stand  upon  its 
own  facts.  Conley  v.  Nailor,  118  U.  S. 
127.  30  L.  ed.  112,  6  Sup.  Ct.  Rep.  1001. 

'"Smith  V.  Beatty,  37  N.  C.  (2  Ired. 
Eq.)  456,  40  Am.  Dec.  435;  Jones  v. 
Thompson,  5  Del.  Ch.  374. 

A  less  degree  of  proof  of  mental  in- 


§  17] 


CONTRACTS. 


21 


17.  Abuse  of  confidential  relations. —  A  contract  made  with  a  weak- 
minded  person  bv  one  occupying  a  confidential  relation  with  him  is 
presumed  to  be  against  justice.^"  And  the  burden  rests  witli  the  lat- 
ter to  show  the  fairness  of  the  transaction,  and  that  the  other  under- 
stood its  nature.^^  And  a  conveyance  will  be  set  aside  where  weakness 
of  mind  on  the  part  of  the  grantor,  in  connection  with  the  facts  that 
it  was  made  in  favor  of  a  person  standing  in  an  intimate  trust  rela- 
tion, and  that  it  is  prejudiced  or  unfair,  or  other  suspicious  circum- 
stances, go  to  show  that  the  weakness  had  been  taken  advantage  of.^^ 

II.  Lunacy  which  will  terminate  continuing  conteact. 

18.  Partnership  contracts.— The  lunacy  of  a  partner  appearing 
after  the  formation  of  a  partnership,  as  a  ground  for  dissolution  there- 
of, depends  upon  the  degTce  and  probable  duration  of  the  disorder  as 
affecting  his  capacity  to  fulfil  his  contract.^  Permanent,  confinned, 
and  incurable  insanity  of  a  partner  is  a  ground  for  dissolution,^  and 
a  partnership  will  be  dissolved  in  equity  when  a  partner  becomes  so 


capacity  and  undue  influence  is  required 
to  set  aside  a  deed  of  a  feel)le  old  man, 
ninety  years  of  age,  than  in  case  of  a 
younger  person.  Smith  v.  Smith,  GO 
Wis.  329,  19  N.  W.  47. 

A  complaint  in  an  action  to  set  aside 
a  deed  alleging  that  the  grantor  was  of 
extreme  old  age  and  physical  infirmity 
and  was  mentally  weak  and  incapable 
of  attending  to  business  personally,  and 
incompetent  to  comprehend  his  property 
and  the  nature  of  a  business  transac- 
tion, not  alleging  that  he  was  insane  or 
■completely  incompetent  to  understand 
the  transaction  in  question,  is  based 
upon  fraud  and  will  not  justify  a  find- 
ing of  insanity.  Ahlrich  v.  Bailey,  132 
N.  Y.  85,  30  N.  E.  2G4. 

"^Jacox  V.  Jacox,  40  ilich.  473,  29  Am. 
Rep.  547;  Simonton  v.  Bacon,  49  Miss. 
.582;  IJaj/dock  v.  Hni/docl%  34  N.  J.  Eq. 
570,  38  Am.  Rep.  385 ;  Martin  v.  Baker, 
135  Mo.  495,  3G  S.  W.  309. 

"'Jacox  V.  Jarox,  40  Mich.  473,  29  Am. 
Rep.  547;  Haydock  v.  Haydock,  34  N. 
J.  Eq.  570,  38  Am.  Rep.  385 ;  Morton  v. 
Morton  (N.  J.  Eq.)  7  Cent.  Rep.  134, 
8  Atl.  807;  Ilycr  v.  LiffJe.  20  N.  J.  Eq. 
443;  Selden  v.  Myers,  20  How.  506,  15 
L.  ed.  976 ;  German  Snv.  tC-  L.  Soc.  v. 
DeLashmuit,  83  Fed,  33. 

Evidence  that  a  deed  had  been  read 
over  to  an  illiterate  grantor  by  an  un- 
professional witness,  wliose  capacity  to 


explain  it  was  doubtful,  is  not  sufficient 
to  sustain  the  burden  of  proof  resting 
upon  tlie  grantee  to  show  that  tlie  con- 
tents of  the  deed  were  made  known  to 
him.  Price  v.  Price,  1  DcG.  M.  &  G. 
308. 

''-Thorn  v.  Thorn,  51  Mich.  1G7,  16 
N.  W.  324;  Prewett  v.  Coopicood,  30 
Miss.  309 ;  Cadvmllader  v.  ^Vest,  48  Mo. 
483;  Lyons  v.  Van  Riper,  26  N.  J.  Eq. 
337;  Lawrence  X.  Willis,  75  N.  C.  471; 
Craddock  v.  Cahiness,  1  Swan,  474; 
Henderson  v.  McGregor,  30  Wis.  78 ; 
Harding  v.  Handy,  11  Wheat.  103,  6 
L.  ed.  429;  M'Diarmid  v.  M'Diarmid,  3 
Bligh  N.  R.  374;  Norton  v.  Relly,  2 
Eden,  286.  And  see  Sands  v.  Sands,  112 
111.  225;  Moore  v.  Moore,  67  Mo.  192. 

^Waters  v.  Tarjlor,  2  Ves.  &  B.  299,  13 
Revised  Rep.  91. 

-Sadler  v.  Lee,  6  Beav.  324,  12  L.  J. 
Ch.  N.  S.  407,  7  Jur.  476;  Jones  v. 
Lloyd,  L.  R.  18  Eq.  265,  43  L.  J.  Ch. 
N.  S.  826,  30  L.  T.  N.  S.  487,  22  Week. 
Rep.   785. 

Where  the  incapacity  of  a  partner  has 
continued  for  eighteen  months,  and  there 
is  reasonable  ground  for  supposing  re- 
covery to  be  hopeless,  or  at  least  im- 
probable, during  the  remainder  of  the 
term  of  the  partnership,  an  application 
for  dissolution  is  proper  and  sliould  be 
granted.  Leaf  v.  Coles,  I  DcG.  M.  &  G. 
175. 


22 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§18 


disordered  in  mind  as  to  be  incapable  of  conducting  the  partnership 
business  according  to  the  terms  of  the  partnership  agi-eement.^  But 
courts  of  equity  will  look,  as  between  partners,  upon  application  for 
a  dissolution  on  the  ground  of  insanity,  to  the  effect  wdiich  will  be 
produced  upon  the  partnership  business,  and  refuse  to  terminate  it 
unless  the  insanity  materially  affects  the  capacity  of  the  partner  to 
discharge  the  duties  imposed  by  tlie  relation.*  And  cogent  evidence 
of  insanity,  as  distinguished  from  mere  incapacity,  is  required." 
Mere  temporary  or  curable  disorder  of  the  mind  of  a  partner  will  not 
warrant  a  dissolution  f  nor  will  insanity  which  will  merely  sustain 
an  inquisition  and  the  appointment  of  a  conservator,  and  a  commit- 
ment to  an  insane  asylum.'^  And  a  dissolution  will  not  be  decreed  for 
insanity  of  a  partner  without  inquiry  as  to  the  state  of  his  mind 
at  tlie  time  the  relief  is  sought.^  The  findings  of  a  commission  of 
lunacy  are  not  regarded  as  dissolving  a  partnership  contract  ipso 
facto.       To  work  such  a  dissolution  the  decree  of  a  court  of  equity 


^Sayer  v.  Bennei,  1  Cox  Ch.  Cas.  107. 

A  partnership,  by  the  articles  of  which 
it  was  provided  that^  in  the  event  of 
lunacy  obliging  the  partner  to  leave 
India  for  more  than  a  year,  a  dissolu- 
tion should  be  had,  may  be  dissolved  at 
once  where  a  partner  became  an  in- 
curable lunatic  on  the  Avay  to  India, 
and  was  sent  back.  Bagshaw  v.  Parker, 
10   Beav.   532. 

^Raymond  v.  Vaughn,  128  111.  256,  4 
L.  R.  A.  440,  15  Am.  St.  Rep.  112,  21 
N.   E.   566. 

The  fact  that  the  conduct  and  con- 
dition of  mind  of  a  partner  were  such 
as  to  destroy  the  confidence  of  the  oth- 
er partners  and  induce  customers  to 
withdraw  their  custom,  and  that  he  had 
been  led  to  attempt  suicide,  and  might 
be  led  to  attempt  the  life  of  one  of  his 
partners,  is  not  sullicicnt  to  warrant 
the  court  in  enjoining  him  from  inter- 
fering with  tlie  partnership  affairs. 
Anonymous,  2  Kay  &  J.  441. 

Nor  is  the  fact  that  a  partner  had 
been  habitually  insane  some  months  pre- 
viouslj',  in  the  absence  of  evidence  of 
incompetency  at  the  time.  Ogilvy  v. 
Gregory,  4  iVeek.  Rep.  221,  25  L.  J.  Ch. 
N.  S.   32. 

^Kirhy  V.  Carr,  3  Younge  &  C.  Exch. 
184,  8  L.  J.  Exch.  in  Eq.  N.  S.  31,  2 
Jur.   741. 

"Itaymond  v.   Vaughn,  128  111.  256,  4 


L.  R.  A.  440,  15  Am.  St.  Rep.  112,  21 
N.  E.  506;  Leaf  v.  Coles,  1  DeG.  M.  &  G. 
175;  Pearce  v.  Chamberlain,  2  Ves.  Sr. 
33. 

Strong  evidence  is  required  to  avoid 
the  responsibility  of  a  partner  taking 
an  active  part  in  the  conduct  of  the 
partnership  affairs,  with  respect  to  acts 
of  a  copartner  on  the  ground  of  his  in- 
sanitv.  Sadler  v.  Lee.  6  Beav.  324,  12 
L.  J.Ch.  N.  S.  407,  7  Jur.  476. 

''Raymond  v.  Vauc/hn,  128  111.  256,  4 
L.  R.  A.  440.  15  Am.  St.  Rep.  112,  21 
N.  E.  566,  AiTirming  17  111.  App.  144. 
And  see  Milne  v.  Bartlet,  3  Jur.  358. 
8  L.  J.  Ch.  N.  S.  254. 

'^Ogilvy  v.  Gregory,  4  Week.  Rep.  221, 
25  L.  J.  Ch.  N.  S.  32;  Anonymous,  '1 
Kay  «fc  J.  441. 

A  partner,  previously  insane,  seeking 
to  avoid  a  dissolution  of  the  partner- 
ship, on  the  ground  of  sanity  at  the 
time  relief  was  sought,  has  the  affirma- 
tive of  the  issue.  Anonymous,  2  Kay  & 
J.  441. 

And  one  wlio,  upon  the  insanity  of  his 
partner,  continues  the  business  precise- 
ly as  before,  without  objection,  will  be 
presumed  not  to  have  intended  dissolu- 
tion, but  to  have  waited  to  determine 
\\hcther  the  incapacity  would  prove  per- 
manent or  temporary.  Raymond  v. 
Vauf/hn,  128  1!1.  267,  4  L.  R.  A.  444, 
15  Am.  St.  Rep.   112,  21  N.  E.  566. 


18] 


CONTRACTS. 


23 


must  be  had ;  and  this  will  not  be  given  where  the  insanity  is  only 
temporary.''* 

19.  Agency. —  An  agency  not  coupled  with  an  interest  is  revoked 
by  the  insanity  of  tlie  principal  rendering  him  incapable  to  con- 
tract,^ ° — especially  where  it  is  provided  by  statute  that  an  insane  per- 
son should  be  represented  by  his  guardian  in  all  matters  concerning 
his  estate.^ ^  And  whether  the  fact  of  insanity  is  formally  established 
or  not,  the  agent  cannot  justify  or  support  an  act  under  the  author- 
ity originally  given,  after  acquiring  knowledge  of  the  incapacity  of 
his  principal.-'^  The  degree  of  insanity  of  a  principal  which  will 
revoke  an  agency  must  be  such  that  the  principal  is  deprived  of  the 
power  to  exercise  judgment  or  will  on  the  subject  of  the  agency.^^ 

III.  Intoxication. 

20.  Intoxication,  unless  excessive,  no  ground  for  avoiding  contract. — 

A  drunkard,  voluntarius  doemon,  is  not  entitled  to  the  same  considera- 


"Lindley,  Partn.  4th  ed.  1,  *226 ;  Coll- 
yer,  Partn.  6th  ed.  Am.  notes,  1,   152n. 

See  contra.  Story,  Partn.  §  295; 
Isler  V.  Baker,  6  Humph.  85. 

^"Davis  V.  Lane,  10  N.  H.  156;  Blake 
v:  Garicood,  42  N.  J.  Eq.  276,  10  Atl. 
874:  Matthiessen  cE  W.  Uef.  Co.  v.  Mc- 
Mahon,  38  N.  J.  L.  536 ;  Hill  v.  Day,  34 
N.  J.  Eq.  154;  Merritt  v.  Merritt,  27 
App.  Div.  208,  50  N.  Y.  Siipp.  604; 
Motley  V.  Bead,  43  Vt.  633;  Drew  v. 
.VtTOH,  40  L.  T.  N.  S.  671,  48  L.  J.  Q. 
B.  N.  S.  591,  L.  R.  4  Q.  B.  Div.  661,  27 
Week.  Rep.  810. 

And  if  the  party  dealing  with  the 
agent  knows  of  the  insanity,  the  trans- 
action is  not  binding  on  tlie  principal. 
Merritt  v.  Merritt,  27  App.  Div.  208,  50 
N.  Y.  604. 

And  a  deed  executed  contemporr.,- 
neously  with  a  will,  and  kept  by  tlie 
grantor  intending  it  to  be  delivered  aft- 
er his  death,  to  carry  out  the  terms  of 
the  will,  cannot  be  legally  delivered  by 
a  third  party  during  the  grantor's  in- 
sanity, though  such  third  party  pos- 
sessed a  general  power  of  attorney.  Mc 
aiun  v.  McClun,  176  111.  376,  52  N.  E. 
028. 

The  fact  that  the  mortgagor  or  oc- 
cupant of  mortgaged  premises  had 
become  insane,  however,  does  not  sus- 
pend the  power  of  sale  in  the  mortgage 
or  render  void  a  sale  under  it,  though, 
if  the  power  is  exercised  in  bad  faitli 
for  the  purpose  of  using  such  disabil- 
ity for  improper  advantage  of  the  mort- 
gagor, the  courts  will  set  the  sale  aside ; 
but  it  will  not  be  set  aside  merely  be- 


cause the  property  was  bid  off  for  less 
than  its  value,  where  both  the  mort- 
gagee and  purchaser  acted  in  good  faith 
and  in  ignorance  of  the  disability  of  the 
mortgagor.  Lundherg  v.  Davidson,  72 
Minn.  49,   42  L.   R.  A.    103,   74   N.   W, 


Waco    (Tex.    Civ.    App.) 


1018. 

"Renfro    v. 
33  S.  W.  766 

But  Avhere  a  principal  becomes  in- 
sane, and  afterwards  recovers,  and  man- 
ifests no  will  to  terminate  an  agency, 
the  insanity  will  be  considered  as  a 
mere  suspension  of  the  agency;  and  his 
assent  to  acts  done  during  such  sus- 
pension may  be  inferred  from  his  for- 
bearance to  express  dissent  when  they 
come  to  his  knowledge.  Davis  v.  Lane, 
10   N.   H.    156. 

'■Bunce  v.  Gallacfher,  5  Blatchf.  489, 
Fed.  Cas.  No.  2,133;  Rigncy  v.  Plaster, 
88  Fed.  686,  Affirmed  in  38  C.  C.  A.  25, 
97   Fed.   12. 

In  Wallis  v.  Manhattan  Co.  2  Hall, 
495,  however,  it  was  held  that  an  in- 
quisition of  lunacy  is  the  only  evidence 
of  insanity  which  can  be  admitted  to 
terminate  an  agency;  and  that  the  fact 
that  the  principal  Avas  put  under  guard- 
ianship as  an  insane  person  does  not 
warrant  the  court  in  holding  tliat  an 
agency  previously  created  was  thereby 
terminated,  where  it  does  not  appear 
that  the  insanity  was  of  such  a  char- 
acter as  to  disqualify  him  from  enter- 
ing into  a  valid  contract.  Motley  v. 
Tlead,  43  Vt.  633. 

"Daois  V.  Lane,  10  N.  H.  156. 


24 


IMLENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  20 


tion  as  persons  rendered  incapable  bj  the  visitation  of  God.  And 
such  intoxication  is  no  defense  where  recovery  is  sought  on  the  theory 
of  an  implied,  as  distinguished  from  an  express,  contract.^^^  In  ac- 
tions ex  contractu,  however,  the  validity  of  the  transaction  depends 
upon  its  fairness.^^  A  party  taking  advantage  of  another's  incapac- 
ity from  drunkenness  will  not  be  allowed  the  aid  of  the  law  to  enforce 
an  unfair  bargain  thus  obtained.  But  in  cases  where  one  of  the  par- 
ties to  a  contract  w^as,  at  the  tinie  it  was  made,  intoxicated,  to  an  ex- 
tent not  depriving  him  of  business  capacity,  he  cannot,  after  having 
received  the  benefit  of  the  contract,  supposing  it  to  be  fair  and  reason- 
able, be  allowed  to  rescind  it ;  and  in  any  view  executory  contracts  by 
persons  excited  by  drink  should  be  considered  only  voidable,  open  to 
ratification  when  the  party  is  sober,^'''  though  by  some  of  the  earlier 
cases  such  contracts  were  held  to  be  absolutely  void.^^ 


^a.  Hanel-lau  v.  Felchlin,  57  Mo.  App. 
602.  And  see  Richardson  v.  Strong,  35 
N.  C.  (13  Ired.  L.)  lOG,  55  Am.  Dec. 
430. 

"  A  reasonable  agreement  to  settle  a 
family  dispute  should  be  enforced 
though  one  of  the  parties  to  it  was 
drunk.  Cory  v.  Cory,  1  Ves.  Sr.  20; 
Keough  v.  Foreman,  33  La.  Ann.  1434. 

And  a  sale  of  property  for  a  fair  price 
with  the  assent  of  the  vendor's  family 
and  friends,  for  the  purpose  of  paying 
debts  then  pressing,  is  binding,  thougli 
he  was  subject  to  temporary  derange- 
ment Ciiused  bv  intemperance.  Jones  v. 
Perkins,  5  B.  ilon.  222. 

And  a  conveyance  by  a  man  habitually 
intemperate  though  not  actually  drunk 
at  the  time,  of  all  his  property  in  trust 
for  his  wife  and  children,  will  not  be 
set  aside  on  the  ground  of  undue  in- 
fluence, though  made  under  such  cir- 
cumstances as  would  authorize  its  an- 
nulment if  it  had  been  made  to  a 
stranser.  liirdsong  v.  Birdsong,  2 
Head,'  2S9. 

As  to  sustaining  reasonable  and  fair 
contracts,  though  made  by  an  intoxi- 
cated person,  see  also  Dulany  v.  Green, 
4  Harr.  (Del.)  285;  Menkins  v.  Light- 
vcr,  18  111.  282;  Hcanlan  v.  Cohh,  85  111. 
290;  Mansfield  v.  ^Vatson,  2  Iowa,  111; 
Jones  V.  Perkins,  5  B.  Mon.  222;  Johns 
V.  Fritchey,  3!)  ~\Id.  258;  Reinickcr  v. 
Smith,  2  Harr.  &  J.  421;  Mitchell  v. 
Kingman,  5  Pick.  431  ;  Maxicell  v.  Pit- 
tinger,  3  N.  J.  Eq.  15G;  Hutchinson  v. 
Tindall,  3  N.  J.  Eq.  357 ;  Heymour  v. 
Delancy,  3  Cow.  44.3,  15  Am.  Dec.  270; 
Rice  V.  Peet,  15  Johns.  503;   Wager  v. 


Reid,  3  Tliomp.  &  C.  332 ;  Richardson  v. 
Strong,  35  N.  C.  (13  Ired.  L.)  106,  55 
Am.  Dec.  430;  Morrison  v.  McLeod,  22 
N.  C.  (2  Dev.  &  B.  Eq.)  220;  Campbell 
V.  Spencer,  2  Binn.  129;  Wilsoji  v.  Big- 
ger, 7  Watts  &  S.  Ill;  Henderson  v. 
Hays,  2  Watts,  148;  Bliss  v.  Connecticut 
d  P.  Rirers  R.  Co.  24  Vt.  424;  Pitt  v. 
Smith,  3  Campb.  33,  13  Revised  Rep. 
741;  Cory  v.  Cory,  1  Ves.  Sr.  19;  Say  v. 
Baru-ick,  I  Ves.  &  B.  190;  Gore  v.  Gib- 
son, 13  Mees.  &  W.  623,  14  L.  J.  Exch. 
N.  S.  151,  9  Jur.  140;  Cooke  v.  Clay- 
u-orth,  18  Ves.  Jr.  12,  11  Revised  Rep. 
137 ;  Shan-:  v.  Thackray,  23  Eng.  L.  & 
Eq.  Rep.  18,  1  Smale  &  G.  537,  17  Jur. 
1045;  Lightfoot  v.  Heron,  3  Younge  & 
C.   Exch.    58G. 

'^Strickland  v.  Parlin  &  0.  Co.  (Ga.) 
44  S.  E.  997 :  Miller  v.  Finley,  26  Mich. 
249.  12  Am.  Rep.  300:  Walker  v.  Davis, 
1  Gray,  506;  Foss  v.  Hildreth,  10  Allen, 
76;  Burroughs  v.  Richman,  13  N.  J.  L. 
233,  23  Am.  Dec.  717;  Reinicker  v. 
Smith,  2  Harr.  &  J.  421,  423;  Johns  v. 
Fritchey,  39  Md.  258;  Wigqles north  v. 
Steers,  1  Hen.  &  M.  70,  3  Am.  Dec.  602; 
Mansfield  v.  Watson,  2  Iowa.  Ill;  Rey- 
nolds v.  Dechaums,  24  Tex.  174,  70  Am. 
Dec.  101;  Cummings  v.  Henry,  10  Ind. 
109;  Joest  v.  Williams,  42  Ind.  56,5,  13 
Am.  Rep.  377 ;  Broadwater  v.  Dame,  10 
Mo.  277;  Faton  v.  Perry,  29  JIo.  96; 
Darhy  v.  Cahanne,  1  Mo.  App.  126; 
Curender  v.  Waddingham,  5  Mo.  App. 
457;  Bates  v.  Ball,  72  111.  108;  Williams 
V.  Inabnct.  1  Bail.  L.  343;  Phelan  v. 
Gardner,  43  Cal.  306. 

'"  See  Gore  v.  Gibson,  13  ilees.  &  W. 
023,   14   L.  J.  Exch.   N.  S.   151,  9  *Jur. 


21j 


CONTKACTiS. 


25 


21.  Otherwise  when  combined  with  fraud. —  The  inference  of  fraud 
is  strong  when  one  contracting  partj'  knows  of  the  other's  disability, 
and  when  the  bargain  is  on  its  face  unfair  and  unequal.  Atteinpt^s 
at  fraudulent  dealing  are,  under  such  circumstances,  indications  from 
which  the  jury  may  judge  as  to  tlie  probability  of  the  party's  being 
deceived.  Where  advantage  has  been  taken,  the  contracts  will  alwaye 
be  avoided,  and  upon  slight  evidence, — especially  when  the  drunken- 
ness was  connived  at  or  caused  by  the  other  party.^'^  And  while  one 
who  voluntarily  incapacitates  himself  to  do  business  by  intoxicatioii 
must  take  the  consequences  of  his  own  imprudence,  unless  a  fraud  is 
committed  upon  him  when  in  that  state,^^  a  contract  may  be  avoided 
by  the  legal  representative  of  a*  party  thereto  on  the  ground  of  his 
having  been  drunk  when  it  was  made,  though  the  drunkenness  was 
not  occasioned  by  the  procurement  of  the  other  party. ^^  And  where 
a  person  in  whom  a  drunken  man  confides  takes  advantage  of  the 
confidence  and  obtains  from  him  an  unreasonable  contract,  it  will  be 


140;  rut  V.  Smith,  3  Campb.  33,  13 
Rovised  Rep.  741 ;  Caulkins  v.  Fri/,  35 
("onn.  170;  Jenncrs  v.  Howard,  G  Blackf. 
240 ;  Dnimmond  v.  Hopper,  4  Harr. 
(Del.)  327:  Wade  v.  Colvcrt,  2  Mill, 
Const.  27,  12  Am.  Dec.  052;  Fitzgerald 
V.  Reed,  17  Miss.  94;  'Newell  v.  Fisher, 
11   Smedes  &  M.  431,  49  Am.  Dec.  66. 

In  Cooke  v.  Clayivorth,  18  Ves.  Jr. 
12,  11  Revised  Rep.  137,  however,  it 
was  held  that  a  court  of  equity  will  not 
assist  a  person  to  get  rid  of  an  agree- 
ment or  deed  on  the  mere  ground  that 
he  was  intoxicated  at  the  time  it  Avas 
jnnde. 

^''Lavet'e  v.  Sage,  29  Conn.  577;  Mans- 
field >.  Watson,  2  Iowa,  111;  Cruise  v. 
Christopher,  5  Dana,  181;  Crane  v. 
ConJdin,  1  N.  J.  Eq.  346,  22  Am.  Dec. 
519;  Curtis  v.  Hall,  4  N.  J.  L.  361; 
Hutchinson  v.  Broicn,  Clarke  Ch.  408 ; 
Calloicay  v.  Witherspoon,  40  N.  C.  (5 
Ired.  Eq.)  128;  White  v.  Cox,  3  Hayw. 
(Tenn.)  82;  Hotchhiss  v.  Fortson,  7 
Yerg.  67;  Nagle  v.  Bai/lor,  3  Dru.  &  W. 
60;  Cool-e  v.  Clayirorlh,  18  Ves.  Jr.  12, 
11    Revised  Rep.    137. 

But  see  'Noel  v.  Karper,  53  Pa.  97. 

A  settlement  brought  about  by  one  of 
the  parties  1)v  contrivance,  for  the  pur- 
pose of  obtaining  an  undue  advantage, 
will  be  set  aside  though  the  party  vic- 
timized was  not  so  drunk  as  to  be  ut- 
terly deprived  of  his  reason  and  under- 
standing. Willcox  v.  Jackson,  51  Iowa, 
208.  1   N.  W.  513. 

And  a  disadvantageous  contract  will 


be  set  aside  where  advantage  has  been 
taken  of  the  fact  that  the  mind  of  the 
party  making  it  was  enfeebled  by 
habitual  intoxication,  though  he  was 
not  intoxicated  when  he  made  it.  Bird- 
S07ig  V.  Birdsong,  2  Head,  289. 

^HJall  V.  Moreman,  3  M'Cord  L.  477  ; 
Burroughs  v.  Richinan,  13  N.  J.  L.  233, 
23  Am.  Dec.  717;  Rottenburgh  v.  Foicl 
(N.  J.  Eq.)  26  Atl.  338;  Crane  v.  Co)ik- 
lin,  1  N.  J.  Eq.  346,  22  Am.  Dec.  519; 
Camphcll  v.  Ketcham,  1  Bibb,  406; 
Berkley  v.  Cannon,  4  Rich.  L.  136: 
Cooke  V.  Clay  worth,  18  Ves.  Jr.  12,  11 
Revised   Rep.   137. 

It  was  held  by  Sir  Joseph  Jekyll  in 
Johnson  v.  Medlicott,  3  P.  WnsI  130. 
that  intoxication  does  not  destroy  ca- 
pacity to  contract,  unless  it  be  shown 
that  the  drunkenness  was  connived  at 
or  caused  by  the  otiier  party.  But  Lord 
Ellenborough  inclined  to  the  view,  in 
Pitt  V.  Smith,  3  Campb.  33,  13  Revised 
Rep.  741,  that  drunkenness  in  itself  is 
suflieient  to  avoid  an  agreement. 

''■'Wigglesjcorth  v.  Steers,  1  Hen.  &  M. 
70,  3  Am.  Dec  602:  Mansfield  v.  Wat- 
son, 2  Iowa,  111;  Calloway  v.  Wither- 
spoon, 40  N.  C.   (5  Ired.  Eq.)   128. 

Inducing  a  person  to  sign  a  paper 
agreeing  to  pay  a  debt  he  did  not  owe. 
when  he  was  so  drunk  that  he  did  not 
know  what  he  was  about,  is  a  fraud, 
though  he  was  not  induced  to  drink  by 
the  party  imposing  upon  him.  King  v. 
Bryant,  3  N.  C.   (2  Ilayw.)  394. 

And  evidence  that  a  party  to  a  con- 


26 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  IlELATIONS. 


l§  21 


set  aside.-"  Contracts  made  bj  persons  who,  though  intoxicated, 
were  not  completely  so,  are  governed  by  the  principles  applicable  in 
other  cases  in  which  one  party  is  exposed  to  the  exercise  of  improper 
influences  by  the  other,  and  will  be  set  aside  if  the  party  was  drawn 
into  a  hard  and  disadvantageous  bargain.^'  And  where  one  enterg 
into  a  contract,  advantageous  to  himself,  for  an  inadequate  consid- 
eration, with  an  intoxicated  person  or  a  person  enfeebled  by  habits 
of  intoxication,  who  reposes  confident^e  in  him,  a  presumption  of 
fraud  arises  which  can  only  be  overcome  by  evidence  of  honest  deal- 
ing and  that  the  other  understood,  what  he  was  doing  and  intended 
what  he  did.^^  To  avoid  a  contract  for  intoxication,  however,  it  must 
be  shown  to  have  been  induced  by  the  procurement  of  the  other  party, 
or  it  must  appear  that  an  improper  advantage  was  taken  of  the  in- 
toxicated person's  condition. ^^ 

22.  Tests,  generally. —  Intoxication  which  will  invalidate  a  con- 
tract in  the  absence  of  fraud  must  be  such  as  to  suspend  the  reason 
and  understanding,  and  render  the  party  incapable  of  transacting 
business  or  of  kno\\dng  what  he  was  doing.-'*     It  must  have  been  such 


tract  was  so  intoxicated  at  the  time  of 
making  it  as  to  be  incapable  of  exer- 
cising his  understanding-,  and  that  the 
contract  was  very  unequal  and  un- 
reasonable, is  sufficient  to  invalidate  it 
though  the  intoxication  was  voluntary. 
Barrett  v.  Buxtun,  2  Aik.  (Vt.)  167,  16 
Am.  Dee.  691. 

'"M'Cormick  v.  Malin,  5  Blackf.  509; 
Morrison  v.  McLeod,  22  N.  C.  (2  Dev. 
&T?.  Eq.)  221;  Futrill  v.  Futrill,  58  N. 
C.  (5  Jones  Eq. )  01;  Wiltshire  v.  Mar- 
shall, 14  Week.  Rep.  002,  14  L.  T.  N.  S. 
390;  Butler  v.  Mulvihill,  1  Bligh,  137. 

^Birdso-ng  v.  Birdsonq,  2  Head,  289. 
And  see  Rogers  v.  Warren,  75  Mo.  App. 
271. 

^-Holland  v.  Barnes,  53  Ala.  83,  25 
Am.-  Rep.  595;  Hale  v.  Broicii,  11  Ala. 
87:  Conant  v.  Jackson,  16  Vt.  335; 
Miskey's  Appeal,  107  Pa.  611.  And  sec 
Crane  v.  Conklin,  1  N.  J.  Eq.  346,  22 
Am.  Dec.  519;  Doughty  v.  Doughty,  7 
N.  J.  Eq.  227. 

An  agreement  which  shows  upon  its 
face  that  the  parties  did  not  understand 
their  rights  or  the  nature  of  the  trans- 
action will  not  be  enforced  ag-iinst  one 
of  them  who  surrendered  an  unimpeach- 
able title  without  consideration,  where 
he  was  grossly  ignorant  and  subject  to 
habitual  intoxication,  though  there  was 
no  direct  proof  of  fraud  or  undue  in- 
fluence and  he  had  acquiesced  in  it  for 


vears.      Dunnage   v.    White,    1    Swanst 
137,  1  VVils.  67,  18  Revised  Rep.  33. 

-''■Jones    v.    Perkins,    5    B.    Mon.    222 
Hutchinson  v.  Tindall,  3  N.  J.  Eq.  357 
Rodman    v.    Zilley,    1    N.    J.    Eq.    320 
Campiell    v.    Keteham,     1     Bibb,    406 
Griffith   V.    Frederick    County    Bank,    6 
Gill  &  J.  424;    Keough  v.  Foreman,  33 
La.   Ann.     1434;     Youn    v.   Lamont,  56 
Minn.  216,  57   N.  W.  478;   Seymour  v. 
Delancy,  3  Cow.  445,  15  Am.  Dec.  270; 
Loflus  V.  Maloney,  89  Va.  576,  16  S.  E. 
749. 

Evidence  that  a  party  to  a  contract 
was  drunk  when  it  was  executed,  and 
not  in  a  condition  to  do  business  prop- 
erly, is  not  sufficient  to  avoid  a  con- 
tract. Mansfield  v.  Watson,  2  Iowa, 
111. 

And  it  has  been  held  that  it  must  ap- 
pear that  the  intoxication  was  induced 
by  the  procurement  of  the  party  ob- 
taining it.  Hutehinson  v.  Brown, 
Clarke  Ch.  408. 

In  Cra-gg  v.  Holme,  cited  in  18  Ves. 
Jr.  14,  however,  it  was  held  that  spe- 
cific performance  of  an  agreement, 
made  by  a  party  in  a  state  of  intoxica- 
tion, will  be  refused,  though  no  advan- 
tage was  taken,  since  a  court  of  equity 
will  not  interpose  on  either  side  in  a 
conunon   case  C)f  intoxication. 

-'Wright  v.  Waller,  127  Ala.  557,  54  L. 
R.  A.  440,  29  So.  57 ;  Donclson  v.  Posey, 


§  22J 


CONTRACTS. 


27 


i\6  to  render  the  party  non  compos  mentis  for  the  time  being, — espe- 
cially when  there  was  no  pretense  that  any  person  connected  with  the 
contract  aided  in  procuring  the  drunkenness.^^  Whether  or  not  the 
party  was  incompetent  by  reason  of  drunkenjiess  is  a  question  of  fact 
for  the  jury,^*"  though  it  is  proper  for  the  court  to  present  the  rules 
of  law  upon  the  subject,  leaving  the  jury  to  determine  whether  the 
evidence  brins^s  the  case  within  them.^"  But  it  is  not  necessarv  that 
the  intoxicated  person  should  have  been  insensible  or  entirely  inca- 
pacitated to  perform  any  physical  act."^ 


1,1  Ala.  752;  Tatjlor  v.  Purcell,  GO  Ark. 
(JOO,  31  S.  W.  567;  Lang's  Esialc,  05 
Cal.  19,  2  Pac.  491;  Schramm  v.  O'Con- 
nor, 98  111.  539;  Henry  v.  Ritenour,  31 
Ind.  130;  Harbison  v.  Ijemon,  3  Blackf. 
51,  23  Am.  Dec.  376;  Mansfield  v.  Wat- 
son, 2  Iowa,  111;  Willcox  v.  Jackson, 
51  Iowa,  208,  1  N.  W.  513;  Hawley  v. 
Hoioell,  00  Iowa,  79,  14  N.  W.  199; 
Taylor  v.  Patrick,  1  Bibb,  168;  Johns  v. 
Fritchey,  39  Md.  259 ;  Cavender  v.  Wad- 
dingham,  5  Mo.  App.  457 ;  JoJmson  v. 
Fhifcr,  G  Neb.  401 ;  Burns  v.  O'Rourke, 

5  Robb.  049;  Com.  v.  McAnany,  3 
Brewst.  (Pa.)  292;  Bush  v.  Breinig,  113 
Pa.  310,  57  Am.  Rep.  409,  0  Atl.  86; 
State  Bank  v.  McCoy,  69  Pa.  204,  8  Am. 
Rep.  246;  McSparran  v.  Neeley,  91  Pa. 
17;  Lee  v.  Ware,  1  Hill  L.  313;  Woodson 
V.  Gordon,  Peck  (Tenn.)  190,  14  Am. 
Dec.  743;  Reynolds  v.  Dechaums,  24 
Tex.  174,  76  Am.  Dec.  101;  Smith  v. 
WUliamson,  8  Utah,  219,  30  Pac.  753; 
Foot  V.  Ten-kshury,  2  Vt.  97 ;  Arnold  v. 
nickman.,  0  Munf.  15;  Loftus  v.  Ma- 
loncy,  89  Va.  570,  16  S.  E.  749;  Pitt  v. 
Smith,  2  Cam.pb.  33,  13  Revised  Rep. 
741.  And  see  Caulkins  v.  Fry,  35  Conn. 
170;  Miller  v.  Finley,  2G  Mich.  249,  12 
Am.  Rep.  306;  Nagle  v.  Baylor,  3  Dru. 

6  W.  GO;  Pickett  v.  Sutter,  5  Cal.  412. 
It  is  not  sufficient  to  aA^oid  a  con- 
tract that  it  was  made  mider  undue  ex- 
citement from  the  use  of  liquor.  John- 
son. V.  Phifer,  6  Neb.  401 ;  Foot  v. 
Ten-kshury,   2  Vt.   97. 

And  meager  and  inconclusive  evi- 
dence of  acts  which  might  be  attributed 
either  to  intoxication  or  insanity  will 
not  justify  a  finding  that  a  party  there- 
to was  so  insane  as  not  to  know  what 
he  was  doing.  Taylor  v.  Purcell,  00 
Ark.  606,  3f  S.  W.  567. 

And  one  who  A'oluntarily  pays  a  debt 
or  claim  for  liquor  or  other  property 
cannot  recover  tlie  mo'ney  paid,  though 
lie  was  laboring  under  the  effects  of  ex- 
cessive  drinking, — especially   if   he   was 


at  the  time  comparatively  sober.  Hayes 
v.  Huffstater,  G5   Barb.  530. 

-'^Pickett  V.  Sutter,  5  Cal.  412;  Bates 
V.  Ball,  72  111.  108;  Elans  field  v.  Wat- 
son, 2  Iowa.  Ill;  Burroughs  v.  Rich- 
man,  13  N.  J.  L.  233,  23  Am.  Dec.  717; 
Loftus  V.  Maloney,  89  Va.  576,  10  S.  E. 
749;  Lewis  v.  Baird,  3  McLean,  5G,  Fed. 
Cas.  No.  8,316.  And  see  Rottenhurgh  v. 
Foiol   (N.  J.  Eq.)   26  Atl.  338. 

Voluntary  intoxication,  going  only  to 
the  extent  of  rendering  the  intoxicated 
person  incapable  of  understanding  busi- 
ness clearly,  is  not  enough  to  invalidate 
his  contracts.  Henry  v.  Ritenour,  31 
Ind.   130. 

And  a  note  is  not  rendered  void  by 
the  fact  that  at  the  time  of  signing  it 
the  maker  was  voluntarily  intoxicated, 
merely  to  the  extent  that  he  could  not 
give  that  attention  to  it  which  a  reasoii- 
ablv  prudent  man  would  be  able  to  give 
Wright  V.  WaUer,  127  Ala.  557,  54  L. 
K.  A.  440,  29  So.  57;  Taylor  v.  Pur-cell, 
00  Ark.  GOO,  31   S.  W.  5G7. 

'-'^Reytiolds  v.  Dechaums,  24  Tex.  174, 
76  Am.  Dec.  101;  Cumminqs  v.  Uevry, 
10  Ind.  109;  Murray  v,  Carlin,  67  111. 
280. 

Evidence,  in  an  action  for  services  as 
an  attorney,  that  the  client  had  been 
placed  in  an  asylvim  while  suffering  from 
delirium  tremens,  and  was  insane  from 
time  to  time  while  imder  the  influence 
of  drink,  but  that  the  attorney  did  not 
do  business  with  him  during  such  times, 
raises  a  question  for  the  jury  whether, 
when  the  attorney  took  his  instructions, 
the  client  was  insane,  to  his  knowledge. 
Moss  v.  Trihe,  3  Fost.  &  F.  297. 

''Cummings  v.  Henry,  10  Ind.  109. 

-^Cavender  v.  Waddingham,  5  Mo. 
App.  457;  Cummings  v.  Henry,  10  Ind. 
100. 

A  finding  that  a  vendor's  mind  at  the 
time  of  a  sale  was  in  an  abnormal  con- 
dition produced  by  drunkenness  sutli- 
ciently  shows  that  he  was  then  mentallv 


28 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  23 


23.  Conveyances. —  A  drunkurd  is  not  incompetent  to  execute  a 
conveyance  like  an  idiot  or  one  generally  insane ;  he  is  simply  incom- 
petent if,  at  the  time  of  its  execution,  his  understanding  was  clouded 
or  his  reason  dethroned  by  actual  intoxication.^^  And  the  mere  fact 
that  a  man  was  drunk  at  the  time,  or  that  he  was  an  habitual  drunkard, 
or  that  natural  weakness  of  mind  had  been  increased  by  habits  oi 
intoxication,  will  not  relieve  him  against  a  deed  or  agreement  made 
by  him,  unless  it  appears  that  some  advantage  was  taken  or  undue  in- 
fluence exerted  to  procure  it.^^  But  if  a  man  was  so  drunk  when  he 
signed  a  deed  as  not  to  know  what  he  was  doing,  it  is  invalid,  since 
consent  is  an  essential  ingTedient  to  the  contract.^^  And  equity  will 
relieve  against  a  conveyance  made  by  an  intoxicated  person  without 
consideration,  though  the  intoxication  was  not  procured  by  the  gran-' 
tee.^-  So,  intoxication  procured  by  a  grantee  for  the  purpose  of  ob- 
taining the  execution  of  a  deed  invalidates  it.^^     And  a  deed  made  bv 


incapable  of  making  the  sale.  Franlcs  v. 
Jones,  39  Kan.  23G,  17  Pac.  663. 

■^Van  Wyck  v.  Brasher,  81  N.  Y.  260: 
Wright  V.  Fisher,  (>5  Mich.  275,  32  N. 
W.  605.  8  Am.  St.  Rep.  886;  Johnson  v. 
Kockn-ell,   12   Ind.  76. 

A  deed  cannot  be  avoided  because  the 
grantor,  from  habitual  dissipation  or 
otherwise,  was  not  competent  to  trans- 
act business  immediately  before  or  im- 
mediately after  its  date,  Avhere  it  ap- 
pears that  he  was  sober  and  of  sufli- 
cient  capacity  to  dispose  of  the  prop- 
erty, with  a  knowledge  of  what  he  was 
doing  at  the  time  he  executed  it. 
Ralsfon  v.  Turpin,  129  U.  S.  663,  32  L. 
ed.  747,  9  Sup.  Ct.  Rep.  420.  Affirming 

25  Fed.  7. 

'^Woods  V.  Pindall,  Wright  (Ohio) 
507;   Rottcnhurqh  v.  Foicl    (N.  J.  Eq.) 

26  Atl.  338;  Hutchinson  v.  Tindall,  3 
N.  J.  Eq.  357;  Youn  v.  Lamont,  56 
Minn.  210.  57  N.  W.  478;  Smiih.  v. 
Ellioti,  1  Patton  &  IT.  (Va.)  307;  John- 
son V.  ]\Iedlicoti,  3  P.  Wms.  130. 

^'Wnde  V.  Colvert,  2  Mill  Const.  27,  12 
Am.  Dec.  652;  Donelson  v.  Posey,  13 
Ala.  lo2;  Dulany  v.  Green,  4  Harr. 
(Del.)  285;  Shaclcellon  v.  Sehree,  86  111. 
616;  fichramm  v.  O'Connor,  98  111.  539; 
Rrivskcpf  v.  Royrie,  37  Ind.  209;  Mans- 
field V.  Wfilson,  2  Iowa.  Ill;  Harbison 
V.  Lemon,  3  P.lackf.  51.  23  Am.  Dec.  376; 
Wii^dom  V.  Shfniklin,  74  Mo.  App.  428; 
C'Ufl07i  V.  Davis.  1  Piirs.  Sel.  Eq.  Ca^. 
31  ;  Pitt  V.  Rmith,  3  Campb.  33,  13  Re- 
vised Rep.  741. 

So.  one  who  was  reduced  to  such  ex- 
treme debility  bv  the  use  of  intoxicatinj? 


liquors  as  to  be  unable  to  arise  or  sit  up 
in  bed  unless  supported,  or  to  hold  a 
pen  or  make  a  mark  unless  the  pen  and 
hand  were  held  for  him,  is  as  incompe- 
tent to  execute  a  conveyance  of  his  prop- 
erty as  he  would  be  if  actually  drunk  at 
the  time.  Wilso7i  v.  Bigger,  7  Watts  & 
S.  111. 

^-Warnook  v.  Campbell,  25  N.  J.  Eq. 
485;  Hutchinson  v.  Tindall,  3  N.  J.  Eq. 
357;  Mead  v.  Coombs,  26  N.  J.  Eq.  173. 
And  see  Crane  v.  Conklin,  1  N.  J.  Eq- 
346,  22  Am.  Dec.  519;  Melson  v.  Laf- 
flin,  50  N.  Y.  S.  R.  277,  21  N.  Y.  Supp. 
731. 

■''O'Connor  v.  Rempt,  29  N.  J.  Eq.156;. 
Woods  V.  Pindall,  Wright  (Ohio)  507; 
Ton  Horn  v.  Keenan,  28  111.  445;  John- 
son V.  Medlicott,  3  P.  Wms.  130;  Cookr: 
V.  ClayiLorth,  IS  Ves.  Jr.  12,  11  Revised 
Rep.  137;  Dunn  v.  .l?»os,  14  Wis.  107: 
Wager  v.  Reid,  3  Thomp.  &  C.  332.  And 
see  Haniucl  v.  Marshall,  3  Leigh,  567; 
Rutherford  v.  Ruff,  4  Desauss.  Eq.  ?50. 

A  deed  made  by  a  grantor  during  a 
period  spent  by  him  in  the  liouse  of  the 
grantee  will  be  set  aside  wliere  it  ap- 
])ears  that  he  was  drunk  when  he  went 
there,  and  had  delirium  tremens  and 
was  so  weak  as  to  be  vmable  to  walk 
without  assistance  when  he  Avas  taken 
awa}',  and  his  friends  did  not  know 
where  he  w.?.s.  the  grantee  alone  having 
had  access  to  him.  and  ho  had  no  mem- 
ory as  to  Avhat  was  done  while  there. 
O'Connor  v.  Rempt,  29  N.  J.  Eq.  156. 

And  a  lease  made  inuuediately  after 
the  lessor  became  of  age,  at  an  inade- 
quate price,  will  be  set  aside  where  he 


23] 


CONTRACTS. 


29 


a  person  while  intoxicated  may  be  set  aside  if  advantage  was  taken 
of  his  situation.^*  But  drunkenness  of  a  party  which  will  author- 
ize setting  aside  a  deed  made  by  him  must  have  been  so  excessive  as 
to  utterly  deprive  him  of  the  use  of  his  reason  and  understanding.^^ 
And  it  must  have  existed  at  the  very  time  of  the  act  in  question.^'^ 
Xor  is  drunkenness  any  defense  where  the  act  in  question  was  done 
in  execution  of  a  previous  valid  contract  made  while  sober.^^ 

24.  Kule  in  equity. — Courts  of  equity  wall  relieve  against  contracts 
entered  into  in  a  state  of  intoxication,  where  the  intoxication  produced 
mental  incapacity  f^  and  where  it  produced  mental  excitement,  sub- 


was  subject  to  habitual  intoxication,  and 
it  was  simply  an  execution  of  what  he 
had  previously  promised  to  do  when  in 
a  state  of  intoxication  induced  by  the 
lessee,  though  he  knew  what  he  was  do- 
ing at  the  time.  Say  v.  Baricick,  1  Ves. 
&  B.  195. 

^*0'Conner  v.  Remvt,  29  N.  J.  Eq.  150: 
Ryerson  v.  Adams,  6  N.  J.  Eq.  618;  Sam- 
uel V.  Marshal,  3  Leigh,  507. 

Where  t)ie  senses  of  a  grantor  were 
blunted  at  the  time  of  malcing  a  deed 
and  his  mind  enfeebled  by  age  and  dis- 
ease, and  he  was  absent-minded,  listless, 
and  inattentive,  and  his  memory  uncer- 
tain and  capricious,  and  he  was  some- 
what under  the  influence  of  intoxicating 
liquor,  his  deed  will  be  set  aside  if  his 
attention  was  not  called  to  circum- 
stances and  details  which  would  nat- 
urally affect  his  decision  as  to  the  pro- 
priety of  the  transaction,  though  he  was 
not  insane  or  an  idiot  or  of  that  degree 
of  imbecility  which  would  itself  render 
him  incapable  of  executing  a  valid  deed; 
•and  though  he  was  at  the  time  capable 
of  understanding  the  nature  of  the 
transaction.  Seeley  v.  Price,  14  Mich. 
541. 

And  the  rights  of  a  vendor  of  property 
whose  judgment  was  unsound  and  ren- 
dered still  weaker  by  habits  of  intoxica- 
tion, whose  vendee  was  keen  and  saga- 
cious and  in  whom  he  trusted,  who  sold 
his  property  for  an  inadequate  consid- 
eration, are  not  affected  by  a  statement 
afterward  made  that  the  purchase  was 
fair,  or  by  his  solemn  confirmation  of  it, 
unless,  previous  to  such  statement  and 
confirmation,  he  had  been  free  from 
every  delusion,  impression,  or  undue  in- 
fluence under  which  the  sale  was  made, 
and  became  aware  that  it  could  be  set 
aside.  McCormick  v.  Malin,  5  Blackf. 
509. 

^'Belcher  y.  Belcher,  10  Yerg.  121; 
Morris  v.  Nixon,  7  Humph.  579;  Dulany 


V.  Green,  4  Harr.  (Del.)  285.  And  see 
(yScill  V.  Nolan,  50  N.  Y.  S.  R.  041,  21 
N.  Y.  Supp.  222;  Harbison  v.  Lemon,  3 
Blackf.  51,  23  Am.  Dec.  370. 

^Johnson  v.  Rockiccll,  12  Ind.  76. 

^'Strickland  v.  Parlin  &  0.  Co.  (Ga.) 
44  S.  E.  997. 

A  finding  in  favor  of  the  validity  of  a 
deed  in  an  action  to  set  it  aside,  alleging 
it  to  have  been  obtained  while  the 
grantor  was  intoxicated,  will  not  be 
overturned  where  the  testimony  as  to 
his  intoxication  was  conflicting.  John- 
son v.  Phifer,  6  Neb.  401. 

^^Phelan  v.  Gardner,  43  Cal.  306;  Hale 
V.  Stery,  7  Colo.  App.  165,  42  Pac.  598; 
Menkins  v.  Lightner,  18  III.  282;  Harbi- 
son V.  Lemon,  3  Blackf.  51,  23  Am.  Dec. 
376;  Jenners  v.  Howard,  0  Blackf.  240, 
Cummings  v.  Henry,  10  Tnd.  109;  Reins- 
kopf  V.  Rogge,  37  Ind.  207;  Mansfield  v. 
Watson,  2  Iowa,  111;  Mitchell  v.  King- 
man, 5  Pick.  431;  Newell  v.  Fisher,  11 
Smedes  &  M..  431,  49  Am.  Dec.  66; 
Longhead  v.  B.  F.  Coombs  d  Bro.  Com- 
mission Co.  (1890)  2  Mo.  App.  Rep. 
1017;  Phillips  v.  Moore,  11  Mo.  000; 
Prentice  v.  Achorn,  2  Paige,  30 ;  Mor- 
ris V.  Clay,  53  N.  C.  (8  Jones  L.)  216; 
French  v.  French,  8  Ohio,  214,  31  Am. 
Rep.  441;  lUohs  v.  Klohs,  01  Pa.  245; 
Bush  v.  Breinig,  113  Pa.  310,  57  Am. 
Rep.  409,  6  Ath  86;  Clifton  v.  Davis,  1 
Pars.  Sel.  Eq.  Cas.  31;  Williams  v.  In- 
abnet,  1  Bail.  L.  343;  Wade  v.  Colvert, 
2  Mill  Const.  27,  12  Am.  Dec.  652 ;  Bar- 
rett V.  Buxton.  2  Aik.  (Vt.)  167,  16 
Am.  Dec.  691;  Bliss  v.  Connecticut  &  P. 
Rivers  R.  Co.  24  Vt.  424:  Wigglesworth 
V.  Steers,  1  Hen.  &  M.  70,  3  Am.  Dec. 
002:  Mulligan  v.  Alberts,  103  Wis.  140. 
78  N.  W.  1093;  Pitt  v.  Smith,  3  Campb. 
33,  13  Revised  Rep.  741;  Fenton  v.  Hoi- 
loway,  1  Starkie,  120;  Cole  v.  Robins, 
Bull,  N.  P.  172;  Gore  v.  Gibson,  13 
Mees.  &  W.  623,  14  L.  J.  Exch.  N.  S^. 
151,  9  Jur.  140;  Cooke  v.  Clay  worth,  fk 


30  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  24 

jectiiig  the  party  to  the  undue  influence  of  the  other  contracting  party, 
who  thereby  gained  an  unfair  advantage.^^ 

25.  Drunkard  liable  for  necessaries. —  A  drunkard,  like  a  lunatic, 
\n\\  be  held  liable  for  necessaries  requisite  for  his  support,  though  in 
such  cases  the  suit  should  be  for  goods  sold  and  delivered,  and  not  on 
account  stated. ^'^ 

26,  Discharge  of  servant  for  drunkenness. —  A  servant  who,  by  in- 
toxication, unfits  himself  in  any  degree  for  the  proper  performance  of 
his  duties  may  be  discharged  whether  there  was  any  independent 
•agreement  to  that  effect  or  not.^^  But  to  justify  a  discharge  Avhere 
duty  was  properly  performed  there  must  have  been  a  habit  of  intem- 
perance consisting  of  something  more  than  a  single  act  of  intoxica- 
tion,''^ or  occasional  acts.^^ 


Ves.  Jr.  12,  11  Revised  Rep.  137;  Eaio- 
kins  V.  Bone,  4  Fost.  &  F.  311;  Berk- 
ley V.  Cannon,  4  Rich.  L.  136.  And  see 
Drummond  v.  Hopper,  4  Harr.  (Del.) 
327. 

So,  the  defendant  in  an  action  upon 
contract  may  prove  that  he  was  drunk 
at  the  time  it  was  made  so  that  he  did 
not  know  what  he  was  doing,  under  a 
plea  of  nonassumpsit.  Barney  v.  Diyn- 
mitt,  Wright  (Ohio)  44;  Freeman  v. 
Dtciygins,  54  N.  C.   (2  Jones  Eq.)    1G2. 

And  a  purcliase  of  property  from  a 
bailee  thereof,  when  drunk,  wliether 
made  so  for  the  purpose  or  not,  is  void 
and  gives  no  right  of  possession :  and 
taking  possession  under  the  conveyance 
furnishes  ground  for  a  replevin.  Drum- 
mond v.  Hopper,  4  Harr.   (Del.)    327. 

"^Wigglesicorth  v.  Steers,  1  Hen.  & 
M.  70,  3  Am.  Dec.  602;  Birdsong  v. 
Birdsong,  2  Head,  289 ;  Belcher  v.  Belch- 
er, 10  Yerg.  121;  French  v.  French,  8 
Ohio,  214,  31  Am.  Dec.  441;  Mansfield 
V.  Watson,  2  Iowa,  111,  at  p.  115. 

But  that  equity  will  only  relieve 
where  fraud  has  been  practised,  and  not 
otherwise,  sec  Hutchinson  v.  Broion, 
Clarke  Ch.  408;  Prentice  v.  Achorn,  2 
Paige.  30;  ^Yager  v.  Reid,  3  Thonip.  & 
C.  332;  Seymour  v.  Delancy,  3  Cow.  445, 
15  Am.  Dec.  270;  Pittenger  v.  Pitten- 
ger,  3  N.  J.  Eq.  156;  Hutchinson  v.  Tin- 
doll,  3  N.  J.  Eq.  357 ;  Jones  v.  Per- 
kins, 5  B.  Men.  222;  Scanlan  v.  Cohb, 
85  111.  206;  White  v.  Cox,  4  Ilayw. 
(Tonn.)  213;  Campbell  v.  Kelcham,  1 
Bibb,  40G;  Rutherford  V.  Ruff,  4  Desau.ss 
Eq.  350;  Johnson  v.  Medlicott,  3  P. 
W'lm.  130;  Sliaio  v.  Thackray.  3  Smale 
&  O.  537,  17  Jur.  1045,  23  Eng.  L.  & 
Eq.  Rep.  18.     And  see  supra,  §  23. 


^"Coolce  V.  Clayicorth,  18  Ves.  Jr.  12, 
11  Revised  Rep.  137;  Gore  v.  Gibson,  13 
Mees.  &  W.  623,  14  L.  J.  Exch.  N.  S. 
151,  9  Jur.  140:  Sawyer  v.  Lufkin,  56 
Me.  309;  McCrillis  v.  Bartlett,  8  N.  H. 
569 ;  Kendall  v.  May,  10  Allen,  59 ;  Sey- 
mour v.  Delancy,  3  Cow.  445,  15  Am. 
Dec.  270;  Van  Horn  v.  Hann,  39  N.  J. 
L.  207 ;  Jenners  v.  Howard,  6  Black f. 
240;  Darby  v.  Cabanne,  1  Mo.  App.  126. 
So,  in  equity,  Jones  v.  Perkins,  5  B. 
Mon.   222. 

Expense  of  siiits  undertaken  for  the 
protection  of  the  drunkard  or  of  his 
estate  may  be  considered  as  necessaries. 
Re  Mearc's,  L.  R.  10  Ch.  Div.  552,  48  L. 
J.  Ch.  N.  S.  190,  40  L.  T.  N.  S.  Ill,  27 
Week.  Rep.  369;  Hallctt  v.  Oakes,  1 
Cush.  296. 

*^McCormick  v.  Demary,  10  Neb.  515, 

7  N.  W.  283;   Gonsolis  v.  Gearhart,  31 
Mo.  585. 

But  a  defendant  who  pleads  payment 
of  money  into  court  in  an  action  for  a 
wrongful  discharge  of  his  servant  can- 
not prove  in  mitigation  of  damages  tliat 
he  discharged  the  servant  upon  the 
ground  of  drunkenness.  Speck  v.  Phil- 
lips, 5  Mees.  &  W.  279,  7  Dowl.  P.  C.  470, 

8  L.  J.  Exch.  N.  S.  249,  277. 

*-The  Ealing  Grove,  2  Hagg.  Adm.  15; 
Rohinett  v.  The  Exeter,  2  C.  Rob.  261. 

Getting  drunk  on  shore  and  not  re- 
turning on  board  immediately  upon  expi- 
ration of  his  leave  of  absence,  upon  the 
part  of  a  sailor  whose  clothes  and  other 
property  were  on  board,  is  not  an  act 
of  desertion  which  will  work  a  forfeit- 
ure of  his  wages.  The  Ealing  Grove, 
2  llagg.  Adm.   15. 

*'The  New  Phoenix,  1  Hngg.  Adm.  198. 

Occasional  acts  of  drunlcenness  on  the 


§  24j  CONTilACTS.  31 

IV.  Morphinism  and  other  addictions. 

27.  Effect,  generally. —  An  addiction  to  the  use  of  morphine,  oplunij 
or  other  dnig,  other  than  intoxicating  liquor,  is  closely  analogous  to 
drunkenness  or  intoxication,  and  seems  to  be  subject  to  the  same  rules 
with  relation  to  effect  upon  capacity  to  contract.  And  a  contract  en- 
tered into  by  one  who  was  so  much  under  the  influence  of  drugs  as  to 
be  incapacitated  is  voidable.^ ^  So,  taking  advantage  of  a  weak  men- 
tal or  physical  condition  caused  by  the  use  of  morphine  or  other  drugs, 
though  taken  under  medical  prescription,  by  which  a  person  is  in- 
capacitated from  doing  business,  to  obtain  a  deed  through  fraud  and 
undue  influence,  invalidates  the  deed.^^ 

V.  Who  may  avoid. 

28.  Who  may  avoid, — administrators,  heirs,  etc. —  Where  the  con- 
tract of  an  alleged  lunatic  is  voidable,  it  may  be  avoided  by  his  exec- 
utors or  administrators,  or  by  his  heirs.^^  And  the  rule  is  the  same 
when  a  contract  is  voidable  on  account  of  intoxication.^'^ 

29.  So,  of  representatives  and  guardians. —  So,  the  guardian,  com- 
mittee, curator,  or  assignee  in  lunacy,  whatever  may  be  his  oflicial 
title,  may  contest  before  the  proper  court  his  ward's  prior  dealings, 
and  may  either  disavow  and  rescind  or  ratify  the  lunatic's  contracts 
made  during  lunacy.^^ 

30.  And  so,  of  a  party  himself.— Notwithstanding  the  position 
taken  in  the  older  books  that  no  man  can  stultify  himself  by  alleging 
his  lunacy  at  a  prior  period,  it  is  now  settled,  as  has  been  already  in- 
cidentally seen,  that  a  person  who  has  been  insane,  and  while  insane 

part  of  a  sailor,  not  more  than  nsiial  *'^Nielson  v.   Lnfflin,   50      '.    Y.    S.   R. 

with   sailors,  and  subsequent  acts  more  277,  21  N.  Y.  Supp.  731. 

frequent  but  arisins:  from  an  undue  ef-  ^''Beverley's  Case,  4    Coke,    123&.     See 

feet  given  by  bodily  disease  to  the  liquor  Gibson  v.   Soper,  6  Gray,  279.   66  Am. 

used,  aK^  not  a  sufficient  ground  for  the  Dec.  414. 

forfeiture  of  his  wages.  The  Lady  Camp-  "Seo  supra,  §  23. 

bell.   2   Hagg.   Adm.    15.  «2  Bl.  Com.  292;   McCrillis  v.  Bart- 

^'Chicafio,  R.  I.  d  P.  R.  Co.  v.  Doyle,  lett,  S  N.   H.   569;    Gibson  v.   Soper.   6 

18  Kan.  58.  Gray,  279,  66  Am.  Dec.  414. 

And  where  a  release  Avas  given  by  the  In  Baker  v.  Baker,  L.  R.  5  Proh.  Div. 

plaintiff  in  an  action  for  damages  for  a  145,  49   L.  J.  Prob.  N.  S.   49,  42  L.  T. 

personal  injury  while  he  was  so  much  N.   S.   332,   28  Week.   Rep.   630,   it  was 

under  the  influence  of  opiates  taken  to  lield   that   the   committee   of   the   estate 

alleviate  his  pain  caused  by  such  inju-  of  a  lunatic,  as  against    the    committee 

ries   that   he   was   mentally   incapacita-  of  the  person,  was  the  proper  party  to 

ted  to  contract,  he  is  not  bound  to  offer  bring   a    proceeding   for    divorce   on    ac- 

to  pay  back  the  money  received  at  the  count   of  th<!  adultery   of  the   lunatic's 

time  of  giving  the  release  as  a  condition  wife., 
precedent  to  his  right  to  recover  for  the 
injur3^     Ihid. 


32  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  30 

makes  a  contract,  can,  on  bis  restoration  to  sound  mind,  contest  the 
validity  of  the  contract*^ 

31.  Partnership  contracts. —  A  dissolution  of  a  partnership  contract 
on  the  ground  of  permanent,  confirmed,  and  incurable  insanity  of  a 
partner  may  be  had,  either  at  the  instance  of  the  lunatic  or  at  that 
of  the  other  party.^" 

VI.  Pkoof  of  incompetency. 

32.  Sufficiency,  generally. —  Evidence  which  will  not  warrant  a 
commission  of  lunacy  against  a  party  is  insufficient  to  establish  in- 
sanity or  imbecility  which  will  incapacitate  him  to  contract,  where  no 
advantage  was  taken  of  his  condition.^^  And  mere  proof  of  general 
derangement  of  a  grantor  will  not  warrant  setting  aside  a  convey- 
ance.^^ But  evidence  of  witnesses  present  at  the  execution  of  a  deed 
or  contract  is  entitled  to  particular  weight,^^  and  is  of  greater  weight 
than  the  opinions  of  witnesses  based  upon  facts  which  might  or  might 
not  have  resulted  from  unsoundness  of  mind.^*  A  deed  may  be  up- 
held where  the  subscribing  witnesses  detail  facts  and  circumstances 
evidencing  mental  capacity,  though  one  of  them  expresses  the  opinion 
that  the  party  was  not  competent  to  contract^^  And  next  to  physi- 
cians and  persons  present  at  the  time,  the  evidence  of  persons  whose 
intimacy  has  given  them  an  opportunity  of  watching  the  operations 
of  tlie  party's  mind  is  important.^^     The  question  whether  there  was 

"Gi&.son  V.  Soper,  6  Gray,  279,  66  Am.  "^Jarrett  v.  Jarrett,   11   W.  Va.  584; 

Dec.  414:   Crawford  v.  Scovel  8  W.  N.  Buckeij  v.  Buckey,  38  W.  Va.  108,  18  S. 

C.  364;  Turner  v.  Rush,  53  Md.  65;  the  E.  383. 

same  principle  applying  as  in  the  case  And  clear  and  unquestionable  evidence 

of  infants.  is  required  to  overcome  a  deed  executed 

But  where  the  party  is  under  guard-  openly  and  acknowledged  before  a  notary 

ianship,  the  action  must  be  brought  by  who  had  known  the  grantor  for  years, 

the  guardian,  l^iichol  v.  Thomas,  53  Ind.  and    who   explained    its    effect    to    him, 

42.  upon  the  ground  of  the  mental  incapac- 

It  would  seem  to  be  impossible  that  itv  of  the  grantor.     Elcessor  v.  Elcessor, 

the    action    should    be    allowed    to    be  146  Pa.  359,  23  Atl.  230. 

brouglit  by  the  other  party.     Allen  v.  ^*Beverley  v.   Walden,  20  Gratt.   147; 

Berryhill,'27  Iowa,  540,  1  Am.  Rep.  309.  Brooks  v.  Pratt,  55   C.  C.  A.   515,   118 

'^"Jones  v.  Lloyd,  L.  R.  18  Eq.  265,  43  Fed.   725. 

L.  J.  Ch.  N.  S.  826,  30  L.  T.  N.  S.  487,  But  testimony  of  an  expert  in  an  ac 

22  Week.  Rep.  785.  tion  to  set  aside  a  deed  for  mental  in 

"Baumpardcn  v.  Lanfjles,  35  La.  Ann.  capacity,  that  the  grantor  did  not  know 

441;   Hprague  v.  Duel,   11  Paige,  480.  whether   he   made  a   deed,   a   will,   or   a 

"Achey  v.  Stephens,  8  Ind.  411.  lease,   and   that   in   his  opinion   he   was 

Evidence,  however,  that  at  the  time  not  competent  to  protect  his  own  inter- 
of  the  delivery  of  a  deed  a  grantor  was  est,  is  sufficient  to  warrant  a  decree  syt- 
incapacitated  from  taking  rational  care  ting  aside  the  deed.     Sponablc  v.  Han- 
oi his  property  by  reason  of  an  insane  son.  87  Mich.  204,  40  N.  W.  644. 
delusion  is  sufficient  to  warrant  a  find-  '-'Jones  v.  Evans,  7  Dana,  96. 
ing  setting  aside  the  conveyance.     Crow-  ^Jarrett  v.  Jarrett,  11  VV.  Va.  584. 
il-rr  V.  Roalandson,  27  Gal.  376. 


S  32] 


CONTRACTS. 


33 


any  evidence  of  insanity  in  an  action  upon  contract  is  one  for  the 
court  ;^^  where  there  is  evidence,  its  sufficiency  is  for  the  jury.^^  And 
though  a  delusion  exists,  the  question  of  capacity  to  contract  is  still 
one  of  fact'^'^ 

33.  Previous  and  subsequent  derangement. —  While  the  competency 
of  a  person  to  contract  is  to  be  determined  as  of  the  time  when  the 
<!0utract  was  made,  the  condition  of  his  mind  both  previously  and  sub- 
sequently may  be  considered  as  bearing  upon  his  mental  condition  at 
that  time.^**  And  evidence  as  to  sanity  or  insanity  at  the  time  of 
the  trial  of  an  action  is  competent  as  tending  to  show  the  person's 
condition  of  mind  at  the  time  the  cause  of  action  arose,  the  jury  be- 
ing left  to  judge  as  to  its  weight.*'^  But  the  difference  of  time  be- 
tween the  execution  of  a  contract  and  the  time  at  which  its  validity 
is  challenged  is  a  material  consideration,*'^  and  evidence  relating  to 
the  period  of  time  nearest  to  the  time  of  the  execution  of  the  contract 


""Camplell  v.  Hill,  23  U.  C.  C.  P.  473. 

^Wougherty  v.  Poive,  127  Ala.  577,  30 
So.  524;  Doe  ex  dem.  Button  v.  Reagan, 
5  Blackf.  217,  33  Am.  Dec.  466;  Doe  ex 
dam..  Guest  v.  Beeson,  2  Houst.  (Del.) 
246;  Ashury  v.  Fair,  111  N.  C.  251,  16 
S.  E.  467 ;  First  Nat.  Bank  v.  Wirebach, 
106  Pa.  37;  Hepler  v.  Hosack,  197  Pa. 
631,  47  Atl.  847;  Campbell  v.  Mill,  23 
U.  C.  C.  P.  473. 

^^Ciitler  V.  Zollinger,  117  Mo.  92,  22 
S.  W.  895;  Jenkins  v.  Morris.  L.  R.  14 
Ch.  Div.  674,  42  L.  T.  N.  S.  817. 

But  the  question  of  capacity,  in  an 
action  to  set  aside  a  conveyance  by 
a  grantor  of  weak  mind,  not  claimed  to 
be  absolutely  insane,  may  be  determined 
by  the  court;  and  the  verdict  of  a  jury 
as  to  such  capacity,  in  an  action  to  set 
aside  a  deed  as  having  been  obtained  by 
undue  influence  exercised  upon  a  weak 
mind,  is  not  conclusive,  the  court  being 
competent  to  determine  for  itself  the 
degree  of  weakness  or  imposition  which 
would  require  it  to  set  the  deed  aside. 
Hardinq  v.  Randy,  11  Wheat.  103,  6 
L.  ed.  429. 

^"Jarrett  v.  Jarrett,  11  W.  Va.  584; 
Anderson  v.  Cranmer,  11  W.  Va.  562; 
Watson  V.  Anderson,  11  Ala.  43;  Grant 
V.  Thompson,  4  Conn.  203,  10  Am.  Dec. 
119;  Eendrix  v.  Money,  1  Bush,  306; 
Jerry  v.  Toionshend,  9  Md.  145;  Peas- 
lee  v.  Robbins,  3  Met.  164;  Dickinson  v. 
Barber,  9  Mass.  225,  6  Am.  Dec.  58; 
M'Adam  v.  Walker,  1  Dow.  P.  C.  148. 
And  see  Peters  v.  Peters.  101  Mich.  291, 
69  N.  W.  609. 

Vol.  J.  Med.  Jub. — 3. 


Where  insanity  is  established  both  be- 
fore and  after  the  execution  of  a  con- 
tract, existing  so  near  that  time  as  to 
leave  but  a  few  hours  intervening,  and 
the  character  of  the  mania  is  such  as 
to  lead  to  the  act,  a  lucid  interval 
which  will  sustain  it  will  not  be  in- 
ferred from  the  fact  that  the  person  in 
question  seemed  to  transact  business  in 
an  intelligent  manner.  Ellars  v.  Moss- 
barger,  9  111.  App.  122. 

"'Berry  v.  Hall,  105  N.  C.  154,  10  S.  E 
903. 

And  an  instruction  in  an  action  to  set 
aside  a  deed,  that  the  appearance  ol 
the  grantor  might  be  taken  into  con- 
sideration in  determining  his  sanity,  is 
not  subject  to  the  objection  that  the  ver- 
dict should  not  be  permitted  to  be  based 
upon  general  appearances,  or  that  the 
time  intervening  might  be  too  long, 
where  the  evidence  was  not  all  in  the 
record.     Koilc  v.  Ellis,  16  Ind.  301. 

'•Towart  v.  Sellars,  5  Dow  P.  C.  231. 
And  see  Berry  v.  Hall,  105  N.  C.  154,  10 
S.  E.  903;  liaden  v.  Hays,  14  Pa.  91; 
Winchcomb  v.  Hall,  1  Rep.  in  Ch.  40. 

And  the  fact  that  the  maker  of  a 
bond  for  a  deed  showed  unmistakable 
indications  of  aberration  of  mind  about 
the  time  the  bond  was  made  does  not 
justify  a  decree  for  the  restoration  of 
the  bond,  where  he  continued  in  busi- 
ness for  several  months  after  that  time. 
Hubbard  v.  Hoag,  60  Iowa,  756,  15  N. 
W.  600. 


34 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


l§  33 


is  entitled  to  the  most  weight*^  And  evidence  of  monomania  extend- 
ing over  a  long  period  anterior  to  and  down  to  the  year  in  which  deeds 
were  executed  by  a  grantor,  found  some  years  afterwards  by  commis- 
sion to  have  been  insane  all  that  time,  is  not  sufficient  to  overcome  a 
prima  facie  case  of  sanity  at  the  time  of  their  execution.®*  Nor  will 
delusions,  ranging  over  a  number  of  years,  none  of  which  approach 
the  transaction  in  question  which  was  rational  in  its  nature,  warrani 
setting  it  aside.^^ 

34.  Age,  weakness,  and  disease. —  Old  age  alone  is  not  sufficient  to 
establish  incapacity  to  make  a  deed  or  contract.^®  ISTor  are  age  and 
physical  weakness  alone,®^  though  advanced  age  and  weakness  and 
disease  and  other  circumstances  may  together  be  so.®^  And  the  fact 
that  a  grantor  is  much  impaired  in  body  and  somewhat  enfeebled  in 
mind  is  proper  to  be  taken  into  consideration  with  other  circumstances 
upon  the  question  of  the  existence  of  undue  influence,®^  though  it  does 
not  necessarily  show  incapacity."^'*       So,  proof  of  disease  tending  to 


"Exum  V.  Canty,  34  Miss.  533.  And 
see  Bishop  v.  Uendrick,  42  N.  Y.  S.  R. 
296,  17  N.  Y.  Supp.  241;  Beverage  v. 
Ralston,  98  Va.  625,  37  S.  E.  283; 
Jones  V.  Rice,  99  Wis.  429,  75  N.  W.  64. 

'^Ferguson  v.  Barrett.  1  Fost.  &  F. 
C13. 

"'Campbell  v.  Hill,  22  U.  C.  C.  P.  526. 
And  see  Stringfelloio  v.  Hanson,  25 
Utah,  480,  71  Pac.  1052;  Artrip  v.  Ras- 
nake,  96  Va.  277,  31  S.  E.  4. 

General  evidence  of  insanity,  not  ap- 
plyinji  to  the  particular  moment  of  the 
execution  of  the  deed,  will  not  warrant 
setting  it  aside,  where  there  was  general 
evidence  of  sanity  during  the  same  peri- 
od, corroborated  by  the  performance  of 
sane  acts,  and  the  fact  that  the  deed 
itself  was  rational.  Towart  v.  Sellars, 
5  Dow  P.  C.  234. 

"Buekey  v.  Buckey,  38  W.  Va.  168,  18 
S.  E.  383;  Jarrett  v.  Jarreit,  11  W.  Va, 
584;  Burt  v.  Quisenberry,  132  111.  385, 
24  X.  E.  622;  ^'ichols  v.  King,  24  Ky. 
L.  Rep.  124,  68  S.  W.  133;  Lewis  v. 
Read,  1  Ves.  Jr.  19. 

A  contract  will  not  be  set  aside  for 
mental  incapacity  and  undue  influence 
because  a  party  to  it  was  an  old  man 
somewhat  feeble  in  body  and  mind, 
where  it  was  made  at  his  own  sugges- 
tion and  he  afterwards  told  relatives 
what  he  had  done,  and  seemed  to  under- 
ptand  the  terms  and  nature  thereof. 
Robinson  v.  Allbec,  1  Ohio  Dec.  19. 

And  evidence  that  a  grantor  remem- 
bered events  which  occurred  many  years 


before,  more  vividly  than  recent  occur- 
rences, and  that  he  would  sometimes 
forget  himself  in  conversation,  and  not 
be  intelligible,  though  tending  to  prove 
a  weakened  mind,  does  not  show  inca- 
pacity to  convey  property  by  deed, 
Burt  V.  Quisenberry,  132  111.  385,  24  N, 
E.  622. 

^'Swank  v.  Swank,  37  Or.  439,  61  Pac. 
846. 

^Willemin  v.  Dunn,  93  111.  511;  King 
V,  Cummings,  60  Vt.  502,  11  Atl.  727. 
And  see  Shurte  v.  Fletcher,  111  Mich. 
84,  69  N.  W.  233. 

Mental  incapacity  to  make  a  deed  is 
sufliciently  established  by  evidence  of 
forgetfulness  of  persons  and  events  upon 
the  part  of  the  grantor ;  that  he  fre- 
quently failed  to  recognize  members  of 
his  own  family;  of  carelessness  in  busi- 
ness matters  and  forgetfulness  of  the 
nature  and  extent  of  his  property;  and 
that  his  business  was  transacted  by  his 
son.  Boggess  v.  Boggess,  127  Mo.  305, 
29  S.  W.  '1018. 

And  a  deed  made  but  a  few  hours  be- 
fore the  death  of  the  grantor,  who  was 
afflicted  with  antemia,  from  the  regular 
course  of  which  he  must  have  been  de- 
lirious or  in  a  stupor,  should  be  set 
aside.  Worthington  v.  Major,  94  Mich. 
329,  54  N.  W.  .303. 

"''Sears  v.  Shafer,  1  Barb.  408;  Wal- 
ton v.  Northington,  5  Sneed,  282. 

'"Ralston  v.  Turpin,  129  U.  S.  663.  33 
L.  ed.  747,  9  Sup.  Ct.  Rep.  420.  And 
see  Darnell  v.  Rowland,    30  Ind.    342; 


§  34] 


CONTRACTS. 


35 


cause  insanity  or  imbecility,  such  as  epilepsy,  is  evidence  of  incom- 
petency to  make  a  deed  or  contract^  and  may  warrant  setting  it 
aside  ;'^^  and  where  the  mind  of  a  party  to  a  contract  was 
previously  sound,  the  state  of  his  bodily  health  may  be  looked  to  on 
the  question  of  his  competency,  not  as  evidence  of  insanity,  but  to 
ascertain  what  effect  it  had  on  his  mind.'^^ 

35.  Rationality  of  the  act  itself. —  The  fairness  and  rationality  of 
a  transaction,  and  the  probability  that  one  in  the  possession  of  his 
faculties  would  or  would  not  perform  it,  may  be  looked  at  on  the  ques- 
tion of  mental  capacity,  and  furnishes  strong  evidence  of  tlie  presence 
or  absence  of  insanity.'^  Evidence  of  prudence  and  judgment  mani- 
fested in  determining  the  best  mode  of  carrying  a  contract  into  effect 
and  effecting  the  intention  of  the  parties  raises  a  presumption  that 
the  party  exercising  it  was  not  too  mentally  weak  to  execute  the  con- 
tract.^* So,  a  deed  in  the  execution  of  a  purpose  previously  main- 
tained and  upheld  furnishes  evidence  to  sustain  it  against  the  fact 
that  the  grantor  was  old,  illiterate,  and  of  weak  mind  at  the  time.'* 


Apland  v.  Pott  (S.  D.)  92  N.  W.  19; 
EaJcin  v.  Eawldns,  52  W.  Va.  124,  43 
S.  E.  211. 

Mere  difficulty  of  speecli  upon  the  part 
of  one  who  had  had  an  attack  of 
paralysis,  which  was  not  severe,  proves 
notliing  as  to  his  capacity  to  execute  a 
deed.  Doran  v.  McConlogue,  150  Pa. 
98,  24  Atl.  357. 

And  testimony  of  an  assignor  that  he 
did  not  recollect  making  an  assignment 
is  not  sufficient  to  shift  the  burden  of 
proof  from  the  party  asserting  mental 
incapacity,  where  he  was  not  oblivious 
of  the  transaction  at  the  time,  and  his 
failure  of  memory  was  traceable  to  sub- 
sequent causes.  Dorchester  v.  Dorches- 
ter, 18  N.  Y.  S.  R.  402,  3  N.  Y.  Supp. 
238. 

''^Potter  V.  Woodruff,  92  Mich.  8,  52 
N.  W.  83;  Day  v.  ^eelei/,  17  Vt.  542. 
And  see  Goodyear  v.  Adams,  1  Silv.  Sup. 
Ct.  185,  5  N.  Y.  Supp.  275;  Mulligan  v. 
Albertz,  103  Wis.  140,  78  N.  W.  1093. 

But  that  the  maker  had  had  a  paralyt- 
ic stroke  will  not  invalidate  a  note  and 
mortgage,  though  it  affected  his  mind, 
where  he  had  so  far  recovered  as  to  as- 
sume control  of  his  business  and  carry 
on  important  transactions.  Pealce  v. 
Van  Lcwven,  59  Iowa,  764,  13  N.  W. 
843. 

And  several  attacks  of  paralysis, 
though  the  party  never  recovered  and 
had  been  getting  worse  both  in  body  and 


in  mind,  will  not  invalidate  a  contract, 
where  the  consideration  was  adequate, 
and  he  fully  compreliended  what  he  was 
doing,  and  intended  to  do  what  he  did. 
Hodgdon  v.  Crosby,  1  Wash.  Terr.  578. 
'-M'AduTn  v.  Walker,  1  Dow  P.  C.  148. 
And  see  Fane  v.  Devonshire,  6  Bro.  P.  C. 
137. 

"PtAe  V.  Pike,  104  Ala.  642,  16  So. 
689;  Hemphill  v.  Holford,  88  Mich.  293, 
50  N.  W.  300. 

Evidence  that  there  was  nothing  un- 
natural or  improvident  in  a  transaction 
will  sustain  a  deed,  as  against  proof  of 
incompetency  coming  largely  from  prej- 
udiced witnesses  who  produced  no  tes- 
timony as  to  grantor's  condition  at  the 
time  the  deed  was  executed.  Htcwart  v. 
Curtis,  85  Mich.  496,  48  N.   W.   872. 

''*Clearimter  v.  Kimlcr,  43  III.  272. 
And  see  Ripley  v.  Bahcock,  13  Wis.  425; 
Argo  V.  CoiJin,  142  111.  368,  34  Am.  St. 
Rep.  86,  32  N.  E.  679. 

'''"Jam.es  v.  Langdon,  7  B.  Mon.  193; 
I'lxnm  V.  Canty,  34  Miss.  532;  Lodeioyck 
v.  Lacroix,  115  Mich.  590,  73  N.  W. 
897. 

But  declarations  of  a  grantor,  while 
sane,  as  to  his  intentions  concerning  the 
disposition  of  certain  property,  do  not 
of  themselves  tend  to  prove  that  he  was 
insane  at  a  subsequent  time  when  he 
made  a  different  dis|)osition  of  it.  Howe 
V.  Hone,  99  Mass.  88. 

And  the  fact  that  a  wife  intended  to 


36 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  35 


And  mere  weakness  and  foUj  displayed  in  the  disposition  of  property 
are  not  sufficient  to  warrant  setting  it  aside  where  the  grantor  clearly 
comprehended  the  nature  of  the  business  he  was  engaged  in  and  free- 
ly consented  thereto. "^^  The  execution  of  a  deed  under  circumstances 
not  consistent  with  mental  capacity,  however,  such  as  one  by  a  man 
of  weak  intellect  in  necessitous  circumstances,  by  which  he  transfers 
liis  rights  for  an  inadequate  price,  furnishes  evidence  warranting  its 
cancelation  in  equity.^^  But  tlie  act  must  be  cue  which  no  person 
of  sound  mind  would  have  done.^^  The  performance  of  the  act  in 
question  by  a  lunatic,  however,  is  not  of  itself  sufficient  evidence  of 
a  lucid  interval,^*'  and  a  conveyance  not  in  accordance  with  the  con- 
duct of  persons  of  ordinary  prudence  tends  to  disprove  a  lucid  in- 
terval.s^ 

36.  Conduct  of  party. — Absurd  or  irrational  conduct  affords  evi- 
dence of  unsoundness  of  mind,  and  the  greater  the  number  of  such 
acts  the  stronger  the  proof.^^  And  so  do  radical  changes  in  one's 
conduct,^^  though  they  may  not  be  sufficient  to  establish  the  fact.®^ 
But  foolish  and  absurd  sayings  and  actions  by  one  who  had  once 
been  insane  will  not  alone  establish  insanity  which  will  invalidate  his 


make  such  a  disposition  of  her  property- 
will  not  sustain  a  deed  procured  by  lier 
husband  from  her  at  a  time  when  there 
was  strong  evidence  that  she  was  de- 
lirious and  so  near  death  as  to  have  lost 
the  faintest  glimmer  of  either  observa- 
tion or  memory  of  earthly  affairs.  Len- 
hard  v.  Lenhard,  59  Wis.  GO,  17  N.  VV. 
877. 

'•'Jarrett  v.  Jarrett,  11  W.  Va.  584; 
Sicmon  v.  Wilson,  3  Edw.  Ch.  .36. 

A  sale  of  valuable  property  to  be  paid 
for  in  Confederate  currency  which  was 
greatly  dapreciated  does  not  of  itself 
indicate  mental  incapacity  which  will 
affect  the  validity  of  the  sale,  where  it 
does  not  appear  that  tiie  property  would 
have  been  productive  in  the  future,  or 
that  the  holder  might  liave  made  a  bet- 
ter disposition  of  it.  Beverley  v.  Wal- 
den,  20  Gratt.  147. 

^' Lemon  v.  Jenkins,  48  Ga.  313;  Mc- 
Daniel  v.  McCoy,  08  Mich.  :?40,  36  N. 
W.  84;  Bunch  v.  Hurst,  3  Desauss.  Eq. 
273,  5  Am.  Dec.  551.  And  see  Xcvills 
V.  Nevills,  6  Grant  Ch.   (U.  C.)    136. 

^'^Heward  v.  Seward,  59  Kan.  387,  53 
Pac.  63. 

^Creagh  v.  Blood,  8  Ir.  Eq.  Rep.  435, 
2  .Jones  &  L.  5W). 

""I'ike  V.  Pike,  104  Ala.  042,  16  So. 
689. 


^'Ekin  V.  McCracken,  11  Phila.  534; 
Prather  v.  Naylor,  1  B.  Mon.  244. 

Extravagant  actions  and  haggard  ap- 
pearance, unnatural  excitement  and 
periods  of  depression  and  exaltation, 
and  wild,  unreasonable,  and  visionary 
projects  and  delusions  as  to  business  en- 
terprises, on  the  part  of  a  grantor,  are 
suflicient  to  establish  insanity  and  inca- 
pacity, though  he  had  not  the  appear- 
ance of  insanity,  and  his  family  had  not 
interfered  with  his  affairs.  Curtis  v. 
Browncll,  42  Mich.   165.  3  N.  W.  936. 

^-Jacox  V.  Jacox,  40  Mich.  473.  29  Am. 
Rep.  547 ;  Eaviland  v.  Hayes,  37  N.  Y. 
25. 

Rational  conduct,  however,  is  evidence 
of  competency.  And  a  woman  who  can 
read  and  write,  who  is  a  member  of  a 
reputable  church  in  good  standing,  and 
w'v)  conducted  her  father's  household  af- 
fairs, and,  after  her  marriage,  those  of 
her  husband,  prudently'  and  with  or- 
dinary skill,  and  instructed  her  hus- 
band's cliildren  in  the  ordinary  domestic 
affairs,  cannot  be  held  to  be  incompetent 
to  make  a  deed.  Somers  v.  Pumphrey, 
24  Ind.  231. 

"'/v'/rin  V.  McCracken,  11  Phila.  534. 
And  sec  Canfield  v.  Fairbanks,  63  Barb. 
462;  Boorman  v.  'Northwestern  Mut. 
Relief  Asso.  90  Wis.  145,  62  N.  W.  924. 


S  36]  CONTRACTS.  37 

deed,  where  an  insane  delusion  did  not  necessarily  appear.^*  Nor 
does  belief  in  spiritualism  and  in  communication  with  deceased  per- 
sons,^^  though  a  deed  procured  by  a  medium  who  used  his  power  as 
such  would  be  held  invalid.*"  And  the  fact  that  a  gi'antor  subse- 
quently expressed  satisfaction  with  what  he  had  done  and  ratified  his 
ovm.  action,  or  took  no  steps  to  set  it  aside,  tends  to  show  that  he  knew 
what  he  was  doing  when  the  transaction  was  performed.®^ 

37.  Conduct  of  others. — The  conduct  of  interested  persons  toward 
a  person  alleged  to  have  been  insai»e  at  the  time  of  a  contract  or  con- 
veyance by  him,  treating  him  as  sane  and  responsible,  or  as  insane 
and  irresponsible,  is  evidence  on  the  question  of  his  capacity  to  do  the 
act,*^  and  is  of  much  greater  value  as  proof  of  their  opinion  as  to  his 
capacity  than  any  terms  they  might  employ  as  witnesses  to  express 
them.^^ 

38.  Inquisition  only  prima  facie  proof  as  to  third  parties. — As  to 
strangers,  an  inquisition  of  lunacy  is  only  prima  facie  proof  of  busi- 
ness incompetency,  though  it  binds  the  parties.®^*     That  it  is  admis- 

^*Riplei/   V.    Babcoclc,     13     Wis.     425.  Mann  v.  Keene  Guaranty  Sav.  Banlc,  29 

And   see   Dominick    v.    Randolph,     124  C.  C.  A.  547,  57  U.  S.  App.  634,  80  Fed. 

Ala.  557,  27  So.  481;  Speers  v.  Setcell,  51. 

4  Bush,  239.  The  facts  that  a  man  was  considered 

Hostility  of  an  inmate  to  the  physi-  by  his  family  and  others  as  of  unsound 

cian  of  an  insane  asylum  does  not  estab-  mind,  and  that  the  entire  control  and 

lish   an  insane  delusion  which  will  af-  management  of  his  property  were  taken 

feet  the  validity  of  his  deed,  where  it  away  from  him,  together  with  evidence 

is  not  shown  that  his  criticisms  were  un-  that  he  never  voted,  or  attended  church 

founded  in  fact.     Wright  v.  Jackson,  59  or  places  of  public  worship ;  and  of  fre- 

Wis.  569,  18  N.  W.  486.  quent  violence  and  senseless  conduct  and 

And    the    impossibility    of    perpetual  language, — sufficiently  establish   his   iu- 

motion  is  not  so  apparent  to  the  unedu-  competency  to   make   a   deed.     Hunt  v. 

cated  mind  that  belief  in  it  is  evidence  Hunt,  13  N.  J.  Eq.  161. 

of    idiocy    or     imbecility     or     insanity.  But,  on  the  other  hand,  a  mortgage 

which  would  disqualify  the  believer  from  made  by  a  locomotive  engineer  will  not 

disposing  of  property  by  deed.     Burt  v.  be     set    aside    for    mental      incapacity 

Quisenberry,  132  111.  385,  24  N.  E.  622.  though  he  had  been  insane  and  had  been 

'^^Lewis  v.  Arhuckle,  85  Iowa,  335,  16  laid  off  on  that  account,  but  had  become 

L.  R.  A.  677,  52  N.  W.  237;  Furry  v.  better,  and  was  again  placed  in  charge 

Bartling  (Iowa)   94  N.  W.  471;  Turner  of  a  locomotive  at  about  the  time  the 

V.  Hand,  3  Wall.  Jr.  88,  Fed.  Cas.  No.  mortgage   was    executed,    continuing   in 

14,257.  charge  about  six  weeks,  though  he  after- 

^"Lyon  V.  Home,  L.  R.  6  Eq.  655,  37  wards    became    entirely    insane.      Bald- 

L.  J.'Ch.  N.  S.  674,  18  L.  T.  N.  S.  451,  rick  v.   Garvey,  66  Iowa,  16,  23  N.  W. 

16  Week.  Rep.  824.     And  see  Leighton  156. 

V.  Orr,  44  Iowa,  691.  ^Vacox   v.   Jacox,   40   Mich.    473.     29 

^UiaUton  v.  T'urpin,  129  U.  S.  663,  32  Am.   Dec.   547;    Lat7ier  v.  Long    (tenn. 

L.  ed.  747,  9  Sup.  Gt.  Rep.  420;  Aiman  Ch.    App.)     47    S.    W.    1111;    Maun    v. 

v.  l^fout,  42  Pa.  114.  Keene  Guaranty  Sav.  Bank,  29  C.  C.  A. 

^^Laing  v.  Bruce,   1  Dunlop,  B.  &  M.  547,  57  U.  S.  App.  634,  86  Fed.  51. 

59;  Curtis  v.  Brownelh  42  Mich.  165,  3  ^'f^Draper's  Estate,  26  W.  N.  C.  218; 

N.  W.  936;   Corhy  v.  Moran,   119  Mich.  Hart  v.  Dcamer,  6  Wend.  497;    Goodell 

272,  77  N.  W.  930;   Burt  v.  Mason,  97  v.  Harrington,  3  Thomp.  &  C.  345;  Hoyt 

Mich.  127,  56  N.  W.  305;  Richardson  v.  v.  Adee,  3  Lans.  173;  Demelt  v.  Leonard, 

Medbury,   107  Mich.   176,  65  N.   W.  4;  19  How.  Pr.   UO:   Hirseh  v.  Trainer,  3 


38 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  3S 


sible  as  prima  facie  proof  as  to  third  parties  is  generally  lield,^*' 
though  on  principle  its  admission  is  open  to  the  serious  objection  of 
being  res  inter  alios  acta.  And  it  is  never  conclusive  as  to  strang- 
ei-s;"^  as  to  them  an  inquisition  is  only  presumptive  or  prima  facie 
evidence  of  mental  incapacity,^^  and  it  may  always  be  traversed  or 
rebutted  by  a  person  not  a  party  to  the  proceeding  ;^^  but  it  destroys 
the  presumption  in  favor  of  sanity  and  casts  the  burden  of  showing  it 
upon  the  party  alleging  it.^* 

39.  Other  adjudications  of  unsoundness. —  A  decree  of  a  surrogate 
or  probate  court  in  a  will  contest  that  the  mind  of  a  testator  was  un- 
sound and  tliat  he  was  mentally  incompetent  to  make  a  will  is  com- 
petent and  prima  facie,  but  not  conclusive,  evidence  of  his  incapac- 
ity to  make  a  deed  at  or  about  that  time.°^  But  the  commitment  of  a 
person  to  an  insane  hospital  is  not  generally  regarded  as  sufficient  evi- 
dence of  incapacity  to  make  contracts,^^  though  it  has  been  held  ad- 


Abb.  N.  C.  274;  Faulder  v.  Silk,  3 
Campb.  126.  And  see  also  chap.  vi.  §, 
150,  infra. 

A  statute  providing  that  every  con- 
tract, sale,  or  conveyance  by  any  person 
of  unsound  mind  shall  be  void  is  appli- 
cable only  to  persons  who  have  been  found 
non  compos  mentis  in  the  manner  pre- 
scribed by  law.  Wilder  v.  Weakley,  34 
Ind.  181;  Freed  v.  Brown,  55  Ind.  310. 

'^Canlkins  v.  Fry,  35  Conn.  170; 
Nichol  V.  Thomas,  53  Ind.  53 ;  Stone  v. 
Damon.  12  Mass.  488;  Breed  v.  Pratt, 
18  Pick.  115;  Crovminshield  v.  Crown- 
inshield,  2  GraVj  524;  Burke  v.  Allen, 
29  N.  H.  106,  61  Am.  Dec.  642; 
L'Amoureiix  v.  Crosby,  2  Paige,  422, 
22  Am.  Dec.  655;  Fitzhugh  v.  Wilcox, 
12   Barb.  235;    Wadsworth  v.  Sherman, 

14  Barb.  169;  Hart  v.  Deamer,  6  Wend. 
497;  Hicks  v.  Marshall,  8  Hun,  327; 
Goodell  V.  Harrington,  3  Thomp.  &  C. 
345;  Hoyt  v.  Adee,  3  Lans.  173;  Hutch- 
inson v.  Sondt,  4  Rawle,  234,  26  Am. 
Dec.  127;  Lancaster  County  Nat.  Bank 
V.  Moore,  78  Pa.  407,  21  Am.  Rep.  24; 
K^ecdler's  Appeal,  92  Pa.  428;  Oster- 
hout  V.  Shoemaker,  3  Hill,  513; 
M'Creight  v.  .Aiken_,  Rice  L.  56 ;  Elston 
V.  .Jasper,  45  Tex.  409;   Dexter  v.  Hall. 

15  Wall.  9.  21  L.  ed.  73;  Sergeson  v. 
Sealy,  2  Atk.  412,  9  Mod.  370;  Frank 
V.  Mainvjaring,  2  Beav.  115;  Hall  v. 
Warren,  9  Ves.  .Jr.  609.  And  see  Coven- 
hovcn's  Case,  1   N.  J.  Eq.  27. 

In  Lagay  v.  Marston,  32  La.  Ann.  170, 
the  finding  of  a  commission  that  the 
person  was  notoriously  insane  was 
treated   as   affording    the    presumption 


that  a  party  who  had  previously  con- 
tracted with  her  must  have  been  warned 
of  her  condition. 

^^Den  ex  dem.  Aber  v.  Clark,  10  N.  J. 
L.  217,  18  Am.  Dec.  417;  Osterhout  v. 
Shoemaker,  3  Hili,  513;  Rider  v.  Mil- 
ler, 86  N.  Y.  507;  Cook  v.  Cook,  53 
Barb.  180;  Price  v.  Berrington,  2  Beav. 
286;  Sergeson  v.  Sealy,  2  Atk.  412,  9 
Mod.  370. 

^'Wall  v.  Hill,  1  B.  Mon.  290,  36  Am. 
Dec.  578;  Hopson  v.  Boyd,  6  B.  Mon. 
296;  Den  ex  dem.  Aber  v.  Clark,  10  N. 
J.  L.  258,  18  Am.  Dec.  417;  Van  Deusen 
v.  Sroeet,  51  N.  Y.  386;  Demelt  v.  Leon- 
ard, 19  How.  Pr.  141;  Rippy  v.  Gant, 
39  N.  C.  (4  Ired.  Eq.)  443;  Christmaa 
V.  Mitchell.  38  N.  C.  (3  Ired.  Eq.)  535; 
Hirsch  v.  Trainer,  3  Abb.  N.  C.  274; 
Moore  v.  Hershey,  90  Pa.  196 ;  Drapers 
Estate,  26  W.  N,  C.  218;  Price  v.  Ber- 
rington, 2  Beav.  286. 

"'Covenhoven's  Case,  1  N.  J.  Eq.  27 ; 
Yauger  v.  Skinner.  14  N.  .J.  Eq.  389; 
Re  Christie.  5  Paige.  242 ;  Christmas  v. 
Mitchell,  38  N.  C.  (3  Ired.  Eq.)  535; 
Moore  v.  Hershey,  90  Pa.  196;  Sergeson 
v.  Sealy,  2  Atk.  412,  9  Mod.  370. 

"^Snook  V.  Watts,  11  Beav.  105,  12 
•lur.  444. 

To  warrant  the  annulment  of  the  acts 
of  an  incompetent  person,  however,  he 
need  not  have  been  found  insane  upon 
iii'piisitiiin.  Penington  v.  Thompson,  5 
Del.  Ci).  328. 

"^Baxter  v.  Baxter,  76  Hun,  98,  27  N. 
Y.  Supp.  834 :  Bishop  v.  Hcndrick,  42 
N.  Y.  S.  R.  290,  17  N.  Y.  Supp.  241. 

'^Schaps  V.  Lehner,  54  Minn.  208,'  55 


§  39] 


CONTRACTS. 


39 


raissible  as  tending  to  prove  the  fact.^^  And  the  preliminary  action 
of  the  court  in  appointing  a  next  friend  of  a  party  to  conduct  an  ac- 
tion is  not  such  a  finding  of  insanity  as  will  shift  the  burden  of 
proof.^^ 


N.  VV.  911;  Knox  v.  Haug,  48  Minn. 
58,  50  N.  VV.  934;  Dewey  v.  Allgire,  37 
Neb.  6,  40  Am.  St.  Rep.  468,  55  N.  W. 
276;  M'agener  v.  Harriott,  20  Abb.  N.  C. 
283.  And  see  Leggate  v.  Clark,  111 
Mass.  308. 

So,  deeds  executed  by  a  party  in  con- 
tinenient  in  a  lunatic  asylum,  whose 
hands  were  unfettered  for  the  purpose, 
will  not  be  set  aside,  where  he  was  a 
man  of  vigorous  intellect,  capable 
of  understanding  the  operation  of  the  in- 
struments, aod   the   restraint    imposed 


upon  him  Avas  at  his  own  request;  and 
he  read  them  over  before  execution,  sug- 
gesting alterations,  and  acquiesced  in 
them  several  months  after  his  discharge. 
tielbxj  V.  Jackson,  13  L.  J.  Ch.  N.  S.  249, 
6  Beav.  192. 

^'Wheeler  v.  State,  34  Ohio  St.  394,  32 
Am.  Rep.  372.  And  see  Kellogg  v.  Coch- 
ran, 87  Cal.  192,  12  L.  R.  A.  104,  25  Pac. 
677. 

"'Smith  V.  Smith,  108  N.  C.  365,  12  .6. 
E.  1045,  13  S.  E.  113. 


CHAPTER  IL 

MARRIAGE. 

L  Lunacy. 

40.  Distinctive  rule  as  to  marriage. 

41.  Tests. 

42.  Fraud  and  incapacity  combined. 

43.  Deaf-mutes  may  marry  when  compos  mentit, 

44.  Capacity,  how  determined. 

45.  Proof. 

46.  Necessity  of  a  decree  of  annulment. 

47.  Jurisdiction  and  procedure. 

48.  Effect. 
n.  Iktoxication. 

49.  Degree  which  will  invalidate  marriage, 

I.  Lunacy. 

40.  Distinctive  rule  as  to  jnarriage. —  Marriage  is  a  civil  union,  de- 
pending upon  contract,  express  or  implied,  and  requiring  an  exercise 
of  reason  of  which  a  person  of  unsound  mind  is  incapable;^  and  a 
person  incapable  of  solemnizing  other  contracts  is  incapable  of  sol- 
emnizing the  contract  of  matrimony.-  The  marriage  of  an  absolute 
lunatic  may  be  subsequently  annulled.^  A  marriage  by  an  insane  per- 

^Jenkins  v.  Jenkins,  2  Dana,   103,  26  In   St.    George  v.   Biddeford,   76   Me. 

Am.    Dec.    437;    Chapline   v.   Stone,    77  593,   howeverj   it  was   held   that  an  in- 

Mo.   App.   523 ;    Payne  v.   Burdette,   84  struction  that  the  same  rule  would  ap- 

Mo.  App.  332;  Cole  v.  Cole,  5  Sneed,  57,  ply  to  a  contract  of  marriage  as  applies 

70  Am.  Dec.  275;  Jaques  v.  Public  Ad-  to  other  contracts    is    erroneous.     And 

minisirator,    1    Bradf.    499;    Turner   v.  see  Ex  parte  Glen,  4  Desauss.  Eq.  546. 

Meyers,  1  Hagg.  Consist.  Rep.  414.   And  And   in   Payne  v.    Burdette,    84    Mo. 

see  Crump  v.  Morgan,  38  N.  C.   (3  Ired.  App.    332,    it   was   held   that  a   statute 

Eq.)  91,  40  Am.  Dec.  447.  making  contracts  of  insane  persons  void 

At  common  law  a  marriage  by  an  idiot  does  not  apply  to  the  contract  of  mar- 

or  a  lunatic  was  deemed  valid.     Par'c  v.  riage. 

Barron,  20  Ga.  702,  65  Am.  Doc.   641;  ^Bishop,  Marr.  &  Div.  6th  ed.  §  135; 

Stiles  V.  West  Sid.  pt.  1,  p.  112.  Turner  v.  Meyers,  1  Hagg.  Consist.  Rep. 

'Atkinson    v.    Medford,    46    Me.    510;  414;    Middlehorough    v.     Rochester,     12 

Banker  v.  Banker,  63  N.  Y.  409;   Cc*^  Mass.   363;    Wiqhtman  v.  Wightman,  4 

V.  Cole,  5  Sneed,  57,  70  Am.  Dec.  f/5;  .Johns.   Ch.   343;    Ward  v.   Dulancy,   23 

Ward  V.  Dulaney,  23  Miss.  410;  Bnwn-  Miss.  410;   Crump  v.  Morgan,  38  N.  C. 

ing  V.  Reane,  2  Phillim.  Eccl.  Rep    09;  (3    Ired.    Eq.)    91,    40   Am.     Dec.    447; 

Anonymous,  4  Pick.  32;   Middlehorough  Foster   v.    Means,    Speers    Eq.    54J9,     42 

V.  Rochester,  12  Mass.  363 ;  Bell  v.  Ben-  Am.  Dec.  332 ;   Raiodon  v.  Rawdon,  28 

nett,  73  Ga.  784;   Powell  v.  Powell.  27  Ala.  565.     So  intoxication,-— CZenienf  v. 

Miss.  783.     And  see  infra,  Test.s,  §  41.  Mattison,  3  Rich.  L.  93. 

40 


§  40]                                                      MARRIAGE.  41 

son  is  a  nullity  because  of  liis  inability  to  consent;"*  and  the  rule  ap- 
plies though  the  insanity  is  temporary.^  And  neither  a  marriage  cere- 
mony nor  cohabitation,  though  continued  till  death,  will  constitute  a 
valid  marriage,  or  give  claim  to  dower  or  curtesy,  where  one  of  the 
parties  was  deprived  of  reason.^  On  the  other  hand,  such  a  marriage 
may  be  ratified  upon  restoration  to  capacity.^     And  a  marriage  con- 

This  may  be  done  by  the  heirs  of  the  'JenJcins  v.  Jenkins,  2  Dana,  103,  20 

insane   party   after   death.     Orchardson  Am.   Dec.  437;    ^¥iser  v.  Lockwood,  42 

V.  Coficld,   171  111.   14,  40  L.  R.  A.  256,  Vt.   720;    Smart  v.   Taylor,   9  Mod.   98; 

63  Am.  St.  Rep.  211,  49  N.  E.  197.  Ex  parte  Turing,  1  Ves.  &  B.  140. 

So,  a  marriage  with  a  lunatic  incapa-  Administration  of  the  efi'ects  of  a  de- 

ble   of   entering   into   a  valid   marriage  ceased  woman  will  not  be  granted  to  a 

contract  does  not  change  the  settlement  man  who  married  her  where  the  mar- 

of  the  lunatic  from  that  of  her  nativity,  riage  was  null  and  void  on  the  ground 

Middleboroiigh   v.    Rochester,    12    Mass,  of  her  mental  imbecility.     Browning  v. 

363;  Reading  v.  Ludloio,  43  Vt.  628.  Reane,   2   Phillim.   Eccl.'   Rep.   69.      But 

And  it  does  not  determine  the  right  to  see  Parker  v.  Parker,  2  Lee  Eccl.  Rep. 

her    custody.     Ash's    Case,    Freem.    Ch.  382. 

259.  ''Prine  v.  Prine,  36  Fla.  676,  34  L.  R. 

But  a  woman  may  gain  a  settlement  A.  87,  18  So.  781;  Cole  v.  Cole,  5  Sneed, 

by  residence  in  the  house  of  her  husband  57,  70  Am.  Dec.  275 ;  Goodheart  v.  Rans- 

If  she  has  property  and  sufficient  Intel-  'ey,  28  Ohio  L.  J.  227 ;  DiiHe  v.  Morris, 

lect  to  choose  a  home,  though  she  was  1  U.  S.  Law  Mag.  49 ;  Ash's  Case,  Freem. 

insane  at  the  time  of  her  marriage  and  Ch.  259.     And  see  Broion  v.  Westbrook, 

afterwards,   and   her   marriage   was   de-  ^7  Ga.  102;  Secor  v.  Hecor,  1  MacArth. 

creed   to   be   null    and    void    for    that  ^ZO-   Stuckey  v    Mathes,  24  Hun,  461; 

cause.     Concord  v.   Rumnei/,   45   N.   H.  JV/    oT,"!-   ^'^'^^^f^'  4  Johns.  Ch. 

.c^o  343;    Saoalot  v.   Populus,  31   La.  Ann. 

^Jenkins  ^-/enkins,  2  Dana,   103    26  ^'cohabitation    is    strong    evidence    of 

fjV-xn'i-.    iV  ^I^\«'tT  JA  a  ^^'S'  s"ch  ratification.     See  Bfshop,  Marr.  & 

i^^  "!•,  J^'A^  b  \^\lf'  ^l  "^"J;  ^^-  I^iv.   ut  supra.     Cole  v.  Cole,   5   Sneed, 

Rep.    211,   49    N.     L.     197;     Poivell    v.  57^    70   Am.    Dec.    275.     In    Raivdon   v. 

Powell,  18  Kan.  371,  26  Am.  Rep.  774;  Raicdon,  28  Ala.  565,  it  was  held  that 

Rawdon  v.  Rairdon,  28  Ala.  565;   Unity  the  right  to  a  decree  of  nullity  would  be 

V.   Belgrade,    76   Me.   419;    Winsloiv    v.  barred   by   the   lapse   of   time,— in   this 

Troy,  97  Me.  130,  53  Atl.  1008;  Fornshill  case  twenty-two  years  had  elapsed.  And 

V.  Murray,  1  Bland  Ch.  479,  18  Am.  Dec.  in  Wiser  v.  Lockicood,  42  Vt.  720,  it  was 

344;  Smith  v.  Smith,  47  Miss.  211:  For-  held  that  the  marriage  could  not  be  im- 

man  v.  Forman,  53  N.  Y.  S.  R.  039,  24  peached  after  the  death  of  the  lunatic. 

N.  Y.  Supp.  917;   Waymire  v.  Jctmore,  In  Hancock  v.  Peaty,  L.  R.    1   Prob.  & 

22   Ohio  St.   271;    Johnson  v.   Kincade,  Div.  335,  16  L.  T.  N.  S.  182,  15  Week. 

37  N.  C.   (2  Ired.  Eq.)  470;  Gathings  v.  Rep.  719,  36  L.  J.  Prob.  N.  S.  57,  it  was 

Williams,  27  N.  C.   (5  Ired.  L.)   487,  44  alleged  that  the  lunatic  had  recovered. 

Am.  Dec.  49;  Cole  v.  Cole,  5  Sneed,  57,  i"   which    case   Lord    Penzance   said   he 

70  Am.  Dec.  275 ;   Ward  v.  Dulaney,  23  ^^^'^^  ''^""^1  the  marriage  at  her  request 

Miss.  410;   Christy  v.  Clarke,  45  Barb,  only      Contra,  that  there  can  be  no  con- 

529;  Turner  V.  Meyers,  1  Hagg.  Consist.  fii-ni^t,onCn«»p  y.    Morgan,   38   N    C. 

Rep.  414;  J?roz.,nniv./?m.r2  Phillim.  ^^    ^''^-    ^qO     91,    40    Am.    Dec.    447; 

Eoel    Ren    69      And  see  Zt  ewes  v    Keues  ^^""""^   ^-   '^«^«'^«^'   23   Miss.   410;    Sims 

00  XT    u  ■  K-'-i    7^7     see  -ftcy^s  ^^  ^*^^2/cs,  ^   ^•„,      jgl  N.  C.  297,  40  L.  R.  A.  737, 

22  N.   H.  5a3;    Clement  v.   Mattison,   3  23  S    E    407 

Rich.  L.  93.                ,      ^,              .  .           ,  And  one  who  was  married  while  in- 

In  ^ew  \ork,  under  the  provisions  of  sane  and  under  guardianship,  but  who 

the   revised   statutes,   a   marriage   by   a  ^vas  subsequently  declared  sane,  and  the 

lunatic    is    only    voidable.     Stuckey    v.  guardian  discharged,  after  which  he  was 

Mnthes,  24  Hun,  461.  again  declared  insane,  and  placed  in  an 

"Parker  v.  Parker,   2  Lee,   Eccl.   Rep.  asylum,  will  not  be  deemed  to  have  rati- 

382;   Legeyt   v.   O'Brien,  Milward,   325.  fied    the    marriage    by    acts    performed 


42 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  40 


tracted  by  a  luuatic  during  a  lucid  interval  is  clearly  valid.*  And  one 
who  knowingly  enters  into  and  consummates  a  marriage  with  an  in- 
sane person  is  estopped  from  denying  its  validity.''  It  is  insanity  at 
the  time  of  the  marriage,  and  not  subsequent  insanity,  that  warrants 
an  annulment.  ^° 

41.  Tests. —  It  was  early  held  that  the  question  to  be  considered 
with  reference  to  the  validity  of  a  marriage  of  a  person  claimed  to  be 
insane  is  whether  his  mind  was  diseased  or  not  at  the  time  of  the  con- 
tract; and  that  if  so,  the  court  would  not  consider  the  extent  of  the 
derangement.^^  And  the  rule  was  also  laid  down  that  the  term  "on- 
sound  mind,"  as  used  to  express  the  degTee  of  insanity  which  would 
invalidate  a  marriage,  is  synonymous  with  non  compos  mentis^ — em- 
bracing a  total  deprivation  of  reason  accompanying  idiocy,  lunaqy,  or 
adventitious  madness,  either  temporary  or  permanent,  whether  reme- 
dial or  irremedial.^^  And  sufficient  use  of  understanding  to  deal 
with  discretion  with  the  common  affairs  of  life  has  been  made  the 


after  he  was  declared  sane,  and  before 
he  was  the  second  time  declared  insane, 
in  the  absence  of  evidence  of  actual  co- 
habitation, where  he  was  afflicted  with 
paresis,  and  the  disease  had  been  of  at 
least  a  year's  standing,  and  he  subse- 
quently became  a  confirmed  lunatic. 
GoodJmrt  v.  Speer,  7  Ohio  C.  Dec.  47; 
Goodheart  v.  Ransley,  28  Ohio  L.  J.  'A^l. 

^Re  Gang  were,  14  Pa.  417,  53  Am. 
Dec.  554;  Raicdon  v.  Rawdon,  28  Ala. 
565;  Ash's  Case,  Freem.  Ch.  259;  Mc- 
Adam  v.  Walker,  1  Dow,  P.  C.  148; 
Turner  v.  Meyers,  1  Hagg.  Consist.  Rep. 
414. 

'Keyes  v.  Eeyes,  22  N.  H.  553,  dic- 
tum; Secor  V.  Secor,  1  MacArth.  630. 

Neither  insanity  nor  idiocy  of  a  party 
to  a  marriage  at  the  time  of  its  solemni- 
zation is  sufficient  ground  for  its  disso- 
lution, under  the  Mississippi  statute, 
unless  the  other  party  was  ignorant  of 
such  disability  at  that  time.  Smith  v. 
Smith,  47  Miss.  211. 

The  fact  tliat  the  nephew  of  an  al- 
leged insane  person  opposed  his  mar- 
riage, to  the  knowledge  of  the  person 
about  to  marry  him,  is  not  notice  to  her 
that  her  intended  husband  was  insane 
which  will  su-stain  the  claim  that  she 
did  not  become  a  party  to  the  marriage 
contract  in  good  faith,  so  as  to  disentitle 
her  to  any  allowance  under  a  statutory 
provision  therefor  upon  the  marriage  be- 


ing declared  a  nullity.  Barber  v.  Bar- 
ber, 74  Iowa,  301,  37  N.  W.  381. 

^"Forman  v.  Forman,  53  N.  Y.  S.  R. 
639,  24  N.  Y.  Supp.  917. 

And  when  a  woman  marries  a  man 
who  subsequently  has  to  be  confined  in 
an  asylimi  for  insanity,  and  continues  to 
cohabit  with  him  until  he  is  so  con- 
fined, raising  a  family,  it  sufficiently  es- 
tablishes either  that  he  was  not  insane 
at  the  time  of  the  marriage,  or  that 
she  had  elected  to  treat  the  contract  as 
a  valid  and  subsisting  one.     Ibid. 

And  an  instruction  in  an  action  to  an- 
nul a  marriage  on  the  ground  of  the 
lunacy  of  a  party,  that  unsoundness  of 
mind  at  the  time  of  the  marriage,  con- 
tinuing beyond  question,  to  the  time  of 
the  party's  death,  without  lucid  inter- 
vals, must  be  shown, — if  erroneous,  is 
rendered  harmless  by  a  finding  of  sanity 
at  the  time  of  the  marriage.  Banker 
V.  Banker,  G3  N.  Y.  409. 

^^Uancock  v.  Peaty,  L.  R.  1  Prob.  & 
Div.  335,  16  L.  T.  N.  S.  182,  15  Week. 
Rep.  719,  36  L.  J.  Prob.  N.  S.  57. 

^Jenkins  v.  Jenkins,  2  Dana,  103,  2G 
Am.  Dec.  437;  Foster  v.  Means,  Speers 
Eq.  569,  42  Am.  Dec.  332. 

Within  this  rule  imbecility  of  mind 
was  not  a  sufficient  ground  for  a  decree 
of  the  nullity  of  a  marriage,  unless  it 
amounted  to  idiocy  or  insanity.  Elzey 
V.  Elzey,  1  Houst.   (Del.)   308. 


§  41] 


MARRIAGE. 


43 


test/^  and  so  has  capacity  to  make  a  valid  contract.'*  But  the  rule 
best  supported  by  authority  makes  the  capacity  to  understand  the 
marriage  contract  the  test  as  to  its  validity.'^  The  question  for  de 
termination  under  this  rule  is  uot  whether  the  party  was  aware  that 
a  ceremony  of  marriage  w^as  being  performed,  but  whether  or  not  he 
was  capable  of  understanding  the  nature  of  the  contract  entered  into 
and  the  rights  and  responsibilities  which  attach  to  it,  free  from  indul- 
gence of  morbid  delusion  upon  the  subject.-'® 

A  marriage  is  not  invalid  where  there  was  sufficient  intelligence 
to  understand  at  the  time  of  the  ceremony  that  the  parties  had  agreed 
to  cohabit  solely  together.^ ^     And  mere  weakness  of  understanding 


'^Cole  V.  Cole,  5  Sneed,  57,  70  Am.  Dee. 
275;  True  v.  Ranney,  21  N.  H.  53,  53 
Am,  Dec.  164.  And  see  Rex  v.  Kelly, 
Shelford,   Lunatics,  339. 

But  a  liusband  would  not  be  con- 
sidered incompetent  to  marry  because  he 
had  not  sufficient  mental  capacity  to  be 
able  to  provide  a  support  for  his  family, 
where  he  was  possessed  of  sufficient 
means  for  that  purpose.  St.  George  v. 
Biddeford,  76  Me.  593. 

"  See  supra,  Distinctive  Rule  as  to 
Marriage,  §  40.  And  see  Ward  v.  Du- 
laney,  23  Miss.  410;  Anonymous,  4  Pick. 
32;  Kern  v.  Kern,  51  N.  J.  Eq.  574,  26 
Atl.  837;  Atkinson  v.  Medford,  46  Me. 
510. 

One  who  is  incapable,  from  mental  im- 
becility, of  taking  care  of  his  or  her  own 
person  or  property,  is  not  competent 
to  dispose  of  such  person  or  property  by 
marriage.  Broicning  v.  Reane,  2  Phil- 
lim.  Eccl.  Rep.  69;  Pyott  v.  Pyott,  90 
111.  App.  210. 

"St.  George  v.  Biddeford,  70  Me.  593 ; 
Pyott  V.  Pyott,  90  111.  x\pp.  210;  Lewis 
V.  Letois,  44  Minn.  124,  9  L.  R.  A.  505, 
20  Am.  St.  Rep.  559,  46  N.  W.  323; 
Chapline  v.  Sto7ie,  77  Mo.  App.  523; 
Concord  v.  Riimney,  45  N.  H.  423;  True 
V.  Ranney,  21  N.  H.  52,  53  Am.  Dec. 
164 ;  Baughman  v.  Bauffhman,  32  Kan. 
538,  4  Pac.  1003 ;  Doe  V.  Roe,  1  Edm. 
Sel.  Cas.  344;  Kern  v.  Kern,  51  N.  J. 
Eq.  574,  20  Atl.  837;  Cr^imp  v.  Morgan, 
38  N.  C.  (3  Ired.  Eq.)  91,  40  Am.  Dec. 
447;  Broioning  v.  Reane,  2  Phillim.  Eccl. 
Rep.  69;  Durham  v.  Durham,  L.  R.  10 
Prob.  Div.  80;  Cannon  v.  Smalley,  L.  R. 
10  Pi-ob.  Div.  96;  Hunter  v.  Edncy,  L. 
R.  10  Prob.  Div.  93. 

Mere  proof  of  the  fact  of  insanity, 
without  more,  does  not  warrant  a  decree 
of  nullity  of  the  marriage.  Concord  v. 
Rumney,  45  N.  H.  423. 


But  an  instruction  in  an  action  in- 
volving the  validity  of  a  marriage,  by 
way  of  illustrating  a  theory  already  pre- 
sented that  the  husband  must  have  suf- 
ficient mental  capacity  to  understand 
the  nature  of  the  marriage  contract,  that 
the  same  rule  would  apply  to  contracts 
of  marriage  as  that  applicable  to  other 
contracts,  is  not  erroneous.  St.  George 
V.  Biddeford,  76  Me.  593. 

^^Hunter  v.  Edney,  L.  R.  10  Prob.  Div. 
93;  Kern  v.  Kern,  51  N.  J.  Eq.  574,  26 
Atl.  837;  St.  George  v.  Biddeford,  76 
Me.  593;  Slais  v.  Slais,  9  Mo.  App.  96; 
Nonnemacher  v.  Nonnemacher,  159  Pa. 
634,  28  Atl.  439;  Ward  v.  Dulaney,  23 
Miss.  410;  Smith  v.  Smith,  47  Miss.  211. 

A  delusion  as  to  the  supernatural 
character  of  the  other  party  to  a  mar- 
riage is  sufficient  to  invalidate  it.  Or- 
chardson  v.  Cofield,  171  111.  14,  40  L.  R. 
A.  256,  63  Am.  St.  Rep.  211,  49  N.  E.  197. 

"Harrod  v.  Earrod,  1  Kay  &  J.  4,  18 
Jur.  853,  2  Week.  Rep.  612. 

Occasional  paroxysms  of  hereditary 
insanity  upon  the  part  of  a  wife  before 
marriage,  unknown  to  the  husband  at 
the  time  of,  and  for  some  time  after, 
marriage,  afford  no  ground  for  rescind- 
ing the  marriage  contract  on  account  of 
fraud  or  mistake^  where,  in  the  interval, 
she  was  capable  of  all  the  duties  of  a 
wife.  Eamaker  v.  Eamaker,  18  111. 
137,  65  Am.  Dec.  705. 

But  a  marriage  with  a  woman,  se- 
cretly solemnized,  will  be  set  aside  on 
the  ground  of  her  incapacity,  where  she 
was  unable  to  wash  or  dress  herself 
properly,  or  to  knit  or  sew,  or  to  care 
for  her  clothes,  or  distinguish  colors  or 
one  kind  of  goods  from  another,  and 
could  not  be  taught  to  cook  or  to  do  the 
simplest  housen-ork,  and  could  hardly  be 
taught  to  read  or  anything  else  of  an 
educational   nature,   and   could  not  dis- 


44 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  41 


does  not  incapacitate;^'^  and  the  mere  fact  that  a  party  to  a  marriage 
was  subject  to  some  vice  or  uncontrollable  impulse  or  propensity,  such 
as  kleptomania,  Avill  not  justify  setting  it  aside  as  void,  where  he 
was  otherwise  sane,  and  fully  understood  the  nature  of  the  marriage 
contract.  ^^ 

42.  Fraud  and  incapacity  combined. —  Although,  to  justify  a  decree 
of  nullity,  there  must  be  an  undoubted  unsoundness  at  the  time  of 
marriage,-**  yet  in  marriage,  as  in  other  contracts,  fraud  or  coercion, 
when  brought  to  bear  on  a  person  of  weak  mind,  ^vill  work  an  avoid- 
ance which,  without  such  fraud  or  compulsion,  would  not  have  been 
decreed.^^ 

43.  Deaf-mutes  may  marry  when  compos  mentis. — If  compos  mentis, 
deaf  and  dumb  persons  can  contract  matrimony.-" 

44.  Capacity,  how  determined. —  The  question  of  the  capacity  of  a 


tinguisli  one  piece  of  money  from  an- 
other, and  had  no  idea  of  the  value  of 
propertv.  True  v.  Ranney,  21  N.  H.  52, 
53  Am. 'Dec.  164. 

^Foster  v.  Means,  Speers  Eq.  509,  42 
Am.  Dec.  332;  Kern  v.  Kern,  51  N.  J. 
Eq.  574,  26  Atl.  837;  Raiodon  v.  Raic- 
don,  28  Ala.  565;  Ward  v.  Dulaney,  23 
Miss.  410.  And  see  Baugliman  v. 
Baughman,  32  Kan.  538,  4  Pac.  1003; 
Nonnemacher  v.  Nonnemacher,  159  Pa. 
634,  28  Atl.  439. 

Mere  dullness  of  intellect,  though 
coupled  with  deafness  and  dumbness, 
does  not  incapacitate  one  to  marry. 
Earrod  v.  Harrod,  1  Kay  &  J.  4,  18  Jur. 
853,  2  Week.  Rep.  012. 

Nor  does  mere  singularity  or  oddity 
of  character  or  manner.  Anonymous,  4 
Pick.  32. 

But  a  marriage  ceremony  performed 
while  the  husband  was  upon  his  bed, 
near  death,  and  helpless,  surrounded  by 
the  woman  married  and  her  friends, 
when  he  was  apparently  obvious  of  the 
fact  that  he  had  a  former  wife  and 
children,  raises  no  presumption  against 
the  validity  of  the  previous  marriage. 
Christy  v.  Clarke,  45  Barb.  529. 

"Leu  is  v.  Lewis,  44  Minn.  124,  9  L. 
R.  A.  505,  20  Am.  St.  Rep.  559,  40  N. 
W.  323. 

-"Banker  v.  Banker,  03  N.  Y.  409. 

"^^ Portsmouth  v.  Portsmouth,  1  Hagg. 
Eccl.  Rep.  355,  and  see  Browning  v. 
Rcane.  2  Phillim.  Eccl.  Rep.  69;  Kcijes 
T.  Keyes,  22  N.  H.  553. 

In  Portsmouth  v.  Portsmouth,  1  Hagg 
Eccl.  Rep.  355,  supra,  it  was  held  that 
a  murriage  clandostinoly  solemnized,  ac- 
companied   by    cireimistanfos    of    frniid 


and  circunivention.  between  a  person  of 
weak  and  deranged  mind  and  the  daugh- 
ter of  his  trustee  and  solicitor,  who  had 
great  influence  over  him,  and  who  treat- 
ed him  and  considered  him  as  of  unsound 
mind,  is  null  and  void,  where  he  was  the 
mere  instrument  in  their  hands  to  go 
through  the  necessary  forms. 

And  practically  the  same  holding  was 
made  in  Foster  v.  Means,  Speers  Eq.  509, 
42  Am.  Dec.  332. 

So  a  marriage  to,  and  conveyance 
from,  an  old  man  who  believed  in  spirit- 
ualism, secured  bj^  a  dissolute  and  de- 
signing woman  of  middle  age,  who 
sought  an  acquaintance  for  that  purpose, 
procured  by  pretending  to  be  a  medium 
and  to  have  received  communication 
from  spirits  commanding  their  marriage 
and  the  conveyance  to  her.  and  claiming 
to  be  a  physician  and  able  to  cure  his 
deafness  and  other  fraudulent  devices, 
will  be  set  aside  as  having  been  procured 
by  fraud  and  undue  influence;  though 
mere  belief  in  spiritualism  is  not  alone 
sufficient  ground  for  setting  aside  a 
marriage  or  conveyance.  Hides  v.  Hides, 
05  How.  Pr.  17. 

"Swinburne,  Spousals,  cited  13  Am. 
Journal  of  Insanity,  127. 

Inability  upon  the  pnrt  of  a  deaf  and 
dumb  person  to  urrrlerstand  others  in 
general,  especially  strangers,  and  an  oc- 
casional and  not  infrequent  inability  to 
appreciate  simple  mathematical  conclu- 
sions, are  insufTicient  to  show  incapacity 
to  contract  marriage,  or  to  warrant 
the  granting  of  an  issue  as  to  the  valid- 
itv  of  a  marriage.  Harrod  v.  Hnrrod,  1 
Kay  &  .J.  4.  18  Jur.  853.  2  Week.  Rep. 
012. 


§  44] 


MARRIAGE. 


45 


party  to  marry  is  usually  raised  and  detenuined  in  an  action  for  a 
decree  of  nullity.^^  But  the  question  may  be  considered  and  decided 
in  a  collateral  action, — such  as  a  suit  for  dower  or  distribution  f'*'  or 
a  proceeding  by  a  widow  to  obtain  a  yearly  support  f^  or  an  action  to 
recover  for  pauper's  supplies.^^  It  is  within  the  legislative  power  to 
prohibit  questioning  the  validity  of  existing  marriages  on  a  collateral 
issue  on  the  ground  of  insanity  or  idiocy  of  a  party."'^  And  an  action 
tried  and  decided  as  a  divorce  case  cannot  be  considered  as  one  prose- 
cuted to  have  a  marriage,  void  because  of  insanity,  pronounced  a  nul- 
lity."^ Mental  incapacity  at  tlie  time  of  the  marriage  is  a  groimd 
for  divorce  in  Georgia.^ ^ 

45.  Proof. —  To  invalidate  a  marriage  on  the  ground  of  insanity, 
the  proof  must  be  clear  and  unquestionable.^ '^     The  question  of  sound- 


»^See  Powell  v.  Ponell,  18  Kan.  371, 
26  Am.  Rep.  774;  Johnson  v.  Kincade, 
37  N.  C.  (2  Ired.  Eq.)  470;  Thayer  v. 
Thayer,  9  R.  I.  377;  Hancock  v.  Peaty, 
L.  R.  1  Prob.  &  Div.  33.5,  36  L.  J.  Prob. 
N.  S.  57,  16  L.  T.  N.  S.  182,  15  Week. 
Rep.  719. 

The  next  of  kin  of  a  deceased  woman, 
claiming  to  be  her  heirs  at  law,  are  en- 
titled to  attack  as  A'oid  an  alleged  mar- 
riage between  her  and  another,  on  the 
groimd  that  at  the  time  the  marriage 
ceremony  was  performed  she  was  men- 
tally incapable  of  contracting  marriage. 
Medlock  v.  Merritt,  102  Ga.  212,  29  S. 
E.  185. 

^KJenkins  y.  Jenkins,  2  Dana,  103,  26 
Am.  Dec.  437  ;  Winslow  v.  Troy,  97  Me. 
130,  53  Atl.  1008.  But  see  Williamsov. 
V.  WilUums,  50  N.  C.  (3  Jones  Eq.) 
446. 

""Bell  V.  Bennett,  73  Ga.  784. 

^Unity  V.  Belgrade,  76  Me.  419.  And 
see  Gathinqs  v.  Williams,  27  N.  C.  (5 
Ired.  L.)   487^  44  Am.  Dec.  49. 

"''Goshen  v.  Richmond,  4  Allen,  458. 
And  see  Wiser  v.  Lockirood,  42  Vt.  722. 

A  statute  to  that  efl'ect  would  apply 
to  marriages  existing  at  the  time  it  wa.s 
enacted;  and  it  cannot  be  shown,  in  an 
action  to  recover  for  the  support  of  a 
pauper  against  a  town  in  which  a  set- 
tlement is  sought  to  be  established  by 
reason  of  a  marriage  performed  before 
such  enactment,  that  it  was  invalid  by 
reason  of  the  insanity  of  a  party. 
Goshen  v.  Richmond,  4  Allen,  458. 

And  under  such  a  statute,  if  no  pro- 
ceeding is  taken  to  set  aside  a  marriage 
during  the  lifetime  of  an  insane  hus- 
band, his  wife  is  entitled  to  dower. 
Wiser  v.  Lockwood,  42  Vt.  722. 


In  Jaqiies  v.  Public  Administrator,  1 
Bradf.  499,  however,  it  was  held  that  a 
private  contract  of  marriage  by  present 
words  with  a  Ivmatic,  without  any  pre- 
ceding or  succeeding  act  indicating  the 
entrance  into  the  marriage  state,  is  not 
such  a  marriage  as  is  contemplated  by  a 
statute  providing  that  a  marriage  shall 
be  valid  until  pronounced  null  by  a 
court  of  equity. 

-^Poicell  v.  J*oicell,  18  Kan.  371,  2G 
Am.  Rep.  774. 

-"Broun  v.  Wcsthrook,  27  Ga.  102. 

Under  the  Georgia  statvite  a  libel  to 
dissolve  a  marriage  on  the  ground  of 
mental  incapacity  at  the  time  it  was 
solemnized  is  to  be  filed  and  tried  in 
the  usual  manner,  and  is  subject  to  all 
tho  incidents  regulating  the  practice  in 
divorce  cases.     Ibid. 

""'Cole  V.  Cole,  5  Sneed,  57,  70  Am. 
Dec.  275;  Ward  v.  Dulaney,  23  IVIiss. 
410;  Poicell  v.  Poicell,  27  Miss.  783. 

Especially  after  the  death  of  one  of 
the  parties.  Powell  v.  Powell,  27  Miss. 
783. 

And  evidence  that  a  woman  went  to 
the  house  of  a  man,  and  that  the  parties 
married  in  an  irregular  manner,  dis- 
pensing with  the  usual  ceremony,  and 
agreeing  to  become  man  and  wife, — 
though  showing  indifference  to  the  cus- 
toms of  society,  and  though  tending  to 
show  mental  incapacity,  does  not  over- 
co)ne  a  presumption  of  sanity.     Ibid. 

Nor  does  the  fact  that  a  man  was  of 
weak  mind  and  could  not  learn  to  count 
establish  mental  incajiacity  to  marry,  as 
against  evidence  that  he  knew  his  father 
and  uncle  and  the  nature  of  the  trustee's 
office,  and  displayed  shrewdness  and  in- 
telligence upon  the  subject  of  their  le- 


46 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


45 


ness  or  unsoundness  of  mind  cannot  be  determined  from  particular 
actions,  but  depends  upon  the  general  frame  and  habit  of  mind  f^  and 
while  the  validity  of  a  marriage  depends  upon  the  mental  condition  of 
the  parties  at  the  very  time  it  took  place,  evidence  as  to  circumstances 
and  conditions  both  before  and  after  the  marriage  are  admissible  as 
having  some  bearing  upon  such  condition.^-  But  such  evidence  will 
not  invalidate  a  marriage  as  against  clear  evidence  of  sanity  at  the 
time.^^  And  suicide  immediately  after  marriage  does  not  establish 
insanity  which  will  invalidate  it^^  So,  a  delusion,  though  it  ren- 
dered necessary  tlie  confinement  of  the  party  in  an  asylum,  is  not  suf- 
ficient alone  to  establish  incompetency  to  understand  the  marriage 
contract.^^     Recognition  of  a  marriage  as  legal  and  binding  by  the 


gal  relations.  Elzey  v.  Elzey,  1  Houst. 
(Del.)   309. 

But  proof  that  in  her  childhood  a 
woman  seemed  unable  to  learn  to  read 
or  write  or  to  learn  a  business  so  as  to 
earn  her  living,  and  that  she  was  always 
supported  by  a  brother,  and  had  to  be 
washed,  and  cleaned,  and  put  to  bed  by 
others,  sufficiently  establishes  her  in- 
competency to  contract  marriage.  Brotvn- 
ing  V.  Reane,  2  Phillim.  Eccl.  Rep.  G9. 

And  evidence  that  a  party  to  a  mar- 
riage was  ignorant  of  the  most  common 
things  in  life  with  which  people  come 
into  contact  every  day,  together  with  the 
opinions  of  witnesses  that  he  had  been 
an  idiot  from  birth,  is  sufficient  to  war- 
rant a  finding  of  incapacity.  Johnson 
V.  Kincade,  37  N.  C.   (2  Ired.  Eq.)   470. 

And  the  fact  that  a  person  had  at- 
tacks of  insanity  which  became  more  fre- 
(juent  from  time  to  time,  and  that  his 
father  did  not  trust  him  with  business, 
and  he  was  unfit  to  be  employed,  is 
sufficient  to  cast  the  burden  on  the  other 
party,  in  an  action  to  annul  the  mar- 
riage, to  establish  his  sanity  or  a  lucid 
interval  at  the  time  of  the  marriage. 
Turner  v.  Meyers,  1  Hagg.  Consist.  Rep. 
414. 

*^Foster  v.  Means,  Speers,  Eq.  569,  42 
Am.  Dec.  332. 

In  determining  the  mental  capacity 
of  a  party  to  contract  marriage,  a  pref- 
erence should  be  given  tn  the  testimony 
of  witnesses  who  had  lorg  l>ecn  acquaint- 
ed with  him,  and  that  of  medical  ex- 
perts, over  the  result  of  any  personal 
examination.  Thayer  v.  Thayer,  9  R.  I. 
377. 

"N onnemacher  v.  Nonnemacher,  159 
Pa.  034,  28  Atl.  439;  St.  George  v. 
Biddeford,    76    Me.    593;     M'Adam    v. 


Walker,  1  Dow  P.  C.  148;  Baughman  r. 
Baiighman,  32  Kan.  538,  4  Pac.  1003. 

But  little  weight,  however,  can  be  at- 
tached to  the  testimony  of  a  physician 
as  to  the  sanity  or  insanity  of  a  party, 
where  he  did  not  know  him  at  the  time 
of  the  marriage.  Slais  v.  Slais,  9  Mo 
App.  96. 

^'Ward  V.  Dulaney,  23  Miss.  410.  And 
see  Kern  v.  Kern,  51  N.  J.  Eq.  594,  26 
Atl.  837. 

But  evidence  that  a  man  afflicted  with 
inflammation  of  the  lungs,  which  fre- 
quently affects  the  mind,  suddenly  sat 
up  in  bed  in  the  night  and  called  to  his 
nurse  and  asked  her  to  be  his  wife,  to 
which  she  assented,  and  that  he  then  de- 
clared before  God  and  man  ttat  she  was 
his  wife,  does  not  establish  a  valid  mar- 
riage, where,  shortly  before  and  after 
the  event,  he  was  in  a  state  of  stupor, 
with  occasional  fits  of  delirium,  and  a 
few  minutes  afterwards  he  became  so 
ungovernable  that  assistants  Iiad  to  be 
sent  for,  and  there  was  no  previous  con- 
sidera1«ion  of  the  subject,  and  he  after- 
wards died  appearing  to  know  nothing 
about  it.  Jaques  v.  Public  Administra- 
tor, 1  Bradf.  499. 

■'^Buchanan  v.  Buchanan,  103  Ga.  90, 
29  S.  E.  608;  Crum  v.  Thornley,  47  IlL 
192;  M'Adavi  v.  Walker,  1  Dow,  P.  C. 
148. 

''Kern  v.  Kern,  51  N.  J.  Eq.  574,  20 
Atl.  837. 

So,  evidence  that  there  was  melan- 
cholia in  a  woman's  mental  makeup  at 
the  time  of  her  marriage,  but  that  she 
performed  her  usual  duties  until  that 
day,  th-Qugh  she  was  at  times  dull  Tud 
reticent,  and  that  after  the  ceremony 
she  stated  she  was  not  worthy  of  her 
husband,  and  subsequently  could  not  ba 


f  45j 


MARRIAGE. 


47 


parties  to  it,  is  strong  evidence  against  a  claim  that  it  was  invalid 
for  want  of  capacity  of  one  of  them.^^  And  while  a  finding  of  lunacy 
on  inquisition,  or  the  appointment  of  a  guardian,  is  strong  evidence 
of  incapacity,  a  marriage  voluntarily  contracted  by  a  person  of  full 
age,  with  sufficient  capacity  to  carry  it  out,  is  valid  though  a  guardian 
liad  been  appointed  for  him,  where  the  parties  lived  together  as  hus- 
band and  wife  for  a  long  time,  no  proceeding  having  been  taken  to 
invalidate  it.^^  And  though  a  husband  was  found  to  be  a  lunatic,  his 
subsequent  marriage  will  not  be  declared  void,  where  a  son,  the  issue 
of  the  marriage,  had  epjoyed  an  estate  devised  to  the  lunatic  and  his 
children,  as  a  legitimate  child.^^  But  knowledge  that  a  ceremony  was 
being  performed,  and  proper  behavior  at  the  time  of  its  performance, 
are  not  alone  sufficient  to  establish  the  existence  of  a  lucid  interval  at 
that  time,  after  previous  insanity  had  been  shown.^* 


aroused  to  take  any  interest  in  any- 
thing, and  afterwards  tried  to  strangle 
herself  and  was  sent  to  an  asylum 
where  she  became  violent  and  had  delu- 
sions to  the  effect  that  she  was  not  mar- 
ried, is  not  sufficient  to  warrant  a  de- 
cree annulling  the  marriage.  Camion  v. 
Smalleij,  L.  R.  10  Prob.  Div.  96. 

But  a  request  by  a  wife  to  her  hus- 
band, the  next  morning  after  marriage, 
to  cut  her  throaty  and  declarations  on 
her  part  that  she  had  committed  crime 
and  was  unfit  to  be  his  wife,  together 
with  evidence  of  a  previous  attempt  to 
commit  suicide,  sufficiently  establishes 
her  inability  to  understand  the  nature 
of  the  marriage  at  the  time.  Hunter  v. 
Edneif,  L.  R.  10  Prob.  Div.  93. 

^Harrod  v.  Barrod,  1  Kay  &  J.  4,  18 
Jnr.  853,  2  Week.  Rep.  612';  Sabalot  v. 
Populus,  31  La.  Ann.  854. 

^mcCleary  v.  Barcalony,  6  Ohio  C.  C. 
481;  Castor  v.  Davis,  120  Ind.  231,  22 
N.  E.  110.  But  see  infra,  chapter  vi. 
§  150. 

In  such  case  the  presumption  of  con- 
tinuance of  insanity  once  established 
will  not  prevail  against  the  presumption 
in  favor  of  the  legality  of  the  marriage. 
CnHor  v.  Davis,  120  Ind.  231,  22  N.  E. 

no. 

But  the  appointment  of  a  guardian 
ad  litem  for  a  respondent  in  an  action 
to  annul  the  marriage  on  the  ground  of 
insanity  is  prima  facie  evidence  of  her 
insanity  in  any  subsequent  stage  of  the 
case.     Little  v.  Little,  13  Gray.  264. 

And  the  burden  of  proof  rests  with 
the  party  assorting  the  validity  of  a 
marriage  entered  into  by  a  person  xinder 
a  decree  of  lunacy  and  guardianship  to 


establish  that  the  marriage  was  entered 
into  during  a  lucid  interval.  Ooodheart 
V.  Ransley,  28  Ohio  L.  J.  227. 

'''ElUs  V.  Bou>man,  17  L.  T.  11.  And 
see  McCleary  v.  Barcalow,  6  Ohio  C.  C. 
481;  Banker  v.  Banker,  63  N.  Y.  409; 
Keys  V.  Norris,  6  Rich.  Eq.  388. 

In  England,  in  the  ecclesiastical 
courts,  an  inquisition  finding  idiocy  or 
lunacy  is  regarded  as  only  part  of  the 
requisite  proof  of  unsoundness  of  mind 
to  warrant  a  decree  of  nullity  of  a  mar- 
riage. Johnson  v.  Kincade,  37  N.  0.  (2 
Ired.   Eq.)    470. 

The  fact  that  a  woman  had  been  of 
unsound  mind  and  confined  in  a  lunatic 
asylum  does  not  justify  a  breach  of  a 
promise  to  marry  her,  where  she  was  of 
sound  mind  at  the  time  of  the  promise. 
Baker  v.  Carticright,  10  C.  B.  N.  S.  124, 
30  L.  J.  C.  P.  304,  7  Jur.  N.  S.  1247. 

'^^Hunter  v.  Edney,  L.  R.  10  Prob.  Div. 
93 ;  Turner  v.  Meyers,  1  Hagg.  Consist. 
Rep.  414;  Brovming  v.  Reane,  2  Phillim. 
Eccl.  Rep.  69. 

But  the  acts  of  a  man  who  married 
with  deliberation  and  after  he  had  him- 
self procured  a  license  and  declared  his 
intention  to  be  married,  and  who  went 
through  the  ceremony  with  propriety, 
and  lived  with  his  wife  as  such,  show 
capacity  to  marry,  though  he  was  of 
weak  understanding  and  at  times  a 
lunatic,  and  did  many  mad  and  frantic 
acts;  and  in  such  case  a  grant  of  admin- 
istration of  his  effects  after  death  to  the 
woman  he  married  is  proper.  Parker  v. 
rorker,  2  Lee,  Eccl.  Rep.  382;  Anony- 
mous, 4  Pick.  32.  And  see  Smith  v. 
.S'wiVft-,  47  Miss.  211. 


i8 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


l§  46 


46.  Necessity  of  a  decree  of  annulinent. —  A  marriage  which  is  void 
at  its  inception  because  of  the  insanity  of  a  party  to  it  is  a  mere  nul- 
lity from  the  beginning  to  the  end,  and  does  not  require  a  sentence, 
decree,  or  judgment  of  any  court  to  restore  the  parties  to  their  orig- 
inal riglits.^*^  And  the  invalidity  may  be  shown  in  any  proceeding, 
in  any  court,  whenever  the  question  arises,  whether  directly  or  col- 
laterally.^^ But  though  a  marriage  with  a  lunatic  is  absolutely  void, 
for  the  sake  of  the  good  order  of  society,  and  the  quiet  and  relief  of 
the  parties,  and  social  order  and  public  decency  and  questions  of 
legitimacy  and  succession,  the  nullity  should  be  declared  by  the  deci- 
sion of  some  court  of  competent  jurisdiction. ^- 

47.  Jurisdiction  and  procedure.—  A  court  of  equity  has  authority 
and  jurisdiction  to  pronounce  a  marriage  null  and  void  from  the 
beginning  for  want  of  capacity  to  marry  on  the  part  of  one  of  the 
parties.*^  And  a  party  may  maintain  an  action  to  annul  a  marriage 
upon  the  gi'ound  of  insanity,  after  recovering.^* 


*"BeIl  V.  Bennett,  73  Ga.  784;  Raicdon 
V.  Rairilon,  28  Ala.  5G5;  Unity  v.  Bel- 
f/rade.  7G  Me.  419;  Winsloio  v.  Troy,  97 
Mc.  130,  53  Atl.  1008:  Pouell  v.  Powell, 
IS  Kan.  371,  26  Am.  Rep.  774;  JenUwi 
V.  Jenkins,  2  Dana.  10.5,  26  Am.  Dee. 
437;  Gathings  v.  Williams,  27  N.  C.  (.5 
Ired.  L.I  487,  44  Am.  Dec.  49;  .S'ims  v. 
t<ims.  121  N.  C.  297,  40  L.  R.  A.  737,  61 
Am.  St.  Rep.  665,  28  S.  E.  407 ;  Johnson 
V.  Kincade.  37  N.  C.  (2  Ired.  Eq.)  470. 
And  see  Wightman  v.  Wight  man,  4 
•Johns.  Ch.  34.3;  Williamson  v.  Williams, 
.56  N.  C.   (3  .Tones  Eq.)    446. 

In  Ex  parte  Turing,  1  Ves.  &  B.  140, 
however,  it  was  held  that  though  a  mar- 
riage by  a  lunatic  is  declared  void  by 
statute,  sentence  of  nullity  by  the  ec- 
clesiastical court  is  necessary. 

"Unity  V.  Belgrade,  76  Me.  419; 
Gathings  v.  Williams,  27  N.  C.  (5  Ired. 
L.)  487,  44  Am.  Dec.  49;  Crump  v. 
Morgan,  38  N.  C.  (3  Ired.  Eq.)  91,  40 
Am.   Dec.  447. 

*-Winlitinan  v.  Wightman,  4  .Johns. 
Ch.  343;  Raicdon  v.  Raicdon,  28  Ala. 
565;  Poii-ell  v.  Powell,  18  Kan.  371,  26 
Am.  Rep.  774;  Johnson  v.  Kincade,  37 
N.  C.  (2  Ired.  Eq.)  470;  Waymire  v. 
Jefmore,  22  Ohio  St.  274. 

In  North  Carolina  a  court  of  equity 
will  not  entertain  the  question  of  nullity 
of  marriage  on  account  of  imbecility  in- 
cidenbiljy,  but  will  stay  proceedings  in 
the  suit  in  which  such  issue  is  made  so 
tliat  it  may  be  determined  by  a  direct 
Bcntonce  in   either  a  superior  court  of 


law  or  a  court  of  equity.  Williamson 
V.  Williams,  56  N.  C.   (3  Jones  Eq.)  446. 

And  the  Vermont  rule  is  that  a  decree 
of  nullity  of  a  marriage  cannot  be  at- 
tacked in  a  proceeding  for  the  removal 
of  tlie  woman  concerned  as  a  pauper. 
Reading  v.  Ludlow,  43  Vt.  628. 

''"■Johnson  v.  Kincade,  37  N.  E.  (2 
Ired.  Eq. )  470;  WighJman  v.  Wightmati, 
4  Johns.  Ch.  343;  Waymire  v.  Jetrnore, 
22  Ohio  St.  274;  Wiser  v.  Lockicood,  42 
Vt.  720. 

A  court,  in  an  action  for  the  annul- 
ment of  a  marriage  on  the  ground  of 
lunacy,  has  no  discretion  to  refuse  a  de- 
cree, where  it  is  legally  demanded,  on 
the  ground  that  such  refusal  would  be 
best  for  all  the  parties,  under  existing 
circumstances.  Crump  v.  Morgan,  38  N. 
C.   (3  Ired.  Eq.)   91,  40  Am.  Dec.  447. 

In  Vermont,  however,  where  the  exist- 
ence of  a  marriage  as  a  fact  is  estab- 
lished, the  probate  court  has  no  juris- 
diction to  try  its  validity,  or  power  to 
treat  it  as  a  nullity.  Wiser  v.  Lockwood, 
42  Vt.  720. 

**Turner  v.  Meyers,  1  Hagg.  Consist. 
Rep.  414;  Wightman  v.  Wightman,  4 
Jolms.  Ch.  343'. 

The  sane  party  to  a  marriage  cannot 
be  admitted  as  a  witness  in  an  action 
for  annulment  against  the  insane  party, 
where  the  statute  provides  that  if  one 
party  to  an  action  is  insane  tlie  other 
shall  not  be  permitted  to  testify  in  his 
own  favor.  Little  v.  Little,  13  Gray, 
264. 


§  47]  MARRIAGE.  49 

Where  the  action  is  brought  before  recovery  it  should  be  brought 
in  the  name  of  the  supposed  lunatic  by  his  or  her  committee,  and  not 
in  the  name  of  the  committee  or  guardian  alone.^^  And  such  a  mar- 
riage may  be  declared  void  at  any  time  during  the  continuance  of  the 
lunacy  or  after  the  death  of  the  lunatic,  during  the  lifetime  of  the 
other  party,  on  tlie  application  of  relatives  or  persons  interested  in 
avoiding  the  marriage.^**  When  the  question  arises  collaterally  in  an 
action  in  equity,  an  issue  at  law  is  a  proper  mode  of  trying  it."*^  But 
while  an  action  prosecuted  and  tried  and  decided  as  a  divorce  suit 
cannot  be  considered  as  one  prosecuted  to  have  a  void  marriage  pro- 
nounced a  nullity,  alimony  pendente  lite  and  counsel  fees  and  a  pro- 
vision for  the  subsistence  of  the  wife  may  be  allowed  as  an  incident 
of  the  court's  jurisdiction.^^ 

48.  Effect. —  A  man  who  marries  a  lunatic  is,  of  course,  liable  for 
her  support  though  she  was  incapacitated,  where  he  knew  of  lier  in- 
capacity,'*^ And  he  is  liable  for  her  support  while  he  voluntarily 
continues  to  live  with  her  though  the  marriage  is  subsequently  de- 
clared void  because  of  her  insanity ;  and  he  cannot  make  the  cost  of 
her  support  during  such  time  a  charge  upon  her  separate  estate. ^^ 
So,  under  the  statutes  of  some  of  the  states,  when  a  marriage  is  an- 
nulled on  the  ground  of  insanity,  the  annulment  does  not  affect  the 

*'-Crump  V.  Morgan,  38  N.  C.    (3  Ired.  St.    Rep.    G92.    10    S.    E.    488;    Prine   v. 

Kq.)    91.    40    Am.    Dec.    447;    Pence   v.  Prine,  3G   Fla.  676,  34  L.  R.  A.  87,   18 

Aughe,  101  Ind.  317;   Winslow  v.  Troy,  So.  781. 

97  Me.  130.  53  Atl.  1008.    And  see  8ims  'U^acker  v.  Windham,  2  Eq.  Cas.  Abr. 

V.  Sims,  121  N.  C.  297,  40  L.  R.  A.  737,  138,  Free,  in  Ch.  412,  C4ilb.  Eq.  Rep.  98. 

61  Am.  St.  Rep.  66,5,  28  S.  E.  407.  '"(lerhold  v.  Wyss,  13  Neb.  90,  12  N. 

But  the  fact  that  a  husband  was  under  W.  811. 

guardianship    as    a    person    of    unsound  So,    an    action    upon    an    account    for 

mind  at  the  time  of  his  marria,2;e  sliould  necessaries  furnished  to  a  wife  cannot  be 

be  averred   in   an   action   for   its  annul-  resisted  upon  the  gi'ound  that  the  mar- 

mcnt,  and  not  be  left  to  mere  inference,  riage  between  her  and  her  supposed  hus- 

Pence  v.  Aughe,  101  Ind.  317.  band    was    solemnized   while    he    was    a 

And  the  annulment  of  a  marriage  lunatic,  and  therefore  void.  Stuckeij  v. 
without  notice  to  the  person  against  Mafhcs,  24  Hun,  461. 
whom  the  proceeding  is  brought  is  with-  And  prool  that  a  woman  married 
out  jurisdiction  and  void:  and  a  person  an  alleged  lunatic  and  continued  to  live 
of  unsound  mind  is  incapable  of  giving  and  cohabit  with  him  until  he  was  de- 
consent  or  waiving  notice.  Winslow  v.  clared  a  lunatic,  when,  without  fault  on 
Troy,  97  Me.  130,  53  Atl.  1008.  her   part,   she   was   obliged   to    seek   the 

^'•Jaqiies    v.    Public    Administrator,    1  neo?ssities    of   life   apart    from    him    be- 

Bradf.  499.  cause  of  a  committee  of  his  person  and 

"Keys  V.  Norris,  G  Rich.  Eq.  388.  estate  having  been  appointed,  no  fraud 

But    the    question    whether    a    person  or  duress  having  been  practised  to  bring 

coniracting  marriage  had   suflicient  un-  about   the  marriage,   does  not  establish 

der>;tanding  to   comprehend     its    nature  that   she  was  not  his  wife  at  the  time 

and  consequences  is  one  of  fact  for  the  the  necessities  were  furnished  her,  so  as 

jury.     Doe  v.  Roe,  1  Edm.  Sel.  Cas.  344.  to  defeat  an  action  therefar.     Ibid. 

''Lea  V.   Lea.   104   N.   C.   603.    17   Am. 
Vol..  T.  Med.  Jvn. — 4. 


•60  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  48 

legitimacy  of  the  children  of  the  marriage.^^     And  under  suoh  stat- 
utes an  annulment  cannot  detract  from  their  property  rights.^^ 

11.  Intoxication. 

49.  Degree  which  will  invalidate  marriage. — Intoxication  which 
goes  to  the  extent  of  rendering  the  party  non  compos  mentis  invali- 
dates a  marriage  entered  into  by  him  while  in  that  condition,  though 
a  lesser  degree  of  intoxication  would  not  do  so.^^  But  it  must  have 
been  such  as  to  deprive  him  of  all  sense  of  volition,  and  render  him 
incapable  of  knowing  what  he  was  about.^*  Insanity  from  delirium 
tremens  will  invalidate  a  marriage,^^  unless  it  was  contracted  during 
a  lucid  interval,  in  which  case  it  would  be  binding.^®  But  intoxica- 
tion, however  extreme,  is  not  insanity  within  the  meaning  of  a  stat- 
utory provision  authorizing  annulment  of  manuage  because  of  in- 
sanity.^' And  an  adjudication  that  a  person  was  a  habitual  drunk- 
ard, or  incapable  of  taking  care  of  himself  through  intemperance,  is 
prima  facie  evidence  only,  and  not  conclusive  of  his  incapacity  to 
marry.^^  A  marriage  entered  into  while  a  party  was  so  intoxicated 
that  he  did  not  know  what  he  was  about  is  voidable  only,  and  not  void, 
and  may  be  ratified  and  confiinned.^^ 

■"  See  Unity  v.  Belgrade,  76  Me.  419;  "RoUin  v.  Roblin,  28  Grant  Ch.    (U. 

State  ex  rel.  Setzer  v.  Setzer,  97  N.  C.  C. )   439;  Johnston  v.  Brown,  2  Shaw  & 

252,  2  Am.  St.  Rep.  290,  1  S.  E.  558.  D.  437.     And  see  Selah  v.  Selah,  23  N. 

^-State  ex  rel.  Setzer  v.  Setzer,  97  N.  J.  Eq.  185. 

C.  252,  2  Am.  St.  Rep.  290,  1  S.  E.  558.  ^'■Clement  v.  Mattison,  3  Rich.  L.  93. 

A  finding  of  a  trial  court  in  an  action  '-"^Scott  v.  Paquet,  17  Lower  Can.  Rep. 

to  annul  a  marriage  on  the  ground  of  283. 

Junaey  of  a  party,  that  he  was  of  sound  Temporary  insanity,  like  intoxication, 

mind    when    the    marriage    took    place,  to  invalidate  a  marriage,  must  be  shown 

which   is   sustained  by  the  evidence,   is  to  have  existed  at  the  very  time  of  the 

conclusive  on  appeal  to  the  court  of  ap-  cerem.ony.     Legcyt  v.  O'Brien,  Milward, 

peals.    Banker  v.  Banker,  63  N.  Y.  409.  325. 

But  a  judgment  in  an  action  in  equity  '-''Elzey  v.  Elzey,  1  Houst.    (Del.)   308, 

brought  by  the  committee  of  an  alleged  ''^McCleary  v.  Barcalow,  6  Ohio  C.  C. 

lunatic  against  his  wife  to  declare  the  481;  Imhofj'  v.  Witmer,  31  Pa.  243. 

marriage  contract  null  and  void,  where-  ^^Roblin  v.  Roblin,  28  Grant  Ch.    (U. 

by  it  was  adjudged  that  at  the  time  of  C.)    439. 

his  marriage  he  was  not  a  person  of  un-  A  memorandum,  introduced  by  a  man 

sound  mind,  merely  establishes  his  abil-  in  an  action  brought  for  necessaries  fur- 

ity  to  enter  into  the  marriage  contract,  nished  to  a  woman  alleged  to  be  his  wife, 

and  not  that  hemust  be  regarded  as  a  per-  for  expenses   incurred   in   the  burial   of 

son  of  sound  mind,  capable  of  managing  her  child,   in  which  action  the  validity 

hLs  affairs  and  disposing  of  his  property,  of  the  marriage,  which  was  in  issue,  was 

Wiets  V.   Union  Nat.  Bank,   101   N.  Y.  admitted  by  him,  is  a  sufficient  ratifiea- 

563,  54  Am.  Rep.  743,  5  N.  E.  457.  tion  and  confirmation  of  the  marriage. 

'"^Prine  v.  Prine,  36  Fla.  676,  34  L.  R.  Ibid. 
A.   87,   18   So.   781;    Legeyt   v.   O'Brien^ 
Milward,  325. 


CHAPTER  IIL 

DIVORCE. 

I.  Lunacy. 

50.  Insanity  as  a  ground. 

51.  Effect  of  insanity  on  adultery. 

52.  Effect  of  insanity  on  desertion  as  a  ground. 

53.  Effect  of  insanity  on  cruelty  as  a  ground. 

54.  Effect  of  insanity  on  the  action. 
XL  Dkunkenness. 

55.  Divorce  on  the  ground  of  drunkenness. 

66.  Effect  of  drunkenness  on  desertion  as  a  ground. 

67.  Effect  of  drunkenness  on  cruelty  as  a  ground. 

I.  Lunacy. 

50.  Insanity  as  a  ground. —  Insanity  occurring  after  marriage  ia 
not  a  ground  for  divorce  unless  made  so  bj  statute.^  And  statutes 
pre9cribing  otlier  grounds  for  divorce,  of  a  general  or  kindred  nature, 
do  not  include  insanity  after  marriage.^  Divorce  on  the  ground  of 
insanity  is  authorized  by  statute,  however,  in  some  states.^  And  in 
Georgia  insanity  at  the  time  of  the  marriage  is  a  ground  for  divorce.* 
And  insanity  at  the  time  of  the  marriage,  concealed  from  the  other 
party,  has  been  held  to  render  the  marriage  invalid  on  the  ground  of 
fraud.^ 

These  statutes  are  not  unconstitutional  as  against  public  policy,* 
but  would  appear  to  be  subject  to  strict  construction.'^ 

'Lloyd  V.  Lloyd,  66  111.  87;   Baker  v.  taining  to  the  marriage  relation.     Pile 

Baker,  82  Ind.  146;   Tiffamj  v.  Tiffany,  v.  Pile,  94  Ky.  308,  22  S.  W.  215. 

84  lo^va,  122,  50  N.  W.  554;   Wertz  v.  'See  Neiccomb  v.  Newcomb,  13  Bush, 

Werfz,  43  Iowa,  534 ;  Powell  v.  Powell,  544,  26  Am.  Rep.  222 ;  Hickman  v.  Ilick- 

18  Kan.  371,  26  Am.  Rep.  774;  Pile  v.  man,  1  Wash.  257,  22  Am.  St.  Rep.  148. 

Pile,  94  Ky.  308,  22  S.  W.  215;  Forman  24  Pac.  445. 

V.  Forman,  53  N.  Y.  S.  R.  639,  24  N.  Y.  *Brown  v.  Westhrook,  27  Ga.  102. 

Supp.  917.  ^Keyes  v.   Keyes,  22  N.  H.  553;   Ha- 

-  See  Lloyd  v.  Lloyd,  66  111.  87 ;  Curry  maker  v.  Hamaker,  18  111.  137,  65  Am. 

V.  Curry,  Wilson  Super.  Ct.   (Ind.)   236.  Dec.  705;  Smith  v.  Smith,  47  Miss.  211. 

A    divorce    is   not   warranted    on   the  "TJickman  v.  Hickman,   1   Wash.  257. 

ground  of  the  impotency  of  the  wife,  re-  22  Am.  St.  Rep.  148,  24  Pac.  445. 

suiting  from  a  mental  disease,  without  ^  See  Newcomb  v.  Newcomb,  13  Buf?h, 

her  fault,  where  she  lived  happily  with  544,  26  Am.  Rep.  222;   Hicks  r.  H^cks, 

her  husband  for  several  years  after  the  79  Wis.  465,  48  N.  W.  495. 
marriage,  discharging  all  the  duties  per- 

51 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  51 


51.  Eifect  of  insanity  en  adultery. —  It  has  been  argued  that,  as  an 
insane  person  cannot  consent  to  adultery,  a  decree  of  divorce  on  the 
ground  of  adultery  cannot  be  granted  against  an  insane  person.®  To 
this  it  may  be  replied  that  divorce  statutes  are  meant  to  relieve  par- 
ties from  intolerable  wrong,  and  the  wrong  of  adultery  is  none  the 
less  intolerable  because  the  party  committing  it  was  insane.®  This 
view  was  intimated  in  England  in  the  Mordaunt  Case,^^  although 
that  case  Avas  decided  upon  the  peculiar  construction  of  a  statute.^ ^ 
The  insanity  of  either  party  is  now  held  no  bar  to  a  divorce  in  Eng- 
land.^ ^  And  the  rule  is  general  that  subsequent  insanity  of  a  perma- 
nent nature  of  a  party  to  a  marriage  will  not  deprive  the  other  party 
of  the  right  to  have  the  marriage  relation  dissolved  for  an  act  of  adul- 
tery committed  while  such  party  was  sane  and  responsible.-'^  In  any 
event,  however,  insanity  is  no  defense  to  an  action  for  divorce  on 
the  ground  of  adultery,  where,  at  the  time  of  the  commission  of  the 
act,  the  party  was  capable  of  appreciating  its  nature  and  probable  con- 
sequences.^*    But  evidence  of  depravity  of  character  and  abandoned 


'Niclwh  V.  Michols,  31  Vt.  328,  73  Am. 
Dec.  352;  Wraif  v.  Wraij,  19  Ala.  522; 
Rathhun  v.  Itathhun,  40  How.  Pr.  328; 
Broadstreet  v.  Broadstreet,  7  Mass.  474; 
Yarrow  v.  Yarrow  [1892]  P.  92.  61  L. 
J.  Piob.  N.  S.  09,  06  L.  T.  N.  S.  383. 

So,  adultery  committed  by  a  wife 
while  insane  is  no  bar  to  her  claim 
against  her  husband  for  alimony,  upon 
the  ground  that  lie  had  abandoned  her. 
Mims  V.  Minis,  33  Ala.  98;  Wray  v. 
Wraii,  33  Ala.   187. 

And  the  insanity  of  a  wife,  proved  to 
have  existed  at  the  time  of  the  commis- 
sion of  an  act  of  adultery  by  her,  will 
be  presumed,  in  an  action  by  her  for  ali- 
mony, to  continue  until  the  contrary  is 
proved.     Wi-ay  v.  Wray,  33  Ala.  187. 

"Matchin  v.  Maichin,  6  Pa.  332,  47 
Am.  Dec.  460,  holding  that  a  wife's  in- 
sanity would  be  a  defense  to  an  action 
for  divorce  though  it  was  such  as  to 
efface  from  her  mind  all  lines  of  con- 
JM^^al  duty.  But  this  rule  was  criticised 
by  otlier  American  cases  and  doubt  was 
titrewH  upon  the  decision  by  Hansell  v. 
Hansen,  3  Pa.  Dist.  R.  724. 

^"Mordaunt  v.  Mordaunt,  L.  R.  2  Prob. 
&  Div.  109,  18  Week.  Rep.  845;  Mor- 
daunt V.  Mordaunt  L.  R.  2  Prob.  &  Div. 
382.  41  L.  J.  Prob.  N.  S.  42,  20  L.  T. 
N.  S.  812,  20  Week.  Rep.  553. 

''Stat.  20  &  21  Vict.  chap.  85.  §  27. 

"Raler  v.  Z{afcer,L.R.5Prob.  Div.  145, 
49  L.  J.  Prob.  N.  S.  49.  42  L.  T.  N.  S. 
332,  Affirmed  in  L.  R.  0  Prob.  Div.  12, 


49  L.  J.  Prob.  N.  S.  83;  Mordaunt 
V.  Moncrieffe,  L.  R.  2  H.  L.  Sc.  A  pp. 
Cas.  375,  43  L.  J.  Prob.  49,  30  L.  T. 
N.  S.  049,  23  Week.  Rep.  12.  But  see 
Yarroic  v.  Yarroiv  [1892]  P.  92,  61  L.  J. 
Prob.  N.  S.  09,  66  L.  T.  N.  S.  383. 

But  in  Hall  v. Hall, 3  Swabey  &  T.340, 
33  L.  J.  Prob.  N.  S.  65,  9  L.  T.  N.  S.  810, 
it  was  held  tliat  where  the  evidence  on 
the  part  of  a  petitioner  for  divorce  on 
the  ground  of  adultery  discloses  the  re- 
spondent's insanity,  tlie  court  will  re- 
quire to  be  satisfied  that  it  admits  of  a 
dilFerent  explanation  before  it  will  de- 
cree for  the  petitioner,  though  the  ques- 
tion was  not  raised  in  the  pleading. 

^^Rathbun  v.  Rathhun,  40  How.  Pr. 
328;  Stratford  v.  Stratford,  92  N.  C. 
297. 

Tlie  fact  that  a  woman  had  been  ad- 
juilicated  a  lunatic  two  years  before, 
and  that  the  adjudication  remained  un- 
rever?ed,  will  not  prevent  a  divorce  on 
the  ground  of  adultery,  where  the  evi- 
dence shows  that  slie  was  sane  at  the 
time  of  the  act,  the  presumption  of  con- 
tinued insanity  being  rebutted  by  the 
evidence  of  subsequent  sanity.  Cook  v. 
Ccol;  53   Barb.   180. 

"Yarroic  v.  Yarroin  [1892]  P.  92,  61 
L.  J.  Prob.  N.  S.  69,  06  L.  T.  N.  S.  383. 

In  Yarroin  v.  Yarrow  [1892]  P.  92,  61 
L.  J.  Prob.  N.  S.  69,  66  L.  T.  N.  S.  383, 
it  was  suggested  that  insanity  which 
would  lead  to  an  acquittal  on  a  criminal 
prosecution  Avould  constitute  a  valid  de- 


S  51] 


DIVORCE. 


53 


habits  is  not  sufficient  to  establish  insanity  as  a  defense  in  a  divorce 
case.^^  And  nymphomania,  consisting  of  a  morbid  sexual  desire,  is 
not  such  insanity  as  Avill  excuse  adultery  as  a  ground  for  divorce.^ ^ 

52.  Effect  of  insanity  on  desertion  as  a  ground. — Desertion  of  one 
party  to  a  marriage  by  the  other,  though  made  a  ground  of  divorce  by 
statute,  is  not  so  where  it  arises  from  insanity.^ ^  And  an  abandon- 
ment of  a  husband  which  will  entitle  him  to  a  divorce  is  not  established 
by  the  fact  that  his  wife  was  confined  in  an  insane  asylum  with  his  con- 
sent.-'* But  one  party  to  a  marriage  who  deserts  the  other  while  sane, 
and  remains  away  for  the  statutory  period  warranting  a  divorce,  can- 
not be  excused  on  the  ground  that  he  or  she  became  insane  before  the 
expiration  of  the  statutory  period.^'^ 

53.  Effect  of  insanity  on  cruelty  as  a  ground. —  Cruel  and  inhu- 
man treatment  resulting  from  insanity  does  not  warrant  a  divorce.^*^ 
But  to  establish  insanity  as  a  defense  in  an  action  for  divorce  for 
cruelty,  it  must  appear  that  the  defendant  was  in  such  a  mental  con- 
dition as  to  deprive  him  of  the  use  of  his  reason,  rendering  him  in- 


fonse  in  a  suit  for  divorce  on  the  ground 
of  adultery. 

'"Hill  V.  Hill,  27  N.  J.  Eq.  214. 

A  wife  who  left  her  home  under  a  de- 
lusion that  her  husband  was  trying  to 
poison  her,  and  who  committed  adultery 
with  the  idea  that  it  might  prohably  be 
the  means  of  bringing  about  a  divorce, 
is  responsible  therefor,  and  her  act  fur- 
nislies  a  good  ground  for  divorce.  Yar- 
roio  V.  Yarrow  [1S92]  P.  92.  Gl  L.  J. 
Prob.  N.  S.  09,  60  L.  T.  K  S.  383. 

'"Hill  V.  Hill,  27  N.  J.  Eq.  214. 

"Balccr  v.  Baker,  82  Ind.  140. 

The  time  during  whicli  a  wife  has 
been  found,  by  an  inquisition  of  lunacy, 
to  be  insane,  is  not  included  in  com- 
puting the  statutory  period  of  desertion 
required  to  entitle  a  husband  to  a  di- 
vorce. Blaudy  v.  Blandy,  20  App.  D. 
C.  535. 

And  abandonment  by  a  wife  of  her 
husband  on  account  of  a  quarrel  will 
not  entitle  him  to  a  divorce,  where  sflie 
had  been  insane,  but  liad  been  partially 
cured,  and  he  was  not  at  all  times  as 
considerate  with  her  as  he  might  have 
been  in  view  of  her  infirmitv.  Franklin 
V.  Franklin,  53  Kan.  143.  35  Pac.  1118. 

'"Vile  v.  Pile,  94  Ky.  308.  22  S.  W. 
215. 

'^Douglass  v.  Douglass,  31  Iowa,  421; 
Harrigan  v.  Harrigan,  135  Cal.  397,  87 
Am.  St.  Rep.  118,  07  Pac.  506. 

And   failure  of  a  husband  to  provide 


sufficient  maintenance  for  his  wife,  suit- 
able to  her  condition,  while  she  is  sepa- 
rated from  him  without  her  fault,  and 
confined  in  a  lunatic  asylum,  entitles 
her  to  alimony.  Wray  v.  Wray,  33  Ala. 
187. 

-"Cohn  V.  Cohn,  85  Cal.  108,  24  Pac, 
659;  Tiffany  v.  Tiffany,  84  Iowa,  122, 
50  N.  W.  554;  Werts  v.  Wertz,  43  Iowa, 
534;  Ai-ery  v.  Avery,  33  Kan.  1,  52  Am. 
Rep.  523,  5  Pac.  418;  Poicell  v.  Poircll, 
IS  Kan.  371,  26  Am.  Rep.  774;  Hall  v. 
Hall,  3  Swabey  &  T.  349,  33  L.  J.  Prob. 
N.  S.  05,  9  L.  T.  N.  S.  810.  And  see 
Avery  v.  Avery,  33  Kan.  1,  52  Am.  Rep. 
523,  '5  Pac.  418. 

The  intent  and  motive  of  a  party  are 
a  necessary  ingredient  to  the  offense  of 
crwelty  and  barbarous  treatment  and  in- 
dignities to  the  person  endangering  life 
or  health  as  a  gi'ound  for  divorce,  and 
such  intent  cannot  be  held  to  exist 
wlicre  insanity  is  established.  Hansell 
V.  Hansell,  3  Pa.  Dist.  R.  724. 

And  acts  of  violence  on  the  part  of 
a  husband  toward  his  wife  caused  by, 
and  consisting  principally  of,  resistance 
of  attempts  to  take  morphine  from  hint 
while  he  was  in  a  state  of  delirium 
produced  by  its  use,  do  not  constitute 
extreme  and  repeated  cruelty  authoriz- 
ing a  divorce.  Youngs  v.  Youngs,  130 
.Tli.  230,  6  L.  R.  A.'  548,  17  Am.  St. 
Rep.  313,  22  N.  E.  800. 


54 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


l§  5* 


capable  of  knowing  right  from  wrong,  or  choosing  the  one  or  the 
other.^^  The  question  is  whether  he  was  capable  of  understanding 
the  nature  and  consequences  of  the  acts  charged  at  the  time  of  their 
connuission.--  The  mere  existence  of  an  insane  delusion  with  ref- 
erence to  the  conduct  of  the  other  party  to  the  marriage  or  otherwise 
is  not  sufficient  as  an  excuse  for  cruelty  as  a  ground  of  divorce.^^  And 
the  mental  condition  of  a  wife,  if  not  such  as  to  deprive  her  of  the 
power  to  desist  from  provoking  conduct,  will  not  remove  her  case  from 
the  rule  denying  her  a  divorce  on  the  ground  of  cruelty,  Avhere  the 
conduct  complained  of  was  provoked  by  her,  and  not  disproportionate 
to  tlie  provocation.^* 

54.  Effect  of  insanity  on  the  action. —  The  rule  generally  adopted  in 
America  is  that  the  right  to  sue  for  a  divorce  is  a  personal  one,  de- 
pending upon  the  free  and  voluntary  will  of  the  party,  and  if  such 
party  is  insane  and  cannot  consent,  his  guardian  or  next  friend  can- 
not institute  the  suit;^^  though  in  some  of  the  states  provision  is  made 
by  statute  for  the  prosecution  of  suits  for  divorce  by  the  giiardian  of 
an  insane  party,  or  by  a  next  friend,  appointed  by  the  court  for  that 


'"Hansen  v.  Eansell.  3  Pa.  Dist.  R. 
724. 

Violent  acts  upon  the  part  of  a  hus- 
band toward  his  wife,  though  he  was 
laboring  under  a  state  of  mental  excite- 
ment arising  from  fatigues  and  anxieties 
of  business,  warrant  a  separation,  where 
he  was  not  an  irresponsible  agent,  and 
there  was  a  liability  of  a  recurrence 
of  such  excitement  which  would  render 
continued  cohabitation  with  him  unsafe. 
Mariiy}  v.  Martin.  8  Week.  Rep.  367,  29 
L.  J.  Prob.  N.  S.  106,  2  L.  T.  N.  S.  118. 

'■Hanhury  v.  Hanhtini  [1892]  P.  222, 
61  L.  J.  Prob.  N.  S.  115. 

"Smith  V.  Smith,  33  X.  J.  Eq.  458; 
Hcoland  v.  Seoland.  4  Wash.  118,  29  Pac. 
930. 

And  a  divorce  for  cruelty  will  not  be 
granted  against  a  wife  because  of  a 
charge  by  her  against  her  husband,  that 
he  was  attempting  to  poison  her,  when 
it  was  reasonable  to  suppose  that  her 
fears  and  the  charge  were  the  result  of 
a  temporary  aberration  of  the  mind. 
Sapp  V.  Saj'ip,  71  Tex.  348.  9  S.  W.  258. 

^*Duvale  v.  Duvale  (N.  J.  Eq.)  34  Atl. 
888. 

But  a  husband  is  not  entitled  to  turn 
his  wife  out  of  doors  because  she  is  in- 
sane, and  the  fact  that  a  Avife  is  insane 
and  intends  personal  violence  to  her  hus- 
band furnishes  no  answer  to  a  claim  on 
her    part    for    restitution    of    conjugal 


rights.  Eayivard  v.  Hayward,  1  Swabey 
&"T.  81,  6  Week.  Rep.  638. 

'■^Worthy  v.  Worthy,  36  Ga.  45,  91  Am. 
Dec.  7  58;^  Br  ad  ford  v.  Abend,  89  111.  78. 
31  Am.  Rep.  67;  Mohler  v.  Shank,  93 
Iowa,  273,  34  L.  R.  A.  161,  57  Am.  St. 
Rep.  274,  61  N.  W.  981;  Birdzell  v. 
Birdzcll,  33  Kan.  434.  52  Am.  Rep.  539, 
6  Pac.  561 ;  dowry  v.  dowry,  16  Ohio 
C.  C.  302,  8  Ohio  C.  D.  652. 

But  evidence  that  a  woman  was  an 
inmate  of  an  asylum  for  nearly  two 
years,  when  she  was  discharged  in  an 
improved  condition,  but  not  well,  is  not 
sufficient  to  establish  insanity  rendering 
her  incompetent  to  maintain  an  action 
for  divorce  commenced  nearlv  four  vears 
later.  ElUs  v.  White,  61  Iowa,  644,  17 
X.  W.  28. 

And  a  woman  is  estopped  to  claim  a 
share  in  an  estate  of  a  man  as  his 
willow,  although  a  divorce  obtained 
from  her  by  liim  in  a  suit  brought  by 
his  guardian  in  insanity  was  absolutely 
void,  where  she  had  accepted  alimony 
under  the  decree,  and  contracted  a  sub- 
sequent marriage.  Mohler  v.  Shank,  93 
Iowa.  273,  34  L.  R.  A.  161,  57  Am.  St. 
Pvep.  274,  61  X.  W.  981. 

And  fraud  will  be  presumed  where  a 
hill  was  filed  for  divorce  by  an  alleged 
next  frirnd  of  a  wife  when  she  was  in- 
capable of  giving  assent,  and  confined  in 
an  asylum  in  another  state,  and  tl\e  de- 


§  54] 


DIVORCE. 


65 


purpose.-"  In  England,  however,  the  rule  is  that  proceedings  for 
divorce  are  civil,  and  that  where  no  provision  is  made  by  statute; 
recourse  must  be  had  to  the  ordinary  powers  of  the  civil  courts  where 
lunatics  are  litigants,  and  that  therefore  the  insanity  of  a  husband 
or  wife  will  not  bar  a  suit  by  the  committee  of  tlie  lunatic  for  the 
dissolution  of  the  marriage.^^  Likewise  some  of  the  earlier  English 
cases  refuse  to  permit  an  action  for  divorce  to  proceed  against  a  de- 
fendant who  had  become  insane,  upon  the  ground  that  he  was  thereby 
incapacitated  from  making  a  defense.^^  But  this  holding  was  subse- 
quently superseded  by  the  rule  that  the  lunacy  of  one  party  to  a  mar- 
riage after  the  commission  of  adultery  is  no  ground  for  staying  pro- 
ceedings brought  by  the  other  for  divorce.^^  And  this  is  the  rule  in 
America,  irrespective  of  statutes  f^  and  a  defense  by  the  guardian  is 
provided  for  in  some  of  the  states.^^  But  an  action  for  divorce  should 
not  be  tried  against  one  whose  reason  has  been  dethroned,  and  who 
is  thus  rendered  incapable  of  making  answer  to  the  charge,  or  aiding 


fendant  entered  his  appearance  and  an- 
swer on  the  same  day,  and  the  cause 
was  then  tried  and  a  decree  of  divorce 
pronounced.  Bradford  v.  Abend,  89  111. 
78,  31  Am.  Rep.  67. 

^^Garnett  v.  Garnett,  114  Mass.  379, 
19  Am.  Rep.  369;  Cowan  v.  Cmcan,  139 
Mass.  377,  1  N.  E.  152;  Denny  v.  Denny, 
S  Allen,  311;  Thayer  v.  Thayer,  9  R.  I. 
377. 

But  the  difficulty  of  ascertain inc^  the 
real  facts  in  a  divorce  case  when  either 
party  is  incapable  of  testifying  or  of  in- 
structing counsel  beeavise  of  insanity  re- 
quires the  court  to  proceed  with  the  ut- 
most caution, — especially  where  the 
object  of  the  suit  is  to  obtain  a  complete 
dissolution  of  the  marriage  without  the 
intelligent  consent  of  the  complainant 
And  an  agreement  of  guardians  or  of 
counsel  in  such  case  to  submit  the  case 
for  a  final  determination  upon  an  imper- 
fect statement  of  facts  does  not  relieve 
the  court  of  the  responsibility  of  consid- 
ering what  course  public  policy  and  the 
best  interests  of  the  parties  require  to 
be  pursued.  Garnett  v.  Garnett,  114 
Mass.  379,  19  Am.  Rep.  369. 

And  an  action  for  divorce  cannot  be 
maintained  by  the  guardian  of  a  spend- 
thrift on  his  behalf  against  the  spend- 
thrift's wife.  Winslow  v.  M^inslow,  7 
Mass.  96. 

"'Baker  v.  Baker,  L.  R.  5  Prob.  Div. 
142,  49  L,  J.  Prob.  N.  S.  49,  42  L.  T. 


N.  S.  332,  28  Week.  Rep.  630,  Affirmed 
in  L.  R.  6  Prob.  Div.  12,  49  L.  J.  Prob. 
N.  S.  83;  Parnell  v.  Parnell,  2  Phillim. 
Eccl.  Rep.  158,  2  Ha gg.  Consist.  Rep. 
169;  Woodgate  v.  Taylor,  2  Swabey  & 
T.  512,  30  L.  J.  Prob.  N.  S.  197,  5  L.  T. 
N.  S.  119. 

-^Baicden  v.  Baicden,  2  Swabey  &  T. 
417,  31  L.  J.  Prob.  N.  S.  94,  8  Jur.  N. 
S.  157,  6  L.  T.  N.  S.  27,  10  Week.  Rep. 
292 ;  Kivff  v.  King,  cited  in  L.  R.  2 
Prob.  &  Div.  125;  Mordaunt  v.  Mor- 
dattnt,  L.  R.  2  Prob.  &  Div.  129,  IS 
Week.  Rep.  845. 

-'Mordaunt  v.  Moncrieffe,  43  L.  J. 
Prob.  N.  S.  49,  30  L.  T.  N.  S.  649,  22 
Week.  Rep.  12,  L.  R.  2  H.  L.  Sc.  App. 
Cas.  374 ;  Baler  v.  Baker,  L.  R.  5  Prob. 
Div.  142,  49  L.  J.  Prob.  N.  S.  49,  42 
L.  T.  N.  S.  332,  28  Week.  Rep.  630. 

There  is  no  difference  between  cases  of 
lunatic  petitioners  and  lunatic  respond- 
ents in  actions  for  divorce  on  the  ques- 
tion of  the  right  to  prosecute  or  defend 
bv  committee.  Baker  v.  Baker,  L.  R.  5 
Prob.  &  Div.  142,' 49  L.  J.  Prob.  N.  S.  49, 
42  L.  T.  N.  S.  332,  28  Week.  Rep.  630. 

^"Rathhun  v.  Rathhun,  40  How.  Pr. 
328;  Stratford  v.  Stratford,  92  N.  C. 
297. 

"See  Garnett  v.  Garnett,  114  Mass, 
379.  19  Am.  Rep.  360;  Little  v.  Little, 
13  Gray,  264;  Thayer  v.  Thayer.  9  R.  1. 
377. 


56 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  54 


counsel  in  defense,  unless  at  least  a  reasonable  time  is  allowed  for  re- 
covery.^- And  in  Ohio  and,  perhaps,  some  of  the  other  states,  an 
action  for  divorce  will  not  be  allowed  to  proceed  against  an  insane 
defendant.'^^ 

11.    DllUNKENNESS. 

55.  Divorce  on  the  ground  of  drunkenness. — Drunkenness,  inde- 
pendent of  other  causes,  is  not  a  ground  for  divorce  in  the  absence  of 
statutory  enactments  making  it  so.^'*  And  drunkenness  is  not  insan- 
ity for  which  divorce  can  be  granted  under  the  provisions  of  a  statute 
authorizing  the  annulment  of  a  marriage  for  insanity  of  a  party.^'' 
Statutory  provisions  for  divorce  for  habitual  drunkenness,  however, 
exist  in  many  of  the  states.  Under  them  the  drunkenness  is  required 
to  be  gross  and  confirmed,  and  to  continue  until  the  libel  for  divorce 
is  filed  f^  and  such  habits  are  usually  required  to  have  been  contracted 
after  marriage.""^  A  woman  who  marries  a  man  w^ho  is  a  slave  to 
whisky  and  morphine,  with  the  knowledge  of  the  fact,  assumes  the 
risk,  and  will  not  be  granted  a  divorce  because  he  persists  in  their 
use.^^  And  the  intoxication  which  will  authorize  a  divorce  consists 
in  a  condition  arising  from  the  use  of  stimulants,  such  as  wine, 
whisky,  brandy,  etc. ;  and  the  habitual  use  of  opiates,  though  operat- 
ing substantially  like  intoxicating  liquors,  does  not  constitute  drunk- 
enness which  will  authorize  a  divorce,  Avithin  the  meaning  of  sucli 
statutes.'^^      And  drunkenness  must  be  habitual,  consistina;  of  fre- 


'^-FUratford  v.  Stratford,  05>  N.  C.  297. 

And  a  default  will  be  opened  and  fur- 
ther proceedings  stayed  on  suggestion 
that  since  the  commission  of  the  offense 
tlie  defendant  liad  l)ecome  insane,  unless 
the  appointment  of  a  guardian  for  him 
is  procured.  Mansfield  v.  Mansfield,  13 
Mass.  409. 

■^Rhtide  V.  Rhude,  8  Ohio  S.  &  C.  P. 
Dec.  048;  Cloicry  v.  dowry,  16  Ohio  C. 
C.  .302,  8  Oliio  C.  D.  052. 

''Shutt  V.  Shntt,  71  Md.  193,  17  Am. 
St.  Ptcp.  519,  17  Atl.  1024:  Mason  v. 
Maso7i,  131  Pa.  101,  18  Atl.  1008;  Bean 
V.  Bca7i,  11  Lane.  Bar,  138;  McVickar  v. 
McVickar,  40  N.  J.  Eq.  490,  19  Am.  St. 
Rep.  422,  19  Atl.  249. 

^'Elzeij  V.  Elzey,  1  Houst.   (Del.)   308. 

^Rose  V.  Rose,  9  Ark.  507 ;  Brown  v. 
Brown,  38  Ark.  324;  Dunn  v.  Dunn,  02 
Cal.  176;  Lyster  v.  Lyster,  111  Mass. 
327;  Burt  v.  Burt,  108  Mass.  204,  40  N. 
E.  022;  Batciielder  v.  Batcheldcr,  14  N. 
11.   380;    Goiirhiy   v.   Gourlay,    10   R.    L 


705,  19  Atl.  142.  And  see  Johnson  v 
Johnson,  35  Phila.  Leg.  Int.  70. 

"Uilaney  v.  Blariey,  126  Mass.  205; 
Luster  v.  Li/ster,  111  Mass.  327;  Porritt 
\\  Porritt,  16  Mich.  140. 

Though  proof  of  a  confirmed  habit  of 
drunkenness  prior  to  the  period  defined 
in  a  statute  authorizing  divorce  for  gen- 
eral drunkenness  for  a  specific  period  is 
admissible  in  evidence  as  bearing  upon 
the  issue  in  a  divorce  case,  the  statute 
cannot  be  construed  to  allow  a  divorce 
for  habitual  drunkenness  during  any 
period  prior  to  such  period  of  time  im- 
mediately preceding  the  filing  of  the  pe- 
tition, and  a  divorce  will  not  be  granted 
in  the  absence  of  evidence  of  habitual 
intoxication  during  tliat  period.  Rey- 
nolds V.  Reynolds,  44  Minn.  132,  40  N. 
W.  236. 

■■^Tilton  V.  Tilt  on,  IG  Ky.  L.  Rep.  538, 
29  S.  W.  290. 

"^Rinq  v.  Ring,  112  Ga.  854,  38  S.  E. 
330;    Daicson  v.   Darcson,  23   Mo.  App. 


§  55] 


DIVORCE. 


57 


quent  indulgence  in  the  use  of  intoxicating  liquors, — an  habitual  use 
as  distinguished  from  ordinary  use, — though  it  need  not  be  con- 
tinuous.'*" It  is  frequent  and  regular  recurrence  of  excessive  indul- 
gence in  intoxication  which  constitutes  habitual  drunkenness  amount- 
ing to  a  ground  for  divorce.^^  And  the  reason  that  habitual  drunk- 
enness is  made  a  gi'ound  for  divorce  is  not  alone  because  it  disqualifies 
the  party  for  business,  but  in  part,  if  not  mainly,  because  it  renders 
him  unfit  for  the  marital  relation ;  and  the  habit  of  becoming  intoxi- 
cated while  at  home  with  his  family  is  sufiicient  to  warrant  divorce 
though  when  abroad  in  the  community  transacting  business,  he  is  not 
habitually  intemperate.^^     A  man  may  drink  occasionally  to  excess. 


lfi9;  Barter  v.  Barber  (Conn.)  14  Law 
Rop.  375:  Younqs  v.  Youngs,  130  111. 
230.  fi  L.  R.  A.  548,  17  Am.  St.  Rep.  313. 
22  N.  E.  806 ;  Holland  v.  Holland,  4  Le- 
gal Gaz.  372. 

The  Massachusetts  statute  expressly 
includes  the  use  of  opium  in  the  pro- 
vision for  divorce  on  the  ground  of 
habitual  drunkenness;  but  to  warrant 
a  divorce  under  that  statute  the  use 
must  be  excessive,  and  must  cause  gross 
and  confirmed  drunkenness,  and  divorce 
is  not  authorized  where  the  habit  was 
not  gross  and  confirmed  at  the  time  of 
filing  the  libel,  though  it  hgd  previously 
been  so.  Burt  v.  Burt,  168  Mass.  204, 
46  N.  E.  622. 

*''Mack  V.  Handy,  39  La.  Ann.  491,  2 
So.  181 ;  Williarns  v.  Goss,  43  La.  Ann. 
868,  9  So.  750;  Walton  v.  Walton,  34 
Kan.  105,  8  Pac.  110;  McBee  v.  McBee, 
22  Or.  329,  29  Am.  St.  Rep.  613,  29  Pac. 
887. 

A  man  living  in  the  country,  who  only 
drank  when  he  happened  to  come  to 
town,  which  was  generally  on  business, 
and  then  not  always  to  excess,  and  who 
seldom  carried  liquor  home,  and  became 
grossly  drunk  on  only  a  few  occasions, 
and  was  sober  in  his  family  except  on 
such  occasions,  is  not  addicted  to  such 
habitual  drunkenness  as  to  authorize  a 
divorce.  McBee  v.  McBee,  22  Or.  329, 
29  Am.  St.  Rep.  613,  29  Pac.  887. 

And  general  statements  by  witnesses 
in  a  divorce  suit  that  the  defendant  was 
an  habitual  drunkard  are  not  sufhcient 
to  warrant  a  divorce;  the  facts  must  be 
given  so  that  the  court  may  judge 
wh.ether  or  not  they  amount  to  habitual 
drunkenness.  Patchelder  v.  Batchelder, 
14  N.  H.  380 

"Goldivfj  V.  Golding,  6  ]\Io.  App.  602 ; 
McGill  V.  McGill,  19  Fla.  341 ;  Marous 
V.  Marous,  86  111.  App.  597;  De  Lesder- 


nier  v.  De  Lesdernier,  45  La.  Ann.  1364, 
14  So.  191. 

One  may  be  an  habitual  drunkard 
within  the  divorce  law  where  he  has  a 
fixed  habit  of  frequently  getting  drunk, 
though  he  may  not  be  more  often  drunk 
than  sober,  and  though  sober  for  weeks 
at  a  time.  Brown  v.  Broicn,  38  Ark. 
324. 

And  one  who  was  customarily  or 
habitually  given  to  excessive  drinking 
for  a  period  of  years,  and  had  lost  the 
power  or  will  to  control  his  appetite,  was 
an  habitual  drunkard  witliin  a  divorce 
law,  though  he  was  not  disqualified  from 
attending  to  his  business  during  busi- 
ness hours.  Richards  v.  Richards,  19 
111.  App.  465;  Walton  v.  Walton,  34 
Kan.  105,  8  Pac.  110;  Mar/ahay  v.  Maga- 
hay,  35  Mich.  210;  Berryman  v.  Berry- 
man,  59  ]\Iich.  606,  26  N.  W.  789. 

And  so  is  one  having  a  fixed  habit  of 
drinking  to  excess  to  such  a  degree  as  to 
disqualify  him  from  attending  to  his 
business  during  the  principal  portion  of 
the  time  usually  devoted  to  business, 
though  he  may  have  been  in  a  position 
to  attend  to  business  affairs  during  in- 
teiwals.  Mahone  v.  Mahone,  19  Cal.  627, 
8]  Am.  Dec.  91. 

And  evidence  that  a  husband  had  be- 
come grossly  intoxicated  three  or  four 
times  a  year  for  twelve  or  fifteen  years, 
remaining  in  that  condition  from  a  week 
to  ten  days,  and  that  he  could  not  resist 
the  desire  ito  drink  when  it  came  upon 
him,  and  that  any  undue  excitement 
brought  it  on,  justifies  a  finding  of  con- 
firmed habits  of  intoxication  entitling 
his  wife  to  a  divorce.  Blaney  v.  Blaiiei/, 
126  Mass.  205. 

"McGill  V.  McGill,  19  Fla.  341 ;  Rich- 
ards V.  Richards,  19  111.  App.  465;  WiH- 
iams  V.  Goss.  43  La.  Ann.  8'i8.  9  So.  750. 

Habitual  intemperance  within  the  di- 


58 


MENTAL  IXSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  55 


however,  and  jet  not  be  an  habitual  drunkard  within  the  divorce 
law."*^  And  occasional  intoxication  in  a  woman  is  not  habitual  drunk- 
enness justifying-  a  divorce  any  more  than  it  is  in  a  man.*^ 

Living  with  a  drunken  husband  after  the  statutory  period  upon  the 
expiration  of  which  a  divorce  is  warranted,  for  tlie  purpose  of  re- 
claiming and  reforming  him,  will  not  affect  the  rights  of  the  wife ;  but 
if  she  voluntarily  continues  tiie  marital  relation  after  he  ceases  to  be 
a  drunkard,  she  condones  the  offense,  and  nullifies  her  right  to  a  di- 
vorce.*^ And  the  commission  of  an  act  of  adultery  is  a  bar  to  a 
divorce  on  the  ground  of  habitual  drunkenness,  and  a  wife  sued  for 
divorce  on  that  ground  may  recriminate  that  the  husband  had  been 
guilty  of  adultery."*® 

56.  Effect  of  drunkenness  on  desertion  as  a  ground. — A  wife  whose 
husband  continues  his  habits  of  intoxication  to  the  extent  of  render- 
ing it  unsafe  for  her  to  live  with  him  after  the  statutory  period  auth- 
orizing a  divorce  for  desertion  is  entitled,  after  her  separation  from 


vorce  law  refers  to  a  persistent  habit  of 
hecomir.g  intoxicated,  rendering  the 
presence  of  the  party  in  the  marriag<i 
relation  disgusting  and  unendurable. 
Burns  v.  Burns,  13  Fla.  369. 

So,  proof  of  the  wasting  on  the  part 
of  a  husband  of  his  mental  and  physical 
faculties,  and  of  his  failure  to  make 
suitable  provision  for  his  family,  war- 
rants a  divorce  under  a  statute  authoriz- 
ing it  for  confirmed  habits  of  drunken- 
ness on  the  part  of  the  husband,  accom- 
panied by  a  wasting  of  his  estate,  and 
failure  to  provide  for  his  family,  where 
his  only  estate  consisted  of  the  mental 
and  phvsical  faculties,  ^huck  v.  Shuck, 
7  Bush,  306;  McKay  v.  McKay,  18  B. 
Mon.  S. 

"^Walton  V.  Walton,  34  Kan.  195,  8 
Pac.  110;  Myrick  v.  Myrick,  67  Ga.  771 ; 
McBee  v.  McBee,  22  Or.  329,  29  Am.  St. 
Rep.  613,  20  Pac.  887. 

And  the  fact  that  a  husband  became 
intoxicated  about  once  in  three  weeks 
during  the  evening  to  such  an  extent 
that  he  could  not  go  to  work  the  next 
morning,  and  had  continued  to  do  so  for 
about  two  years,  does  not  warrant  a 
divorce  for  habitual  intemperance, 
where  it  had  not  caused  the  loss  of  his 
position  or  want  or  suffering  in  his 
family.  Dennis  v.  Dennis,  68  Conn. 
186,  34  L.  R.  A.  449,  57  Am.  St.  Ren. 
95,  36  Atl.  34. 

'*\Jeathe  v.  Meathe,  83  Mich.  150.  47 
N.  W.  109. 

The  ways  of  life  of  parties  to  an 
action    for    divorce    asked    for    on    the 


ground  of  drunkenness,  who  are  unre- 
fined, are  not  to  be  tested  by  the  stand- 
ard of  cultivated  persons,  but  by  rules 
which  reasonable  persons  in  the  same 
conditions  of  life  would  spontaneously 
acknowledge.  Kline  v.  Kline,  50  Mich. 
438,  15  N.  W.  541. 

*''Moore  v.  iloore,  41  Mo.  App.  176. 

The  fact  that  a  wife  was  unrefined 
and  not  always  ladylike,  and  was  some- 
times profane,  and  that  she  acquiesced 
somewhat  in  the  drinking  habits  of  her 
husband,  does  not  bar  her  right  to  a 
divorce  for  habitual  drunkenness. 
Berryman  v.  Berryman,  59  Mich.  605, 
26  N.  W.  789. 

^''Ryan  v.  Ryan,  9  Mo.  539. 

The  value  of  negative  testimony  in  a 
divorce  case,  that  the  witnesses  had  not 
seen  the  defendant  drunk  depends  upon 
their  intimacy  with  him  and  their  in- 
telligence and  opportunity  to  observe, 
and  is  a  question  for  the  determination 
of  the  trial  court.  'Walton  v.  Walton, 
34  Kan.   195,  8  Pac.   110. 

And  such  evidence  is  not  sufficient  to 
rcbiit  affirmative  evidence  of  others  that 
thfv  liad  seen  him  drunk.  Richards  v. 
Richards,  19  111.  App.  465. 

A  decree  denying  a  divorce  asked  for 
on  the  ground  of  habitual  drunkenness 
will  not  be  disturbed  on  appeal,  where 
the  evidence  in  the  record  is  not  such 
that  the  court  can  feel  entirely  satisfied 
what  decree  ought  to  he  made.  Mo- 
Goneqal  v.  McGoncgal,  46  Mich.  66,  8 
N.  W.  724. 


56] 


DIVORCE. 


99 


him  on  that  account,  to  a  divorce  upon  that  ground.*'^  And  drunken- 
ness which  disqualifies  a  husband  from  discharging  his  marital  duties 
and  obligations,  and  compels  the  wife  to  leave  him,  constitutes  a  de- 
gree of  ciiielty  in  itself  which,  if  continued  for  a  period  in  analog}' 
with  the  time  prescribed  by  the  abandonment  statute,  would  warrant 
a  divorce  for  abandonment.^^  But  mere  intemperance  and  improvi- 
dence on  the  part  of  a  husband,  on  account  of  which  a  wife  refuses  to 
live  with  him,  do  not  render  the  separation  a  desertion  by  the  husband 
within  the  meaning  of  the  divorce  law."*^ 

57.  Effect  of  drunkenness  on  cruelty  as  a  ground. —  Mere  drunken- 
ness upon  the  part  of  one  party  does  not  entitle  the  otlier  party  to  a 
marriage  to  a  divorce  upon  the  ground  of  cruelty  and  inhuman  treat- 
ment,^'^ the  cruelty  being  required  to  be  something  different  from  any 
other  cause  of  divorce,  constituting  a  separate  and  distinct  cause  of 
action.^^  And  even  though  the  drunkenness  is  accompanied  by  con- 
siderable violence,  it  is  not  sufficient  where  the  drunkenness  is  the  real 
cause  of  the  application.^^    Nor  do  harshness,  indecency,  and  abusive 


"McVicJcar  v.  McVicJcar,  46  N.  J.  Eq. 
490,  19  Am.  St.  Rep.  422,  19  Atl.  249; 
James  v.  James,  58  N.  H.  266. 

"^Camp  V.  Camp,  18  Tex.  528. 

Where  a  husband  from  whom  his  wife 
had  separated  because  of  his  habits  of 
intemperance  making  it  unsafe  for  her 
to  live  with  him,  so  far  reformed  as  to 
render  it  reasonably  safe  for  her  to  re- 
sume cohabitation,  it  is  his  duty  to  seek 
her  out  and  manifest  his  reformation ; 
and  if  he  fails  to  do  so  and  prolongs 
separation  for  the  statutory  period  after 
his  reformation,  the  wife  being  ignorant 
of  the  change,  he  is  guilty  of  desertion 
which  would  warrant  a  divorce  on  that 
ground.  McVickar  v.  McVickar,  46  N. 
J.  Eq.  490,  19  Am.  St.  Rep.  422,  19  Atl. 
249. 

*^PUmlen  V.  Plimley,  35  N.  J.  Eq.  18: 
Lainq  v.  Laing,  21  N.  J.  Eq.  248. 

Habits  of  intoxication  on  the  part  of 
a  husband  so  gross  and  confirmed  as  to 
render  a  continuance  of  cohabitation 
with  him  unendurable  might  justify  a 
wife  in  separating  from  him,  under  the 
Massachusetts  sta-tute,  so  that  such 
separation  would  not  justify  a  divorce; 
although,  for  want  of  proof  that  sucli 
habits  had  been  contracted  since  mar- 
riage, or  of  cruel  treatment,  they  would 
not  amount  to  one  of  the  statutory 
causes  of  divorce.  Li/ster  v.  Lystcr,  1 1 1 
Mass.  327. 

'"Anonymous,     17    Abb.    N.    C.      231  : 


Mason  v.  Mason,  1  Edw.  Ch.  278;  Hud- 
son V.  Hudson,  3  Swabey  &  T.  314,  33  L. 
J.  Prob.  N.  S.  5,  9  Jur.  N.  S.  1302,  9  L. 
T.  N.  S.  579,  12  Week.  Rep.  216. 

Nor  will  cruelty  on  his  jiart  prevent 
a  divorce  for  adultery  in  favor  of  a 
husband  against  his  wife,  where  the 
wife's  drunken  and  vicious  habits  were 
the  cause  of  his  violence.  Pearman  v. 
Pearman,  1  Swabey  &  T.  601,  29  L.  J. 
N.  S.  54,  S  Week.  Rep.  274. 

And  adulterous  conduct  falling  short 
of  actual  adultery,  and  excessive  drink- 
ing not  amounting  to  habitual  intemper- 
ance, do  not  furnish  a  cause  of  action 
for  divorce  for  extreme  cruelty.  Has- 
kell V.  Haskell,  54  Cal.  262. 

"Haskell  v.  Haskell,  54  Cal.  262; 
Kempf  V.  Kempf,  34  Mo.  211. 

So,  the  habitual  use  of  opium  by  a 
wife,  to  the  neglect  of  her  household 
duties,  is  not  cruelty  which  will  war- 
rant a  divorce  in  favor  of  her  husband. 
Holland  v.  Holland,  4  Legal  Gaz.  372: 
Bean  v.  Bean,  11  Lane.  Bar,  138. 

And  that  a  wife  was  an  habitual  user 
of  morphine,  and  under  its  influence 
most  of  the  tinie,  is  not  admissible  in 
an  action  for  divorce  for  cruelty  brought 
against  her  by  her  husband.  Smith  v. 
Smith   (Ga.)   46  S.  E.  106. 

'-Scott  V.  Scott,  29  L.  J.  Prob.  N.  S. 
64. 

And  ill  treatment  of  a  wife  during 
sprees     of    inebriation,    and    proceeding 


GO 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  57 


language,  combined  with  constant  intoxication,  amount  to  legal 
cruelly;  there  must  be  something  more  than  mere  injury  to  a  person's 
sensibilities  and  delicacy.^^  And  habitual  drunkenness  and  neglect 
to  provide  for  one's  wife  and  family  do  not  constitute  cruelty  and  in- 
human treatment.''"'^  But  the  right  of  a  wife  to  relief  is  not  affected 
by  the  fact  that  her  husband's  conduct  entitling  her  to  a  divorce  for 
cruelty  was  the  result  of  intemperance  to  which  she  did  not  consent^^ 
And  the  fact  that  habitual  drunkenness  is  in  itself  .sufficient  ground 
for  divorce  is  no  mitigation  of  the  offense."^  And  acts  of  violence  by 
a  husband  toward  his  wife,  considered  in  connection  with  other  mis- 
conduct, SQch  as  drunkenness,  may  be  sufficient  to  warrant  the  disso- 
lution of  the  marriage  on  the  ground  of  cruelty,  though  neither  act, 
taken  alone,  would  constitute  legal  cruelty.^^     But  the  difficulties  of 


from  it,  does  not  constitute  cruelty 
justifying  a  divorce,  in  the  absence  of 
evidence  of  a  fixed  purpose  to  ill  treat 
her,  or  that  he  no  longer  entertained 
affection  for  her.  Brown  v.  Broitm,  3S 
Ark.  324.  And  see  Shutt  v.  Shutt,  71 
Md.  193,  17  Am.  St.  Rep.  519,  17  Atl. 
1024;  Laing  v.  Laino,  21  N.  J.  Eq.  248. 

'■'■Pouers  V.  Poiters,  20  Neb.  529,  31  N. 
W.  1;  Waskam  v.  Waskavi,  31  Miss. 
154;  C.  V.  C.  28  Eng.  L.  &  Eq.  Rep.  603; 
Broicn  v.  Brotvn,  L.  R.  1  Prob.  &  D>v. 
46,  35  L.  J.  Prob.  N.  S.  13.  11  Jur.  N.  S. 
1027,  13  L.  T.  N.  S.  645,  14  Week.  Rep. 
149;  Mason  v.  Mason,  1  Edw.  Ch.  278. 
And  see  Holland  v.  Holland,  4  Legal 
Gaz.  372. 

And  the  facts  that  the  conversation 
and  deportment  of  a  husband  were  not 
always  characterized  by  the  delicacy 
and  tenderness  which  might  be  expect- 
ed, and  tliat  occasionally,  when  in  a 
passion  induced  or  aggravated  by  in- 
toxication, he  was  vulgar,  profane,  and 
boisterous,  do  not  entitle  his  wife  to  a 
divorce  and  alimony  on  the  ground  of 
inhuman  treatment  endangering  her 
life.       Jiopgess  v.  Boggess,  4  Dana,  308. 

'-'Ciimp  v.  Camp,  18  Tex.  528;  Laing 
V.  Laing,  21  N.  J.  Eq.  248. 

''IJarrnan  v.  Barman,  16  111.  85; 
Boiric  V.  Boioic,  3  Md.  Ch.  51 ;  McVickar 
V.  MoVickar,  46  N.  J.  Eq.  490,  19  Am. 
St.  Rep.  422.  19  Atl.  249;  Mason  v. 
Mason,  1  Edw.  Ch.  278;  Hughes  v. 
Hvghcs,  19  Ala.  308;  Waddrll  v.  Wad- 
dell,  2  Swabev  &  T.  584,  31  L.  J.  Prob. 
N.  S.  123.  8  Jur.  N.  S.  623,  6  L.  T.  N.  S. 
552. 

Cruelty  of  a  husband  while  drunk, 
toward  an  amiable  and  inofiensive  wife, 


is  a  gi'ound  for  divorce,  though  he  was 
good  and  kind  when  sober.  Lockridge 
V.  Lockridge,  3  Dana,  28,  28  Am.  Dec. 
52. 

And  inhimian  treatment  warranting  a 
divorce  is  established  by  proof  that  a 
husband  frequently  became  drunk,  and 
while  in  that  condition  choked  or  as- 
saulted his  wife  and  accused  her  of  im- 
moral conduct  and  locked  her  up  and 
threatened  her.  Wheeler  v.  Wheeler,  53 
Iowa,  511,  36  Am.  Rep.  240,  5  N.  W. 
689;  Mason  v.  Mason,  131  Pa.  161,  IS 
Atl.   1008. 

=«Lee  v.  Lee,  3  Wash.  236.  28  Pac. 
355;  Cnnip  v.  Camp,  18  Tex.  528. 

A  petition  for  divorce  on  the  ground 
of  habitual  intoxication  cannot  be 
amended  by  adding  thereto  the  ground 
of  cruel  treatment,  although  the  facts 
alleged  to  constitute  such  treatment  are 
substantially  the  same  as  those  set 
fortli  in  the  petition.  Ring  v.  Ring, 
112  Ga.  854,  38  S.  E.  330. 

'■''Poaer  V.  Poucr.  11  Jur.  N.  S.  800,  4 
Swabev  &  T.  173.  34  L.  J.  Prob.  N.  S. 
137,  12  L.  T.  N.  S.  824,  13  Week.  Rep.  • 
1113.  And  see  Crichton  v.  CricJtton,  73 
Wis.  59,  40  N.  W.  038;  Wachholz  v. 
Wachholz,  75  Wis.  375,  44  N.  W.  506; 
Streiluolf  v.  Strvitwolf  (N.  J.  Eq.)  47 
Atl.  14;  Poicers  v.  Powers,  20  Neb.  529, 
31  N.  W.  1;  Allen  v.  Allen,  31  Mo.  470; 
Lee  V.  Lee.  3  Wasli.  236,  28  Pac.  355. 

In  Clittch  V.  Clutch,  1  N.  J.  Eq.  475, 
an  absolute  di\orce  was  denied,  but  .a 
decree  of  separation  for  a  term  of  years 
was  granted  upon  evidence  that  the  hus- 
band had  licen  intemperate  and  grossly 
abusive,  and  tliat  in  two  instances  he 
turned   his   wife  out   of  doors,   and   fre- 


§  57] 


DIVORCE. 


61 


the  parties  must  have  been  the  consequence,  and  not  the  cause,  of  the 
intemperance.^^  Bodily  injuries  inflicted  upon  a  wife  by  her  husband 
while  suffering  from  delirimn  tremens  are  sufficient  ground  for  ju- 
<licial  sei)aration,  where,  though  the  disorder  has  subsided,  the  wife 
cannot  cohabit  with  him  without  danger  of  repetition  of  the  injuries.^^ 
And  habits  of  intoxication  on  the  part  of  a  husband  may  ordinarily  Ix^ 
considered  in  connection  with  other  objectionable  act^  on  his  part  as 
tending  to  give  color  to  and  explain  his  conduct,  and  the  nature  and 
character  of  the  violence  used  and  threats  made.®** 


quently  refused  to  provide  for  his 
family  the  common  necessities  of  life, 
and  nsed  personal  violence  against  her, 
upon  the  theory  that  the  case  was  not 
one  of  an  aggravated  character,  and 
that  there  might  be  hope  of  reformation 
or  conciliation. 

^^Vltite  v.  White,  1  Swabey  &  T.  592, 
6  Jur.  N.  S.  28,  1  L.  T.  N.  S.  197.  And 
see  Mnclc  v.  Handy,  39  La.  Ann.  491,  2 
So.  181  ;  Leake  v.  Linton,  6  La.  Ann. 
2G2 ;  Williams  v.  Goss,  43  La.  Ann.  8GS, 
9  So.  750. 

"Marsh  v.  Marsh,  28  L.  J.  Prob.  N. 


S.  13,  1  Swabey  &  T.  312,  5  Jur.  N.  S. 
46,  7  Week.  Rep.  129;  Roblin  v.  Roblin, 
28  Grant  Gh.    (U.  C.)    439. 

""Coursey  v.  Coursey,  GO  111.  180;  Har- 
inan  v.  Harman,  IG  111.  85;  Rodman  v. 
Rodman.  20  Grant  Ch.    (U.  C.)   448. 

So,  habits  of  profiinity,  though 
furnishing  no  ground  for  divorce,  may 
be  taken  into  consideration  in  connec- 
tion with  habits  of  intoxication,  in  an 
action  for  divorce  for  cruelty,  as  giving 
color  to  the  conduct  of  the  husband. 
Powers  V.  Powers,  20  Neb.  529,  31  N- 
W.  1. 


CHAPTEK  IV. 

WILLS. 

1.  Capacity,  generally. 

58.  Disposing  mind;   definition  and  necessity  of. 

59.  Idiots  unable  to  make  a  will. 

60.  Different  theories  as  to  necessary  qualifications. 

61.  Theory,  that  low  grade  of  intelligence  is  sufficient. 

62.  Rule  changed. 

63.  Business  capacity  test. 

64.  Test  of  contractual  capacity. 

65.  Test  of  capacity  to  understand  transaction. 

66.  Test  of  capacity  to  collect  and  retain  in  mind. 

67.  Test  of  capacity  to  understand  claims  to  bounty. 

68.  Delusion  test. 

69.  Capacity  for  criminal  responsibility  as  a  test. 

70.  Time  of  application  of  tests. 

71.  Mere  mental  weakness  does  not  incapacitate. 

72.  Age,  weakness,  di.sease. 

73.  Failure  of  memory. 
n.  Monomania,  or  partial  insanity. 

74.  Partial  insanity  defined. 

.  75.  Legal  existence  and  recognition. 

76.  Conflict   in   the   decisions    reconciled   by   theory   of   mental 

twilight. 

77.  Effect  of  monomania  on  capacity;  modern  rule. 

78.  Moral  insanity. 

79.  Even  morbid  derangement  need  not  incapacitate. 
ni.  Delusions. 

80.  Definitions. 

81.  Will  void  when  the  result  of  insane  delusion, 

82.  Not  avoided  by  collateral   delusion. 

83.  Must   be   insane. 

84.  Must  actively  exist. 

85.  Prejudice,  eccentricity. 

86.  Speculative  beliefs. 

rV.  Incapacity  acted  upon  by  fraud  ob  undue  influence. 

87.  Effect  generally. 

88.  Must  amount  to  restraint. 

89.  Effect   of   trust   relations. 

90.  Question  is  one  of  capacity  to  resist. 
V.  Intoxication. 

91.  Degree  of  drunkenness  affecting. 

92.  Exception  in  case  of  vmdue  infiuence. 

62 


WILLS.  63 

93.  Habitual  driinkard  not  necessarily  incapacitated, 

94.  Drunkenness  is  evidence  only. 

95.  Use  of  medicines  may  produce  incapacity. 
VI.  Methods  of  determining  capacity  or  incapacity. 

96.  Questions  of  law  for  the  court. 

97.  Questions  of  fact  for  the  jury. 

98.  Equity  cases, 

VII.  Peoof  of  incompetency — weight,  sufficiency. 

c.  General   rules. 

99.  General   insanity. 

100.  Partial  insanity  and  delusion. 

6.  By  attesting  witnesses  and  others  present 

101.  Cogency  and  necessity  of. 

102.  Value. 

103.  Denial  of  competency;   self-contradiction. 
C.  The  act  itself. 

104.  Preparation  of  instrument. 

105.  Rationality  of  the  will. 

106.  Equality  and  justice  of  the  provisions. 

107.  Conformity  to  previous  intentions. 

108.  The  act  itself  in  case  of  intoxication. 

d.  Conduct  and  behavior. 

109.  Of  testator. 

110.  Conduct  of  others. 

111.  Change  of  character  or  disposition. 

112.  Intoxication  in  connection  with  conduct  and  circumstancea. 
6.  Conditions,  circumstances,  and  surroundings. 

113.  Business  acts  and  capacity. 

114.  Business  acts  by  drunkard. 

115.  Previous  and  subsequent  insanity. 

116.  Previous  and  subsequent  intoxication. 

117.  Hereditary  tendency. 

118.  Insanity,  fraud,  and  incapacity  combined. 

119.  Drunkenness  in  connection  with  undue  influence  and  fraud. 

120.  Instructions,  knowledge,  and  intent. 

121.  Knowledge  of  contents  in  case  of  drunkenness. 

122.  Ratification  or   subsequent  recognition. 
f.  Old  age. 

123.  Old  age  does  not  per  se  incapacitate. 

124.  So,  of  partial  loss  of  faculties. 

125.  And  bodily  infirmities. 

126.  Excessive  failure  of  memory  invalidates. 

127.  And  senile  dread  of  relatives. 
g.  Physical  condition. 

128.  Mere  weakness  and  its  effects. 

129.  Absolute  prostration. 

130.  Deaf  and  dumb  testators. 

h.  Inquisition  of  lunacy  or  drunkenness  as  evidence. 
VIII.  Lucid  intervals. 

131.  Application   of  doctrine  to  wills. 


64  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  58 

132.  Restoration  of  disposing  mind  must  be  shown. 

133.  How  proven. 

IX.  Unexecuted  oit  nuncupative  wills. 

134.  Nature;    strict  proof   of   intent  necessary. 
X.  Revocation. 

135.  Effect  of  destruction  or  defacement. 

XI.   MOKPniNISM   AND  OTHER   ADDICTIONS. 

136.  Rules  as  to  drunkenness  apply. 

I.   Capacity,  generally. 

58.  Disposing  mind;  definition  and  necessity  of. — A  disposing 
mind,  the  existence  of  which  is  essential  to  testamentary  capacity,  is 
a  mind  intelligent  enough  to  have  a  general  idea  of  the  property  to  be 
disposed  of  and  of  the  objects  among  which  the  distribution  ought  to 
be  made.  When  we  come,  however,  to  concrete  cases,  two  important 
and  often  conflicting  conditions  are  to  be  considered.  On  the  one  side 
the  comfort  of  the  weak,  the  dependent,  and  the  aged,  depends  largely 
upon  their  testamentary  capacity  being  maintained.  If  they  cannot 
leave  property  to  persons  kind  to  them,  they  may  be  often  left  to  suffer 
from  want  of  kindness.  On  the  other  side,  if  a  person  of  feeble  in- 
tellect is  so  far  exposed  to  the  coercion  or  fraud  of  others  as  to  validate 
testamentary  provisions  made  by  him  under  the  pressure  of  such  coer- 
cion or  fraud,  then  not  only  may  his  life  be  made  miserable,  but  he 
may  become  instrumental  in  perpetrating  great  wrongs.  Hence  it 
is  that  to  constitute  a  disposing  mind  there  must  be,  as  will  hereafter 
l^e  more  fully  seen,  capacity  as  well  to  resist  undue  influence  as  to  take 
a  general  view  of  the  estate  to  be  bestowed  and  the  objects  among 
whom  it  is  to  be  distributed.^ 

59.  Idiots  unable  to  make  a  will. —  An  idiot,  it  is  agreed  on  all 
sides,  has  no  testamentary  capacity;^  though  as  to  what  constitutes 
idiocy  tliere  is  as  much  doubt  in  testamentary  as  in  contractual  issues. 
"Idiocy,"  according  to  Dr.  Eay,  "is  that  condition  of  mind  in  which 
the  reflective  and  all  or  a  part  of  the  affective  powers  are  either  en- 
tirely wanting,  or  are  manifested  to  the  slightest  possible  extent."^ 

'Mr.  Bigelow  argues  (1  Jarman.  Wills,  true  question  in  such  cases  being  wheth- 

.5th    Am.    ed.,    note    to    *38)     that    the  or  the  supposed  testator  had  sufficient 

term,  "a  disposing  mind,"  is  ambiguous  mental   ability  at  the  time  to  exercise 

and  misleading.     For,  ho  says,  it  is  "ap-  will."    See  also  Randolph  &  T.'s  note  to 

plied  to  issues  of  insanity  in  the  sense  of  Jarman,  p.  100. 

perverted  (diseased)  intellect,  where  the        H   Jarman,   Wills,   .5th   Am.   ed.   *34, 

real   question   is  not    whether    the    de-  1    Kandolph   &  T.'s   ed.   p.   63;    1   Redf. 

cedent  had  capacity  to  make  a  will,  but  Wills,  §§  7,  8. 

whether  he  did  (normally)  will."  where-        'Medical   Jurisprudence    of    Insanity, 

as,   "it   is   applicable   properly   only   to  1871,  §  58;   and  the  following  remarks 

issues  of  decay  or  of  want  of  mind;  the  are   worthy   of  attention:     He  tells  ub 


$  59]  WILLS.  65 

Where  there  is  even  a  low  degree  of  intelligence,  idiocy  cannot  he  said 
to  exist.  The  test  is  comparatively  simple.  If  the  pretended  idiot 
can  be  shown  to  have  intelligently  perfomied  acts  of  business  during 
the  period  in  which  idiocy  be  claimed  to  have  existed,  the  allegation  of 
incompetency  on  this  ground  falls,  unless  fraud  or  constraint  be 
shown."* 

60.  Different  theories  as  to  necessary  qualifications. —  The  cases  con- 
sidering the  question.  What  constitutes  unsoundness  of  mind  in  its 
legal  sense  ?  may  be  gi'ouped  in  tliree  classes.  In  the  first  we  have 
those  which  proceed  upon  the  notion  that  no  man  is  incapable  of  mak- 
ing a  will  unless  he  is  absolutely  insane ;  in  the  second,  those  which 
proceed  upon  the  test  of  ordinary  business  sagacity  and  capacity; 
while  in  the  third  are  to  be  considered  such  as  require  of  each  testator 
certain  specified  qualifications  for  making  a  will,  the  absence  of  any 
one  of  which  incapacitates. 

61.  Theory  that  low  grade  of  intelligence  is  sufficient. — The  rule  has 
been  laid  down  tliat  on  questions  of  testamentary  capacity  the  courts 
will  £.r>t  undertake  to  measure  the  size,  degree,  or  extent  of  a  man's 
imderstanding,*'  and  that  all  persons  are  in  law  either  of  sound  mind 
or  of  unsound  mind,  there  being  no  middle  groimd  between  capacity 
and  incapacity.^  Within  this  rule  mere  imbecility  of  mind  of  a  testa- 
tor, however  great,  does  not  avoid  his  will  if  he  be  not  an  idiot  or  ii 
lunatic.'^  A  person  is  capable  of  disposing  of  his  property  by  will, 
be  he  wise  or  unwise,  if  not  totally  deprived  of  reason.^    The  standard 

that   "there   is   even   more   diversity  in  ''Blanchard  v.   Nestle,    3    Denio,    37 : 

the  characters  of  the  idiotic  and  imbe-  Steioart  v.  Lispenard,  26  Wend.  255. 

cile  than  in  those  of  the  sound;  and  this  ^Morris  v.  Btoke/i,  21  Ga.  552;   Potts 

truth  must  not  be  forgotten  if  we  would  v.  Hoiise,  6  Ga.  324,  50  Am.  Dec.  329 ; 

avoid   the   flagrant   error   of   regulating  Dufftcld  v.  Robeson,  2  liarr.  (Del.)  375: 

judicial      decisions     by     rules,     which,  Blanchard  v.  Nestle,  3  Denio,  37;   New- 

though  perfectly  correct  in  regard  to  one  house  v.  Godwin,  17  Barb.  23G;  Dornick 

case  or  set  of  cases,  may  be  wholly  in-  v.  Reichcnback,  2  Serg.  &  R.  84. 

correct  in  regard  to  others."  The  term  "unsound  mind,"  as  used  in 

*Bannatij7ie  v.  Bannatyne,  2  Rob.  Eccl.  statutes  with  relation  to  wills,  is  of  tlic 
Rep.  475,  16  Jur.  804,  14  Eng.  L.  &  Eq.  same  signification  under  this  rule  as  the 
Rep.  581.  In  this  case  Dr.  Lushington  term  ''nan  compos'meniis."  Blanchard  v. 
placed  the  test  on  the  ground  that  many  Nestle,  3  Denio,  37.  And  see  Re  Far- 
acts  of  business  could  possibly  be  done  7nan,  54  Barb.  274. 

by  a  lunatic  and  the  lunacy  not  be  de-  And  to  be  incompetent  to  make  a  will, 

tected;   but  it  is    scarcely    possible    to  the  mind  of  the  testator  must  have  been 

predicate  the  same  of  an  idiot  or  an  im-  so  prostrated  as  to  lose  the  government 

becile  person.  of  reason  and  common  sense.     Leeper  v. 

^Stewart  v.  Lispenard,  26  Wend.  255;  Taylor,  47  Ala.  221;  Crolius  v.  Stark,  7 

Jamison   v.   Jamison,   3    Houst.    (Del.)  Lans.  311. 

108;  Duffield  V.  Robeson,  2  Ilarr.  (Del.)  In   Stewart   v.   Lispenard,   26   Wend. 

375 ;   Dornick  v.  Reichenback,   10  Serg.  255,  it  was  held  that  a  woman  who  had 

&  R.  84.  always    lived   under    the    care    of    her 

'McElroy  v.  McElroy,  5  Ala.  81;  Aikin  friends,  had  never  attempted  to  transact 

V.  Weckerly,  19  Mich.  482.  business,  and  who,  at  the  age  of  forty, 
Vol.    I.    Med.    Jur. — 5. 


68  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  61 

of  testamentary  capacity  was  found  in  the  question  whether  the  tes- 
tator was  compos  mentis  or  non  compos  meiitis  according  to  the  legal 
meaning  of  the  terms,^  The  question  to  be  submitted  to  the  jury  was 
whether  he  had  capacity  to  make  a  will ;  and  not  whether  he  had  the 
capacity  to  make  the  will  in  question.  If  compos  mentis  he  could 
make  any  will,  however  complicated;  and  if  noti  compos  mentis  he 
could  make  no  will,  however  simple. •*** 

62.  Rule  changed. — This  view  of  testamentary  capacity  was  fol- 
lowed for  a  time  in  several  cases  in  iSTew  York,^^  and  it  has  been 
adopted  in  Georgia.^^  In  that  state  it  is  now  settled  that  a  disposing 
mind  exists  unless  there  is  a  total  deprivation  of  reason.^  ^  But  it  is 
no  longer  the  rule  in  New  York.^'*  And  the  rale  which  is  now  preva- 
lent, if  not  universal,  is  that  a  total  deprivation  of  reason  is  not  neces- 
sary to  destroy  testamentary  capacity,  and  that  the  impairment  of  the 
mind  need  not  amount  to  lunacy  or  absolute  imbecility  or  idiocy  ;^^  it 
not  being  necessary,  to  invalidate  a  will,  that  the  incapacity  should 
be  such  as  to  render  the  testator  incapable  of  understanding  that  he 
was  making  a  disposition  of  his  property ;  but  only  that  it  should  have 
rendered  him  unable  to  comprehend  the  nature  and  extent  of  his  prop- 
erty, and  to  know  what  persons  he  intended  to  provide  for.^^ 

had  not  mastered  the  Lord's  Prayer,  and  149;    Mounlarn   v.    Bennet,    1    Cox    Ch. 

whose  intellect  and  understanding  were  Cas.  356. 

of  a  very  low  degree,  was  nevertheless  To  invalidate  a  will,  the  mind  of  the 

competent  to  execute  a  will.  testator  need  not  have  been  in  such   a 

'Dela field  v.  Parish,  25  N.  Y.  9;  Ean  condition  as  to  be  an  object  for  a  coni- 

V.  Snyder,  46  Barb.  230;   Blanchard  v.  mission  of  lunacy.     Mountain  v.  Bennet, 

Xestle,  3  Denio,  37.  1  Cox  Ch.  Cas.  356;  Townsend  v.  Bogart, 

">Yoe  V.  McCord,  74  111.  33;   Legg  ▼.  5  Redf.  93. 

Myer,  5  Redf.  628;  Buclianan  v.  Betsey,  ^"Young  v.  Ridenbaugh,  67  Mo.  574. 

65  App.  Div.  58,  72  N.  Y.  Supp.  601.  The  words  "of  unsound  mind,"  as  used 

"Blanchard   v.    A'es//e,    3    Denio,    37;  in   the   Indiana   statute   of  wills,   mean 

Clarke  v.  Saioyer,  2  N.  Y.  498;  Burger  such  a  degree  of  unsoundness  of  mind  as 

V.  Hill,  1  Bradf.  360.     And  see  Buclian-  incapacitates   one   from   making   a   will 

an  V.  Belsey,  65  App.  Div.  58,  72  N.  Y.  according  to  the  standard  of  testamen- 

Supp.  601.  tary  capacity  fixed  by  the  adjudicated 

^-Potts  V.  House,  6  Ga.  324,  50  Am.  cases,  including  other  species  of  mental 

Dec.  329.  unsoundness.    Bloiiqh  v.  Parry,  144  Ind. 

'^Gardner  v.   Lamback,  47    Ga.     133;  463,  40  N.  E.  70,  43  N.  E.  560;  Willcti 

Morris  v.  Stokes,  21  Ga.  552.  v.  Porter,  42  Ind.  250;  Young  v.  Miller, 

"Delafield  v.  Parish,  25  N.  Y.  9.     But  145  Ind.  652,  44  N.  E.  757. 

see   Buchanan  v.   Belsey,   65   App.   Div.  And  an  instruction  in  a  will  contest 

58,  72  N.  Y.  Supp.  601,     This,  however,  that  it  is  not  necessary  to  show  that  the 

was  not  a  contested  probate,  but  an  ac-  alleged   unsoundness  of  mind  had   any- 

tion  to  set  aside  a  will.  thing  to  do  with  the  manner  of  dispos- 

"Stuhbs    V.    Houston,    33    Ala.    555 ;  ing  of  the  property  is  erroneous,  as  rec- 

Abraham  v.  Wilkins,  17  Ark.  292;  Pela-  ognizing  but  two  conditions  of  the  hu- 

mourges  v.  Clark,  9  Iowa,  1;   Campbell  man  mind,-^one   sound   and  capable  of 

V.  Campbell,  130  111.  466,  6  L.  R.  A.  167,  doing  all  acts,  and  the  other  insane  and 

22  N.  E.  620;   Daniel  v.  Daniel,  39  Pa.  incapable  of  doing  anv  act.     Durham  v. 

191;  McTaggart    v.    Thompson,    14    Pa.  Smith,  120  Ind.  463,  22  N.  E.  333. 


i  63] 


WILLS. 


67 


63.  Business  capacity  test. —  Capacity  for  the  transaction  of  ordi- 
nary business  has  been  adopted  to  some  extent  as  the  test  of  testa- 
mentary capacity.^ '^  Wi^iin  tliis  rnle  it  is  sufficient  that  the  testator 
is  capable  of  acting  rationally  and  understands  the  relation  of  cause 
and  effect  in  ordinary  business  affairs.^*  And  buying  and  selling 
property,  settling  accounts,  collecting  and  paying  out  and  borrowing 
and  loaning  money,  and  making  contracts  and  conveyances,  constitute 
the  transaction  of  ordinary  business  within  this  rule.^^  Many  of  the 
later  cases,  however,  tend  toward  the  combination  of  this  test  with  the 
requirement  of  capacity  to  understand  the  business  engaged  in  in  mak- 
ing a  will,-''  and  with  that  to  imderstand  and  comprehend  the  disposi- 
tion made  of  the  property,^^  and  wntli  that  of  capacity  to  select  the 
objects  of  one's  bounty .^^  And  the  business  capacity  test  has  been  ex- 
pressly repudiated  by  other  cases  holding  that  less  capacity  is  required 
to  make  a  valid  will  than  to  transact  ordinary  business,^^  and  that  one 
who  has  sufficient  capacity  to  rationally  comprehend  the  effect  of  his 
act,  and  appreciate  his  relation  to  the  natural  objects  of  his  bounty, 


So,  the  words  "lunatic"  or  "non  com- 
pos mentis"  in  the  Tennessee  act  of  April 
1,  1885,  providing  that  all  personal 
estate  of  which  a  lunatic  or  non  compos 
mentis  dies  intestate,  derived  from  such 
person's  husband  or  wife,  shall  go  to  the 
next  of  kin  of  the  person  through  whom 
it  was  derived,  mean  one  who  has  not 
sufficient  mental  capacity  to  make  a 
will.  Stratton  Claimants  v.  Morris 
Claimants,  89  Tenn.  497 ;  sub  nom.  Dib- 
rell  V.  Lanier,  12  L.  R.  A.  70,  15  S.  W. 
87. 

"Colema/n  v.  Robertson,  17  Ala.  84; 
KeitJiley  v.  Stafford,  126  111.  507,  18  N. 
E.  740;  Lilly  v.  Warjgoner,  27  111.  395; 
Trish  V.  Newell,  62  111.  196,  14  Am.  Rep. 
79;  Brown  v.  Riggin,  94  111.  560;  Car- 
penter V.  Calvert,  83  111.  62;  Yoe  v.  Mc- 
Cord,  74  111.  33;  Rutherford  v.  Morris, 
77  111.  397;  Harp  v.  Parr,  168  111.  459, 
48  N.  E.  113;  Meeker  v.  Meeker,  75 
111.  260;  Re  Storey,  20  111.  App.  183; 
Entwlstle  v.  Meikle,  180  111.  9,  54  N.  E. 
217;  Reed's  Will,  2  B.  Mon.  79;  Barnes 
V.  Barnes,  66  Me.  286;  Harvey  v.  Sul- 
lens,  46  Mo.  147,  2  Am.  Rep.  491;  Ram- 
bler V.  Tryon,  7  Serg.  &  R.  90,  10  Am. 
Dec.  444;  Tomkins  v.  Tomkins,  1  Bail. 
L.  92,  19  Am.  Dec.  656;  Black  v.  Ellis, 
3  Hill  L.  68. 

'""Meeker  v.  Meeker,  75  111.  260; 
Broivn  v.  Riayin,  94  111.  500;  Fniser  v. 


Jennison,  42  Mich.  206,  3  N.  W.  882; 
Re  Gleespin,  26  N.  .T.  Eq.  523. 

Within  the  ordinary  business  rule, 
capacity  upon  the  part  of  a  testator  to 
know  and  understand  the  extent  of  his 
property,  who  are  his  relatives,  and 
what  are  their  claims  upon  his  bounty, 
and  how  he  wishes  to  dispose  of  his 
property,  and  to  hold  all  these  things  in 
his  mind  at  the  same  time,  is  not  neces- 
sary.      Carpenter  v.  Calvert,  83  111.  62. 

'^Francis  v.  Wilkinson,  147  111.  370, 
35  N.  E.  150;  Meeker  v.  Meeker,  75  111. 
260;  Reed's  Will,  2  B.  Mon.  79;  Hoban 
V.  Campau,  52  Mich.  346,  17  N.  W.  797 ; 
Entwistle  v.  Meikle,  180  111.  9,  54  N.  E. 
217. 

'^Schneider  v.  Manning,  121  111.  376, 
12  K  E.  267. 

■'Keithley  v.  Stafford,  126  111.  507,  18 
N.  E.  740;  Fanner  v.  Farmer,  129  Mo. 
530,  31  S.  W.  926;  Myers  v.  Uauger,  98 
Mo.  433,  11  S.  W.  974;  Benoist  v.  Mur- 
rin,  58  Mo.  307;  Harvey  v.  Sullens,  56 
Mo.  372. 

"Freeman  v.  Easly,  117  III.  317,  7  N. 
E.  656;  Norton  v.  Paxton,  110  Mo.  456, 
19  S.  W.  807. 

'^Stubbs  V.  Houston,  33  Ala.  555; 
Thompson  v.  Kyner,  65  Pa.  368;  Dyre'a 
Estate,  12  Phila.  156;  Whitney  v. 
Tioombly,  136  Mass.  145;  Converse  V. 
Co7iverse,  21  Vt.  168,  52  Am.  Dec  58. 


68  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS,  [§  63 

and  understand  the  provisions  of  his  will,  is  competent  to  make  a  mil, 
though  he  may  not  be  competent  to  manage  business  generally.^* 

64.  Test  of  contractual  capacity. —  The  degree  of  mental  capacity 
sufficient  for  the  making  of  a  valid  will  has  been  held  to  be  the 
same  as  that  required  to  make  a  valid  deed  or  contract.^^  And 
this  has  been  held  to  require  that  the  testator  have  sufficient  ca- 
pacity to  make  a  disposition  of  his  estate  with  judgment  and  under- 
.standiiig  with  reference  to  the  extent  of  his  property  and  relative 
claims  of  the  different  persons  who  would  or  might  have  been  the  ob- 
jects of  his  bounty.-^  But  other  cases  have  varied  the  rule  to  the 
effect  that  no  greater  mental  capacity  is  required  to  make  a  valid  will 
than  to  make  a  valid  deed  or  contract.-^  And  the  test  of  capacity  to 
make  a  contract  has  been  repudiated.-^  And  the  weight  of  authority 
holds  that  one  may  make  a  valid  will  though  his  capacity  is  less  than 
would  be  required  to  make  a  contract  or  deed,^^  or  to  manage  his  es- 
tate,^°  or  to  make  a  gift  inter  vivos.^^ 

^*St.  Leger's  Appeal,  34  Conn.  434,  91  House,   6   Ga.    324,    50  Am.   Dec.   329; 

Am.  Dec.  735 ;  Kinne  v.  Kinne,  9  Conn.  Meeker  v.  Meeker,  74  Iowa,  352,  7  Am. 

102,  21  Am.  Dec.  732;  Crossan  v.  Cms-  St.   Rep.   489,  37   N.   W.   773;    ^Vise  v. 

san,  1G9  Mo.  631,  70  S.  W.  136;  Nicholas  Foote,  81  Ky.  10;  Howard  v.  Coke,  7  B. 

V.   Kershner,   20   W.   Va.   251;    Kerr  v.  Mon.  655;  Auhert  v.  Aubert,  6  La.  Ann. 

Lunsford,  31  W.  Va.  659,  2  L.  R.  A.  668,  104;  Prentis  v.  Bates,  88  Mich.  567,  50 

8  S.  E.  493.  N.  W.  637;  Brinkman  v.  Rueggesick,  71 

'^Stewart  v.  Elliott,  2  Mackey,  307;  Mo.  553;  Croioson  v.  Croicson,  172  Mo. 
McElroy  v.  McElroy,  5  Ala.  81;  Cole-  691,  72  S.  W.  1065;  Von  De  Veld  v. 
vian  v.^ Robertson,  17  Ala.  84;  Tobin  v.  Judy,  143  Mo.  348,  44  S.  W.  1117;  Stew- 
Jenkins,  29  Ark.  151;  Tyson  v.  Tyson,  art  v.  Lispenard,  26  Wend.  255;  Re 
37  Md.  567.  Sea  grist,  1  App.  Div.  615,  37  N.  Y.  Supp. 

"^Higgins  v.  Carlton,  28  Md.   115,  92  496;    Re  Sutherland,  28   Misc.  424,   59 

Am.  Dec.  666;   Davis  v.  Calvert,  5  Gill  N.  Y.  Supp.  989;   Paine  v.  Roberts,  82 

6  J.  300,  25  Am.  Dec.  282,  294.  N.  C.  451;  McCann's  Estate,  12  Pa.  Co. 
In  Comstock  v.  Hadlyme  Ecclesiastical  Ct.  560,  2  Pa.  Dist.  R.   181 ;   Thompson 

Sac.  8  Conn.  254,  20  Am.  Dec.   100,  it  v.    Kyner,    65    Pa.    368;    Kirkwood    v. 

was  held  that  knowledge  on  the  part  of  Gordon,  7  Rich.  L.  478,  62  Am.  Dec.  418; 

a  testator  as  to  what  he  was  about,  and  Prather  v.  McGlellan(?,  76  Tex.  574,   13 

as  to  the  consequences  of  what  he  was  S.  W.  543;  Vance  v.  Upson,  66  Tex.  476. 

<loing,  together  with  sufficient  capacity  1   S.  W.   179;   Converse  v.  Converse,  21 

to  contract,  constitute  testamentary  ca-  Vt.    168,  52   Am.   Dec.   58;    Nicholas  v. 

pacity.  Kershner,  20  W.  Va.  251;  Kerr  v.  Luns- 

"^ Schneider  v.  Manning,   121  111.  376,  ford,  31  W.  Va.  659,  2  L.  R.  A.  668,  8 

12  N.  E.  267;   Chandler  v.  Barrett,  21  S.  E.  493;   Den  ex  dem.  Stevens  v.  Van 

La.  Ann.  58,  99  Am.  Dec.  701 ;  Rice  v.  Cleve,  4  Wash.  C.  C.  262,  Fed.  Cas.  No. 

Rice,   50  Mich.   448,    15   N.   W.   545.   53  13,412;    Harrison    v.    Rowan,    3    Wash. 

Mich.  432,  19  N.  W.  132;  Ford  v.  Ford,  C.  C.  580,  Fed.  Cas.  No.  6,141.     But  see 

7  Humph.  92.    And  see  Jones  v.  Collins,  Brown  v.   Mitchell,  88  Tex.  350,  36   L. 
94  Md.  403,  51  Atl.  398.  R.  A.  64,  31  S.  W.  621. 

^Kirkwood  v.  Gordon,  1  Rich.  L.  474,  In   Wise  v.  Foote,  81  Ky.  10,  it  was 

62  Am.  Dec.  418;    Maddox  v.   Maddox,  stated   as    a    reason    why    less    capacity 

114  Mo.  35,  35  Am.  St.  Rep.  734,  21  S.  sliould  be  required  for  the  making  of  a 

W.  499.  will  than  for  the  making  of  a  contract, 

"Comstock  V.  Hadlyme  Ecclesiastical  that,    in   the   making   of   contracts,   the 

8oc.    8    Conn.    261,    20    Am.    Dec.    100;  parties  stand  at  arm's  length,  and  are 

Lemon  v.  Jenkins,  48  Ga.  313;   Potts  v.  opposed  to  each  other. 


§  65] 


WILLS. 


69 


65.  Test  of  capacity  to  understand  transaction. — The  doctrine  is 
also  well  supported  that  the  competency  of  the  testator  should  be 
Judged  by  the  nature  of  the  act  to  be  done  from  a  consideration  of  all 
the  circumstances  f~  and  that  the  test  is  whether  the  testator's  mind 
and  memory  were  sufficiently  sound  to  enable  him  to  understand  the 
business  in  which  he  was  engaged,^^ — whether  he  was  able  to  under- 
stand that  he  was  disposing  of  his  estate  by  will,  and  to  whom  he  was 


Failure  to  instruct  a  jury  in  a  will 
contest,  however,  that  less  capacity 
would  suffice  to  make  a  valid  will  than 
would  be  required  in  making  contracts, 
is  not  reversible  error,  where  no  special 
charge  was  requested.  CocJcrill  v.  Cox, 
65  Tex.  676 ;  Broion  v.  Mitchell,  88  Tex. 
350,  31  S.  W.  62L 

^"Howard  v.  Coke,  7  B.  Mon.  655; 
Brinkman  v.  Riieggesick,  71  Mo.  553; 
Crowson  v.  Croivson,  172  Mo.  691,  72 
S.  W.  1065 :  Harrison  v.  Rowan,  3  Wash. 
C.  C.  580,  Fed.  Cas.  No.  6,141;  Re  Sea- 
grist,  1  App.  Div.  615,  37  N.  Y.  Supp. 
496. 

In  Boughton  v.  Knight,  L.  R.  3  Prob. 
&  Div.  64.  28  L.  T.  N.  S.  562,  42  L.  J. 
Prob.  N.  S.  41,  however,  it  was  held 
that  a  testamentary  disposition  involves 
a  larger  and  higher  survey  of  facts  than 
is  needed  to  enter  into  ordinary  eon- 
tracts  of  life,  and  a  higher  degree  of 
capacity  is  required  to  make  a  will  than 
an  ordinary  contract ;  but  the  judge  Avho 
decided  the  ease  explained  his  decision 
in  a  note  to  a  subsequently  decided  case 
(Burdett  v.  Thompson,  L.  R.  3  Prob. 
&  Div.  72 ) ,  as  meaning  that  whatever  is 
the  highest  degree  of  soundness,  that  de- 
gree is  required  to  make  a  will. 

^'Clarke  v.  Saicyer,  3  Sandf.  Ch.  351. 

^^Trish  V.  'Newell,  62  111.  196,  14  Am. 
Rep.  79;  Campbell  v.  Camphell,  130  111. 
466,  6  L.  R.  A.  167,  22  N.  E.  620;  De- 
laney  v.  Balina,  34  Kan.  532,  9  Pac.  271; 
Sheldon  v.  Dow,  1  Dem.  503 ;  Turner  v. 
Cheesman,  15  N.  J.  Eq.  24.3;  Garrison 
V.  Blanton,  48  Tex.  299;  Marsh  v.  Tyr- 
rell, 2  Hagg.  Eccl.  Rep.  84. 

'"'Stulhs  V.  Houston,  33  Ala.  555; 
Abraham  v.  Wilkins,  17  Ark.  292; 
Sturdevant's  Appeal,  71  Conn.  392,  42 
Atl.  70;  Ethridqe  v.  Bennett,  9  Houst. 
(Del.)  295,  31  Atl.  813;  Lodge  v.  Lodge, 
2  Houst.  (Del.)  419;  Cordrey  v.  Cord- 
rey,  1  Houst.  (Del.)  269;  Huttonv.  Sut- 
ton, 5  Harr.  (Del.)  459;  Chandler  v. 
Ferris,  1  Harr.  (Del.)  454;  Ball  v. 
Kane,  1  Penn.  (Del.)  90,  39  Atl.  778; 
Smith  V.  Day,  2  Penn.  (Del.)  245,  45 
Atl.  396;  Steele  v.  Helm,  2  Marv.  (Del.) 


237,  43  Atl.  153 ;  Camphell  v.  Campbell, 
130  111.  466,  6  L.  R.  A.  167,  22  N.  E. 
620;  Yoe  v.  McCord,  74  111.  33;  Pittard 
V.  Foster,  12  111.  App.  133;  Conway  v. 
Vizzard,  122  Ind.  266,  23  N.  E.  771; 
Riinkle  v.  Gates,  11  Ind.  95;  Webber  v. 
Sullivan,  58  Iowa,  260,  12  N.  W.  319; 
Re  Co7ivey,  52  Iowa,  197,  2  N.  W.  1084; 
Kingsbury  v.  Whitaker,  32  La.  Ann. 
1055,  36  Am.  Rep.  278;  Yomig  v.  Riden- 
baugh,  67  Mo.  574 ;  McClintock  v.  Curd, 
32  Mo.  411;  Middleditch  v.  Williams,  45 
N.  J.  Eq.  726,  4  L.  R.  A.  738,  17  Atl. 
826;  Frost  v.  Wheeler,  43  N.  J.  Eq. 
573,  12  Atl.  612;  Den  ex  dem.  Trumbull 
V.  Gibbons,  22  N.  J.  L.  117,  51  Am.  Dec. 
253 ;  Andress  v.  Weller,  3  N.  J.  Eq.  604 ; 
Re  Snelling,  136  N. '  Y.  515,  32  N.  E. 
1006;  Re  Flansburgh,  82  Hun,  49,  31 
N.  Y.  Supp.  177;  Re  Otis,  I  Misc.  258, 
22  N.  Y.  Supp.  1060;  Barnhardt  v. 
Smith,  86  N.  C.  473;  Paine  v.  Roberts, 
82  N.  C.  451;  Re  McCullough,  35  Pittsb. 
L.  J.  169;  Cornelius  v.  Cornelius,  52  N. 
C.  (7  Jones  L.)  593;  Home  v.  Home, 
31  N.  C.  (9  Ired.  L.)  99;  Zeltner  v.  Bod- 
man  German  Protestant  Widows'  Home, 
1  Ohio  Dec.  306;  Ch'i-isman  v.  Chrisman, 
16  Or.  127,  18  Pac.  6;  Shaver  v.  Mc 
Carthy,  110  Pa.  339,  5  Atl.  614;  Thomp- 
son v.  Kyner,  65  Pa.  368;  Re  Restine,  3 
W.  N.  C.  27,-  Wisener  v.  Maupin,  2 
Baxt.  342. 

A  testator  cannot  make  a  valid  will 
when  he  did  not  know  what  he  was  do- 
ing, or  understand  that  he  was  execut- 
ing a  will.  Bittleston  v.  Clark,  2  Lee, 
Eccl.  Rep.  229;  Etter  v.  Armstrong,  46 
Ind.  197;  Den  ex  dem.  Merritt  v.  John- 
son, 5  N.  J.  L.  454,  8  Am.  Dec.  610. 

And  this  is  true  though  the  incapac- 
ity was  caused  by  the  use  of  medicines. 
Stedham  v.  Stedham,  32  Ala.  525. 

And  it  is  capacity  to  understand  the 
business  engaged  in  which  is  required  of 
a  testator,  and  not  merely  capacity  to 
understand  the  act  which  he  is  perform- 
ing, that  act  being  simply  the  making 
and  signing  of  a  will.  Pittard  v.  Fos- 
ter, 12  111.  App.  132. 


70 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  G5 


giving  it;^*  and  whether  he  appreciated  the  effects  of  the  transac- 
tion,^^— that  is,  A\'hether  he  had  mind  and  memory  sufficient  to  make 
the  will  in  question, — the  term  compos  mentis  not  being  regarded  as 
a  safe  standard.^^  Knowledge  on  the  part  of  the  testator  of  what  he 
was  about  and  how  he  was  disposing  of  his  property,  and  a  purpose 
to  do  so,  constitute  testamentary  capacity  under  this  rule.^^  But  it 
is  sufficient  if  the  testator  had  such  mind  and  memory  as  would  enable 
him  to  understand  the  elements  of  which  his  will  was  composed,  and 
the  disposition  of  his  property,  in  its  simplest  forms.  He  need  not 
be  competent  to  view  his  will  with  the  eye  of  a  la'\v;\'er,  and  compre- 
hend the  legal  effect  of  its  provisions.'"'^ 

66.  Test  of  capacity  to  collect  and  retain  in  mind. —  The  rule  is  also 
laid  down  in  many  of  the  cases  that  to  be  competent  to  make  a  will,  a 
testator  must  have  sufficient  active  memory  to  collect  in  his  mind, 
without  prompting,  the  parts  or  elements  of  the  business  to  be  trans- 
acted, and  to  hold  them  in  his  mind  a  sufficient  length  of  time  to  per- 
ceive at  least  their  obvious  relations  to  each  other,  and  to  be  able  to 
form  some  rational  judgment  in  regard  to  them,^^  and  sufficient  capac- 
ity to  determine  whether  tlie  will  dra^vn  makes  the  desired  disposi- 


"Jamison  v.  Jamison,  3  Houst.  (DeL) 
108;  Cordrey  v.  Cordrey,  1  Houst. 
(Del.)  2&9;  Re  Restine,  3  W.  N.  C.  27; 
Re  Rodger's  Estate,  19  W.  N.  C.  383; 
Garrison  v.  Blanton,  48  Tex.  290. 

^''Campbell  v.  Camphell  130  111.  466, 
6  L.  R.  A.  1G7,  22  N.  E.  620;  Webber  v. 
Hullivan,  58  Iowa,  260.  12  N.  W.  319; 
Re  Convey,  52  Iowa,  197,  2  N.  W.  1084; 
Kingsbury  v.  'Whitakcr.  32  La.  Ann. 
1055,  36  Am.  Rep.  278;  Re  Flansburgh, 
82  Hiin,  49.  31  N.  Y.  Supp.  177:  Re 
Otis,  1  Misc.  258,  22  N.  Y.  Supp.  1060. 

It  is  not  sufficient  to  the  validity  of 
a  will  that  the  testator  was  merely  able 
to  answer  familiar  and  usual  questions. 
Aikin  v.  Waclcerly,  19  Mich.  482. 

A  testator,  to  be  competent  to  make 
a  will,  must  have  ability  to  remember 
and  call  to  mind  all  the  items  of  his 
property,  and  to  know  and  comprehend, 
as  well  as  to  remember,  the  value  of 
each  item,  or,  at  least,  each  subject  of 
ownership.  Rcichenbach  V.  Ruddach, 
127  Pa.  564,  18  Atl.  432. 

And  an  alteration  in  a  will,  leaving 
a  son  of  the  testator  totally  unprovided 
for,  is  invalid,  wliere  the  testator  did 
not  know  the  important  alteration  he 
was  making,  though  he  did  know  that 
he  was  doing  some  testamentary  act. 
lirouncker    v.     Brouncker.    2     IMiillim. 


Eccl.  Rep.  57.  See  also  Young  v.  Riden- 
baugh,  67  Mo.  574. 

^'^Kempsey  v.  McGinniss,  21  Mich. 
123;  Re  Forman,  54  Barb.  274;  Toims- 
end  V.  Bogart,  5  Redf.  93 ;  Kinleside  v. 
Harrison,  2  Phillim.  Eccl.  Rep.  449. 

Less  capacity  is  generally  required  to 
make  a  codicil  than  to  make  a  will, 
though  the  question  \i  always  one  of 
fact  for  the  jury.  Pralhcr  v.  McClel- 
land, 76  Tex.  574,  13  S.  W.  543. 

"Sutton  V.  Sutton,  5  Harr.  (Del.) 
459;  Horn  v.  Pullman,  72  N.  Y.  269. 

It  is  sufficient,  under  this  rule,  if  the 
testator  had  knowledge  to  comprehend 
the  condition  of  his  property,  and  the 
scope,  meaning,  and  effect  of  the  pro- 
visions of  his  will.  Cornivcll  v.  Riker, 
2  Dem.  354. 

And  testamentary  capacity  is  to  be 
determined  by  the  capacity  of  the  testa- 
tor to  understand  what  he  was  doing, 
and  not  I)y  his  actual  knowledge  and 
imderstandiug  thereof.  Brown  v.  Mitch- 
ell, 75  Tex.  9,  12  S.  W.  606. 

'■"Gaither  v.  Gaither,  20  Ga.  709; 
Young  v.  Ridenbaugh,  67  Mo.  574 ;  Har- 
rison V.  Rowan,  3  Wash.  C.  C.  580,  Fed. 
Cas.  No.  6,141. 

''Bulger  v.  Ross,  98  Ala.  207.  12  So. 
803;  McCulloch  v.  Campbell.  49  Ark. 
367.   5   S.   W.  590;    Yeo  v.   McCord,   74 


G6] 


WILLS. 


71 


tion.^*'    It  has  been  criticised,  however,  as  not  being  adapted  to  use  as 
a  test,*^  and  as  requiring  too  high  a  degree  of  mental  capacity.'*^ 

67.  Test  of  capacity  to  understand  claims  to  bounty. —  The  test  of 
testamentary  capacity  sni^ported  by  a  gTcat  majority  of  cases,  how- 
ever, and  which  probably  differs  from  the  two  tests  last  above  given 
only  in  the  more  elaborate  method  of  expression,  is  whether  the  testa- 
tor had  capacity  to  understand  the  nature  of  the  business  in  which  he 
was  engaged,  and  ability  to  recollect  and  comprehend  the  condition  of 
the  property  he  wished  to  dispose  of,  and  imderstand  and  decide  upon 
the  method  of  such  distribution,  and  knowledge,  memory,  and  ca- 
pacity to  comprehend  his  relation  to  the  persons  who  were  or  might 
naturally  be  the  objects  of  his  bounty,  and  the  relative  merits  of  their 
claims,^^  and  was  capable  of  making  a  rational  selection  among  them 


111.  33;  BurMart  v.  Gladish,  123  Ind. 
338,  24  N.  E.  118;  Loioder  v.  Lowder, 
,58  Ind.  538 ;  Rush  v.  Megee,  36  Ind.  69 ; 
McHugh  V.  Fitzgerald,  103  Mich.  21,  61 
N.  W.  354;  Spratt  v.  Sprait,  76  Mich. 
384,  43  N.  W.  627;  Aikin  v.  Weckerly, 
19  Mich.  482;  Van  Guysling  v.  Van  Ku- 
ren.  35  N.  Y.  70 ;  Delafield  v.  Parish,  25 
N.  Y.  !) ;  Re  Richardson,  51  App.  Div.  637, 
64  N.  Y.  Supp.  944;  Re  Mabie,  5  Misc. 
179,  24  N.  Y.  Supp.  855;  Re  Lang,  9 
Misc.  521,  30  N.Y.Supp.  388;  Re  Henry, 
18  Misc.  149.  41  N.  Y.  Supp.  1096;  Re 
Lam-ence,  48  App.  Div.  83,  62  N.  Y. 
Supp.  673;  Townsend  v.  Bogart,  5  Redf. 
93;  Cheney  v.  Price,  90  Hun,  238,  37 
N.  Y.  Supp.  117;  Re  Skaats,  74  Hun, 
462,  26  N.  Y.  Supp.  494 ;  Prather  v.  Mc- 
Clelland, 76  Tex.  574,  13  S.  W.  543 ;  Mc- 
Master  v.  Scriven,  85  Wis.  162,  39  Am. 
St.  Rep.  828,  55  N.  W.  149;  Re  Leiois, 
51  Wis.  101,  7  N.  W.  829;  Eolden  v. 
Meadows,  31  Wis.  284. 

Where  a  testator  was  suffering  from 
a  disease  of  the  mind  at  the  time  of  the 
execution  of  his  will,  which  was  pro- 
gressive and  required  some  time  to  de- 
velop, and  which  afterwards  caused  his 
death,  tiie  question  with  relation  to  the 
validity  of  the  will  is  not  whether,  at 
the  time  of  its  execution,  he  was  suffer- 
ing from  the  disease  which  afterwards 
rendeied  him  insane,  but  whether,  at  the 
date  of  the  execution  of  the  will,  the 
disease  had  so  far  progressed  that  he 
had  not  sufficient  memory  to  collect  in 
his  mind,  without  prompting,  the  par- 
ticular elements  of  the  business  to  be 
transacted,  and  to  hold  them  a  suffi- 
cient length  of  time  to  perceive  at  least 
their  obvious  relations  to  each  other,  and 


be  able  to  form  some  rational  judgment 
with  relation  to  them.  Re  Lawrence,  48 
App.  Div.  83,  62  N.  Y.  Supp.  673. 

*^Young  v.  Ridenhaugh,  67  Mo.  574. 

It  is  sufficient  if  a  testator  under- 
stands the  meaning  and  effect  of  his 
will  as  a  whole,  and  if  it  truly  expresses 
his  testamentary  intentions.  It  is  not 
necessary  that  he  should  understand  the 
meaning  of  all  the  technical  terms  and 
legal  phraseologj'^  therein  employed. 
O'Brien  v.  Spalding,  102  Ga.  490,  66 
Am.  St.  Rep.  202,  31  S.  E.  100. 

*'St.  Leger's  Appeal,  34  Conn.  434,  91 
Am.  Dec.  735. 

"Tris/i  V.  'Newell,  62  111.  196,  14  Am. 
Rep.  79. 

"This  rule  of  testamentary  capacity  is 
supported  by  such  a  large  number  of 
cases,  and  such  a  large  number  of  late 
cases,  many  of  which  were  decided  by 
courts  which  had  announced  other  or 
differently  stated  rules,  as  to  warrant 
the  assumption  that  it  has  become  or  is 
becoming  the  almost,  if  not  quite,  uni- 
versal test.  Among  the  cases  announc' 
ing  this  rule  are:  Eastis  v.  Montgom- 
ery, 95  Ala.  486,  36  Am.  St.  Rep.  227,  11 
So.  204;  Schiejfelin  v.  Sehicffelin,  127 
Ala.  14,  28  So.  687;  Ouachita  Baptist 
College  v.  Scott,  64  Ark.  349,  42  S.  W. 
536;  Cordrey  v.  Cordrey,  1  Houst. 
(Del.)  269;  Dunham's  Appeal,  27  Conn. 
192;  Wood  V.  Lane,  102  Ga.  199,  29  S. 
E.  180:  Ring  v.  Lawless,  190  111.  520,  60 
N.  E.  881;  Trish  v.  Newell,  62  HI.  196, 
14  Am.  Rep.  79;  Burkhart  v.  Gladish, 
123  Ind.  338,  24  N.  E.  118;  Howe  v. 
Richards,  112  Iowa,  220,  83  N.  W.  909; 
Bramel  v.  Bramel,  101  Ky.  64,  39  S.  W. 
520;  Godden  v.  Burke,  35  La.  Ann.  160; 
Croicn  v.  Ward,  53  Md.  393,  36  Am.  Rep. 


72 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  67 


according  to  his  settled  purpose.^^  He  must  have  capacity  to  recollect 
the  claims  of  those  who  are  excluded  from  participating  in  his  bounty 
as  well  as  those  who  participate  in  it,^^  and  be  competent  to  under- 
stand the  scope  and  meaning  of  the  provisions  of  his  will,  and  the  man- 
ner in  which  it  distributes  his  property,'^^  and  have  capacity  to  com- 
prehend the  relations  of  each  of  these  factors  to  the  other.*"^  But  it  is 
not  necessary  that  he  should  be  able  to  collect  them  all  in  one  compre- 


422;  Berry  v.  Safe  Deposit  <i  T.  Co.  96 
Md.  45,  53  Atl.  720;  Whitney  v.  Tivom- 
bly,  136  Mass.  145;  Beauhien  v.  Cicotte, 
12  Mich.  459;  Spencer  v.  Terry,  127 
Mich.  420,  86  N.  W.  998;  Young  v.  Otto, 
57  Minn.  307,  59  N.  W.  199;  JacJcson  v. 
Hardin,  83  Mo.  175;  Southworth  v. 
Southivorth,  173  Mo.  59,  73  S.  W.  129; 
Sloan  V.  Maxwell,  3  N.  J.  Eq.  563 ;  Claf- 
fey  V.  Ledivith,  56  N.  J,  Eq.  333,  38  Atl. 
433;  Clark  v.  Fisher,  1  Paige,  171,  19 
Am.  Dec.  402 ;  Ivison  v.  Ivison,  80  App. 
Div.  599,  80  N.  Y.  Supp.  1011;  Re  Mur- 
phy, 41  App.  Div.  153,  58  N.  Y.  Supp. 
450;  Bost  v.  Bost,  87  N.  C.  477;  Kette- 
mann  v.  Metzger,  23  Ohio  C.  C.  61;  Hub- 
hard  V.  Hubbard,  7  Or.  42;  Ames's  Will, 
40  Or.  495,  67  Pac.  737 ;  Pidcock  v.  Pot- 
ter, 68  Pa.  348,  8  Am.  Rep.  181 ;  Re  Mc- 
Kim,  9  Pa.  Co.  Ct.  209;  Kirkicood  v. 
Gordon,  7  Rich.  L.  474,  62  Am.  Dec.  418; 
Prather  v.  McClelland,  76  Tex.  574,  13 
S.  W.  543;  Converse  v.  Converse,  21  Vt. 
168,  52  Am.  Dec.  58;  Eerr  v.  Lunsford, 
31  W.  Va.  659,  680,  2  L.  R.  A.  668,  8 
S.  E.  493;  Re  Blakely,  48  Wis.  294,  4 
N.  W.  337 ;  Harrison  v.  Rowan,  3  Wash. 
C.  C.  580.  Fed.  Gas.  No.  6,141 ;  Ingolds- 
by  V.  Ingoldsby,  20  Grant.  Ch.  (U.  C.) 
131;  Scfton  v.  Hopioood,  1  Fost.  &  F. 
578;  Banks  v.  Goodfellow,  22  L.  T.  N. 
S.  819,  39  L.  J.  Q.  B.  N.  S.  237,  L.  R. 
5  Q.  B.  549. 

Capacity  to  transact  business  is  not 
a  proper  test.  Ring  v.  Lawless,  190  111. 
520,  60  N.  E.  881;  Waugh  v.  Moan,  200 
111.  298,  65  N.  E.  713. 

"Hall  V.  Hall,  18  Ga.  40;  Stancell  v. 
Kenan,  33  Ga.  56;  Re  Shropshire,  4  J. 
J.  Marsh.  15;  Newcomb  v.  Newcomb, 
96  Kv.  120,  27  S.  W.  997;  Phillips  v. 
Phillips,  81  Ky.  329;  Smith  v.  Smith, 
48  N.  J.  Eq.  566,  25  Atl.  11;  Stout  en- 
burgh  V.  Hopkins,  43  N.  J.  Eq.  577,  12 
Atl.  689 ;  Forman  v.  Synith,  7  Lans.  443 : 
Kinne  v.  Johnson,  60  Barb.  69;  Clark 
V.  Fisher,  1  Paige,  171,  19  Am.  Dec.  402; 
Lawrence  v.  Steel,  66  N.  C.  584;  Re 
Farnsworth,  62  Wis.  474,  22  N.  W.  523. 

*^Mf:Culloch  V.  Campbell,  49  Ark.  367, 
5    S.    W.    590;    Meeker    v.    Meeker,    74 


Iowa,  352,  7  Am.  St.  Rep.  489,  37  N.  W. 
773;  Beaubien  v.  Cicotte,  12  Mich.  459; 
Gotdie  V.  Murray,  6  Jur.  608. 

And  to  know  whether  he  had  done 
anything  for  the  persons  who  might 
naturally  be  the  objects  of  his  bounty, 
and  what  he  had  done.  Reynolds  v. 
Root,  62  Barb.  250. 

*'^Cordr€y  v.  Cordrey,  1  Houst.  (Del.) 
269;  Webber  v.  Sullivan,  58  Iowa,  260, 
12  N.  W.  319;  McCoon  v.  Allen,  45  N. 
J.  Eq.  708,  17  Atl.  820;  Re  Lee,  46  N. 
J.  Eq.  193,  18  Atl.  525;  O'Brien  v. 
Dwyer,  45  N.  J.  Eq.  689,  17  Atl.  777: 
Clifton  V.  Clifton,  47  N.  J.  Eq.  227,  21 
Atl.  333;  Hampton  v.  Westcott,  49  N. 
J.  Eq.  522,  25  Atl.  254;  Westcott  v. 
Shcppard,  51  N.  J.  Eq.  315.  30  Atl.  428; 
Re  Wheeler,  5  Misc.  279,  25  N.  Y.  Supp. 
313;  Wade  V.  Holbrook,  2  Redf.  378; 
Snyder  v.  Sherman,  23  Hun,  139;  Rey- 
nolds V.  Root,  62  Barb.  250;  Bost  v. 
Bost,  87  N.  C.  477;  Lawrence  v.  Steel. 
66  N.  C.  584;  Chrisman  v.  Chrismun,  16 
Or.  127,  18  Pac.  6;  Franke  v.  Shipley. 
22  Or.  104,  29  Pac.  268;  Pidcock  v.  Pot- 
ter, 68  Pa.  348,  8  Am.  Rep.  181 ;  Thomp- 
son V.  Kyner,  65  Pa.  368;  Shaver  v.  Mc- 
Carthy, 110  Pa.  339,  5  Atl.  614;  Sefton 
V.  Hopwood,  1  Fost.  &  F:  578. 

And  ho  must  be  capable  of  weighing, 
to  a  reasonable  degree,  the  consequences 
of  his  will,  and  its  effect  upon  his  estate 
and  family.  Re  Convey,  52  Iowa,  197, 
2  N.  W.  1084. 

"Westcott  V.  Shcppard,  51  N.  J.  Eq. 
315,  30  Atl.  428;  Hampton  v.  Westcott, 
49  N.  J.  Eq.  522,  25  Atl.  254 ;  Clifton  v. 
Clifton,  47  N.  J.  Eq.  227,  21  Atl.  333: 
Re  Lee,  46  N.  J.  Eq.  193,  18  Atl.  525: 
O'Brien  v.  Dwyer,  45  N.  J.  Eq.  689,  17 
Atl.  777;  Knox  v.  Knox,  95  Ala.  495,  36 
Am.  St.  Rep.  235,  11  So.  125;  Kramer 
V.  Weinert,  81  Ala.  414,  1  So.  26. 

But  the  fact  that  a  testator  did  not 
recall  all  that  he  had  done  for  each  of 
the  persons  coming  witliin  the  reason- 
able range  of  his  bounty  does  riot  in 
validate  his  will.  Couch  v.  Gentry^  113 
Mo.  248,  20  S.  W.  890. 


§  67j 


WILLS. 


73 


hensive  view.'*^  It  is  only  necessaiy  that  he  should  understand  fairly 
and  rationally  the  nature  of  his  property  and  the  disposition  he  wishes 
to  make,*^  and  he  need  not  have  actually  understood  the  business  in 
which  he  was  engaged,  and  comprehended  the  condition  of  his  prop- 
erty, and  recollected  the  natural  objects  of  his  bounty,  if  he  was  cap- 
able of  doing  so.^*^ 

68.  Delusion  test. —  Delusion  has  been  held  to  be  the  true  and  only 
test  of  the  presence  or  absence  of  insanity,^^  delusion  and  insanity 
being  regarded  as  almost,  if  not  entirely,  convertible  tcrms.^^  But 
an  exception  to  tlie  delusion  test  exists  in  cases  of  dementia  or  loss  of 
mind  and  intellect,^"  and  it  has  been  held  that  delusion  cannot  be  said 
to  be  the  only  legal  test  as  a  rule  of  law;^*  and  this  holding  is  support- 
ed by  other  tests  adopted  by  a  great  majority  of  the  cases. 

69.  Capacity  for  criminal  responsibility  as  a  test. — Mental  capacity 


'^PidcocJc  V.  Potter,  68  Pa.  348,  8  Am. 
Rep.  181;  Shaver  v.  McCartlnj,  110  Pa. 
339,  5  Atl.  614;  McMasters  v.  Blair,  2D 
Pa.  298. 

To  be  competent  to  make  a  will,  it  is 
not  necessary  that  the  testator  should 
have  been  capable  of  discussing  and  feel- 
ing the  connections  and  obligations  of 
family  and  blood,  and  of  recollecting 
the  number,  condition,  and  extent  of 
those  who  are  the  proper  objects  of  his 
bounty,  and  of  weighing  their  deserts 
with  respect  to  conduct  and  capacity, 
forgetting  none.  Couch  v.  Gentry,  113 
Mo.  248,  20  S.  W.  890.  See  also  Mc- 
Masters V.  Blair,  29  Pa.  29C :  Spratt  v. 
Spratt.  70  Mich.  384,  43  N.  W.  627. 

*"> Philadelphia  Trust  d  S.  D.  Co.  v. 
Drioikliouse,  17  Phila.  23;  Pidcock  v. 
Potter,  68  Pa.  .348,  8  Am.  Rep.  181; 
Shaver  v.  McCartluf,  110  Pa.  339; 
Rodqers's  Estate,  19  W.  N.  C.  383. 

^"Tresevant  v.  Rains,  85  Tex.  329,  23 
S.  W.  890;  Kerr  v.  Lunsford,  31  W.  Va. 
659,  680,  2  L.  R.  A.  668,  8  S.  E.  493; 
Perkins  v.  Perkins,  116  Iowa,  253,  90 
N.  W.  55. 

It  is  not  necessary  to  the  validity  of 
a  will  that  the  testator  should  name  all 
his  children,  or  give  each  of  tliom  a  por- 
tion of  his  estate.  It  is  sufTicicnt  if  he 
was  mentally  capable  of  understanding 
the  disposition  he  Avas  making,  and 
acted  freely.  Kerr  v.  Lunsford,  31  W. 
Va.  659,  680,  2  L.  R.  A.  668,  8  S.  E. 
493. 

And  it  is  not  necessary  that  the  testa- 
tor shoiild  have  correctly  ascertained 
the  legal  status  of  each  person  who  ap- 
parently stands  in  a  natural  relation  to 


him,  or  understand  and  appreciate  the 
exact  legal  effect  of  all  the  provisions 
of  the  will.  Smith  v.  Smith,  48  N.  J. 
Eq.  566,  25  Atl.  11;  Barker  v.  Coniins, 
110  Mass.  477. 

So,  a  testator  need  not  have  a  recol- 
lection of  the  property  he  intends  to 
dispose  of,  or  of  the  persons  related  to 
him,  where  he  intends  to  give  his  whole 
estate  to  a  stranger,  to  the  exclusion  of 
his  relatives.  Stevenson  v.  Stevenson, 
33  Pa.  469. 

"Deio  V.  Clark,  3  Addams  Eccl.  Rep. 
79;  Bought  on  v.  Kniqht,  L.  R.  3  Prob. 
&  Div.  64,  42  L.  J.  Prob.  N.  S.  41,  28  L. 
T.  N.  S.  562;  Wheeler  v.  Alderson,  3 
Hagg.  Eccl.  Rep.  574 ;  Stantoii  v.  Weth- 
erwax,  16  Barb.  259 ;  Re  Forman,  54 
Barb.  274.  And  see  Burkhart  v.  Gla- 
dish,  123  Ind.  338.  24  N.  E.  118. 

^-Boughton  v.  Knight,  L.  R.  3  Prob. 
&  Div.  64,  28  L.  T.  N.  S.  562,  42  L.  J. 
Prob.  N.  S.  41;  Smith  v.  Tehhitt,  L.  R. 
1  Prob.  &  Div.  401.  36  L.  J.  Prob.  N.  S. 
97,  16  L.  T.  N.  S.  841,  16  Week.  Rep.  IS. 

Within  the  delusion  rule,  strong,  vio- 
lent, and  unjust  prejudice,  not  founded 
in  any  delusion,  does  not  show  mental 
incapacity  which  will  invalidate  a  will. 
Den  ex  dem.  Trumhull  v.  Gibbotis,  22 
N.  J.  L.  117,  51  Am.  Dec.  253, 

^^Anierican  Seamen's  Friend  Soc.  v. 
Hopper,  33  N.  Y.  619;  Re  Shaw,  2  Redf. 
107. 

^^Manhailan  L.  Ins.  Co.  v.  Broughton, 
109  U.  S.  121.  27  L.  ed.  878,  3  Sup.  Ct. 
Rep.  99;  Denson  v.  Beazley,  34  Tex.  191. 

The  existence  of  a  delusion  is  evidence 
of  insanity;  but  it  is  not  conclusive. 
Gardner  v.  Lamhaek,  47  Ga.  133. 


74 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  69 


to  make  a  will  and  mental  capacity  to  be  criminally  responsible  have 
been  held  to  be  substantially  the  same;^^  but  this  has  been  contra- 
dicted,^® and  the  rule  would  seem  to  be  that  a  less  degree  of  incapacity 
is  necessary  to  invalidate  a  will  than  to  exonerate  one  from  criminal 
responsibility.^^ 

70.  Time  of  application  of  tests. —  The  point  of  time  at  which  the 
capacity  of  a  testator  is  to  be  tested  is  that  at  which  the  will  was  exe- 
cuted.^^  Where  there  are  one  or  more  codicils,  however,  capacity  at 
the  date  of  the  execution  of  one  of  them  renders  that  act  valid  as  well 
as  all  preceding  acts;^^  and  the  will  of  a  testator  who  had  sufficient 
soundness  of  mind  to  make  a  disposition  of  his  property  when  he  gave 
instructions  for  preparing  it,  and  actually  intended  to  execute  it, 
when  written,  as  his  will,  has  been  held  to  be  valid,  though  he  had 
gro^^^l  much  worse,  and  did  not  have  testamentary  capacity  when  it 
was  signed.®** 

71.  Mere  mental  weakness  does  not  incapacitate. — Weakness  of  mind 
and  forge tfulness  are  not  sufficient  to  invalidate  a  will  if  it  appear 
that  the  testator's  mind  was  capable  of  attention  and  exertion  when 
roused,  and  was  not  imposed  upon.®^  "The  weak  have  the  same 
rights  with  the  prudent  or  strong-minded  to  dispose  of  their  prop- 


'^Delaney  v.  Selina,  34  Kan.  534.  9 
Pac.  271. 

^Prentis  v.  Bates,  88  ilich.  567,  50 
N.  W.  637.  And  see  Smith  v.  Smith,  75 
Ga.  477. 

^''McTaggart  v.  Thompson,  14  Pa.  149. 

^Kinne  v.  Einne,  9  Conn.  102,  21  Am. 
Dec.  732 ;  Lodge  v.  Lodge,  2  Houst. 
(Del.)  419;  Terry  v.  Btiffington,  11  Ga. 
337,  56  Am.  Dec.  423;  Yoe  v.  McCord, 
74  111.  33;  HoUoicay  v.  Galloway,  51 
111.  1.59;  Goddea  v.  Burke,  35  La.  Ann. 
160;  Re  Halberf,  15  Misc.  308.  37  N.  Y. 
Supp.  757;  Re  Bitchan,  16  Misc.  204,  38 
N.  Y.  Supp.  1124;  Re  BUikcr.  12  N.  Y. 
S.  R.  741;  Glarhe  v.  Davis,  1  Redf.  249; 
Clark  V.  FAlis,  9  Or.  128;  Chrisman  v. 
Chrisman,  IG  Or.  127,  18  Pac.  6;  Reich- 
enbach  v.  Ruddach,  127  Pa.  564.  18  Atl. 
432;  Thompson  v.  Kyner.  65  Pa.  368; 
Re  McCullough,  35  Pittsb.  L.  J.  169; 
Martin  v.  Thayer,  37  W.  Va.  38.  16  S. 
E.  489;  Nicholas  v.  Kershner.  20  W.  Va. 
251  ;  Kerr  v.  Lunsford,  31  W.  Va.  659, 
680,  2  L.  R.  A.  668,  8  S.  E.  493:L>c)i  ex 
dem.  Stevens  v.  Vancleve,  4  Wash.  C.  C. 
262,  Fed.  Cas.  No.  13,412;  Harrison  v. 
Rowan,  3  Wash.  C.  C.  580.  Fed.  Cas.  No. 
6,141;  White  v.  Wilson,  13  Ves.  Jr.  87. 
And  see  Eastis  v.  Montgomery,  95  Ala. 
486.  36  Am.  St.  Rep.  227,  11  So.  204. 


Where  a  testator  was  rational,  intelli- 
gent, and  understood  what  he  was  do- 
ing when  his  will  was  made,  it  is  valid, 
however  incompetent  lie  may  have  been 
at  other  times.  Philadelphia  Trust  £ 
S.  D.  Co.  V.  Drinkhouse,  17  Phila.  23: 
Claffei/  V.  Ledwith,  56  N.  J.  Eq.  333,  38 
Atl.  433. 

Insanity  and  even  partial  aberration 
of  the  mind  at  other  times  will  not  af- 
fect testamentary  capacity,  where  the 
testator  is  shown  to  have  been  of  soimd 
and  disposing  mind  at  the  time  of  mak- 
ing his  will,  unless  they  are  such  as  to 
indicate  an  inability  to  make  a  reason- 
able disposition  of  the  property,  and  to 
understand  the  nature  of  the  testamen- 
tary act.  Goddcn  v.  Burke,  35  La.  Ann. 
160;  Wood  V.  Wood,  4  Brewst.  (Pa.) 
75 ;  Eohy  v.  Eohy,  1  Hagg.  Eccl.  Rep. 
146. 

^^Brown  v.  Riqgin,  94  111.  560;  Mairs 
V.  Freeman,  3  Iledf.  181. 

""Weems  v.  Weems,  19  Md.  334.  Con- 
tra, James  White  Memorial  Home  v. 
Haeg,  204  111.  422,  68  N.  E.  568. 

"^fufnell  V.  Constable,  3  Knapp,  P.  C. 
122;  yieman  v.  Schnitker,  181  111.  400, 
55  N.  E.  151;  Keiohouse  v.  Godwin,  17 
Barb.  230;  Mitchell  v.  Corpening,  124 
N.   0.  472,  32  S.  E.   798;    Re  Royer,  6 


§  71] 


WILLS. 


75 


ei'tj.''*'"  In  general,  so  that  capacity  exists,  courts  will  not  under- 
take to  measure  the  degree  of  that  capacity,  and  they  will  protect 
those  deficient  in  strong  natural  ability  in  the  exercise  of  the  powers 
they  possess.^^  And  mere  imbecility  or  weakness  of  mind  or  mental 
impairment,  however  arising,  will  not  defeat  a  will  in  the  absence  of 
fraud  or  undue  influence,  where  it  does  not  severely  impair  the  rea- 
soning faculties  or  memory ,^^  though  it  unfits  the  testator  for  the 
management  of  his  estate,*'^  unless  the  indisposition  itself  shows  a 
deranged  understanding.^^ 

72.  Age,  weakness,  disease. — Great  age  alone  does  not  constitute 
testamentary  incapacity.®^  Nor  does  great  age  and  disease.®^  And 
mere  physical  weakness,  though  it  renders  the  testator  unable  to  trans- 
act business,  does  not  alone  incapacitate  him  from  making  a  will.*^ 


Pa.  Super.  Ct.  401,  41  W.  N.  C.  428; 
Stevenson,  v.  Kingley,  8  Pa.  Dist.  R.  245. 

*-  Strong,  J.,  in  Neichouse  v.  Godwin, 
17  Barb.  2.36. 

*^Osmond  v.  Fitzroy,  3  P.  Wms.  129; 
Andress  v.  Weller,  3  N.  J.  Eq.  604; 
Jamison  v.  Jamison,  3  Houst.  (Del.) 
108;  Duffield  v.  Robeson,  2  Harr.  375; 
Elliott's  Will,  2  J.  J.  INIarsh.  340;  Tom- 
kins  V.  Tomlcins,  1  Bail.  L.  92. 

'^Bulger  v.  Ross,  98  Ala.  267,  12  So. 
803;  Kramer  v.  Weinert,  81  Ala.  414,  1 
So.  26;  White  v.  Farley,  81  Ala.  563,  8 
So.  215;  St.  Joseph's  Convent  v.  Gar- 
ner, 66  Ark.  623,  53  S.  W.  298;  Jami- 
son V.  Jamison,  3  Houst.  (Del.)  108; 
Potts  V.  House,  6  Ga.  324,  50  Am.  Dec. 
.329;  Freeman  v.  Easly,  117  111.  317,  7 
N.  E.  656;  Kimball  v.  Cuddy,  117  111. 
213,  7  N.  E.  589;  Bundy  v.  MoKnight, 
48  Ind.  502;  Re  Convei/,^52  Iowa,  197,  2 
N.  W.  1084:  Com.  v.  Hughes,  133  Mass. 
496;  Rice  v.  Rice,  50  Mich.  448,  15  N. 
W.  545,  53  Mich.  432,  19  N.  W.  132; 
Waddinqion  v.  Buzby,  45  N.  J.  Eq.  173, 
14  Am.  St.  Rep.  706,  16  Atl.  690;  Howell 
V.  Taylor,  50  N.  J.  Eq.  428,  26  Atl.  566; 
Horn  V.  Pullman,  72  N.  Y.  269 ;  Re  Pike, 
83  Hun,  327,  31  N.  Y.  Supp.  689;  Re 
Otis,  1  Misc.  258,  22  N.  Y.  Supp.  1060; 
Cheney  v.  Price,  90  Hun,  238.  37  N.  Y. 
Supp.  117;  Wade  v.  Holbrook,  2  Redf. 
378;  Re  Soiile.  22  Abb.  N.  C.  236:  Barn- 
hardt  v.  Smith,  86  N.  C.  473;  Zeltner 
V.  Bodmun  German  Protestant  Widoifs' 
Home,  1  Ohio  Dec.  306;  Tenbrook  v. 
Lee,  5  Clark  (Pa.)  37;  Shaver  v.  Mc- 
Carthy, 110  Pa.  339,  5  Atl.  614:  Tom- 
lcins V.  Tomlcins,  1  Bail.  L.  92,  19  Am. 
Dec.  656 :  Trezevant  v.  Rains,  85  Tex. 
329,  2S  S.'  W.  890.  And  see  Kinno  v. 
Einne  9  Conn.  102,  21  Am.  Dec.  732. 


A  person  is  not  rendered  incompetent 
to  make  a  will  by  reason  of  the  fact  that 
he  was  in  a  feeble  condition  from  a  com- 
plication of  diseases,  and  his  ideas  were 
confused,  and  his  mind  wandered  while 
under  the  influence  of  opiates,  where, 
when  restored,  which  was  readily  done, 
his  mind  was  clear,  and  he  had  posses- 
sion of  all  his  faculties.  Collins  v, 
Brazill,  63  Iowa,  432,  19  N.  W.  338. 

"^ijre's  Estate,  12  Phila.  156. 

'^Elliott's  Will,  2  J.  J.  Marsh.  340. 

"Maverick  v.  Reynolds,  2  Bradf.  360; 
Bleecker  v.  Lynch,  1  Bradf.  458;  Corn- 
well  V.  Riker,  2  Dem.  354;  Van  Alst  v. 
Hunter,  5  Johns.  Ch.  148;  Spencer  v. 
Moore,  4  Call  (Va.)  423;  Kirlcwood  v. 
Gordon,  7  Rich.  L.  474,  62  Am.  Dec.  418; 
Potts  V.  House,  6  Ga.  324,  50  Am.  Dec. 
329;  Avies's  Will,  40  Or.  495,  67  Pac. 
737;  Mcintosh  v.  Moore,  22  Tex.  Civ. 
App.  22,  53  S.  W.  611;  Montague  v.  Al- 
lan, 78  Va.  592,  49  Am.  Rep.  384;  ^^ich- 
olas  V.  Kershner,  20  W.  Va.  251;  Kerr 
V.  Lunsford,  31  W.  Va.  659,  2  L.  R.  A. 
668,  8  S.  E.  493. 

Great  age  on  the  part  of  a  testator 
whose  mind  is  capable  of  acting  ration- 
ally is  a  ground  for  protection  and  aid 
rather  than  for  testamentary  disquali- 
fication. Maverick  v.  Ret/nolds,  2  Bradf. 
360;  'Napfle's  Estate,  46  Phila.  Leg.  Int. 
57. 

^"Turner's  Appeal,  72  Conn.  305,  44 
Atl.  310;  Rutherford  v.  Morris,  77  HI. 
397;  Higgins  v.  Carlton,  28  Md.  115,  92 
Am.  Dec.  666;  Creely  v.  Ostrander,  3 
Bradf.  107;  Chrisman  v.  Chrisman,  16 
Or.   127,  18  Pac.  6. 

"''Re  Nelson,  132  Cal.  182,  64  Pac.  294; 
Brown  v.  Riggin,  94  111.  560;  Kimball 
V.    Cuddy,    117    HI.   213,    7   N.    E.    589; 


76 


MUNTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   72 


Nor  does  physical  weakness  accompanied  by  disease.''*^  Infirmity  of 
body  and  abatement  of  intellectual  vigor  usually  attending  old  age 
and  disease  do  not  constitute  testamentary  incapacity,  where  the  dis- 
ease was  not  calculated  directly  to  affect  the  mind,"^  It  must  amount 
to  unsoundness  of  mind,  which  means  a  want  of  understanding.'^ 

73.  Failure  of  memory. —  Failure  of  memory  is  not  a  ground  of  tes- 
tamentary incapacity  unless  it  be  total,  and  extend  to  the  testator's 
immediate  family  and  property,  and  render  him  unable  to  recall  the 
constituents  of  the  business  sufficiently  long  for  the  completion  of  his 
will.'^^  Absolute  loss  of  memory,  however,  destroys  testamentary 
capacity. "^^    But  the  jury  in  a  will  contest  should  not  be  restricted  to 


Thompson  v.  Kijner,  65  Pa.  368 ;  Stout- 
enburgh  v.  Ilopkins,  43  N.  J.  Eq.  577, 
12  Ati.  689;  Re  Henry,  18  Misc.  149,  41 
N.  Y.  Supp.  1096;  Re  Seaqrisf,  1  App. 
Div.  615,  37  N.  Y.  Supp.  496;  Re  Pat- 
terson, 36  N.  Y.  S.  R.  813,  13  N.  Y. 
Supp.  463;  Re  Coymor,  27  N.  Y.  S.  R. 
905,  7  N.  Y.  Supp.  855;  Mcintosh  v. 
Moore,  22  Tex.  Civ.  App.  22,  53  S.  W. 
611. 

'"Re  Motz,  136  Cal.  558,  69  Pac.  294; 
Runlcle  v.  Gates,  11  Ind.  95;  Hathorn  v. 
King,  8  Mass.  371,  5  Am.  Dec.  106; 
O'Brien  v.  Dwyer,  45  N.  J.  Eq.  689,  17 
Atl.  777;  Doyle's  Estate,  7  Pa.  Co.  Ct. 
657. 

'^Eastis  V.  Montgomery,  95  Ala.  486, 
36  Am.  St.  Rep.  227,  11  So.  204;  Leeper 
V.  Taylor,  47  Ala.  221;  Taylor  v.  Kelly, 
31  Ala.  59,  68  Am.  Dec.  150;  McCulloch 
V.  Campbell,  49  Ark.  367,  5  S.  W.  590; 
T.odge  v.  Lodge,  2  Houst.  (Del.)  419; 
Conway  V.  rizzard,  122  Ind.  266,  23  N. 
E.  771;  ^Valts  v.  Bulloch,  1  Litt.  (Ky.) 
252 ;  >>echrest  v.  Edicards,  4  Met. 
(Ky.)  163;  Sehr  v.  Undcmann,  153  Mo. 
276,  54  S.  W.  537;  Thompson  v.  Ish,  99 
Mo.  100,  17  Am.  St.  Rep.  552,  12  S.  W. 
510;  Slull  V.  Stull  (Neb.)  !)6  N.  W.  196; 
Westcolt  V.  fiheppard,  51  N.  J.  Eq.  315, 
.30  Atl.  428;  Hampton  v.  Westcott,  49 
N.  J.  Eq.  522,  25  Atl.  254;  Winlermute 
V.  Wilson,  28  N.  J.  Eq.  437;  Turner  v. 
Checsman,  15  N.  J.  Eq.  243;  Re  Carter 
(N.  J.  Eq.)  51  Atl.  65;  Crolius  v.  Btarh, 
7  Lans.  311;  Davis  v.  Culver,  13  How. 
Pr.  68;  Re  McGraw,  9  App.  Div.  372,  41 
N.  Y.  Supp.  481  :  Laicrenee  v.  Lawrence, 
4  N.  Y.  Week.  Dig.  299;  Re  Blair,  16 
Daly,  540,  16  N.  Y.  Supp.  874;  Clarke 
V.  Davis,  1  Redf.  249;  Carroll  v.  .Yor- 
ton,  3  Bradf.  291;  Re  Gihon,  44  App. 
Div.  621,  00  N.  Y.  Supp.  65,  Afruiued 
in  163  N.  Y.  595,  57  N.  E.  1110;  Tawney 
V.  Long,  76  Pa.  106;  Re  Wood  fall,  7 
rhila.  .528. 


'''Davis  V.  Culver,  13  How.  Pr.  68; 
Thompson  v.  Ish,  99  Mo.  160,  17  Am. 
St.  Rep.  552,  12  S.  W.  510;  Wintermute 
v.  Wilson,  28  N.  J.  Eq.  437;  Leeper 
v.  Taylor,  47  Ala.  221. 

A  testamentary  disposition  made  by 
one  who  was  in  such  a  condition  as  to 
be  unable  to  signify  his  wislies,  how- 
ever, or  to  dissent  from  the  will  if  he 
desired  to,  is  invalid.  Parish  v.  Parish, 
42  Barb.  274;  McSorley  v.  McSorley,  2 
Bradf.  188;  Knapp  v.  Reilly,  3  Dem. 
427;  McMcchen  v.  McMechen,  17  W. 
Va.  683,  41  Am.  Rep.  682. 

^"Kramer  v.  Wcinert,  81  Ala.  414,  1 
So.  26;  Re  Case  (Conn.)  52  Atl.  403; 
Yoe  V.  McCord.  74  111.  33;  Dahj  v.  Daly, 
183  111.  269,  55  N.  E.  671;  Re  Storey, 
20  111.  App.  183;  Loivder  v.  Loxoder,  58 
Ind.  538 ;  Jamison  v.  Jamison,  3  Houst. 
(Del.)  108:  Prcntis  v.  Bates,  88  Mich. 
567,  50  N.  W.  637 ;  Turner  v.  Cheesman, 
15  N.  J.  Eq.  243;  Re  Wintermute,  27 
N.  J.  Eq.  447;  Sihley  v.  Somers,  62  N. 
J.  Eq.  595,  50  Atl.  321;  Reynolds  v. 
Root,  62  Barb.  250;  Van  list  v.  Hunter, 
5  Johns.  Ch.  148;  Bleeckcr  v.  Lynch,  1 
Bradf.  458 ;  Lawrence  v.  Lawrence,  4 
N.  Y.  Week.  Dig.  299;  Re  Steioart,  36 
N.  Y.  S.  R.  56.  13  N.  Y.  Supp.  219:  Re 
Woodfall,  7  Phila.  528;  Wood's  Estate, 
13  Phila.  236;  Hopple's  Estate,  7  W. 
N.  C.  523;  Montague  v.  Allan,  78  Va. 
592,  49  Am.  Rep.  384;  Martin  v.  Thayer, 
37  W.  Va.  38,  10  S.  E.  489. 

]\Ierc  inabilitj'  on  the  part  of  a  testa- 
tor to  remember  the  names  of  relatives 
not  frequently  S3en,  or  the  Cliristian 
name  of  a  sister,  who  is  the  mother  of 
some  of  the  beneficiaries,  does  not  in- 
capacitate a  party  from  making  a  will 
Kramer  v.  Wcinert,  81  Ala.  414,  1  So. 
26. 

''fjanih  v.  Liiiiih,  105  liul.  456.  5  N.  E. 
171. 

Senile  deiiiciUia   indicates  a   breaking 


S  73] 


WILLS. 


77 


inquiries  involving  memory  alone,  and  not  reason  and  a  knowledge 
of  the  actual  obligations  to  relatives. ^^ 

11.    Monomania,  or  partial  insanity. 

74.  Partial  insanity  defined. — Monomania,  or  partial  insanity,  is 
a  perversion  of  the  understanding  in  regard  to  a  single  object  or  a 
limited  number  of  objects.'^*'  It  is  a  morbid  affection  of  the  mind, 
consisting  of  a  mental  or  moral  perversion,  or  both,  in  regard  to  some 
particular  subject  or  class  of  subjects.'^'^ 

75.  Legal  existence  and  recognition. —  The  legal  existence  aiid  rec- 
ognition of  partial  insanity,  or  monomania,  has  been  denied,  but  it 
was  recognized  as  a  ground  for  invalidating  a  will  in  an  early  leading 
case.'^^  But  the  notion  of  partial  insanity  on  one  point,  as  consistent 
with  testamentary  capacity,  was  subsequently  explicitly  repudiated ;''° 
though  the  case  was  one  in  which  the  same  result  might  have  been 
reached  on  the  reasoning  of  the  former  case.  And,  upon  the  other 
hand,  the  position  has  been  taken  that  a  collateral  insane  delusion  in- 
validates a  will  though  it  was  not  directly  the  product  of  such  delu- 


down  of  the  menial  powers  in  most  peo- 
ple in  advance  of  bodily  decay.  Pyott 
V.  Pyott,  90  111.  App.  210. 

And  one  who  has  lost  the  power  of 
combining  and  arranging  liis  ideas  is 
incompetent  to  make  a  Avill.  Abraham 
V.   Wilkifis,  17  Ark.  292. 

'''-Howard  v.  Coke,  7  B.  Mon.  655. 

An  instruction  in  a  will  contest  that 
if  tlie  jury  believe,  from  the  testimony 
of  the  subscribing  witness,  that  the  tes- 
tator was  of  unsound  mind  or  memory, 
they  sliould  find  against  the  will,  is 
erroneous,  in  making  an  unwarrantable 
distinction  between  sound  mind  and 
sound  memory.  Yoe  v.  McCord,  74  111. 
33. 

''■Re  Gannon,  2  Misc.  329,  21  N.  Y. 
Supp.  960. 

''''Glianey  v.  Bryan,  16  Lea,  67. 

Monomania,  or  partial  insanity,  is  not 
an  intermediate  stage  in  the  develop- 
ment of  mental  derangement,  but  a  dis- 
turbance of  the  mind  at  some  particu- 
lar point,  not  involving  the  mind  at 
any  other  point.  Taylor  v.  Trich,  165 
Pa.  586,  44  Aiu.  St.  "Rep.  679,  30  Atl. 
1053. 

Monomania  and  eccentricity  differ 
from  each  other  in  that  the  monomaniac 
lias  become  such  by  a  change  of  the  char- 
acter; while  the  eccentric  man  always 
was  singular  in   his  ideas  and  actions, 


though  eccentric  habits  suddenly  ac- 
quired are  presumptive  evidence  of  in- 
sanity. Elcin  V.  McCracken,  11  Phila. 
534. 

"jDew  V.  Clark,  3  Addams  Eccl.  Rep. 
79. 

So  in  Fowlis  v.  Davidson,  6  Notes  of 
Cases,  461,  it  was  lield  that  to  establisli 
unsoundness  of  mind  it  is  not  necessary 
that  it  should  be  general;  it  is  sulli- 
cient  if  proved  to  exist  on  one  or  more 
subjects,  thougli  in  all  other  respects 
the  individual  may  conduct  himself 
with  propriety. 

''^Va7-ing  v.  Waring,  6  Moore  P.  C. 
C.  341,  12  Jur.  947. 

In  the  above  case  it  was  stated,  as  a 
reason  for  the  repudiation  of  tlie  doc- 
trine of  partial  insanity,  that  when  we 
speak  of  the  different  powers  and  facul- 
ties, as  memory,  consciousness,  etc.,  we 
speak  metaphorically,  likening  the  mind 
to  tlie  body,  as  if  it  had  members  or 
compartments;  whereas,  in  all  accuracy 
of  speech,  we  mean  to  speak  of  the 
mind  as  acting  variously, — that  is,  re- 
membering, fancying,  reflecting, — the 
same  mind  in  all  of  these  operations  be- 
ing the  agent.  We,  therefore,  cannot, 
in  all  correctness  of  language,  speak  of 
general   or   partial   insanity. 


78  MENTAL  UNSOUNDi\ESS  IN  ITS  LEGAL  RELATIONS.  [§  75 

sion.^'^  So  far,  indeed,  lias  this  doctrine  been  pushed  that  an  extrava- 
gant and  absurd  passion  for  pets  has  been,  in  England,  regarded  as 
proof  of  incapacity.  In  one  case  this  rule  was  applied  to  an  unmar- 
ried woman  who  kept,  in  kennels  in  her  drawing-room,  fourteen  dogs, 
of  both  sexes,^^  and  to  another,  who  kept  in  her  house  a  great  multi- 
tude of  cats,  which  were  provided  with  regular  meals,  and  were  fur- 
nished with  plates  and  napkins.*^  But  it  has  since  been  also  express- 
ly repudiat^d.^^ 

76.  Conflict  in  the  decisions  reconciled  by  theory  of  mental  twi- 
light.—  We  have,  therefore,  an  apparent  conflict  in  the  English  de- 
cisions. On  the  one  hand,  in  the  view  of  Sir  J.  Xicholl,  Chief  Justice 
Cockburn,  and  Sir  James  Hannen,  "partial  insanity,"  consisting  of 
delusions  and  hallucinations  not  connected  mth  the  subject-matter  of 
a  will,  does  not  invalidate  such  will.  On  the  other  hand,  in  the  opin- 
ions of  Lord  Brougham  and  Lord  Penzance,  insanity  or  "mental 
disease,"  when  it  exists  at  all,  destroys  testamentary  capacity,  though, 
it  displays  itself  in  delusions  which  in  no  way  touch  the  subject-matter 
of  the  will.  But  this  apparent  conflict  may  be  reconciled  when  we 
recollect  that,  as  in  sanity,  so  in  insanity,  there  are  various  gradations, 
and  that  sanity  and  insanity  therefore  have  a  region  in  which  they 
melt  into  each  other  imperceptibly.®^     And  the  legal  bearing  of  mono- 

'^Smith  V.  Tebhitt,  L.  R.  1  Piob.  &  ^^Yglesias  v.  Dyke,  Prerogative  Court, 
Di\'.  398,  16  L.  T.  N.  S.  841,  16  Week.  May,  1852;  Taylor,  2d.  ed.,  ii.  556;  1 
Rep.  18,  36  L.  J.  Prob.  N.  S.  97.  Redf.  Wills,  chap.  3,  §  11. 

The  earlier  English  rule  was  that  the  ^"Ibid. 
mind  of  man  was  to  be  regarded  "as  "ifanAs  v.  Goodfellow,  L.  R.  5  Q.  P>. 
indivisible,  and  that  a  man  was  to  be  549,  39  L.  J.  Q.  B.  N.  S.  237,  22  L.  T. 
ret'arded  as  wholly  sane  or  wholly  in-  N.  S.  813.  This  has  been  followed  in 
sane,"  and  that  partial  insanity  was  Boughton  v.  Knight,  L.  R.  3  Prob.  & 
an  incorrect  phrase;  that  a  mind  which  Div.  04,  42  L.  J.  Prob.  N.  S.  41,  28  L.  T, 
is  actuallv  insane  upon  one  subject  N.  S.  562,  and  Smee  v.  Smee,  L.  R.  5 
could  not  be  deemed  sane  on  other  sub-  Prob.  Div.  84,  49  L.  J.  Prob.  N.  S.  8, 
jects,  and  that  a  will  made  by  a  per-  28  Week.  Rep.  703,  44  J.  P.  220.  And 
son  having  such  a  mind,  though  ap-  also  in  lie  Blakely,  48  Wis.  295,  4  N. 
parontly  rational  and  proper,  and  though  W.  337,  and  numerous  other  cases, 
the  infirmity  liad  no  bearing  upon  the  ^'See  The  Borderlands  of  Insanity, 
testamentary  disposition,  was  invalid,  by  Andrew  Wynter,  ]\I.  D.,  N.  Y.  1875. 
Waring  v.  Waring,  12  Jur.  947,  6  Moore  The  various  phases  of  mental  condi- 
P.  C.  C.  341;  Umith  v.  Tehbitt,  L.  R.  1  tions  defined  by  the  terms  insanity,  men- 
Prob.  &  Div.  398,  16  L.  T.  N.  &  841,  tal  derangement,  unsoundness,  and  mo- 
36  L.  J.  Prob.  N.  S.  97,  16  Week.  Rep.  nomania,  are  of  variable  significance, 
18.  and  their  value   in   any  given   case  de- 

*So,  the  phrase  "of  unsound  mind,"  pends  entirely  upon  the  relation  which 
in  the  Indiana  statute  with  reference  they  bear  to  the  particular  person  in 
to  testamentary  capacity,  includes  ev-  connection  with  the  particular  act  un- 
ery  species  of  unsoundness  of  mind,  der  inquiry,  and  are  all  within  the  range 
whether  partial  or  complete.  Willett  v.  of  inquiry  in  determining,  in  a  will  con- 
Porter,  A2  Ind.  250;  Eggers  v.  Eggers,  57  test,  whether  or  not  a  person,  at  the 
Ind.  461;  Burkhart  v.  Gladish,  123  Ind.  time  of  e.\cc\iting  an  alleged  will,  was  a 
338    24  N.  E.  118.  person    of    unsound    mind    within    the 


5  7fiJ 


WILLS. 


79 


mania  or  partial  insanity  upon  the  validity  of  wills  and  other  instru- 
ments and  acts  is  now  universally  recognized.®^ 

77.  Effect  of  monomania  on  capacity;  modern  rule. —  The  rule  now 
is  almost,  if  not  quite,  general  tliat  a  testator  possessing  reason  and 
capacity  on  the  subject  of  disposing  of  his  property  by  will  is  not  in- 
capacitated by  reason  of  not  having  capacity  on  some  other  subjects.** 
A  derangement  of  the  faculties  cannot  operate  to  incapacitate  a  per- 
son to  make  a  will  where  it  does  not  render  him  incapable  of  acting 
rationally  in  the  ordinary  affairs  of  life,  or  manifest  itself  in  the  tes- 
tamentary provisions.*^  To  be  invalidated  by  monomania  or  partial 
insanity,  a  will  must  have  been  directly  produced  by  it.®^  But  mono- 
mania,, or  partial  insanity,  invalidates  a  will  w'hich  is  its  direct  off- 
spring,®'' or  which  was  in  any  way  the  effect  or  result  of  it,  tliough  tlie 
testator's  general  capacity  was  good.^**  And  where  a  testator  was  a 
monomaniac  it  must  be  made  to  appear  that  his  will  was  in  no  way 
the  result  of,  or  connected  with,  the  mania.^^ 

78.  Moral  insanity. —  Moral  insanity  is  defined  to  be  a  disorder  of 
the  moral  affections,  feelings,  and  proj)erLsit.ies.®^     Unless  it  is  accom- 


meaninw  of  the  New  York  statute  of 
wills.  Cheney  v.  Price,  90  Hun,  238,  37 
N.  Y.  Supp.  117. 

'"See  infra,  §  77. 

^•James  v.  Lanqdon,  7  B.  Mon.  193; 
Kingsbury  v.  Whiiaker,  32  La.  Ann. 
1055,  36  Am.  Rep.  278;  Lucas  v.  Par- 
sons, 24  Ga.  640,  71  Am.  Dec.  147; 
Wetlcr  V.  Eahersham,  60  Ga.  194.  And 
see  Rodgo-'s  Estate,  19  W.  N.  C.  3S3 ; 
Peninsular  Trust  Co.  v.  Barker,  116 
Mich.  333,  74  N.  W.  508. 

^'lie  Evans,  114  Iowa,  240,  86  N.  W. 
283;  Eraser  v.  Jennisori,  42  Mich.  206, 
3  N.  W.  882;  Stackhouse  v.  Horton,  15 
N.  J.  Eq.  203;  Pidcock  v.  Potter,  68 
Pa.  348,  8  Am.  Rep.  181 ;  Barnks  v.  Good- 
fUlow,  22  L.  T.  N.  S.  819,  L.  R.  5  Q.  B. 
.'549,  39  L.  J.  Q.  B.  N.  S.  237. 

Partial  insanity  or  monomania  which 
will  invalidate  a  ■will  must  amount  to 
such  an  insane  delusion  as  renders  the 
testator  incapable  of  reasoning  on  that 
particular  subject,  and  shows  that  he 
has  assumed  to  believe  to  be  true  that 
which  has  no  foundation  in  reason  or 
fact.  Haines  v.  Haijden,  95  Mich.  332. 
35  Am.  St.  Rep.  566.  54  N.  W.  911.  And 
it  nnist  have  related  to  the  person  to  be 
affected  as  well  as  to  the  subject-matter 
to  be  disposed  of.  Gardner  v.  Lamhack, 
47  Ga.  133.  But  an  heir  at  law  may 
complain  of  any  mania  on  the  part  of 
his  testator   which  diverts  the    inherit- 


ance from  him,  whether  the  mania  was 
directed  against  him  or  anotlier.  Wet- 
ter V.  Habersham,  60  Ga.  194. 

^"^Benoist  v.  Murrin,  58  ]\Io.  307; 
Oicings'  Case,  1  Bland  Ch.  370.  17  Am. 
Dec.  311;  Re  Lang,  9  Misc.  521,  30  N. 
Y.  Supp.  388;  Young  v.  Miller,  145  Ind. 
652,  44  N.  E.  757;  Powers  v.  Powers,  21 
Ky.  L.  Rep.  597,  52  S.  W.  845. 

The  will  of  a  testator  who  had  self- 
possession  and  control,  and  the  ability 
to  understand  the  situation  of  his  af- 
fairs, and  the  claims  on  his  bounty  of 
wife  and  children,  is  good  notwithstand- 
ing an  injury  to  the  head  and  forgetful- 
ness  at  times  in  his  business  plans,  and 
discrepancies  of  conduct,  and  a  morbid 
fear  and  apprehension  of  death.  Leslie 
V.  Leslie,  15  N.  Y.  Week.  Dig.  56,  Af- 
firmed in  92  N.  Y.  636. 

"■•'Merrill  v.  Rolston,  5  Red-f.  220; 
Cotton  V.  Ulmcr,  45  Ala.  378,  6  Am. 
Rep.  703;  Thomas  v.  Carter,  170  Pa. 
272,  50  Am.  St.  Rep.  770,  33  Atl.  81; 
Lucas  V.  Parsons,  24  Ga.  640,  71  Am. 
Dec.  147;  Potts  v.  House,  6  Ga.  324,  50 
Am.  Dec.  329;  Dew  v.  Clark,  1  Addams 
Eccl.  Rep.  279;  De^c  v.  Clark,  3  Addams 
Eccl.  Rep.  79;  Puryear  v.  Reese,  6 
Coldw.  21. 

^Gardner  v.  Lamhack,  47  Ga.  133. 

"Hid. 

"'Re  Eorman,  54  Barb.  274;  Board- 
man  V.  Woodman,  47  N.  H.  120. 


80  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  {§  -78 

panied  by  insane  delusions,  it  is  not  sufficient  to  invalidate  a  will, 
nr  to  incapacitate  a  person  to  make  one.^^  The  question  in  such  case 
is  not  whether  the  feelings  of  the  testator  toward  the  natural  objects 
uf  his  bounty  were  unreasonable  or  unjust,  or  whether  they  showed 
moral  insanity,  but  v.-hether  such  feelings  showed  him  to  be  insane.^* 
And  the  question  as  to  the  extent  to  which  moral  debasement  is  evi- 
dence of  insanity  is  one  for  the  jury.^^ 

79.  Even  morbid  derangement  need  not  incapacitate. —  There  are, 
however,  other  cases  in  which  there  is  a  general  morbid  derangement 
of  all,  or  of  a  material  portion,  of  the  organs.  With  reference  to  all 
these,  as  well  as  to  the  great  mass  of  instances  where  hallucination 
forms  the  groundwork,  it  may  be  asked  whether,  in  the  state  of  mind 
in  which  the  patient  was,  he  was  capable  of  making  a  wiU.  This  is 
a  very  difficult  question;  but  its  solution  is  not  an  impossibility. 
When  the  conduct  of  the  individual  does  not  depart  from  received 
usages,  when  it  is  not  controlled  by  one  of  those  false  ideas  that  make 
him  hate  his  relations  and  friends  without  any  motive,  and  Avhen  he 
regulates  his  expenses  prudently,  whimsical  actions,  or  words,  the 
results  of  an  erroneous  belief,  but  having  no  influence  on  the  promi- 
nent acts  of  his  life,  should  not  deprive  a  person  of  his  civil  liberties, 
and  of  the  power  of  making  his  will. 

III.   Delusions. 

80.  Definitions. —  Delusions,  in  their  legal  relations,  so  far  as  con- 
cerns testament-ary  capacity,  have  been  defined  to  be  ^'a  belief  of  facts 
sv'hich  no  rational  person  would  have  believed."^  But  this  definition, 
though  frequently  and  recently  announced,  has  been  criticised  as 
begging  the  question  at  issue  or  arguing  in  a  circle,' — the  question  as 
to  who  is  a  rational  person  not  being  answered.^  And  insane  delu- 
sions have  also  been  defined  to  be  a  spontaneous  conception  and 
acceptance  as  a  fact  of  that  wdiich  has  no  real  existence  except  in  the 

"/?c  ForTTi on,  54  Barb.  274;  Boardman  Estate,    7    Northampton    Co.    Rop.    93; 

V.   Woodman,  47  N.  H.    120.     And    see  ^mee  v.  Sniee,  L.  R.  5  Prob.    Div.    84, 

1/ai/o  V.  Joves,  78  N.  C.  402.  49  L.  J.  Prob.  N.  S.  8.  28    Week.    Rep. 

"Re  Forman,  54  Barb.  274.  703,  44  J.  P.  220. 

''.Uflt/o  V.  Jones,  78  N.  C.  402.  =Scp  f<miih  v.  Tehbitt,  L.  R.  1  Prob.  fc 

'Re  Forman,  54  Barb.  274;   Taylor  v.  Div.  398,  36  L.  J.  Prob.  N.  S.  35,  15  L. 

Trich,  1G5  Pa.  586,  44  Am.  St.  Rep.  679,  T.  N.  S.  594,  15  Week.  Rep.  562;   War- 

30  Atl.  1053;  Prather  v.  McClelland,  76  ing  v.  Waring,  12  Jur.  947,  6  Moore  P. 

Tex.  574,  13  S.  W.    543;    Hemingwag's  C.  C.  341;  Boiighton  v.  Knight,  L.  R.  3 

Estate,  195  Pa.  291,  78  Am.    St.    Rep.  Prob.  &  Div.  64.  42  L.  J,  Prob.  N.  S,  41^ 

815,  45  Atl.  726;  Bennett's  Estate,  201  28  L.  T.  N.  S.  562. 
I'a.    485,    51    Atl.     336;     Hemingway'a 


§   80] 


WILLS. 


81 


imagination,  and  a  persistent  adherence  to  it  against  all  evidence;' 
and  as  a  conception  originating  spontaneously  in  the  mind  without 
evidence  of  any  kind  to  support  it,  which  can  be  accounted  for  on  no 
reasonable  hypothesis,  having  no  foundation  in  reality,  and  springing 
from  disease  or  a  morbid  condition  of  the  mind.'*  Whenever  a  person 
believes  something  extravagant  to  exist,  against  all  evidence, — which 
has  no  existence  in  fact  except  in  his  own  imagination, — and  he  is 
incapable  of  being  reasoned  out  of  the  reality  of  such  conception,  he 
will  be  held  to  liave  an  insane  delusion  which  will  invalidate  a  will 
affected  by  such  extravagant  belief.^  And  this  is  true  however  logi- 
cally and  rationally  he  may  conduct  himself  upon  the  assumption  of 
its  existence.^ 

81.  Will  void  when  the  result  of  insane  delusion. —  In  most  of  our 
American  states,  proof  of  insane  delusions  is  insufficient  to  defeat  a 
will,  unless  the  will  be  the  direct  offspring  of  such  insane  delusions. 
Where  the  delusion  thus  operates,  then  the  will  is  void.'^      The  true 


me  ^coit,  128  CaL  57,  GO  Pac.  527; 
Re  Kendrick,  130  Cal.  360,  62  Pac.  605; 
Medill  V.  Hnijder,  61  Kan.  15,  78  Am. 
St.  Kep.  306,  58  Pac.  962;  Smith  v. 
Smiih,  48  N.  J.  Eq.  566,  25  Atl.  11; 
Rush  V.  Megee,  36  Ind.  69;  Waring  v. 
Warinq,  12  Jur.  947,  6  Moore  P.  C.  C. 
341 :  Middleditch  v.  WilUams.  45  N.  J. 
Eq.  726,  4  L.  R.  A.  738.  17  Atl.  826. 

*  Potter  V.  Jones,  20  Or.  239,  12  L.  R. 
A.  161,  25  Pac.  769;  Middlediteh  v.  Wil- 
liams, 45  N.  J.  Eq.  726,  4  L.  R.  A.  738, 
17  AtL  826;  Re  Kendrick,  130  Cal.  360. 
62  Pac.  605;  Re  Merriman,  108  Mich. 
454.  66  N.  W.  372. 

"Re  Kendrick,  130  Cal.  360,  62  Pac. 
605;  Mullins  v.  CoftreJl,  41  Miss.  291; 
Benoist  v.  Murrin,  58  Mo.  307 ;  Middle- 
ditch  V.  Williams,  45  N.  J.  Eq.  726,  4 
L.  R.  A.  738,  17  Atl.  826;  American 
Seamen's  Friend  Soc.  v.  Hopper,  33  N. 
Y.  619;  Re  Keeler,  12  N.  Y.  S.  R.  148; 
Re  White,  121  N.  Y.  406,  24  N.  E.  935; 
Re  Henry,  18  Misc.  149,  41  N.  Y.  Supp. 
1096:  Stanton  v.  Wetherivax,  16  Barb. 
259;  Re  Shaw,  2  Redf.  107;  Philadelphia 
Trn^t  tC-  (S'.  D.  Co.  v.  Drinkhouse,  17 
Phila.  23:  Bounhton  v.  Kniqht,  L.  R.  3 
Prob.  &  Div.  64,  42  L.  .7.  Prob.  N.  S.  41, 
28  L.  T.  N.  S.  502;  Dew  v.  Clark,  3 
Addams  Eccl.  Rep.  79. 

So,  an  insane  delusion  has  been  de- 
fined to  be  a  belief  in  things  impossible 
or  in  things  so  improbable  under  the 
surrounding  circumstances  that  no  per- 
son of  sound  mind  would  give  them 
credit.  Prinsep  v.  Dyce  Somhie,  10 
Vol.  I.  Med.  Jri:. — 6. 


Moore  P.  C.  C.  232;  Riggs  v.  American 
Home  Missionarij  Soc.  35  Hun,  656. 

But  the  thing  believed  need  not  be  an 
absolute  physical  impossibility.  Medill 
V.  Sni/der,  61  Kan.  15,  78  Am.  St.  Rep. 
306,  58  Pac.  962. 

'American  Seamen's  Friend  Soc.  v. 
Hopper,  33  N.  Y.  619;  Re  White,  121  N. 
Y.  406.  24  N.  E.  935 ;  Re  Shaw,  2  Redf. 
107;  Potter  v.  Jones,  20  Or.  239,  12  L. 
R.  A.  161,  25  Pac.  769. 

A  delusion  without  foundation,  that 
the  testator's  daughter  was  an  inmate 
of  a  house  of  ill-fame,  will  invalidate  a 
will  disinheriting  her,  though  he  was 
entirely  sane  upon  other  subjects. 
Rivnrci  v.  Rivard,  109  Mich.  98,  63  Am. 
St.  Rep.  566,  66  N.  W.  681. 

'The  rule,  which  seems  to  be  universal, 
that  a  will  resulting  from  an  insane  de- 
lusion is  void,  is  announced  and  sup- 
ported by  numerous  cases,  among  which 
are:  Cotton  v.  Ulmer,  45  Ala.  378,  0 
Am.  Rep.  706;  Carpenter  v.  Bailey,  94 
Cal.  406,  29  Pac.  1101;  Lucas  v.  Par- 
sons, 24  Ga.  640,  71  Am.  Dec.  147; 
Rush  V.  Megee,  36  Ind.  69;  American 
Bible  Soc.  V.  Price,  115  111.  623,  5  N.  E. 
126:  Johnson  v.  Moore,  1  Litt.  (Ky. ) 
371;  Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473 ;  Townshend  v.  Tovm- 
shend,  7  Gill.  10;  Broicn  v.  Ward,  53 
Md.  376,  36  Am.  Rep.  422;  Rivard  v. 
Rirard,  109  Mich.  98,  63  Am.  St.  Rep. 
506.  66  N.  W.  681  ;  Benoist  v.  Murrin, 
58  Mo.  307;  Lee  v.  Scndder,  31  N.  .1. 
Eq.  633;   Riggs  v.  Atnerican  Tract  Soc 


S2 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  31 


inquiry  is  whether  the  will  was  the  result  of  the  delusion,  and 
whether  the  testator  was  the  victim  of  such  a  delusion  as  controlled 
his  actions  and  rendered  him  insensible  to  the  ties  of  blood  and  kin- 
dred.^ And  the  inquiry  should  not  be  confined  to  general  insanity." 
The  burden  rests  with  those  alleging  it  to  show  that  a  will  was  the 
result  of  delusion.^'* 

82.  Not  avoided  by  collateral  delusion. —  The  rule  that  to  invali- 
date a  will  there  must  be  want  of  capacity  preventing  the  testator 
from  reasoning  correctly  and  understanding  the  relation  of  cause  and 
effect  in  ordinary  business  affairs  applies  to  insanity  and  testament- 
ary incapacity  in  general,  and  not  to  morbid  or  insane  delusions  on  his 
part.^^  Delusions  entertained  by  a  testator  do  not  affect  the  validity 
of  his  will  unless  they  have  controlled  the  disposition  of  his  prop^ 
erty.^^     An  insane  delusion  will  not  affect  the  validity  of  a  will 


95  N.  Y.  503;  Re  Jenkins,  39  Misc.  618, 
80  N.  Y.  Supp.  6G4;  Taivney  v.  Long,  76 
Pa.  106;  Thomas  v.  Carter,  170  Pa.  272, 
50  Am.  St.  Rep.  770,  33  Atl.  81;  Gass  v. 
Gass,  3  Humph.  278;  Re  Segur,  71  Vt. 
224,  44  Atl.  342;  Cole's  Will,  49  Wis. 
179,  5  N.  W.  346;  Bell  v.  Lee,  28  Grant 
Ch.  (U.  C.)  150;  Dew  y.  Clark,  3 
Addams  Eccl.  Rep.  79.  See  also  an 
essay  by  Dr.  Ray  on  the  "Angel  Will 
Case,"  20  Am.  Journal  of  Insanity,  145. 

In  Indiana,  by  statute,  a  person  "who 
has  become  the  victim  of  a  mental  de- 
rangement in  any  form"  is  incompetent 
to  make  a  will.  Eggers  v.  Eggers,  57 
Ind.  461. 

The  fact  that  a  testator  is  competent 
to  transact  complicated  and  important 
business,  involving  the  exercise  of  suit- 
able and  adequate  power,  does  not 
negative  the  existence  of  delusions 
which  would  deprive  him  of  testamen- 
tary capacitv.  Smee  v.  Smee,  L.  R.  5 
Prob.  Div.  84,  49  L.  J.  Prob.  N.  S.  8,  28 
Week.  Rep.  703.  44  J.  P.  220;  Banks  v. 
Goodfellow,  22  L.  T.  N.  S.  819,  39  L.  J. 
Q.  B.  N.  S.  237,  L.  R.  5  Q.  B.  549; 
Morse  v.  Scott,  4  Dem.  507. 

^McClary  v.  Stull,  44  Neb.  175,  62 
Pac.  501;  Re  Keeler,  12  N.  Y.  S.  R.  148; 
Taivney  v.  Long,  76  Pa.  106.  And  see 
Roe  V.  Taylor,  45  111.  485;  Whitney  v. 
Tifomhly,  136  Mass.  145;  Rivard  v. 
Rivard,  100  Midi.  98,  63  Am.  St.  Rep. 
566,  66  N.  W.  681  ;  Prather  v.  McClel- 
land, 76  Tex.  574,  13  S.  W.  543;  Vance 
V.  Upson,  66  Tex.  476,  1  S.  W.  179;  Bai- 
lout ine  V.  Proudfoot,  62  Wis.  216,  22  N. 
W.  392;  Banks  v.  Goodfellow,  22  L.  T. 


N.  S.  819,  39  L.  J.  Q.  B.  N.  S.  237,  L.  R. 
5  Q.  B.  549. 

A  delusion  upon  the  part  of  a  testator 
that  his  son  was  not  his  son,  whereby 
the  provisions  of  his  will  were  altered, 
defeats  it.  Layer  v.  Layer,  110  Ky. 
542,  62  S.  W.  15,  22. 

And  a  mistaken  idea  upon  the  part 
of  a  woman  that  her  only  living  daugh- 
ter and  her  daughter's  husband  had  ill- 
treated  her,  and  purposely  permitted 
their  children  to  annoy  her,  and  had  at- 
tempted to  poison  her,  is  sufficient  to 
invalidate  her  will.  Ballantine  v. 
Proudfoot,  62  Wis.  216,  22  N.  W.  392. 

So,  a  codicil  made  by  an  old  man  in 
favor  of  a  woman  whom  he  met  while 
insane,  and  whom  he  desired  to  marry 
at  sight,  is  invalid  as  having  been  made 
under  the  influence  of  an  insane  de- 
lusion ;  he  having  had  no  former  knowl- 
edge of  her.  Clarke  v.  Lear,  cited  in  1 
Pliillim.  Eccl.  Rep.  119. 

^Petefish  V.  Becker.  176  111.  448,  52  N. 
E.  71 ;  Re  Scgur,  71  Vt.  224,  44  Atl.  342. 

^"Heminqway's  Estate,  195  Pa.  291,  78 
Am.  St.  Rep.  815,  45  Atl.  726.  And  see 
infra,  §  299. 

"American  Bible  Soc.  v.  Price,  115 
111.  623,  5  N.  E.  120;  Brinton's  Estate, 
13  Phila.  234. 

'-Re  Kendrick,  130  Cal.  360.  62  Pac. 
605;  Re  Redfield,  116  Cal.  637.  48  Pac. 
794;  Brace  v.  Black,  125  111.  33,  17  N. 
E.  66;  Schneider  v.  Manning,  121  111. 
376,  12  N.  E.  267;  Wait  v.  Westfall 
(Ind.)  G8N.  E.  271:  Penimular  Trust 
Co.  v.  Barker,  116  Mich.  333,  74  N.  W. 
508;   McClary  v.  StuU,  44  Neb.  175,  62 


§  82J 


WILLS. 


83 


where  it  is  in  no  way  connected  with  the  subject  or  objects  of  the 
tostamentarj  act;^^  or  where  it  cannot  be  seen  that  it  affected  the 
testamentary  act.  thougli  it  related  to  the  beneficiary;^^  and  where  a 
will  is  claimed  to  be  invalid  because  of  an  insane  delusion,  the  mental 
c-apacity  of  the  testator  is  to  be  measured  by  the  relation  of  the  delu- 
sion to  the  testaniontary  act.^^ 

83.  Must  be  insane.  — A  delusion  which  will  invalidate  a  will  must 
be  an  insane  delusion,  as  distinguished  from  a  mere  mistaken  notion^® 


N.  W.  501;  Middleditch  v.  Williams,  45 
N.  J.  P:q.  72(j,  4  L.  R.  A.  738,  17  Atl. 
826;  Re  Henry,  18  Misc.  149,  41  N.  Y. 
Supp.  1090;  Re  Iredale,  53  App.  Div.  45, 
♦i5  N.  Y.  Supp.  533 ;  Fowler  v.  Rams- 
dell.  4  Alb.  L.  J.  94;  Potter  v.  Jones, 
20  Or.  239,  12  L.  R.  A.  161,  25  Pac.  769; 
Taylor  v.  Trich,  165  Pa.  586,  44  Am.  St. 
Rep.  679,  30  Atl.  1053;  mireiner  v. 
Shrciner,  178  Pa.  57,  35  Atl.  974;  Mur- 
felt  V.  Smith,  L.  R.  12  Prob.  Div.  116, 
57  L.  T.  N.  S.  498,  51  J.  P.  374. 

"Diinhara's  Appeal,  27  Conn.  192; 
Lucas  V.  Parsons,  24  Ga.  640,  71  Am. 
Dec.  147 ;  Kingsbury  v.  Whitaker,  32 
La.  Ann.  1055^36  Am.  Rep.  278;  Rice  v. 
Rice,  50  Mich.  448,  15  N.  W.  545,  53 
Mich.  432,  10  N.  W.  132;  Boardman  v. 
Woodman.  47  N.  H.  120;  Bollinger  v. 
iiyms,  37  N.  J.  Eq.  221;  Lodge  v.  Eul- 
ings,  63  N.  J.  Eq.  159,  51  Atl.  1015; 
Potter  V.  McAlpine,  3  Dem.  108;  Re 
Fricke,  47  N.  Y.  S.  R.  10,  19  N.  Y.  Supp. 
315;  Thompson  v.  Thompson,  21  Barb. 
107;  Ames's  Will,  40  Or.  495,  07  Pac. 
737;  Potter  v.  Jones,  20  Or.  239,  12  L. 
R.  A.  161,  25  Pac.  769;  McGovran's 
Estate,  185  Pa.  203,  39  Atl.  816;  Pur- 
year  V.  Reese,  6  Coldw.  21;  Jones  v. 
(roodrich,  5  Moore,  P.  C.  C.  16;  Smee  v. 
Smee,  L.  R.  5  Prob.  Div.  84,  49  L.  J. 
Prob.  N.  S.  8,  28  Week.  Rep.  703,  44  J. 
P.  220;  Batiks  v.  Goodfellow,  22  L.  T. 
N.  S.  819,  39  L.  J.  Q.  B.  N.  S.  237,  L.  R. 
5  Q.  B.  549. 

An  extreme  fear  of  death  and  a  belief 
on  the  part  of  a  testator  that  he  had 
Bright's  disease,  which  belief  was  un- 
founded, are  not  of  themselves  sufficient 
to  invalidate  his  will.  Leslie  v.  Leslie, 
15  N.  Y.  Week.  Dig.  56,  Affirmed  in  92 
N.  Y.  636. 

Nor  is  the  validity  of  a  will  affected 
by  the  existence  of  a  delusion  upon  the 
part  of  a  testator  as  to  the  possession 
*A  a  large  amount  of  property.  Re 
Berrien.  24  N.  Y.  S.  R.  332,  5  N.  Y. 
Supp.  37. 

Or    by    one    to    the     effect     that     his 


services  were  required  by  the  govern- 
ment, and  that  he  was  likely  to  be  ap- 
pointed to  office.  Rice  v.  Rice,  53 
Mich.  432,  19  N.  W.  132. 

"Re  McCue,  17  N.  Y.  Week.  Dig.  501; 
Cole's  Will,  49  Wis.  179,  5  N.  W.  346. 

An  insane  delusion  upon  the  part  of  a 
testator  as  to  his  sons-in-law  will  not 
invalidate  his  will,  where  he  did  not 
permit  it  to  affect  his  judgment  as  to 
bequests  made  to  his  daughters,  who 
were  their  wives.  Rifsh  v.  Megee,  30 
Ind.  69.  See  Brace  v.  Black,  125  111. 
33,  17  N.  E.  66. 

And  a  will  will  not  be  set  aside  on  the 
ground  that  the  testator  entertained  a 
delusion  as  to  his  brothers  and  nephews 
and  nieces  which  prevented  him  from 
giving  them  anything,  where  he  had  a 
wife  living  to  whom  he  was  greatly  at- 
tached, since  it  will  be  inferred  in  sucli 
case  that  he  acted  from  a  sense  of 
justice  toward  her  rather  than  from  a 
delusion  toward  them.  Re  Keeler,  20 
N.  Y.  S.  R.  439,  3  N.  Y.  Supp.  629. 

''Re  redder,  6  Dem.  92;  Nichols  v. 
Biiins.  1  Swabey  &  T.  239. 

In  Smith  V.  Tebbitt,  L.  R.  1  Prob.  & 
Div.  401,  36  L.  J.  Prob.  N.  S.  35,  15  L. 
T.  N.  S.  594,15  Week.  Rep.  562,  however, 
the  will  of  a  woman  was  held  invalid, 
though  she  was  prudent  and  conducted 
herself  properly  in  the  ordinary  af- 
fairs of  life,  where  she  believed  herself 
to  be  a  member  of  the  Holy  Trinity,  and 
in  direct  communication  with  God,  and 
that  she  was  above  God,  and  would  sit 
in  judgTuent  on  her  fellow  creatures 
with  him  on  the  Judgment  Day,  and 
held  other  similar  delusions, — mistaken- 
ly believed  that  an  attempt  had  been 
made  to  poison  her,  and  that  she  was 
blind. 

"^Robinson  v.  Ada7ns,  62  Me.  369,  in 
Am.  Rep.  473;  Turner  v.  Rusk,  53  M(\ 
65;  Maynard  v.  Tuler,  168  Mass.  107.  M\ 
N.  E.  413;  Burk'hart  v.  Oladish,  123 
Ind.  338,  24  N.  E.  118;  Re  O'Dea,  84 
Hun,  591,  33  N.  Y.  Supp.  463;  Fulleck 


84 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  83 


or  prejudice.-'^  Where  a  testator  has  actual  grounds  for  supposition 
as  to  the  existence  of  something  in  which  he  believes,  though  in  fact 
not  well  founded,  and  disbelieved  by  others,  the  misapprehension  is 
not  an  insane  delusion  which  will  affect  his  will.-'^  A  belief  in  some- 
thing which  no  sane  person  would  believe  in,  however,  is  unequivocal 
evidence  of  insanity,  though  there  might  be  a  shadow  of  evidence  that 
the  fact  existed.-^ ^  The  test  question  is.  Could  any  man  in  the  pos- 
session of  his  senses  believe  in  such  a  state  of  facts  ?^'^     And  to  invali- 


V.  Allinson,  3  Hagg.  Eccl.  Rep.  527. 
And  see  Children's  Aid  Soc.  v.  Love- 
ridge,  70  N.  Y.  387. 

^'f^chmidt  V.  Schmidt,  201  III.  191,  G6 
N.  E.  371. 

The  fact  that  a  woman  was  a  be- 
liever in  Christian  Science  and  that  her 
sisters  ridiculed  her  for  her  belief,  in 
consequence  of  which  she  refused  to  live 
with  them,  and  revoked  her  will  in  their 
favor,  docs  not  show  an  insane  de- 
lusion on  her  part  against  them,  affect- 
ing her  testamentary  capacity.  Re 
Brvsh.  35  Misc.  G89,  72  N.  Y.  Supp.  421. 

^^fitaclchouse  v.  Horton,  15  N.  J.  Eq. 
202;  Re  Scott,  128  Cal.  57,  60  Pac.  527; 
Re  Kendrick,  130  Cal.  3G0,  62  Pac.  605; 
Bradleii  v.  Palmer.  193  111.  15,  61  N.  E. 
856;  JoneR  v.  Collins.  94  Md.  403,  51 
Atl.  398;  The  Berry  Will  Case,  93  Md. 
560,  49  Atl.  401 ;  Re  Merriman,  108 
Mich.  454.  66  N.  W.  372;  Jackson  v. 
Hardin,  83  Mo.  175;  Sttill  v.  Stull 
(Neb.)  96  N.  W.  196;  Re  Smith,  53  N. 
Y.  S.  R.  658,  24  N.  Y.  Supp.  928 ;  Clapp 
V.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec. 
681 ;  Re  Keeler,  20  N.  Y.  S.  R.  439,  3  N. 
Y.  Supp.  629 ;  Bnchanan  v.  Belsey,  65 
App.  Div.  58,  72  N.  Y.  Supp.  601; 
Leslie  v.  Leslie.  15  N.  Y.  Week.  Dig.  56, 
Affirmed  in  92  N.  Y.  636;  Dobie  v.  Arm- 
stronq,  160  N.  Y.  584.  55  N.  E.  .302;  Re 
McKean,  31  Misc.  703,  66  N.  Y.  Supp. 
44;  General  Convention  v.  Crocker,  7 
Ohio  C.  C.  327;  Re  Cline,  24  Or.  175,  41 
Am.  St.  Rep.  851,  33  Pac.  542;  Skinner's 
Will,  40  Or.  571,  62  Pac.  523.  67  Pac. 
951  ;  Bolter  v.  Jones,  20  Or.  239,  12  L. 
R.  A.  161,  25  Pac.  769;  Benncirs  Estate, 
201  Pa.  485.  51  Atl.  336;  Martin  v. 
Thayer,  37  W.  Va.  38.  16  S.  E.  489; 
Mullins  V.  Coitrell,  41  Miss.  291;  Cole's 
Will,  49  Wis.  179,  5  N.  W.  346;  FuUeck 
V.  Allinson,  3  Hagg.  Eccl.  Rep.  527. 

A  statement  by  a  testator  who  had 
disinherited  a  reputed  son  in  favor  of  a 
niece,  that  he  had  no  son,  does  not  show 
an  insane  delusion  invalidating  his  will, 
wliere  there  was   evidence  that   the  re- 


puted son  was  only  an  adopted  son.  Re 
Zieqler.  47  N.  Y.  S.  R.  491,  19  N.  Y. 
Supp.  947. 

And  an  opinion  upon  the  part  of  a 
mother  that  she  was  morally  indebted 
to  a  favorite  daughter  for  protection 
and  support  is  not  a  delusion  destroying 
testamentary  capacity,  where  contro- 
versy had  existed  in  the  family  for 
years,  and  the  daughter  had  taken  her 
part.       Coit  v.  Palchen,  11  N.  Y.  533. 

So,  an  erroneous  opinion  by  a  woman 
otherwise  competent  as  to  the  conduct 
and  affections  of  her  husband  and  some 
of  her  children,  is  not  an  insane  de- 
lusion afl'ecting  testamentary  capacitj', 
where  she  and  her  husband  frequently 
quarreled,  and  a,  son  had  committed  an 
assault  upon  her.  Ibid;  Re  Blakely,  48 
Wis.  294,  4  N.  W.  337. 

Where,  upon  a  will  contest,  the  tes- 
tator is  alleged  to  want  testamentary 
capacity  because  he  held  the  opinion 
tha,t  his  daughter  was  insane,  every  kind 
of  evidence  relating  to  her  condition 
which  came  to  his  knowledge  is  compe- 
tent to  show  the  basis  of  that  opinion, 
and  that  his  belief  was  not  without 
some  foundation  and  svipport.  Hoyt  v. 
Hoyt,  9  N.  Y.  S.  R.  731. 

^^Riqqs  v.  Ainerican  Home  Missionory 
Soc.  35  Hun,  656. 

While  the  nonexistence  of  facts  be- 
lieved by  a  testator,  claimed  to  be  an 
insane  delusion,  should  be  put  beyond 
doubt,  the  jury  in  a  will  contest  may 
find  an  insane  delusion  where  the  tes- 
tator believed  what  could  not  possibly 
be  true,  though  no  positive  or  direct 
evidence  could  be  procured  to  show  the 
falsity  of  the  belief.  Robinson  v. 
Adams,  62  Mo.  369,  16  Am.  Pu>p.  473. 

'"Bonyhion  v.  Kniqht,  L.  R.  3  Prob.  & 
Div.  64.'  42  L.  J.  Prob.  N.  S.  41,  28  L.  T. 
N.  S.  562. 

It  is  of  the  essence  of  an  insane  de- 
lusion that  it  has  no  basis  in  reason, 
and  c:ninot  be  disputed  by  a  r<'iisnn,  and 
may,  therefore,  be  cherished  side  by  side 


S  83J  WILLS.  83 

date  a  will  it  must  appear  that  the  testator  was  subject  to  a  delusiou 
as  to  facts  within  his  own  observation,  in  the  existence  of  which  he 
actually  believed,  which  a  rational  man,  from  the  use  of  his  senses, 
under  the  same  circumstances,  would  have  known  not  to  exist.^^ 

84.  Must  actively  exist. —  To  invalidate  a  will,  a  delusion  upon 
the  part  of  the  testator  must  have  been  not  only  the  inducing  cause 
of  it,  but  also  an  existing  one  at  the  time  the  will  was  made.^^ 

A  delusion  which  was  intermittent,  there  being  times  when  the 
testator  was  rational,  will  not  invalidate  his  will,  where  it  is  not 
made  to  appear  that  he  labored  under  it  at  the  time  the  will  was 
made.^'*  Nor  will  it  be  affected  by  the  existence  of  a  delusion  in  the 
mind  of  the  testator  which  at  tlie  time  was  latent,  though  it  was 
capable  of  being  revived  at  any  moment,  if  anything  should  occur  to 
call  to  his  mind  the  subject.^* 

85.  Prejudice,  eccentricity.— A  mere  prejudice,  though  unfounded, 
and  tliough  the  will  in  question  is  controlled  tliereby,  does  not  per  se 
destroy  testamentary  capacity.^^      There  must  be  something  more 

with  rational  ideas-     Smith  v.  Tebbiti,  "Lee  v.  Scudder,  31  N.  J.  Eq.  634. 

L.  R.  1  Pfob.  &  Div.  401,  36  L.  J.  Prob.  An  instruction  in  a  will  contest    with 

N.  S.  97,  16  L.  T,  N.  S.  841,  16    Week,  reference  to  an  insane    delusion,    which 

Rep.  18.  ignores   the    contingency    that    the    de- 

And  in  determining  as  to  the  existence  lusion  might  have  wholly  or  permancnt- 
of  a  delusion  on  the  part  of  a  testatrix,  ly  disappeared  before  the  will  was  made, 
and  as  to  whether  or  not  a  belief  on  her  in  which  case  the  will  should  not  be  re- 
part  was  a  delusion,  it  is  proper  to  con-  garded  with  distrust,  is  erroneous, 
sider  her  nature  and  temperament,  the  Manlcy  v.  Staples,  65  Vt.  370,  26  Atl. 
circumstances   under   which    her    state-  630. 

ments  were  made,  the  habits  of  her  life,  '*Ingoldsbp  v.  Ingoldsby,  20  Grant  Ch. 

and  association  with    others,    and    also  (U.  C.)    131. 

her  conduct  toward  her  next  of  kin,  and  But  a  jury  in  a  will  contest  would  not 

the  nature  of  her  intercourse  with  them,  generally  be  warranted  in  inferring  that 

during   the   period   within    which    such  a  delusion   calculated  to    influence    the 

statements   were  made.     Re  Scott,    128  testator  in  making  his  will  was  latent 

Cal.  57,  60  Pac.  527.  at  the  time  so  as  to  leave  him  free  from 

■^Difchbiirn  v.  Fearn,  6  Jur.  201.  its  influence.       Banks  v.  Goodfelloiv,  22 

A  delusion  affecting  testamentary  ca-  L.  T.  N.  S.  813,  39  L.  J.  Q.  B.  N.  S.  237, 

pacity  is  not  established  in  a  will  con-  L.  R.  5  Q.  B.  549. 

test  where  the  court  is  able  to    under-  "'•'Carter  v.  Dixon,  69  Ga.  82 ;  Re  Ken- 

stand  how  a  person   so  situated    might  drick,   130  Cal.    360.    62    Pac.    605;    Re 

believe  in  the  truth  of  the  mistaken  sup-  Forman,  54  Barb.  274;    Re  Siii/dani,  84 

position   and  still   be   in   the   possession  Hun,  514,  32  N.  Y.  Supp.  449 ;  Re  Lanq. 

of  his    senses.       Phillips    v.    Chater,    1  9  Misc.  521,  30    N.    Y.    Supp.    388;  Re 

Dem.  533.  McKean,  31  Misc.  703,  66  N.    Y.    Supp. 

A  delusion,  to  affect  testamentary  ca-  44;  Hite  v.  Sims,  94  Ind.  333;  Ueminci- 

pacity,  must  be  one  not  only  founded  in  iraij's  Estate,  195  Pa.  291,  78    Am.    St. 

error   but   also  without  evidence  of   its  Rep.     815,    45    Atl.    726,    Afhrming    7 

truth,   entertained   against    clearest  evi-  Northampton  Co.  Rep.  93;  Frere  v.  Pca- 

dence   to   the    contrary.     Potter   v.    Me-  cocke,  1  Rob.  Eccl.  Rep.  442. 

Alpi-rie,  3  Dem.  108;  Merrill  v.  Rolston,  A   man    moved    by    capricious,    frivo- 

5  Redf.  220.       See  Greenwood's  Case,  1  lous,  mean,   or  even  bad  motives,    may 

Addams  Eccl.  Rep.  279,  note.  disinherit  wholly  or  partially  his    chil- 

'- Phi  In  del  phi  a    Trust    cG    S.  D.  Co.  v.  drcn,  and  leave  his  property"  to    stran- 

Drinkhouse,  17  Phila.  23.  gers.       He  may  take  an  unduly    harsb 


8d 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[I  85 


than  a  mere  mistaken  notion  as  to  the  feelings,  intentions,  or  behavior 
of  relatives  with  reference  to  the  testator  or  his  property,  where  there 
is  nothing  irrational  about  it,  and  nothing  to  show  that  his  notions 
might  not  have  been  changed  by  evidence.-^  Arbitrary  and  capricious 
likes  and  dislikes  are  not  evidence  of  insanity.^"  And  the  question 
whether  a  prejudice  on  the  part  of  a  testator  against  the  natural 
object  of  ]iis  bounty  amounted  to  an  insane  delusion  which  v;ill  affect 
the  validity  of  hir:^  will  would  seem  to  be  one  of  fact,  depending  upon 
whether  or  not,  under  all  the  circumstances,  it  was  such  as  might 
have  resided  in  a  sound  mind.^^      Nor  does  mere  eccentricity  on  the 


view  of  the  character  and  conduct  of  his 
children;  but  there  is  a  limit  beyond 
which  it  will  cease  to  be  a  question  of 
liarsh,  unreasonable  judgment,  and  then 
the  repulsion  which  a  parent  exhibits  to 
his  children  must  be  held  to  proceed 
from  some  mental  defect.  If  such  re- 
pulsion, amounting  to  delusion  as  to 
character,  be  shown,  the  burden  will  be 
ca^t  on  those  propounding  the  will. 
Boitghton  v.  Kniqht,  L.  R.  .3  Prob.  & 
Div."  64,  42  L.  j/Prob.  N.  S.  41,  28  L. 
T.  N.  S.  5G2. 

"""Hall  V.  Hall,  38  Ala.  131;  Carpenter 
V.  Bailey,  94  Cal.  406,  29  Pac.  1101;  Re 
.Spencer,  96  Cal.  448,  31  Pae.  453;  Re 
Caleb,  139  Cal.  673,  73  Pac.  539;  Re 
Tracy,  11  N.  Y.  S.  R.  103;  Boyt  v.  Hoyt, 

9  N.  Y.  S.  R.  731;  Re  Keeler,  20  N. 'Y, 
S.  R.  439,  3  N.  Y.  Supp.  629;  Coit  v. 
Patchen,  77  N.  Y.  533;  Re  White,  121 
N.  Y.  406,  24  N.  E.  935;  Bull  v.  Wheel- 
er, 6  Dem.  123;  Dobie  v.  Armstrong,  27 
App.  Div.  520,  50  N.  Y.  Supp.  801 ;  Re 
Bedloic,  67  Hun,  408,  22  N.  Y.  Supp. 
290;  Schneider  v.  Manning,  121  111.  376, 
12  N.  E.  267. 

A  mistaken  notion  on  the  part  of  a 
wife  that  her  husband  intended  to  con- 
vert her  separate  estates  to  his  own  use, 
under  the  influence  of  which  she  ex- 
cluded him  from  participation  in  her 
property,  does  not  invalidate  her  will. 
Afosser  v.  Mosser,  32  Ala.  551. 

Nor  does  one  upon  the  part  of  a  wife 
as  to  a  disease  of  which  she  supposed 
her  husband  was  afflicted,  under  the  in- 
fluence of  which  she  disinherited  him. 
Re  Storey,  20  111.  App.  183. 

-''Kinne  v.  Kinne,  9  Conn.  102,  21  Am. 
Dec.  732;  Re  Spencer,  96  Cal.  448,  31 
Pac.  453;  Rush  v.  Megee,  36  Tnd.  69; 
(rordon  V.  Morrov,  10  Ky.  L.  Rep.  845, 

10  S.  W.  373;J/«i[?m.s  v.  C'ottrrU,  41  Miss. 
291  ;  Farnnm  v.  Boyd,  56  N.  J.  Eq.  766. 
41  Atl.  422;  Sibloj  v.  Somers,  62  N.  .1. 
E<i.  595,  50  Atl.  321  :  Re  Gross,  17  N.  Y 


S.  R.  739;  American  Seamen's  Friend 
Soc.  V.  hopper,  33  N.  Y.  619;  Re  Suy- 
dam,  84  Hun,  514,  32  N.  Y.  Supp.  449, 
AfTirmed  in  152  N.  Y.  639,  46  N.  E. 
1152;  Elkin  v.  McGracken,  11  Phila. 
534 ;  Leech  v.  Ijcech,  5  Clark  ( Pa. )  86 ; 
Probst's  Will,  2  Lane.  L.  Rev.  97;  Lee 
V.  Lee.  4  McCord  L.  183,  17  Am.  Dec. 
722;  Mercer  v.  Kelso,  4  Gratt.  106. 

It  cannot  be  held  that  because  a  man 
is  ungenerous,  unkind,  and  unjust,  and 
misconceives  the  conduct  of  his  fellows, 
tha,t  he  is  devoid  of  testamentary  ca 
pacify.  Re  McKean,  31  Misc.  703,  66 
N.  Y.  Supp.  44. 

And  an  insane  delusion  which  will  in- 
validate a  will  is  not  shown  by  evi- 
dence of  a  belief  upon  the  part  of  the 
testatrix  that  she  had  been  treated  un- 
justly and  harshly,  and  that  advantagc 
had  been  taken  of  her  by  her  brothers 
and  sisters,  and  that  she  was  a  woman 
of  arbitrary  temper,  ignorant,  sus- 
picious, dull  of  comprehension,  and 
without  business  ideas  and  habits,  and 
difficult  to  get  along  with,  though  her 
will  may  have  been  influenced  by  her 
peculiarities.  Re  Gross,  14  N.  Y,  S.  R- 
429. 

^  See  Greenwood  v.  Greenwood,  3  Curt. 
Eccl.  Rep.  337. 

A  belief,  or  pretended  belief,  on  the 
part  of  a  testator,  in  the  illegitimacy 
of  a  child  whom  he  disinherited,  will 
not  be  deemed  an  insane  delusion  which 
will  affect  the  validity  of  his  will,  where 
he  had  previously  acknowledged  her 
legitimacy,  and  there  is  evidence  that 
the  doubts  thrown  upon  it  were  for  a 
sinister  purpose  of  his  ov\Ti.  Ditch- 
6t«-n  V.  Fearn,  6  Jur.  201. 

But  a  will  made  by  a  man  who  had 
recently  recovered  from  an  illness  whicli 
afTectod  liis  mind,  the  symptoms  of  the 
mental  disease  taking  the  form  of  an 
nnc]iaiii,'eable  i(li>a  that  he  would  be 
eternal Iv    daniiu-d    for    having    received 


85J 


WILLS. 


87 


part  of  a  testator  amount  to  an  insane  delusion  wliicli  will  affect  the 
validity  of  a  will.^^  A  testator  may  have  eccentricities  and  peculiar- 
ities and  yet  do  as  he  pleases  with  his  property,  if  he  has  judgment, 
discretion,  and  reason.^^  Eccentricities  and  belief  in  absurdities, 
however,  furnish  evidence  of  insanity.^^  The  question  as  to  when  the 
bounds  of  eccentricity  are  passed  and  insanity  commences  dejiends 
upon  the  peculiar  circumstances  of  each  case,  and  is  to  be  judged 
from  the  whole  character  of  the  person  whose  capacity  is  in  question, 
and  from  his  state  and  condition  of  mind,  not  only  at  the  time  in 
question,  but  at  intermediate  stages  of  his  life.^^ 

86.  Speculative  beliefs. — Opinions  upon  questions  of  mere  specula- 


communion  unfitly,  after  which  he  was 
pronounced  insane  by  a  medical  board, 
and  died  in  a  lunatic  asylum,  should  be 
denied  probate  though  it  was  sensible, 
and  contained  no  indications  of  the  de- 
lusion. Symes  v.  Oreen,  1  Swabey  & 
T.  401,  5  Jur.  N.  S.  742,  28  L.  J.  Prob. 
N.  S.  83. 

"-"Turner  v.  Hand,  3  Wall.  Jr.  88,  Fed. 
Cas.  No.  14,257 ;  Prentis  v.  Bates,  88 
Mich.  567,  50  N.  W.  637;  Re  White,  121 
N.  Y.  406,  24  N.  E.  935;  Ditchburn  v. 
Fearn,  6  Jur.  201. 

The  question  whether  or  not  a  man  is 
difl'eront  from  other  men,  and  whether 
he  indulges  his  humors  in  unaccustomed 
ways,  cannot  be  made  a  test  of  his 
sanity  or  insanity.  BougMon  v.  Knight, 
L.  R.  3  Prob.  &  Div.  64,  42  L.  J.  Prob. 
N.  S.  41,  28  L.  T.  N.  S.  562. 

^"Eihridge  v.  Bennett,  9  Houst.  (Del.) 
295,  31  Atl.  813;  Potts  v.  House,  6  Ga. 
324,  50  Am.  Dec.  329;  Wood  v.  Lane, 
102  Ga.  199,  29  S.  E.  180;  Schneider  v. 
Manning,  121  111.  376,  12  N.  E.  267; 
Webber  v.  Sullivan,  58  Iowa,  2G0,  12  N. 
W.  319;  Andress  v.  Weller,  3  N.  J.  Eq. 
604;  Phillips  v.  Chater,  1  Dem.  533; 
Cornwell  v.  Riker,  2  Dem.  354;  Leech  v. 
Leech,  5  Clark  (Pa.)  86;  Bour/hton  v. 
Knight,  L.  R.  3  Prob.  &  Div.  64.  28  L. 
T.  N.  S.  566,  42  L.  J.  Prob.  N.  S.  41 ; 
Re  Goodman,  44  L.  T.  N.  S.  527; 
Inqoldsby  v.  Ingoldsby,  20  Grant  Ch. 
(U.  C.)   131. 

Nor  are  pessimistic  beliefs  insane  de- 
lusions which  will  destroy  testamentary 
capacity.  Re  McKean,  31  Misc.  703, 
66  N.  Y.  Supp.  44. 

And  oddities  and  apparent  weaknesses 
of  the  mind  do  not  affect  testamentary 
capacity,  where  tliey  are  attributable  to 
a  physical  condition.  Frost  v.  Wheeler, 
43  N.  J.  Eq.  573,  12  Atl.  612. 

And  neither  eccentricities  of  conduct 


nor  partial  aberration  of  mind  at  other 
times  will  affect  testamentary  capacity, 
where  the  testator  is  shown  to  have 
been  of  sound  and  disposing  mind  at  the 
time  of  making  his  will,  unless  they 
evince  an  inability  to  make  a  reasonable 
disposition  of  property,  and  to  under- 
stand the  nature  and  solemnity  of  the 
testamentary  act.  Godden  v.  Burke,  35 
La.  Ann.  160;  Wood  v.  Wood,  4  Brewst. 
(Pa.)  75;  Hohy  v.  Hoby,  1  Hagg.  Eccl. 
Rep.  146. 

^^Leech  v.  Leech,  5  Clark  (Pa.)  86; 
Deiu  V.  Clark,  3  Addams  Eccl.  Rep.  79. 

The  fact  that  a  testatrix  had  been  in 
a  weak  mental  condition  for  years,  and 
that  she  had  once  been  taken  to  an  iij- 
sane  asylum  at  her  own  roquest  and  a 
belief  upon  her  part  that  there  was  an 
electric  nerve  which  went  through  her 
body,  which  she  could  not  control,  to- 
gether with  the  fact  that  she  gave  no  in- 
structions to  the  scrivener  of  the  will 
as  to  its  contents,  and  apparently  took 
no  interest  in  it,  and  that  by  it  she  dis- 
posed of  her  property  in  a  manner  con- 
trary to  previously  expressed  inten- 
tions, is  sufficient  to  warrant  a  refusal 
to  admit  it  to  probate.  Re  Rounds,  25 
Misc.  101,  54  N.  Y.  Supp.  710. 

'-Mudway  v.  Croft,  3  Curt.  Eccl.  Rep. 
671. 

No  precise  rule  can  be  laid  down  by 
which  testamentary  capacity  can  be 
measured;  eccentricities,  religious  be- 
liefs, peculiarities,  and  even  impairment 
of  the  mind,  do  not  render  one  incom- 
petent to  execute  a  will ;  the  expression 
"sound  mind"  does  not  mean,  in  the  ex- 
ecution of  a  will,  that  one  must  possess 
.a  perfect  intelligence;  it  is  the  degree 
of  intelligence  that  determines  and  con- 
trols, lie  Halbert,  15  Misc.  308,  37  N. 
Y.    Supp.   757. 


88 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  86 


tive  beliefs  cannot  be  considered  as  delusions  or  insanity.'"'^  And  no 
belief  in  religious  creed  or  in  the  doctrine  of  any  cburch  can  be 
regarded  as  an  insane  delusion  which  will  invalidate  a  will.^^  Nor 
is  a  belief  in  spiritualism  an  insane  delusion  or  mental  unsoundness 
which  will  affect  the  validity  of  a  will,"^  imless  it  appears  that  the 
will  was  tlie  offsjDring  of  such  belief.^^  But  the  influence  that  might 
be  gained  by  a  medium  or  by  one  practising  on  visionary  and  senti- 
mental beliefs  is  to  be  jealously  scrutinized.^^  Neither  is  a  belief  in 
Christian  Science  an  insane  delusion 'which  will  invalidate  a  will.^* 
Nor  is  a  belief  in  Mormonism.'"^  Nor  is  a  belief  that  secret  societies 
are  wrongful  and  injurious  and  opposed  to  the  teachings  of  Christ.^'^ 
Nor  is  a  belief  in  witchcraft  on  the  part  of  the  testator,  where  the 


"T]iompson  v.  Qiiiml)]),  2  Bradf.  449. 
And  see  Tho)npson  v.  Thompson,  21 
Barb.  107;  Smith's  Will,  52  Wis.  543, 
38  Am.  Rep.  756,  8  N.  W.  616,  9  N.  W. 
665;   Walcot  v.  Alleyn,  Milward,  65. 

A  belief  in  the  doctrine  that  the  souls 
of  men  after  death  pass  into  animals  is 
not  an  insane  delusion  which  will  in- 
validate the  will  of  a  person  entertain- 
ing it.  Bonard's  Will,  16  Abb.  Pr.  N. 
S.   128. 

**Newton  v.  Carbery,  5  Crancb  C.  C. 
626,  Fed.  Cas.  No.  10.189;  Gass  v.  Gass, 
3  Humph.  278;  Mullins  v.  Cottrell,  41 
Miss.  291. 

An  opinion  entertained  by  a  testator 
as  to  a  future  state,  concerning  which 
n©  one  has  positive  knowledge,  and 
which  is  entirely  within  the  dominion 
of  opinion  and  faith,  and  not  of  knowl- 
edge, cannot  be  deemed  evidence  of  in- 
sanity' which  will  affect  testamentary 
capacity.  Bonard's  Will,  16  Abb.  Pr.  N. 
S.  128;  Gass  v.  Gass,  3  Humph.  278. 

And  religious  apprehensions  produc- 
ing extreme  anxiety  and  hopeless  des- 
pair upon  the  part  of  a  testator,  be- 
cause of  a  conviction  that  he  had  passed 
his  day  of  grace,  which  rendered  him 
unconcerned  on  all  other  subjects,  do  not 
show  liim  incapable  of  making  a  valid 
will,  where  he  was  rational  and  sensible 
when  his  attention  could  be  diverted. 
Weir's  WUl,  9  Dana,  434. 

'^La  Bail  v.  Vandcrhilt,  3  Redf.  385; 
Re  Rohe,  22  Misc.  415,  50  N.  Y.  Supp. 
392  ;i'o?(;Zer  v.  Ramsdell,  4  Alb.  L.  J.  94; 
Re  Keller,  12  N.  Y.  S.  R.  148;  Bonard's 
Will,  16  Abb.  Pr.  N.  S.  128;  Re  Spencer, 
96  Cal.  448,  31  Pac.  453;  Otio  v.  Doty, 
61  Iowa,  23,  15  N.  W.  578;  Turner  v. 
Rusk,  53  Md.  65;  Broiim  v.  Ward,  53 
Md.  376,  36  Am.  Rep.  422;  Middleditch 


v.  Wniiams,  45  N.  J.  Eq.  726,  4  L.  R. 
A.  738,  17  Atl.  826;  McClary  v.  Stull, 
44  Neb.  175,  62  N.  W.  501;  Re  Smith, 
52  Wis.  543.  38  Am.  Rep.  756,  8  N.  W. 
616,  9  N.  W.  665;  Turner  v.  Hand,  3 
Wall.  Jr.  120,  Fed.  Cas.  No.  14.257; 
'Norton  v.  Relly,  2  Eden,  286;  Whipple 
v.  Eddy,  161  HI.  114,  43  N.  E.  789; 
Buchanan  v,  Pierie,  205  Pa.  123,  54  AtL 
583. 

^"La  Ban  v.  Vanderbilt,  3  Redf.  384; 
Buchanan  v.  Pierie,  205  Pa.  123,  54  Atl. 
583.  And  see  Re  Beach,  23  App.  Div. 
411,  48  N.  Y.  Supp.  437. 

"See  Lyon  v.  Home,  L.  R.  6  Eq.  655, 
37  L.  J.  Ch.  N.  S.  674,  18  L.  T.  N.  S. 
451,  16  Week.  Rep.  824.  In  this  case, 
wherein  a  deed  of  gift  without  consider- 
ation was  given  by  an  aged  widow  to  a 
spiritualist,  Giffard,  V.  C,  spoke  of 
spiritualism  as  being  "as  presented  by 
tlie  evidence"  (at  all  events),  "mis- 
chievous nonsense,  well  calculated,  on 
the  one  hand,  to  delude  the  vain,  the 
weak,  the  foolish,  and  the  superstitious; 
and,  on  the  other,  to  assist  the  projects 
of  the  need}'  and  of  the  adventurer." 
See  also  Norton  v.  Relly,  2  Eden,  286. 

'''Re  Brush,  35  Misc.  689,  72  N.  Y. 
Supp.   421. 

''■'Imes'  Will,  40  Or.  495.  67  Pac.  737. 

*"Re  Bissell,  63  Neb.  595,  88  N.  W. 
683. 

An  instruction  in  a  will  contest  that 
eccentricity  or  peculiarities  or  radical 
or  extreme  unsovmdness  of  opinions  upon 
general  education  or  secret  societies  will 
not  render  a  man  incapable  of  making 
a  will  is  not  rendered  erroneous  by  mod- 
ification making  it  read,  "not  neces- 
sarily render  him  incapable."  American 
Bible  Sac.  v.  Price,  115  111.  632,  5  N. 
E.  126. 


§  86] 


WILLS. 


89 


will  does  not  appear  to  have  had  any  connection  with  such  belief.'' ' 
An  insane  delusion  may  be  established  in  a  particular  case,  however, 
by  proof  of  the  surrender  of  the  will  to  imaginary  directions,  re- 
garded as  directions  from  God,  or  of  spirits  speaking  to  the  testator 
from  another  world,  or  the  c-ontrol  of  an  impulse  due  to  an  imaginary 
state  of  facts.^^  And  a  belief  in  the  possibility  of  cures  as  the  result 
of  the  exercise  of  faith  by  the  patient  or  the  healer,  or  both,  though 
held  by  many  persons,  is  sufficient  to  constitute  testamentary  inca- 
pacity where  it  is  such  as  to  place  the  testator  under  the  influence  of 
a  delusion  that  usurps  the  place  of  reason  and  controls  his  will.^^ 

IV.  Incapacity  acted  upon  by  fraud  ok  undue  influence. 

87.  Effect  generally. —  Weakness  of  mind,  from  whatever  causi 
arising,  though  not  sufficient  to  create  testamentary  incapacity,  may 
form  favorable  conditions  for  the  'exercise  of  undue  influence  or  the 
perpetration  of  fraud ;  and  the  condition  of.  mind  may  be  a  proper 
subject  of  inquiry  on  such  an  issue,^^  since  it  requires  less  undue 


*'Leech  v.  Leech,  5  Clark  (Pa.)  86; 
Lee  V.  Lee,  4  McCord  L.  183,  17  Am. 
Doc.  722;  Jones  v.  Huqlies,  15  Abb.  N. 
C.  141 ;  Addington  v.  Wilson,  5  Ind.  137, 
61  Am.  Dec.  81;  Kelly  v.  Miller,  39  Miss. 
19;  Re  Vedder,  6  Dem.  92;  Cole's  Will, 
49  Wis.  179,  5  N.  W.  340. 

A  belief  in  witchcraft  does  not  show 
testamentary  incapacity,  though  con- 
nected with  a  belief  that  the  testator's 
health  had  been  permanently  injured  by 
slow  poison,  surreptitiously  adminis- 
tered. Leech  v.  Leech,  5  Clark  (Pa.) 
86. 

Nor  does  a  belief  upon  the  part  of  a 
testator  that  a  daughter  whom  he  dis- 
inherited was  a  witch  render  the  will  in- 
operative or  invalid.  Schildnect  v. 
Rompf,  9  Ky.  L.  Rep.  121,  4  S.  W.  235; 
Addinqton  v.  Wilson,  5  Ind.  137,  61  Am. 
Dec.  81. 

And  belief  in  the  statements  of  clair- 
voyants, fortune  tellers,  and  spiritual 
mediums,  and  in  dreams  and  witchcraft, 
together  with  other  wild  and  visionary 
ideas  not  connected  with  the  testament- 
ary act,  will  not  invalidate  a  will,  where 
the  testator's  judgment  was  sound  as  to 
matters  of  business,  and  he  readily 
abandoned  his  opinions  when  they  were 
demonstrated  to  be  incorrect.  Chafin 
Will  Case,  32  Wis.  557;  Thompson  v. 
Qtiimhy,  2  Bradf.  449. 

^'Taylor  v.  Trich,  165  Pa.  586.  44  Am. 
8t.  Rep.  679,  30  Atl.  1053;  Robinson  v. 


Adams,  62  Me.  369,  16  Am.  Rep.  473. 
And  see  Re  Beach,  23  App.  Div.  411,  48 
N.  Y.  Supp.  437. 

A  will  in  favor  of  a  spiritualistic 
medium,  made  by  one  who  embraced 
spiritualism  as  practised  by  that  med- 
ium, permitting  it  to  dominate  his 
life,  and  to  override  every  other  consid- 
eration, which  belief  in  spiritualism  had 
been  artfuiiy  used  by  the  medium  to 
get  his  property,  is  invalid.  Thompson 
V.  E aides,  11  Biss.  440,  14  Fed.  902; 
Orchardson  v.  Cofield,  171  111.  14,  40  L. 
R.  A.  256,  63  Am.  St.  Rep.  211,  49  N.  E. 
197. 

But  the  fact  that  a  testator  might  be 
led  to  give  credence  to  alleged  communi- 
cations from  spirits,  which  were  in  fact 
impositions  and  delusions,  contrived  by 
designing  persons,  does  not  establish 
testamentary  incapacity,  though  it  is 
proper  to  be  considered  on  the  question 
of  mental  weakness.  Re  Storey,  20  111 
App.    183. 

"Taylor  v.  Trich.  165  Pa.  586,  44  Am. 
St.  Rep.  679,  30  Atl.   1053. 

"Hoban  v.  Campau,  52  Mich.  347,  17 
N.  W.  797;  Myers  v.  Hanger,  98  Mo. 
433.  11  S.  W.  974;  Uerster  v.  Hcrster. 
122  Pa.  239.  9  Am.  St.  Rep.  95,  16  Atl. 
342;  Reichenbach  v.  Ruddach,  127  Pa. 
504,  18  Atl.  432.  And  see  Wilson  v. 
Mitchell,  101  Pa.  495. 

A  will  by  an  elderly  woman  of  weak 
qiind,  though  not  imbecile  or  idiotic,  in 


90 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  87 


influence  and  less  fraud  to  procure  the  execution  of  a  will  by  a 
person  of  weak  or  impaired  intellect  than  by  one  of  full  mental 
power.'*^  And  tlie  will  of  a  person  of  weak  or  imbecile  mind,  which 
is  induced  by  fraud  or  undue  influence,  so  as  to  be  different  from 
what  it  would  have  been  had  the  testator  been  in  the  full  possession 
of  his  faculties,  will  be  set  aside.*^  And  the  questions  of  undue  influ- 
ence or  fraud,  and  of  mental  capacity,  should  not  be  separated  where 
the  testator  suffered  from  a  disease  affecting  his  brain  and  vital 
powers.^"  When  the  question  of  testamentary  capacity  is  at  issue 
in  a  will  contest,  and  there  is  evidence  of  fraud  or  undue  influence, 
the  jury  should  be  left  free  to  consider  it^^ 

88.  Must  amount  to  restraint. —  Weakness  of  mind  w^iich  will  affect 
the  validity  of  a  will,  in  connection  with  undue  influence  or  fraud, 
must  be  such  as  to  render  the  testator  incapable  of  resisting  the  influ- 
ence used.^^  And  the  undue  infliience  must  amount  to  moral  con- 
straint, destroying  free  agency.^*^  That  is  undue  influence  amount- 
ing to  constraint,  wdiich  substitutes  the  will  of  another  for  that  of  the 


favor  of  a  woman  with  whom  she  lodged 
and  boarded,  who  was  a  person  of  strong 
mind,  and  had  gained  an  ascendency 
over  her,  wull  not  be  admitted  to  pro- 
bate, where  there  were  discrepancies  in 
the  evidence  with  respect  to  its  execu- 
tion. Vockcraft  v.  Raicles,  4  Notes  of 
Cases,  237. 

An  objection  in  a  will  contest  that 
the  testator  was  unduly  influenced  and 
restrained  at  the  time  of  making  the 
will  imi^lies  tliat  he  had  suflicient  men- 
tal capacitj'  to  make  it.  Kinne  v.  John- 
son, CO  Barb.  tJ9. 

*^'Reic]ienbuch  v.  Ruddach,  127  Pa. 
564,  IS  Atl.  432;  Orchard-son  v.  Cofield, 
171  111.  14,  40  L.  R.  A.  250,  63  Am.  St. 
Rep.  211,  49  N.  E.  197;  Brogden  v. 
Brown,  2  Addams  Eccl.  Rep.  441. 

*^GJarh  v.  Fisher,  1  Paise,  171,  19  Am. 
Dec.  402;  Re  Miller,  36  Misc.  310,  73  N. 
Y.  Supp.  508;  Orchardson  v.  Cofield,  171 
111.  14,  40  L.  R.  A.  256,  63  Am.  St.  Rep. 
211,  49  N.  E.  197;  Sedguick  v.  Jack, 
111  Iowa,  745,  82  N.  W.  1027. 

A  person  cannot  be  considered  as  hav- 
ing a  disposing  mind  where  such  a 
<lominion  or  influence  was  obtained  as  to 
prevent  him  from  exercising  his  dis- 
cretion in  making  his  will,  though  his 
mind  was  of  sufficient  soundness  and  dis- 
cretion to  regulate  his  aff"airs  in  gen- 
eral. Mountain  v.  Bennet,  1  Cox.  Ch. 
Cas.  350. 

"WiUon's  Appeal,  11  W.  N.  C.  333; 
Oibson's  Estate,  11  W.  N.  C.  355;  Sher- 


l-ey  V.  Sherley,  81  Ky.  240.  And  see 
Armor's  Estate,  154  Pa.  517.  26  Atl.  619. 

But  a  finding  in  a  will  contest  of 
testamentary  capacity  is  not  inconsis- 
tent with  a  finding  of  undue  influence, 
which  is  a  distinct  ground  for  objection. 
Either,  when  proved,  is  conclusive. 
Marvin  v.  Marvin,  4  Keyes,  9. 

^Tolin  V.  Jenkins,  29  Ark.  151;  Ar 
mor's  Estate,  154  Pa.  517,  26  Atl.  619. 

^■^fiutton  V.  Sutton,  5  Harr.  (Del.) 
459;  Baldicin  v.  Parker,  99  Mass.  79, 
96  Am.  Dec.  697 ;  Children's  Aid  8oc.  v. 
Loceridge,  70  N.  Y.  387;  Floyd  v.  Floyd, 
3  Strobh.  L.  44,  49  Am.  Dec.  626; 
Kinleside  v.  Harrison,  2  Phillim.  Eccl. 
Rep.  449. 

Undue  influence  cannot  exist  unless 
there  is  a  person  incapable  of  protecting 
himself,  as  well  as  the  wrongdoer  to  be 
resisted.  Latham  v.  Udell,  38  Mich. 
238. 

^"Banies  v.  Barnes,  66  Me.  286;  Breed 
V.  Pratt,  18  Pick.  115;  Shailer  v.  Bum- 
stead,  99  Mass.  112;  Comstock  v.  Had- 
lyme  Ecclesiastical  Soc.  8  Conn.  261, 
20  Am.  Dec.  100;  Gardiner  v.  Gardiner, 
34  N.  Y.  155;  Brick  v.  Brick,  66  N.  Y. 
144;  Children's  Aid  Soc.  v.  Lovcridqe, 
70  N.  Y.  387;  Tlorn  v.  Pullman,  72  N. 
Y.  269;  Kinne  v.  Johnson,  60  Barb.  69; 
Hazard  v.  Hefford,  2  Hun,  445 ;  Snyder 
v.  Sherman,  23  Hun.  139;  Seguine  v. 
Seguine,  4  Abb.  App.  Dec.  191;  Marvin 
v.  Marvin.  3  Abb.  App.  Dec.  192;  Burk's 
Will,  2  Redf.  239;  Booth  v.  Kitchen,  3 


§  88] 


WILLS. 


91 


testator ;  and  it  may  be  either  through  threats  or  fraud. '^^  Merc 
mental  debility,  caused  by  sickness  or  extreme  old  age,  does  not  itself 
justify  the  conclusion  that  undue  influence  has  been  submitted  to. 
There  must  be  some  evidence  of  the  influence,  and  of  its  improper 
exercise,  to  justify  the  rejection  of  a  will  on  that  ground.^^  And 
it  must  appear  that  the  undue  influence  took  effect.^^  The  lower 
the  degree  of  intellect,  however,  the  less  is  tlie  amount  of  proof  of 
fraud  or  coercion  required  to  set  aside  a  will,  since  an  amount  of 
fraud  or  of  coercion  which  a  strong  mind  would  at  once  repel  may 
be  yielded  to  by  a  weak  mind.'^"* 

89.  Effect  of  trust  relations. — "The  natural  influence  of  the  parent 
(-r  guardian  over  the  child,  or  the  husband  over  the  wife,  or  the  attor- 
ney over  the  client,  may  lawfully  be  exerted  to  obtain  a  will  or  legacy, 
j>o  long  as  the  testator  thoroughly  understands  what  he  is  doing,  and 
is  a  free  agent."  ^'^     And  the  presence  of  children  when  a  will  was 


Redf.  52;  Lynch  v.  Clements, 24:  N.J.Eq. 
431 ;  Broimie  v.  Molliston,  3  Whart.  129: 
McMahon  v.  Ryan,  20  Pa.  329;  Eckert 
V.  Floicry,  43  Pa.  46;  Thompson  v. 
Kyner,  65  Pa.  368;  Tawney  v.  Long,  76 
Pa.  106;  Hopple's  Estate,  7  W.  N.  C. 
523;  Chandler  v.  Ferris,  1  Harr.  (Del.) 
454;  Biggins  v.  Carlton,  28  Md.  115,  92 
Am.  Dec.  666;  Tyson  v.  Tyson,  37  Md. 
567  ;  Griffith  v.  Diffenderfer,  50  INId.  466  : 
Monroe  v.  Barclay,  17  Ohio  St.  302,  93 
Am.  Dec.  620;  Rabb  v.  Graham,  43  Ind. 
1 ;  Harrington  v. Siees, 82  111.  50.  25  Am. 
Rep.  290:'  AVmon  v.  Pigg,  82  111.  149, 
25  Am.  Rep.  303;  Sechrest  v.  Edwards, 
4  Met.  (Ky.)  163;  Marshall  v.  Flinn, 
49  N.  C.  (4  Jones  L.)  199;  Wright  v. 
flovye,  52  N.  C.  (7  Jones  L.)  412;  Lee  v. 
Lee,  71  N.  C.  139;  O'Neall  v.  Farr,  1 
Rich.  L.  80 ;  Barrel  v.  Barrel,  I  Duv. 
203:  Thompson  v.  Davitte,  59  Ga.  472; 
Leverett  v.  Carlisle,  19  Ala.  80;  Pool  v. 
Pool,  35  Ala.  12;  Leeper  v.  Taylor,  47 
Ala.  221;  Rogers  v.  Diamond,  13  Ark. 
474;  McDaniel  v.  Crosby,  19  Ark.  533; 
Tobin  V.  Jenkins,  29  Ark.  151 ;  Williams 
V.  Goude,  1  Hagg.  Eccl.  Rep.  577;  Parfitt 
V.  Lawless,  L.  R.  2  Prob.  &  Div. 
462.  41  L.  J.  Prob.  N.  S.  68.  27  L.  T.  N. 
S.  215,  21  Week.  Rep.  200:  Purdon 
V.  Longford,  Ir.  Rep.  11  C.  L.  269;  Htulz 
V.  Hchacffle,  18  Eng.  L.  &  Eq.  Rop.  576. 
16  Jur.  909.  And  it  must  be  connected 
witli  the  document.  Todd  v.  Fenton,  66 
Ind.  25. 

^'Eckert  v.  Flou-ry,  43  Pa.  St.  46; 
Hall  V.  Hall,  38  Ala.  131;  MarshaU 
V.  Banby,  115  Iowa,  318.  88  N.  W.  801. 


^-Reynolds  v.  Root,  62  Barb.  250; 
Eckert  v.  Flou-ry,  43  Pa.  46. 

An  instruction  in  a  will  contest  that 
the  fact  that  the  testatrix  may  have  had 
illness  which  affected  her  mind  will  not 
invalidate  her  will  if  she  had  mind  and 
memory  sufficient  to  make  it  at  the 
time,  and  was  not  unduly  influenced,  is 
not  objectionable  as  confining  the  undue 
influence  which  would  invalidate  the 
will  to  the  very  moment  of  signing  it. 
Overall  v.  Bland,  II  Ky.  L.  Rep.  371, 
12  S.  W.  273. 

'=  See  Jarman,  Wills,  Randolph  &  T.'s 
note,  733.  and  cases  there  cited;  Kir, 
leside  v.  Barrison,  2  Phillim.  Eccl.  Rep. 
449 ;  Boyse  v.  Rossborough,  6  H.  L.  Cas. 
47,  26  L.  J.  Ch.  N.  S.  256,  3  Jur.  N.  S. 
373,  5  Week.  Rep.  414;  Comstock  v. 
Hadlyme  Ecclesiastical  Soc.  8  Conn.  261, 
20  Am.  Dec.  .100;  Rollicagen  v.  Roll- 
wagen,  63  N.  Y.  504;  Brick  v.  Brick,  66 
N.  Y.  144;  Eckert  v.  Flowry,  43  Pa.  46; 
Leverett  v.  Carlisle,  19  Ala.  80. 

''^Reynolds  v.  Root,  62  Barb.  250; 
Dnnaway  v.  Smoof,  23  Ky.  L.  Rep.  2289. 
67  S.  W.  62. 

'''Parfitt  V.  Lawless,  L.  R.  2  Prob.  & 
Div.  462,  41  L.  J.  Prob.  N.  S.  68,  27  L. 
T.  N.  S.  215,  21  Week.  Rep.  200; 
Bleeckcr  v.  Lynch,  I  Bradf.  458. 

Influence  effected  only  by  a  universal 
course  of  kind  treatment,  in  connection 
with  the  single  fact  of  weakness  of 
mind,  raises  no  presumption  of  invalid- 
itv  against  a  will.  Wood's  Estate,  13 
Pliila.  236. 


32  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  89 

executed,  and  tlie  fact  that  they  were  the  principal  beneficiaries, 
cannot  be  held  to  raise  a  presumption  of  undue  influence.^^  But 
gifts  by  will,  as  well  as  other  gifts  to  guardians,^'^  attorneys,^^ 
physicians,^^  and  spiritual  advisers,®*^  will  be  most  carefully  scruti- 
nized by  the  courts,  and  will  raise  an  inference  of  undue  influence 
which  it  will  be  relevant  to  support  by  any  pertinent  corroborative 
evidence.  And  in  general,  when  the  executor  of  the  will,  or  tlie 
party  by  whom  it  was  written  or  suggested,  is  a  devisee  to  a  large 
extent,  though  not  a  relative,  the  onus  will  lie  heavily  upon  him  to 
maintain  the  will.^^  In  cases  where  the  beneficiary  is  not  a  relative 
"stricter  proof  will  be  required  of  the  testator's  capacity,  though 

'•^Bundy   v.    McKnight,    48    Ind.    502;  without  knowTi  relatives,  made  an  hour 

Blcecker  v.  Lynch,   1    Bradf.  458.     And  before    death,    when    too    weak    to    sign 

see  Tivfjley  v.  Cowgill,  48  Mo.  291;  Coit  her    name,    and    when    only    prevented 

V.  Patclien,  77  N.  Y.  5.33.  from  collapse  by  stimulating  hypodermic 

"But   it  has  been   held   that   the   rela-  injections,   which  gave  one  dollar   to  a 

tion   of   parent   and   child   is   proper  to  washerwoman   and   nurse,   and   the   rest 

be  taken  into  consideration  by  the  jury,  of  her  estate  of  $19,000  to  a  female  doc- 

Gaithcr  v.  (laithcr,  20  Ga.  709.  tor   of   shady   reputation,   who    lived    in 

''"That  such  gifts  are  void,  see  Breed  the  house  with  her,  and  whom  she  feared 

V.  Pratt,   18  Pick.   115;    Garvin  v.   Wil-  and    disliked, — a    will    of    twelve    years 

Hams,  44   Mo.  46.5,    100  Am.   Dec.   314;  earlier  date,  with  bequests  to  a  woman 

Meek  v.  Perry,  36  Miss.   190;   but  that  who   treated    her   as   a    sister   and   had 

they  only  excite  suspicion,  see  Daniel  v.  been   kind   to   her,   being  revoked   with- 

Eiil,  52  Ala.  430.  out   reason, — should   be   denied   probate. 

=^*S'^  Leger's  Appeal,  34  Conn.  450,  91  Re  Ehminne,  30  Misc.  21,  62  N.  Y.  Supp. 

Am.    Dec.    735 ;     Wilson    v.     Moran,    3  1006. 

Bradf.  172;  Boyd  v.  Boyd,  60  Pa.  283;  ""St.  Leger's  Appeal,  34  Conn.  434,  91 
Riddell  v.  Johnson.  26  Gratt.  152.  And  Am.  Dec.  735.  See  also  Drake's  Appeal, 
see  Farnnm  v.  Boyd,  56  N.  J.  Eq.  766,  41  45  Conn.  9.  For  a  case  where  a  bequest 
Atl.  422.  Contra.  Griffith  v.  Diffcn-  to  a  hospital  was  avoided,  see  Mnllcr  v. 
derffer,  50  Md.  46G,  which  follows  Par-  St.  Louis  Hospital  Asso.  5  Mo.  App.  390. 
fitt  v.  Lawless.  There  is  no  presumption  "^Paske  v.  Ollat,  2  Phillim.  Eccl.  Rep. 
against  an  agent.  Lee  v.  Lee,  71  N.  C.  323;  Durling  v.  Loveland,  2  Curt.  Eccl. 
139.  Contra,  where  the  agent  was  prin-  Rep.  225;  Xeirliouse  v.  Godwin,  17  Barb, 
cipal  devisee  and  wrote  the  will  himself,  236;  Lee  v.  Dill,  11  Abb.  Pr.  214;  Yard- 
Harvey  v.  Sullens.  46  Mo.  147,  2  Am.  /e?/  v.  Cuthbertson,  108  Pa.  395,  56  Am. 
Rep.  491.  See  Wright  v.  Eoice,  52  N.  Rep.  218,  1  Atl.  765:  DufTicld  v.  Robe- 
C.   (7  Jones  L.)   412.  son,  2  Harr.  (Del.)  384;  Clark  v.  Stans- 

But  a  gift  to  a  l'!gal  adviser  of  one  bvry,  49  Md.  340;  Harvey  v.  Sullens,  46 

eighth  of  the  testator's  estate,  and  the  Mo.   147,  2  Am.  Rep.  491.     And  see  In- 

residue    in    trust    for    certain    relatives,  gram  v.  Wyatt,  1  Hngg.  Eccl.  Rep.  384; 

does  not  shift  the  burden  of  proof  from  Carrico  v.  Nenl,   1   Dana,   163;    Billing- 

the  party  alleging  fraud  and  undue  in-  hurst  v.   Vickers,   1   Phillim.  Eccl.  Rep. 

fluer-'.     Stokes  v.  Miller,  10  W.  N.  C.  199;  Tribe  v.  Tribe,  13  Jur.  733. 

241.   And  see,  to  the  same  general  eflfect,  A   will    should   be   denied   probate   on 

Linton's  Appeal.   104  Pa.  228;  Barry  v.  the  ground  of  undue  influence  exercised 

BM<iin,  1  Curt.  Eccl.  Rep.  637 ;  Butlinv.  upon    an    enfeebled    mind,   where   it   ap- 

Barry,  1  Curt.  Eccl.  Rep.  614.  pears    by    the    wi'iglit    of    evidence    that 

^%'rispell  V.  Dubois,  4  Barb.  393;  Col-  the   testator's   niiiul   was   not  sane,   and 

houn  V.  Jones,  2  Redf.  34;  Cadicallader  his  property  was  given  to  a  church,  and 

V.  West,  48  Mo.  483.     And  see  Aiidcn-  the  only  person  who  knew  of  the  prep- 

reid's  Appeal,  89  Pa.  114,  33  Am.  Rep.  aration  of  (he  will  were  the  clergyman 

731.  and   eou-^iL-ilmen    of   the    church,   and   it 

And  a  will  of  a  German  woman  sev-  appeared    (hat    when    sane    the    testator 

enty  years  of  age,  who  was  ignorant  and  evinced    a    disliki'    for   the   church,^  and 


9  89]  WILLS.  93 

not  as  to  Iiis  knowledge  of  the  contonti^  of  the  will."  ^'-^  In  short, 
whenever  the  provisions  of  a  will  are  inconsistent  with  natural  jus- 
tice, it  will  require  strong  proof  of  capacity  and  volition  to  sustain  it, 
and  slight  proof  of  undue  influence  or  fraud  to  set  it  aside. ""^  To 
authorize  a  Mill  in  favor  of  a  wife,  however,  to  be  set  aside,  the  influ- 
ence alleged  to  have  been  exerted  must  be  shown  to  have  reached 
coercion,  impairing  the  husband's  free  agency,''*  or  fraud  must  be 
proved. "-'^ 

90.  Question  is  one  of  capacity  to  resist. —  The  question  is,  not  one 
of  undue  influence,  for  if  so,  there  are  few  wills  which  would  not  be 
put  in  peril.  A  testator  is  naturally  more  or  less  influenced  by  those 
about  him.  Selfishness  may  lead  them  to  attempt  to  influence  him 
in  tlieir  favor;  or  a  feeling  of  chivalric  generosity  may  induce  those 
who  are  at  home  to  unduly  promote  the  interests  of  the  absent.  Rich 
men,  also,  are  beset  by  numerous  applicants  for  aid,  some  of  whom 
are  importunate,  and  often  present  their  claims  unfairly.  If  wills 
were  set  aside  because  such  influences  were  applied,  the  privilege  of 
testamentary  disposition  would  be  seriously  impaired.  The  question 
is,  therefore,  not  whether  there  were  influences  about  the  testator 
which,  if  not  resisted,  would  unduly  sway  him,  for  there  is  no  testator 
about  whom  there  are  no  such  influences ;  but  whether  the  testator  had 

expressed    affection    for    his    wife,    for  Gardner,   22    Wend.    526,    34   Am.    Dec. 

whom  no  adequate  provision  was  made.  340.      See   Rollivagen  v.    Rollwagen,   63 

Fornian's  Will.  Tucker,  205.  N.  Y.  504,  for  a  case  wliere  there  was 

*■  1  Jarman,  Wills,  5th  Am.  ed. ;  Bige-  such    coercion    and    fraud ;    Bicknell    v. 

low,  *35,  Randolph  &  T.'s  ed.  p.  68.  Bicknell,  2  Thomp.  &  C.  90;  Zimmerman 

Persons    occupying    the    same    house  v.  Zimmerman,  23  Fa.  315;  Hopjile's  Es- 

with  the  testatrix,  and  caring  for  and  fate,  7  W.  N.  C.  523;  Pingree  v.  Jones, 

nursing  her  in  her  illness,  do  not  occupy  80  111.  177;   Tingley  v.  Coicgill,  48  Mo. 

a   fiduciary   relation   to   her   which    will  291;    Rankin   v.    Rankin,    61    Mo.    295; 

cast  upon  them  the  burden  of  vindicat-  Boyse  v.  Rosshorough,  6  H.  L.  Cas.  47, 

ing  her  will   making  them  beneficiaries,  26  L.  J.  Ch.  N.  S.  256,  3  Jur.  N.  S.  373, 

against  the  imputation  that  it  was  pro-  5  Week.  Rep.  414;   1  Redf.  Wills,  chap, 

cured  by  fraud  or  undue  influence.     Mc-  10,    §    2;    Wisener  v.    Maupin,   2   Baxt. 

Master  v.  Scriven.  85  Wis.  102,  39  Am.  342.    See  also  Sttilz  v.  Schaeffie,  16  Jur. 

St.  Rep.  828,  55  N.  W.  149.  909,  18  Eng.  L.  &  Eq.  Rep.  576. 

'^Brydges  v.  King,  1  Hagg.  Eccl.  Rep.  A  will  making  provision  for  the  tes- 

25Q; Rollwagen  v.   Rolhvagcn,  63   N.   Y.  tator's   wife   and   two   children,   one   of 

504;    Kinne  v.   Johnson,   60   Barb.    69;  whom  was   illegitimate,  made  upon   in- 

Brick  V.  Brick,  66  N.  Y.  144;  Tyler  v.  struction  given  by  the  testator's  brother, 

Gardiner,  35  N.  Y.  559;  Snyder  v.  Sher-  who  was  one  of  the  executors,  will  be 

man,  23  Hun,    139;   Baker  v.  Lewis,  4  sustained    where    it    appears    that    the 

Rawie,   356;    Bitner  v.    Bitner,    05    Pa.  brother  had  done  all   in  his  power   for 

347;    Goble  v.   Grant,  3  N.  J.  Eq.  629;  the    benefit    of    the    illegitimate    child, 

Lyons  v.  Van  Riper,  26  N.  J.  Eq.  337;  though  the  evidence  as  to  capacity  and 

Cad wallader  V.  West,  iS  Mo.  iS3;  Tobin  knowledge  of  contents   was   slight.     Re 

W.Jenkins,  29  Ark.  151;  Drake's  Appeal,  Field,  3   Curt.   Eccl.  Rep.   754. 

45  Conn.  9.  '^^Scrihner  v.   Crane,  2  Paige,   147,  21 

^''Barnes  v.  Barnes,  66  Me.  286;  Clark  Am.  Dec.  81. 
T.  Savnjer,  3  Sandf.  Ch.  351;  Gardner  v. 


&4  LIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  90 

capacity  to  resist  such  influences.  If  he  had  not.  then  the  will,  sup- 
posing the  influences  to  have  been  applied^  must  fail,  at  least  pro 
tanlo:'^ 

V.  Intoxication. 
91.  Degree  of  drunkenness  affecting. —  To  avoid  a  will  on  the 
ground  of  intoxication  it  must  be  shown  to  have  existed  to  such  an 
extent  as  to  have  rendered  the  party  unconscious  of  what  he  was 
doing.^"  If  he  knows  what  his  estate  consists  of,  and  who  are  the 
proj)er  objects  of  his  bounty,  the  mere  fact  that  he  is  under  stimulants 
at  the  time  of  making  his  wall  does  not  affect  its  validity.^^  Nor  is  it 
enough  that  the  testator  Avas  stimulated  or  excited  by  drink.^^  The 
rule  that  capacity  requisite  for  the  testamentary  act  is  that  the  testator 
can  comprehend  the  extent  and  condition  of  the  property  he  is  about 
to  dispose  of,  the  natural  or  otlier  objects  of  his  bounty,  the  meaning 
of  the  business  in  which  he  is  engaged,  the  relation  of  each  of  these 
factors  to  the  others,  and  the  distribution  that  is  made  by  the  will, — 
is  applicable  to  an  allegation  of  incapacity  from  intoxication,  as  well 
as  from  insanity. '°  And  in  order  to  avoid  a  will  of  an  intemperate 
person  it  must  be  proved  that  he  Avas  so  excited  by  liquor  or. so  con- 
ducted himself  during  the  particular  act,  as  to  be  at  the  moment 
legally  disqualified  from  giving  effect  to  it.^^ 

'^Glover    v.    Eayden,    4    Cush.    580;  erhtnd,   28   Misc.   424,   59   N.   Y.   Supp. 

Baldwin  v.  Parlccr,  99  Mass.  79,  9G  Am.  989:    Ball  v.   Kane,   1  Penn.    (Del.)    90, 

Doc.  697;  A'^as7^  V.  F«n^,  116  Mass.  237;  39    Atl.    778.     And   see   Re   Johnson,    7 

Davis  V.  Davis,  123  Mass.  590;  Maxj  v.  Misc.  220,  27  N.  Y.  Supp.  649. 

Bradlee,  127  Mass.  414;  Wait  v.  Breeze,  "^Ayrey  v.  Hill,  2  Addams  Eccl.  Rep. 

18  Hun,  403:  Hughes  v.  Murtha,  32  N.  206:  Key  v.  HoUoicay,  7  Baxt.  575. 

J.  Eq.  288;  WoiniOT^/irs  AppeoZ,  89  Pa.  '"Re  Lee,  46   N.   J.   Eq.    19.3,    18   Atl. 

220;    Clark  v.   Stansbury,  49   Md.   346;  525;  Re  Halhert,  15  Misc.  308,  37  N.  Y. 

Pte/cc  V.  Fierce,  38  Mich.  412;  Hubbard  Supp.    757;    Pierce  v.   Pierce,   38  Mich. 

V.  Hubbard,  7  Or.  42.  412. 

"Shelford,  Lunatics,  276;    Gardner  v.  A  person,  though  under  the  influence 

Gardner,   22    Wend.    526,    .34    Am.    Dec.  of  intoxicating  liquors,  is  competent  to 

340;  Peck  v.  Gary,  27  N.  Y.  9,  84  Am.  execute  a  will,  where  he  is  capable  of 

Dec.  220;   Re  Sutherland,  28  Misc.  424,  exorcising  judgment,  reason,  and  delib- 

59  N.  Y.  Supp.  989;   Starrett  v.  Doug-  oration,  and  of  weighing  to  a  reasonable 

la<ts,   2   Yeates,   48;    Andress  v.   Weller,  degree  the  consequences  of  his  act.  Con- 

3  N.  J.  Eq.   604;    Turner  v.   Cheesman,  vey's  Will,  52  Iowa,  197,  2  N.  W.  1084. 

15  N.  J.  Eq.  243;  Pancoast  v.  Graham,  '^Peck  v.  Gary,  27   N.   Y.   12,   84  Ara. 

15  N.  J.  Eq.   294;   Pierce  v.  Pierce,  38  Dec.   220;    Re  Watson,  34   N.   Y.   S.  R. 

Mich.  412;   Temple  v.  Temple.  1  Hen.  &  906,  12  N.  Y.  Supp.  115;  Re  Sutherland, 

M.   476;   Hebert   v.   Winn,  24  La.   Ann.  28  Misc.  424,  59  N.  Y.  Supp.  989;  Ball 

385;    Kei/   V.    HoUoicay,    7    Baxt.    575;  v.  7va>ie,  1  Penn.   (Del.)   90,  39  Atl.  778 ; 

Gore  V.  Gibson,  13  Mees.  &  W.  623,   14  Tasker's   Estate,   205    Pa.   455,   55   Atl. 

L.  J.  Exch.  N.  S.  151,  9  Jur.  140.  24;  Ayrey  v.  Hill,  2  Addams  Eccl.  Rep. 

'^Turner    v.    Cheesman,    15    N.    J.    Eq.  206. 

243:   Whitenack  v.  Stryker,  2  N.  J.  Eq.  Occasional  fits  of  intemperance  are  not 

8;    Htarrett   v.   Douglass,  2  Yeates,  48;  evidence  of  want  of  capacity  to  make  a 

Peck  V.  Gary,  27  N.  Y.  9.  84  Am.  Dec.  will.     Violei's  Will,  1  Bibb,  617. 

220;  Re  Reed,  2  Connoly,  403;  Re  Suih-  But  evidence  in  a  will  contest  tetfding 


§  92]  .         f-  WILLS.  95 

92,  Exception  in  case  of  undue  influence. —  Where,  however,  in  ad- 
■  dition  to  the  fact  that  the  party  was  intoxicated  at  the  time,  he  was 

then  under  the  influence  of  others,  a  degree  of  intoxication  sufficient 
merely  to  subject  him  to  such  influence  may  be  ground  for  avoiding 
the  will,  although  such  intoxication,  without  such  proof  of  undue 
influence,  would  not  liave  that  effect.''^  And  where  a  will  is  executed 
under  the  influence  of  drink  intentionally  and  fraudulently  admin- 
istered, it  is  invalid,  by  the  operation  of  a  rule  already  noticed  with 
regard  to  contracts,"^  but  where  neither  fraud  nor  undue  influence 
is  shown,  actual  derangement  of  the  reasoning  faculties,  arising  from 
undue  excitement,  must  be  established. 

93.  Habitual  drunkard  not  necessarily  incapacitated.  —  ]^[ot  even 
long-continued  habits  of  intoxication  Avill  of  themselves  afi"ord  a  pre- 
sumption of  incapacity,  unless  the  testator  was  proved  to  have  been 
so  drunk  at  the  time  as  to  be  ignorant  of  what  he  was  doing,  or  to 
have  been  under  undue  or  fraudulent  influence.  Unless  the  latter 
conditions  exist,  there  must  be  a  downright  incapacity,  an  entire  loss 
of  control  over  mind  and  body,  in  order  to  invalidate  a  will.'^^ 
Habits  of  intemperance  will  not  invalidate  a  will,  where  the  testa- 
tor's mind  was  not  so  affected  thereby  as  to  render  him  incapable  of 
comprehending  the  condition  of  his  property,  and  his  relations  to  the 
objects  of  his  bounty,  and  the  scope  and  bearing  of  the  provisions  of 
his  will,  and  the  relation  of  each  of  these  factors  to  the  other. '^^  The 
question  is  whether  his  mind  was  so  affected  that  he  was  not  sufii- 

to  show  that  at  or  near  the  time  the  late,  205  Pa.  455,  55  AtL  24;  Eitters 
will  was  made  the  testator  was  so  drunk  Appeal,  59  Pa.  9 ;  Thompson  v.  Kyner, 
that  he  could  neither  stand  up  under-  65  Pa.  368 ;  Starrett  v.  Doufjlass,  2 
stand  anything,  nor  talk,  raises  the  ques-  VTcates,  48:  Re  Weisinan,  45  Phila.  Lew. 
tion  for  the  jury  as  to  whether  he  was  Int.  274;  Black  v.  Ellis,  3  Hill,  L.  68; 
so  drunk  that  he  had  not  sufficient  rea-  Belcher  v.  Belcher,  10  Yerg.  121;  Ayrey 
son  and  understanding  to  know  his  prop-  v.  Hill,  2  Addams  Eccl.  Rep.  206. 
erty  and  dispose  of  it  in  a  rational  '''^Bannister  v.  Jackson,  45  N.  J.  Eq. 
manner,  according  to  a  fixed  purpose  of  702,  17  Atl.  092;  Whitenack  v.  Stryker, 
his  own.  Best  v.  Best,  11  Ky.  L.  Rep.  2  N.  J.  Eq.  8;  Re  Gilham,  64  N.  J.  Eq 
215,  11  S.  W.  810.  715,  52  Atl.  690;   McLaughlin's  \Vill,  2 

■"-  Shclford,  Lunatics,  274,  304.  Redf.  504 ;   Philadelphia  ^Trust  £  8.   D. 

^^Vheeler  v.  Alderson,  3  Hagg.  Eccl.    Co.     v.     Drinkhouse,      17      Phila.     23; 
Rep.  602.  Schuslcr's  Estate,    198   Pa.   81,   47   Atl. 

''Truitt  V.  Cullen,  3  Penn.  (Del.)  311,  906.  And  see  Wheeler  v.  Alderson,  3 
50  Atl.  174;  Pierce  v.  Pierce,  38  Mich.  Hagg.  Eccl.  Rep.  574;  Handley  v. 
412;  Whitenack  v.  Stryker,  2  N.  J.  Eq.  Utacey,  1  Fost.  &  F.  574. 
8;  Andress  v.  Weller,  3  N.  J.  Eq.  604;  Nervousness  and  mental  and  physical 
Turner  v.  Chcesman,  15  N.  J.  Eq.  243;  prostration  at  the  time  of  making  a 
Re  Evans,  37  Misc.  337,  75  N.  Y.  Supp.  will,  due  to  drink,  will  not  justify  the 
491;  Gardner  V.  Gardner,  22  Wor)d.  52C),  submission  of  the  issue  of  testamen- 
34  Am.  Dec.  340;  Jiilke  v.  Adam,  1  tary  capacity  to  a  jury,  in  the  absence 
Redf.  454;  McLaughlin's  Will,  2  R^df.  of  anything' to  show  inability  to  com- 
504;  Hnughian  v.  Conlnn,  80  App.  Div.  prcliend  the  nature  and  character  of 
290,  83  N.  Y.  Supp.  830;    Tusker's  Es-    the  testamentary  power  or  of  its  excr- 


!)6 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  93 


ciently  master  of  himself  to  give  expression  to  his  real  wishes."^^  Such 
habits  do  not  affect  a  man's  capacity  where  he  was  not  intoxicated  at 
the  time,  unless  his  judgment  was  perverted/'^  though  such  habits 
were  the  cause  of  disease  of  which  the  testator  died."^  Weakness  of 
intellect  from  habitual  intemperance  to  the  extent  of  disqualifying 
a  testator  from  kuo'^ving  and  comprehending  the  nature,  effect,  and 
consequences  of  his  act,  however,  deprives  him  of  testamentary 
capacity  ;^^  though  it  cannot  be  said,  as  a  rule  of  law,  that  because  a 
man  is  a  dninkard  he  is  of  insane  mind.^° 

94.  Drunkenness  is  evidence  only. —  Drunkenness  and  habits  of  in- 
toxication, as  has  been  seen,  do  not,  as  a  matter  of  law,  destroy  testa- 
mentary capacity;  they  are  mere  matters  of  evidence  upon  the  ques- 
tion of  its  existence  or  nonexistence.^^  Unsoundness  is  the  ultimate 
fact  to  be  fouiid,  and  acts  of  inebriety  go  to  the  jury  as  evidence  from 
which  unsoundness  may  be  found,**-  the  question  being  one  of  fact 
for  the  jury.*^^ 


cise,  whore  the  testator  had  made 
a  statement  that  he  had  changed  his 
will,  stating  the  change  accurately. 
Harmony  Lodf/e,  I.  0.  0.  F.'s  Appeal, 
127  Pa.  2G9,   18  Atl.  10. 

"i?e  Johnson.  7  Misc.  220,  27  N.  Y. 
Supp.  649;  Gardner  v.  Gardner,  22 
Wend.  520.  34  Am.  Dec.  .340;  Re  Hal- 
bert,  15  ]\Iisc.  308,  37  N.  Y.  Siipp.  757. 

There  is  no  standard  of  drunkenness 
which  will  defeat  testamentary  capac- 
ity short  of  downright  imbecility.  Di- 
mond's  Estate,  3  Pa.  Dist.  R.  554. 

And  the  will  of  an  habitual  drunkard, 
judicially  adjudged  to  be  such,  and  de- 
prived of  the  control  of  his  property, 
and  consigned  to  an  inebriate  asylum, 
where  he  died,  is  not  necessarily  in- 
valid for  want  of  testamentary  capac- 
ity, though  the  testator  also  had  epi- 
lepsy, provided  he  was  sober  at  the  time 
of  executing  the  will.  Re  Johnson,  7 
Misc.  220,  27  N.  Y.  Supp.  649. 

""Hehert  v.  Winn,  24  La.  Ann.  385; 
Kahl  V.  Schoher,  35  N.  J.  Eq.  461; 
Ayrey  v.  IJill,  2  Addams  Eccl.  Rep.  206: 
Peck  V.  Gary,  27  X.  Y.  9,  84  Am.  Dec. 
220;  Houser  v.  Liqhtner,  42  Phila.  Leg. 
Int.  289;  Lcvis's  Estate,  140  Pa.  179,  21 
Atl.  242;  Re  IJalbert,  15  Misc.  308,  37 
N.  Y.  Supp.  757. 

To  defeat  testamentary  capacity 
habits  of  intoxication  must  have  boon 
carried  to  the  extent  of  intoxic;ilion 
generally,  or  intoxication  at  the  time  of 
making  the  will.  O'Xcil  v.  Murray,  4 
Bradf.   311. 

And   the   submission   of   the   issue   of 


testamentary  capacity  to  a  jury  is  not 
suificiently  sustained  by  evidence  that 
the  testator  originally  possessed  a  strong 
will,  but  that  it  might  have  been  weak- 
ened by  disease  and  dissipation,  and 
that  he  was  frequently  drunk  and  gen- 
erally ill-natured  and  stubborn.  Mc- 
Pherson's  Appeal  (Pa.)  9  Cent.  Rep. 
408,  11  Atl.  205.  And  see  Hubbard's 
Will,  6  J.  J.  Marsh.  59. 

'^Kahl  V.  Schober,  35  N.  J.  Eq.  461. 

'^Leech  v.  Leech,  5  Clark  (Pa.)  86. 
And  see  Duffield  v.  Robeson,  2  Harr. 
(Del.)  375:  Hoioe  v.  Richards,  112 
Iowa,  320,  83  N.  W.  909;  Kingsbury  v. 
V.liitaker,  32  La.  Ann.  1055,  36  Am. 
Rep.  278;  Gardner  v.  Gardner,  22  Wend. 
526.  34  Am.  Dec.  340;  Julke  v.  Adam,  I 
Redf.  454;  McSorley  v.  McSorley,  2 
Bradf.  188;  Starrett  v.  Douglass,  2 
Yeates,  48;  Barrett  v.  Buxton,  2  Aik. 
(Vt.)  167,  16  Am.  Dec.  691;  Temple  v. 
Temple,  1  Hen.  &  M.  476;  Handley  v. 
Stnccy.  1  Post.  &  F.  574. 

^"/'e  Johnson,  57  Cal.  529;  Weistnan'g 
Estate,  5  Pa.  Co.  Ct.  ,561. 

The  effect  of  habitual  drunkenness 
with  relation  to  testamentary  capacity 
res-ts  upon  the  presumption  tliat  at  the 
time  of  the  testamentary  act  the  inebri- 
ate was  intoxicated.  Re  Sutherland,  28 
Misc.  424,  59  N.  Y.  Supp.  989. 

*'/(!e  Harrigan,  Myrick  Prob.  (Cal.) 
135. 

"■Re  Gharky,  57  Cal.  274. 

^^Rc  Johnson.  57  Cal.  529. 

And  the  effect  of  intoxication  upon  the 
capacity    of    an    intoxicated    persori    to 


i  95]  WILLS.  97 

95.  Use  of  medicines  may  produce  incapacity. —  In  analogy  with 
the  principles  stated  above,  it  has  been  held  that  mental  incapacity 
on  the  part  of  the  testator,  when  produced  by  tlie  use  of  medicines, 
is  sufficient  to  invalidate  his  will.^^ 

VI.  Methods  of  determining  capacity  or  incapacity, 

96.  Questions  of  law  for  the  court. —  The  degree  of  mental  capacity 
necessary  to  enable  a  testator  to  make  a  will,  and  tlie  extent  and 
degree  of  understanding  of  the  will  and  persons  and  property  affected 
by  it,  and  the  extent  to  which  the  mind  of  the  testator  must  ha\>e  been 
impaired  to  incapacitate  him,  are  questions  of  law,  exclusively  for 
the  court.^'^  And  the  question  as  to  what  constitutes  an  unreasonable 
and  irrational  bias  or  insane  delusion  upon  the  part  of  tlie  testator 
is  also  one  for  the  court  ;^°  and  so  is  one  as  to  the  sufficiency  of  evi- 
dence adduced  to'  show  testamentary  capacity.*'^ 

97.  Questions  of  fact  for  the  jury. —  Whether  a  testator  had  the  de- 
gree of  mental  capacity  necessary  to  enable  him  to  make  a  valid  will, 
however,  is  a  question  of  fact  for  the  jury,  to  be  deteraiined  upon  a 
consideration  of  all  the  circumstances  of  the  particular  case.^^  And 
it  is  for  the  jury  to  determine  as  to  the  weight  of  any  particular  proof, 
whether  it  consists  of  matters  of  fact  or  of  opinion  ;^^  and  questions 

make  a  will  is  not  a  scientific  question  Me.    585,    66    Am.    Dec.   266 ;    Ware   v. 

to  be  determined  by  experts,  but  one  of  Wore,  8  Me.  42:  Re  Drake,  45  App.  Div. 

common  observation,  depending  upon  the  20G,  60  N.  Y.  Supp.  1020;  Re  Dixon,  42 

facts    of    each    case,    and    to    be    deter-  App.  Div.  482,  59  N.  Y.  Supp.  421;  Re 

mined     from     such     facts.       Pierce     v.  Coleman,   111  N.  Y.  220,   19  N.   E.  71; 

Pierce,  .38  Mich.  412.  Chrisman  v.  Chrisman,   16  Or.   127,    18 

^^Stedham  v.   Stedham,   32   Ala.   525;  Pac.  6;  Rees  v.  Stille,  38  Pa.  138;  Leiois 

Garrison  v.  Blanton,  48  Tex.  299 ;  Scan-  v.  Letris,  6  Serg.  &  R.  496 ;   Tillman  v. 

Ian  V.  Cobb,  85  111.  296.     See  article  in  Hatcher,  1  Rice,  L.  271;   Gass  v.  Gass, 

Am.   Journal    of   Insanity   for    1872,   p.  3  Humph.  278 ;  Vance  v.  Upson,  66  Tex. 

13.  476,    1   S.   W.    179;   Prather  v.   McClel- 

^'Kempsey  v.  McGinniss,  21  Mich.  123;  land,  76  Tex.  574,  13  S.  W.  543;  Minard 

Overton  v.  Overton,  18  B.  Mon.  61.  v.  Minard,  Brayton   (Vt.)    231  ;   Den  ex 

Whether       unsoundness       of       mind  dem.  Stevens  v.  Vancleve.  4  Wash.  C.  C. 

amounts  to   incapacity  to  make  a  will  262,  Fed.  Cas.  No.   13,412. 

is  to  be    ascertained    by    the  court,  by  A  finding  of  soundness  of  liiind  in  a 

application  of  rules  of  law,  in  the  exer-  will  contest  is  not  a  conclusion  of  law, 

cise    of    a    sound    discretion    regulated  but  an  ultimate  fact.     Clements  v.  Mc- 

thereby.     Stackhoiise  v.   Horton,   15   N.  Ginn   (Cal.)    33  Pac.  920. 

J.  Eq.  202.  ^^Gardner   v.    Lamback,    47    Ga.    133; 

^nvilliams  v.  Williaiirs,  90  Ky.  28,  13  Wise  v.  Foote,  81  Ky.   10;   Nciohard  v. 

S.   W.   250;    Prather  v.   McCleUand,   76  Yundt,  132  Pa.  324.  19  Atl.  288:  Treze- 

Tex.  574,  13  S.  W.  543.  vant  v.  Rains,  85  Tex.  329,  23  S.  W.  890. 

^''Shaver   v.    McCarthy.    110    Pa.    339,  So,   the    reasonableness    or   unreason- 

5  Atl.  614;   Loivder  v.  Lowder,  58  Ind.  ableness  of  the  disposition  of  a  will  is  a 
538;  Shailer  v.  Bumsiead,  99  Mass.  112.  question   for  consideration    of    the  jury 

^Campbell  v.  Campbell,   130  111.  466,    in  a  will  contest.     Evans  v.  Arnold,  52 

6  L.  R.  A.  167,  22  N.  E.  620;  Meeker  v.    Ga.  169:   Re  C%penter,  79  CaL  382.  21 
Meeker,  75  111.  260;   Harp  v.  Parr,   168    Pac.    835. 

111.  459,  48  N.  E.  113;  Hill  v.  Nash,  41 
Vol.  I.  Med.  Jur. — 7. 


98 


AiENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  97 


with  relation  to  undue  influence  with  respect  to  the  execution  of  a 
will  in  connection  with  incapacity  are  also  ones  of  fact,  to  be  deter- 
mined by  the  trial  court.''"  So,  whether  or  not  the  condition  of  a 
testator  falls  within  the  legal  definition  of  delusion  is  one  of  fact  for 
the  jui-y  upon  the  evidence.^^  And  so  is  tlie  question  whether  a  preju- 
dice against  a  natural  object  of  the  testator's  bounty  is  evidence  of 
derangement  or  not^^  Doubtful  and  unsatisfactory  evidence  of 
incapacity,  however,  will  not  warrant  the  submission  of  an  issue  to  a 
jury,^^  nor  Avill  evidence  which  is  insufficient  to  overcome  the  pre- 


*'Re  Coleman,  111  N.  Y.  220,  19  N.  E. 
71;  Re  Dixon,  42  App.  Div.  4S1,  59  N. 
Y.  Supp.  421;  Re  Drake,  45  App.  Div. 
206,  60  N.  Y.  Supp.  1020;  Robinson  v. 
Adams,  62  Me.  309.  16  Am.  Rep.  473: 
Prather  v.  McCJelland,  76  Tex.  578,  13 
S.  W.  543. 

And  an  instruction  in  a  w\\\  contest 
in  which  undue  influence  is  allejjed  that, 
if  the  testator  -was  of  sound  mind  and 
knew  the  contents  of  his  will,  it  should 
be  sustained,  is  erroneous  unless  so 
qualified  as  to  leave  the  question  of 
free  will  to  the  jurv.  Yardlcy  v.  Cuth- 
hertson.  108  Pa.  395,  56  Am."^Rep.  218, 
1  Atl.  765. 

^'Prather  v.  McClelland,  76  Tex.  574. 
13  S.  W.  543;  Dnqqan  v.  McBreen,  78 
Iowa,  591,  43  N.  W.  547;  Robinson  v. 
Adams,  62  Me.  369,  16  Am.  Rep.  473; 
Banks  v.  Goodfellow,  22  L.  T.  N.  S.  813, 
39  L.  J.  Q.  B.  N.  S.  237,  L.  R.  5  Q.  B. 
549. 

And  it  is  not  proper  for  the  court  to 
declare  as  matter  of  law  that  certain 
facts  and  matters  are  not  of  themselves 
insane  delusions  rendering  a  will  in- 
valid: it  should  require  the  jury  to  de- 
termine, after  a  full  and  fair  considera- 
tion of  the  evidence,  whether  or  not  the 
fncts  proved  show  the  existence  of  such 
a  delusion.  Robinson  v.  Adams,  62  Me. 
369.   16  Am.  Rep.  473. 

And  the  fact  that  the  proof  on  the 
question  of  delusion  in  a  will  contest 
is  all  upon  one  side  does  not  authorize 
the  court  to  direct  the  jury  to  find  in 
accordance  therewith,  since  the  jury  has 
the  right  to  discredit  it.  Townsliend  v. 
Townshend,  7  Gill,  10. 

But  the  issue  in  a  will  contest  as  to 
insanity  should  be  taken  from  the  jury 
where  there  are  no  facts  in  the  case 
showing  that  the  testator  was  afflicted 
with  what  in  law  amounts  to  an  insane 
delusion.  Prather  v.  IffcClellatid,  76 
Tex.  574,   13  S.   W.  543. 

"-Greenwood  v.  Greenwood,  3  Curt. 
Eccl.  Rep.  337. 


The  attention  of  the  jury  in  a  will 
contest  in  which  a  special  delusion 
against  the  contestant  is  alleged  should 
be  speciallv  called  to  that  issue.  Lxicas 
v.  Parsons]  24  Ga.  640,  71  Am.  Dec.  147. 

But  the  court  in  a  will  contest  should 
not  separate  certain  sujjposed  delusions 
from  a  large  bulk  of  evidence,  and  in- 
.struct  the  jury  that  they  alone  are  suf- 
ficient to  show  insanitv.  Turner  v.  Rusk, 
53  Md.  65. 

^^Fosfers  Estate,  142  Pa.  62,  21  Atl. 
798;  Schicilke's  Appeal,  100  Pa.  628: 
Ron-son's  Estate,  4  Pa.  Dist.  R.  91,  Af- 
firmed in  175  Pa.  154.  .34  Atl.  4.33; 
Eddei/'s  Appeal,  109  Pa.  406,  1  Atl.  425 ; 
Loesers  Estate,  3  Pa.  Dist.  R.  817; 
Doyle's  Estate,  7  Pa.  Co.  Ct.  657;  Mc- 
Kim's  Estate,  27  W.  N.  C.  110:  Depuy's 
Estate,  1  W.  N.  C.  212;  Keating's  Ap- 
peal, 36  Pittsb.  L.  J.  283;  Wilson  v. 
Mitchell,  101  Pa.  4D5.  See  also  PensyVs 
Estate,  157  Pa.  465,  27  Atl.  669: 
Napfle's  Estate,  134  Pa.  492,  19  Atl.  679. 

Evidence  of  bad  health  and  slight  in- 
somnia and  occasional  forgetfulness  and 
absent-mindedness  does  not  warrant  an 
issue  as  to  capacity,  as  against  proof 
of  business  ability  and  knowledge  by 
a  testator  of  his  own  aflfairs.  Douglass's 
Estate,  162  Pa.  567,  29  Atl.  715. 

And  testimony  of  persons  who  visited 
the  testator,  that  they  found  him  asleep, 
and  that  he  seemed  to  be  in  a  stupor, 
and  muttered  incoherently,  will  not  war- 
rent  the  submission  of  an  issue  as  to 
his  testainentary  capacity,  where  he  had 
taken  chloral  by  order  of  his  physi- 
cian, and  the  lawyer  who  drew  the  will 
and  the  attesting  witnesses  testify  that 
he  was  of  sound  mind.  Hamilton's  Es- 
tate,  16  Pa.   Co.   Ct.   303. 

And  evidence  of  trifling  acts  on  the 
part  of  a  testator,  indicating  incapac- 
ity, and  the  testimony  of  a  physician 
that  he  was  a  little  peculiar,  and  had 
symptoms  of  softening  of  the  brain,  and 
was  childish,  do  not  warrant  sending 
an  issue  to  the  jury  as  to  testamentary 


S  97] 


WILLS. 


89 


sumption  of  capacity,^*  nor  evidence  which  would  not  justify  finding 
a  verdict  against  the  A\all.®'''  But  it  should  be  granted  where  the  evi- 
dence is  such  that  if  believed  by  the  jury,  a  verdict  against  a  \nll 
would  be  sustained,^'''  and  a  finding  of  the  jui-y  upon  the  question  of 
testamentary  capacity  is  conclusive  unless  clearly  against  the  weight 
of  evidence.'''^  And  a  verdict  or  finding  either  for  or  against  a  will 
will  not  be  set  aside  on  appeal,  where  there  w^as  a  conflict  of  the  evi- 
dence as  to  capacity.^^ 

98.  Equity  cases. —  Likewise  in  equity  cases  involving  questions  of 


capacity,  where  another  physician,  with 
better  opportunities  for  judtring,  testi- 
fies to  the  contrary,  and  tlicre  was  oth- 
er ov'erwhclminj?  proof  of  capacity.  'Neic- 
lin's  Estate,  7  Pa.  Co.  Ct.  64S. 

'^'Hazzard's  Estate,  7  Pa.  Co.  Ct.  56. 
And  see  Dohie  v.  Armstrong,  27  App. 
Div.  520,  50  N.  Y.  Supp.  SOL 

^"Lillihridge's  Estate,  133  Pa.  211,  19 
AtL  352;  Herster  v.  Herster,  122  Pa. 
239,  9  Am.  St.  Rep.  95,  16  AtL  342; 
Knanss's  Appeal,  114  Pa.  10,  6  AtL 
394;  Eddeifs  Appeal,  109  Pa.  406,  1  Atl. 
425 ;  Comb's  Appeal,  105  Fa.  155 ;  Wil- 
son V.  Mitchell,  101  Pa.  495;  Cauffman 
V.  Long,  82  Pa.  72 :  De  Haven's  Ap- 
peal, 75  Pa.  337;  Taylor's  Estate,  16 
Phila.  274 ;  'Newlin's  Estate,  7  Pa.  Co. 
Ct.  648;  Loeser's  Estate,  3  Pa.  Dist. 
R.  817;  Colgate's  Estate.  5  W.  N.  C. 
170;  Frowert's  Estate,  2  W.  N.  C.  588; 
Depuy's  Estate,  1  W.  N.  C.  212;  Boyer's 
Estate,  166  Pa.  630,  31  Atl.  359;  stokes 
V.  Miller,  10  W.  N.  C.  241;  Tallman's 
Estate,  31  Pa.  359,  23  AtL  986. 

Evidence  of  forgetfulness  upon  the 
part  of  a  testator,  and  inability  to  speak 
except  in  monosyllables,  or  to  tell  the 
time,  and  that  he  was  avoided  by  his 
wife,  and  spoke  of  shoes  as  coffins,  does 
not  warrant  an  issue  as  to  testamentary 
capacity,  as  against  proof  that  his  eye- 
siglit  was  weak  and  his  hand  paralyzed 
and  that  he  came  from  a  place  where  a 
certain  kind  of  shoes  were  called  cof- 
fins. Galley's  Estate,  4  Pa.  Dist.  R. 
52. 

""Colgate's  Estate,  5  W.  N.  C.  170; 
.Schwilke's  Appeal,  100  Pa.  628;  Pal- 
mer's Estate,  24  W.  N.  C.  159.  And 
see  Ulmcrs  Appeal  (Pa.)  11  Cent.  Rep. 
403,  12  AtL  686;  Fulbright  v.  Perry 
County,  145  Mo.  432,  46  S.  W.  955; 
.S'e/ir  V.  Lindemann,  153  Mo.  276,  54  S. 
W.  537;  tiouthworth  v.  Soutlvworth,  173 
Mo.  59,  73  S.  W.  129. 

Proof  in  a  will  contest  cliat  a  testa- 
■or  had  been  in  the  habit  for  years  of 


dosing  himself  with  morphine,  ,opium. 
and  other  drugs,  and  that  he  believed 
that  his  family  were  conspired  against 
him,  and  that,  if  not  watched,  his  wife 
might  poison  him,  justifies  the  submis- 
sion of  an  issue  to  a  jury,  where  the 
will  disinherited  two  of  his  daughters 
because  of  the  marriage  of  one  of  them 
to  a  man  against  whom  he  conceived  a 
groundless  antipathy,  and  of  the  pres- 
ence of  the  other  at  the  marriage.  Car- 
ter's Estate,  11  Pa.  Co.  Ct.  140. 

The  validity  of  a  will  must  be  deter- 
mined by  a  jury  in  England  where  the 
heir  insists  upon  an  issue,  though  all 
the  attesting  witnesses  testify  to  the 
sanity  of  the  testator.  Bootle  v.  Blun- 
dell,'\^  Ves.  Jr.  494,  Cooper  Ch.  136, 
15  Revised  Rep.  93. 

^''American  Bible  Soc.  v.  Price,  115  111. 
623,  5  N.  E.  126;  Brown  v.  Bruce,  19 
U.  C.  Q.  B.  35. 

The  question  as  to  whether  refusal  to 
instruct  the  jury  in  a  will  contest  that 
there  was  not  sufficient  legal  evidence 
before  them  of  mental  incapacity  was 
erroneous  or  not  will  not  be  considered 
on  appeal,  where  the  verdict  was  in  fa- 
vor of  the  proponent.  Moore  v.  McDon- 
ald, 68  Md.  321,  12  Atl.  117. 

^^Rogcrs  v.  Tliamond,  13  Ark.  475;  Mc- 
Baniei  \.  Crosby,  19  Ark.  533;  Petefish 
V.  Becker,  176  111.  448,  52  N.  E.  71; 
Smith  V.  James,  72  Iowa,  515,  34  N.  W. 
309;  Hill  v.  Nash,  41  Me.  585,  66  Am. 
Dec.  266;  Moyer  v.  Swygart,  125  111. 
267,  17  N.  E.  450;  Harper  v.  Harper,  1 
Thomp.  &  C.  351;  Tillman  v.  Hatcher, 
Rice  L.  271. 

Unless  the  preponderance  of  evidence 
is  stroiigly  against  the  finding.  Harper 
V.  Harper,  IThomp.  &  C.  351. 

A  determination  against  a  will  on  the 
ground  of  testamentary  incapacity  will 
not  he  reversed  though  the  testimony  in 
its  favor  preponderates,  where  the  court 
cannot  say  that  the  finding  was  so  pal- 
pably   against    the    weight    of    evidence 


100  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  95 

testamentary  capacity  it  is  proper  that  an  issue  should  be  framed  and 
tried  by  a  jur^^•'^  But  the  court  has  power  to  try  the  question  with- 
out directing  an  issue/ '^"^  or  to  set  aside  a  verdict  of  a  jury  and  grant 
a  new  trial  if,  in  its  opinion,  the  verdict  ought  not  to  stand. -^"^ 

VII.    PeDOF  of  incompetency, WEIGHT,  SUFFICIENCY. 

a.  General  rules. 
99.  General  insanity. —  In  order  to  defeat  a  will  on  the  ground  of 
incapacity  of  the  testator,  general  insanity  must  be  made  out,  or 
partial  insanity,  at  the  very  time  of  executing  it.^  And  the  usual 
methods  of  testing  the  mental  condition  of  a  testator  are  by  a  review 
of  his  life,  habits,  and  opinions,  and  a  consideration  of  his  recoll6c- 
tion  of  past  events,  and  his  reason  in  regard  to  them,  and  by  an  exam- 
ination of  the  particular  circumstances  of  each  case."  And  it  may  be 
shown  by  evidence  of  physical  or  mental  manifestations,  and  the 
opinions  of  professional  witnesses  as  inferences  of  fact  therefrom,  the 
subject  being  partly  within  the  range  of  common  observation  and 
partly  within  tliat  of  special  medical  experience.^      And  the  number, 

as  to  indicate  opposition  and  prejudice.  Midi.    459;    Young   v.    Ridenbaugh,    67 

N-ewcomb  v.   Newcomb,  96  Kv.   120,  27  Mo.   574;    Young  v.   Stevens,  48   N.   H. 

S.  W.  997:  Brace  v.  Black,  125  111.  33,  133,  2  Am.  Rep.  202,  97  Am.  Dec.  592; 

17  N.  E.  66.    But  see  Bradley  V.  Palmer,  Dennett   v.   Dennett,  44   N.   H.   531,   84 

193  III.  15,  61  N.  E.  856.  Am.  Dec.  97;  Austen  v.  Graham,  29  Eng. 

But  the  fact  that  there  was  evidence  L.  &  Eq.  Rep.  38,  8  Moore  P.  C.  C.  493 ; 

on  both  sides  in  a  will  contest  in  which  Nichols  v.   Binns,    1   Swabey  &   T.   239. 

the   question   of   testamentary   capacity  And  see  Sanders  v.  Blaldey,  21  Ky.  L. 

arose  does  not  prevent  the  granting  of  a  Rep.    1321,    55    S.    W.    10;    Stebbins   v. 

new  trial  on  appeal,  where  the  verdict  Hart,  4  Dem.  501. 

was   manifestly   against   the   weight   of  So,  insanity  or  weakness  of  mind  over 

evidence.     Kinne  v.  Einne,  9  Conn.  102,  which  undue  influence  was  exerted  must 

21   Am.  Dec.   732.  be   affirmatively   proved   in   a   will   con- 

^Giiild  v.  Hull,  127  111.  523,  20  N.  E.  test,  and  cannot  be  established  by  sur- 

665;   Mt/att  v.  Walker,  44  111.  485.  mise   or    supposition.      Allen   v.    Public 

^""Alexander  v.  Alexander,  5  Ala.  517.  Adminisiralor,  1  Bradf.  378. 

^"^McElroy  v.  McElroy,  5  Ala.  81.  ^Kempsey  v.  McG'mniss,  21  Mich.  123; 

An    inquisition    of    lunacy,    finding    a  Smith  v.  Tcbbilt,  L.  R.   1  Prob.  &  Div. 

testator   a   lunatic   at   the   time  of   the  401,  36  L.  J.  Prob.  N.  S.  97,   16  L.  T. 

execution  of  his  will,  is  not  conclusive  N.  S.  841,   16  Week.  Rep.   18. 

as  to  the  right  to  the  submission  of  the  To  invalidate  a  will,  proof  of  incom- 

question  of  testamentary  capacity  to  a  petency  or  of  undue  influence  need  not 

jury,   where   the    inquisition   was   trav-  be   positive   as   distinguished   from   cir- 

ersed,    but    the    issue    was    never    tried  oumstantial.     Reichenbach  v.   Ruddach, 

by  reason  of  his  death.     Dyre's  Estate,  127  Pa.  564,  18  Atl.  432. 

12   Phila.    156.  Nor    is    it    necessary    tha<-    insanity 

'Lcp  V.  Lee,  4  McCord  L.  183,  17  Am.  should  appear  on  the  face  of  a  will  in 

Dec.  722.  order  to  invalidate   it  on   that  ground. 

*Davis  v.  Calvert,  5  Gill  &  J.  269,  25  Fowlis  v.  Davidson,  6  Notes  of  Casca, 

Am.  Dec.  282;  Beaubien  v.  Cicotte    12  4aL 


§  99] 


WILLS. 


101 


intelligence,  and  character  of  the  witnesses  should  have  great  weight 
with  the  jury.^ 

100.  Partial  insanity  and  delusion. —  Proof  as  to  partial  insanity 
or  delusion,  to  invalidate  a  will,  must,  in  general,  be  more  clear  and 
satisfactory  and  direct  and  full  than  is  required  of  proof  of  general 
insanity.^  Delusive  ideas,  however,  which  ought  to  receive  their 
condemnation  and  expulsion  at  once  from  the  simple  action  of  the 
senses,  and  those  opjwsed  to  the  simple,  ordinary,  and  universal 
a-^tion  of  reason  in  healthy  minds,  are  of  themselves  proof  of  in 
sanity.'  And  a  delusion,  tliough  insufficient  to  establish  testamen- 
tary incapacity,  is  proper  to  be  considered  %vith  reference  to  the  ques- 
tion of  mental  w^eakness.'^  And  in  determining  as  to  the  continued 
existence  of  a  delusion,  the  contents  of  the  will  and  the  circumstances 
under  which  it  was  executed  may  be  taken  into  consideration.^  The 
mere  nonmanifestation  at  any  particular  time  of  a  delusion  previ- 
ously existing  will  not  show  its  nonexistence.^  But  delusion,  though 
in  connection  with  the  subject-matter,  and  though  combined  with 
habits  of  intoxication,  does  not  necessarily  show  incompetency;^^ 


♦Lee  V.  Lee,  4  McCord  L.  183,  i7  Am. 
Dec.  722. 

Where  the  evidence  is  conflicting  in 
a  will  contest  as  to  the  sanity  of  a  tes- 
tator, the  question  is  not  whether  the 
facts  adduced  in  support  of  the  sanity 
are  not,  in  general,  indications  of  sanity, 
but  Avhether  they  are  inconsistent  with, 
or  sufficiently  explanatory  of,  the  indi- 
cations of  insanity  produced  by  the  oth- 
er side.    Steed  v.  Galley,  1  Keen,  620. 

Instructions  as  to  mental  capacity 
should  be  based  on  the  evidence.  Powers 
V.  Powers,  21  Ky.  L.  Rep.  597,  52  S.  W. 
845. 

^Mullins  V.  Cottrell,  41  Miss.  291. 

Mental  unsoundness  cannot  be  in- 
ferred from  an  apparently  careless  as- 
sertion by  a  testator  that  he  had  been 
robbed  and  was  destitute.  Rodger's  Es- 
tate, 19  W.  N.  C.  383. 

And  an  opinion  held  by  a  testator 
that  his  daughter  had  misused  and  mis- 
treated him,  though  shown  in  connec- 
tion with  her  opinion  that  she  had  not 
done  so,  does  not  justify  an  instruc- 
tion in  a  will  contest  as  to  the  fact 
of  an  insane  delusion.  Shorb  v.  Bru- 
haker,  94  Ind.   165. 

"Smith  V.  Tebbitt,  L.  R.  1  Prob.  & 
Div.  401,  36  L.  J.  Prob.  N.  S.  97,  16 
L.  T.  N.  S.  841,  16  Week.  Rep.  18. 

Insane  jealousy  on  the  part  of  a  hus- 
band, witliout  cause,  and  evidence  tliat 


he  frequently  denied  the  paternity  of 
his  children,  and  abused  his  wife,  and 
finally  shot  her,  and  then  committed 
suicide,  are  sufficient  to  show  testamen- 
tary incapacity.  Burkhart  v.  Gladish, 
123  Ind.  338,  24  N.  E.   118. 

'Re  Storey,  20  111.  App.  183. 

Evidence  that  a  testatrix  sought  to 
escape  an  imaginary  robber  and  believed 
that  her  brother  had  killed  seven  men 
and  cut  them  up  and  then  threw  them 
into  a  well,  and  that  she  destroyed  her 
bed  and  clothing,  and  that  she  told 
one  of  the  witnesses  that  her  son  and  a 
young  lady  had  procured  a  large  kettle 
for  the  purpose  of  boiling  her  in  it,  and 
that  she  was  very  miserly,  and  feared 
that  her  son  would  poison  her,  does  not 
show  habitual  insanity  which  will  shift 
the  burden  of  proof  that  her  will  was 
made  during  a  lucid  interval,  where 
such  occasions  were  far  apart  and  re- 
mote from  the  will.  Chandler  v.  Bar- 
rett, 21  La.  Ann.  58,  99  Am.  Dec.  701. 

^Boughton  v.  Knight,  L.  R.  3  Prob. 
&  Div.  64,  42  L.  J.  Prob.  N.  S.  41,  28 
L.  T.  N.  S.  562. 

'Grimani  v.  Draper,  6  Notes  of  Cases, 
418. 

^°Re  Smith,  53  N.  Y.  S.  R.  658,  24  N. 
Y.   Supp.  928. 

A  belief  upon  the  part  of  a  testator 
that  his  only  son  was  illegitimate,  based 
upon  reports  and  stories  he  had  heard 


102 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  100 


though  the  rule  is  different  when  the  delusion  is  likely  to  affect  tiie 
testamentary  provision.^ ^ 


The  testimony  of  subscribing  wit- 


h.  By  attesting  witnesses  and  others  present. 
101.  Cogency  and  necessity  of. 
nesses  to  a  will  concerning  the  testator's  mental  condition  and  the 
attendant  circumstances  is  entitled  to  great  weight  upon  the  question 
of  testamentary  capacity,  where  they  are  truthful  and  intelligent.  ^- 
And  so  is  that  of  the  attending  physician.^ ^  And  the  rule  has  been 
laid  down  that  subscribing  as  a  witness  to  a  will  is  an  assertion  by  the 
subscriber  that  tlie  testator  was  of  sound  mind  at  the  time/^  and  that 
proof  of  his  signature  is  prima  facie  evidence  of  competency,^ ^  though 
this  has  been  denied.^^  Proof  by  only  one  of  two  or  more  subscrib- 
ing witnesses  has  usually  been  held  insufficient  to  establish  sanity  or 
capacity  where  proof  of  tliat  fact  is  required  to  be  made.^'^      In  the 


a  short  time  after  marriage,  but  which 
had  never  been  communicated  to  any 
one  excepting  his  priest  and  to  his  wife 
while  he  was  intoxicated,  is  not  such 
an  insane  delusion  as  will  invalidate  a 
will  made  by  him  disinheriting  such 
son.     Ihid. 

^"^Waters  v.  Cullen,  2  Bradf.  354.  And 
see  Edge  v.  Edge,  38  N.  J.  Eq.  21L 

^•Jamiso7i  v.  Jamison,  3  Houst.  (Del.) 
108;  Whitenack  v.  Stryker,  2  N.  J.  Eq. 
S;  Sheldon  v.  Don;  1  Dem.  503;  Clark 
V.  Ellis,  9  Or.  128;  Cornelius  v.  Corne- 
lius, 52  N.  C.kJ(7  Jones  L.)  593;  Mar- 
tin V.  Thayer,  37  W.  Va.  38,  16  S.  E. 
489;  Harrison  v.  Rowan,  3  Wash.  C.  C. 
580,  Fed.  Gas.  No.  0,141;  Den  ex  dem. 
Stevens  v.  Vanclere,  4  Wash.  C.  C.  262, 
Fed.  Gas.  No.  13.412.  And  see  Savage 
V.  Bulger,  25  Ky.'  L.  Rep.  763,  76  S.  W. 
361;  Kiehmond's  Estate,  206  Pa.  219, 
55  Atl.  970. 

Where  a  will  appears  to  be  fair,  and 
the  subscribing  witnesses  who  testified 
to  capacity  were  above  suspicion,  and 
aware  of,  and  competent  to  perform, 
their  duty,  an  incapacity  which  will  in- 
validate the  will  should  be  established 
by  facts  showing  a  defect  of  mind  ex- 
isting in  a  form  that  might  not  have 
been  detected.  Means  v.  Means,  5 
Strobh.  L.  167.  And  see  also  Cheney  v. 
Price,  90  Hun,  238,  37  N.  Y.  Supp.  117. 

And  evidence  that  a  testator  was  af- 
flicted with  the  delirium  of  typhoid 
fever,  which  was  intermittent,  approach- 
ing very  near  to  the  time  of  the  execu- 
tion of  his  will,  will  not  invalidate  it, 
as  against  evidence  of  consciousness  and 


rationality  given  by  subscribing  wit- 
nesses and  others  present  at  the  time. 
Re  Bush,  1  Gonnoly,  403,  5  N.  Y.  Supp. 
23. 

^^Cornelius  v.  Cornelius,  52  N.  C.  (7 
Jones  L. )  593.  And  see  Savage  v.  Bul- 
ger, 25  Ky.  L.  Rep.  763,  76  S.  W.  361. 

Evidence  of  other  persons  present  at 
the  execution  of  a  will  is  to  be  chiefly 
relied  iipon,  on  the  question  of  testamen- 
tary capacity,  next  after  that  of  the  at- 
testing witnesses.  Den  ex  dem.  Stev- 
ens v.  Vancleve,  4  Wash.  G.  C.  262,  Fed. 
Gas.  No.  13,412. 

"Egbert  v.  Egbert,  78  Pa.  326;  Har- 
den V.  Hays,  9  Pa.  151;  Sellars  v.  Sel- 
lars,  2  Heisk.  430.  And  see  Seribner  v. 
Crane,  2  Paige,  147,  21  Am.  Dec.  81. 

^'"Harden  v.  Hays,  9  Pa.  151;  Hey  ward 
V.  Hazard,  1  Bay,  335;  Evans  v.  Arnold, 
52  Ga.  169. 

But  an  instruction  in  a  will  contest 
that  it  is  presumed  from  the  oath  of 
the  subscribing  witnesses  that  the  testa- 
tor was  of  sound  mind  and  memory  is 
erroneous  as  tending  to  lead  the  jury 
to  belief  that  the  presumption  is  con- 
clusive. Keithlcy  v.  Stafford,  126  111. 
507,  18  N.  E.  740. 

^"Baxter  v.  Abbott,  7  Gray,  71. 

Where  the  attesting  witnesses  to  a 
will  are  dead,  there  is  no  presumption 
that,  if  living,  they  would  testify  that 
the  testator  was  of  sound  mind  wlion 
he  made  his  will.  Boardman  v.  Good- 
man, 47  N.  11.  120;  Flanders  v.  Davis, 
19  N.  H.  139. 

"See  Allison  v.  Allison,  46  111.  61,  92 
Am.  Dec.  237 ;   Weld  v.  Sweeney,  85"  111. 


S  101] 


WILLS. 


103 


absence  of  such  requirement,  however,  the  contestant  of  a  will  is  not 
limited  to  the  testimony  of  the  subscribed  witnesses  of  the  will,  but  is 
entitled  to  introduce  any  competent  testimony  as  to  mental  capacity 
of  tlie  testator.^ ^ 

102.  Value. —  But  while  evidence  as  to  testamentary  capacity  by 
the  subscribing  witnesses  satisfies  the  burden  of  proof  resting  upon 
the  proponent  of  a  will,  making  it  the  duty  of  the  jury  to  determine 
the  question  of  capacity  from  tlie  weight  of  all  the  evidence,^ ^  such 
evidence  is  not  invested  wnth  any  fictitious  value  beyond  what  it  is 
worth  under  the  usual  rules  governing  the  value  of  other  testimony.^*^ 
And  it  is  not  entitled  to  gi^eater  weight  than  that  of  other  persons 
having  equal  opportunities.^^ 


50;  Withinton  v.  Withinton,  7  Mo.  589; 
Ramsdell  v.  Viele,  6  Dem.  244;  Swenar- 
ton  V,  Hancock,  9  Abb.  N.  C.  326. 

The  subscribing  witnesses  to  a  will 
are  deemed,  as  a  general  rule,  to  have 
been  placed  around  the  testator  to  as- 
certain and  judge  as  to  his  capacity,  and 
are  required  to  be  produced,  if  living, 
and  subjected  to  the  process  of  the  court. 
Chose  V.  Lincoln,  3  Mass.  237 ;  Bootle  v. 
Blundell,  19  Ves.  Jr.  494,  Cooper,  Ch. 
136,  15  Revised  Rep.  93. 

And  a  failure  to  examine  a  scrivener 
who  wrote  a  will,  and  the  subscribing 
witnesses,  to  uphold  it  in  a  doubtful 
case  on  the  question  of  testamentary 
capacity,  is  a  material  and  damaging 
circumstance  against  its  validity.  Ul- 
mer's  Appeal  (Pa.)  11  Cent.  Rep.  403, 
12  Atl.  686. 

And  a  will  should  not  be  admitted 
to  probate  where  the  attesting  wit- 
nesses testify  merely  to  the  signature 
of  the  testator,  and  it  is  proved  that 
he  had  previously  been  a  person  of  im- 
becile mind.  Starnes  v.  Marten,  1  Curt. 
Eccl.  Rep.  294 ;  Evans  v.  Arnold,  52  Ga. 
169. 

But  where  a  will  is  merely  required 
to  be  attested  by  two  witnesses,  it  may 
be  proved  by  one  of  them  testifying  to 
the  attestation  by  the  other  and  the  com- 
petency of  the  testator,  though  the  oth- 
er does  not  testify.  Cheatham  v. 
Hatcher,  30  Gratt.  56,  32  Am.  Rep. 
650. 

So,  in  Huff  V.  Huff,  41  Ga.  696,  it 
was  held  t4iat  the  inability  of  the  sub- 
scribing witnesses  to  a  will  to  testifj' 
as  to  testamentary  capacity  does  not  in- 
validate the  will,  but  goes  only  to  the 
credibility  of  the  witnesses. 

And  rn  Cilleu  v.  Cilley,  34  Me.  162,  it 


was  held  to  be  unnecessary  that  the  sub- 
scribing witnesses  to  a  will  should  state 
their  opinions  as  to  the  testator's  men- 
tal capacity,  since  such  opinions  are 
necessarily  mere  inferences  drawn  from 
facts  observed ;  and  the  same  was  held 
in  Re  Wells,  96  Me.  161,  51  Atl.  868. 

"Ashworth  v.  McNamee  (Colo.  App.) 
70  Pac.  156;  Re  D' Avignon,  12  Colo. 
App.  489,  55  Pac.  936. 

"Pcndlay  v.  Eaton,  130  III.  69.  22  N. 
E.  853;  Wilbur  v.  Wilbur,  129  111.  392, 
21  N.  E.  1076;  Gavitt  v.  Moulton, 
(Wis.)  96  N.  W.  395. 

The  burden  of  proof  is  not  shifted  in 
a  will  contest  by  evidence  of  subscrib- 
ing witnesses  of  testamentary  capacity, 
under  a  statutory  provision  that  ev- 
ery person  of  sovmd  mind  may  make  a 
will.  Crown'mshield  v.  Crowninshield,  2 
Gray,  524. 

'"Thornton  v.  Thornton,  39  Vt.  132; 
McTaggart  v.  Thompson,   14  Pa.   149. 

Refusal  to  instruct  the  jury  in  a  will 
contest  that  certain  testimony  against 
sanity  creates  a  strong  presumption 
against  the  validity  of  the  will  is  not 
erroneous,  though  the  testimony  was 
that  of  an  attesting  witness,  and  though 
he  was  also  the  testator's  attending  phy- 
sician. Thornton  v.  Thornton,  39  Vt. 
132. 

But  the  fact  that  the  attesting  wit- 
nesses to  the  will  are  the  witnesses 
of  the  court,  and  not  of  either  party,  is 
to  be  taken  into  consideration  on  the 
question  of  testamentary  capacity  in  a 
will  contest.  Bootle  v.  Blundell,  9  Ves. 
Jr.  494,  Cooper,  Ch.  136,  15  Revised 
Rep.  93. 

'-'^King  v.  Rowan    (Miss.)    34  So.  325. 

But  an  instruction  in  a  will  contest 
that    ordinarily    those    witnesses    who 


104 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   103 


103.  Denial  of  competency ;  self-contradiction. —  A  will  may  be  es- 
tablished against  the  testimony  of  a  subscribing  witness  who  testiiies 
to  the  testator's  incapacity,^-  such  witness  not  being  debarred  by  anj; 
rule  of  law  from  so  testifying.^^  But  when  subscribing  witnesses 
testify  to  the  want  of  testamentary  capacity  in  opposition  to  the  fair 
significance  and  import  of  their  act  of  attestation,  it  detracts  largely 
from  the  weight  which  would  otherwise  be  given  to  their  opinions.^* 
And  such  evidence,  though  admissible,  will  be  received  with  the  most 
scrupulous  jealousy,"^  though  it  is  sufficient  as  against  weak  evidence 
of  competency."^ 

c.    The  act  itself. 

104.  Preparation  t/f  instrument. —  The  fact  that  a  sensible  and  Judi- 
cious will  was  wi'itten  by  the  testator  himself  is  strong  evidence  ol 


come  nearest  to  the  very  time  of  mak- 
ing the  will  would  be  most  valuable  if 
they  seem  worthy  of  credit,  and  that, 
therefore,  the  testimony  of  the  subscrib- 
ing witnesses  is  to  be  carefully  consid- 
ered, is  not  objectionable  as  telling  the 
jury  that  their  testimony  was  entitled 
to  greater  weight  than  that  of  other 
witnesses  having  the  same  means  of 
knowledge.  Foster  v.  Diclcerson,  64  Vt. 
233,  24  Atl.  253. 

^'Howard's  ^Vill,  5  T.  B.  IMon.  199,  17 
Am.  Dec.  GO ;  Maupin  v.  Wools,  1  Duv. 
223;  Biggins  v.  Carlton,  28  Md.  115,  92 
Am.  Dec.  666 ;  fiechrest  v.  Edivards,  4 
Met.  (Ky.)  163;  Jenkins's  Will,  43 
Wis.  610;  Le  Breton  v.  Fletcher,  2 
Hagg.  Eccl.  Rep.  558;  Lowe  v.  Jolliffc, 
1  W.  Bl.  365;  Bootle  v.  Blundell,  19 
Ves.  Jr.  494,  Cooper,  Ch.  136,  15  Re- 
vised Rep.  93. 

A  subscribing  witness  to  a  will,  tes- 
tifying against  sanity,  may  be  contra- 
dicted by  the  party  calling  him.  by  read- 
ing his  evidence  at  a  former  trial,  or  by 
proof  of  declarations  made  by  him  at 
other  times.  Harden  v.  Bays,  9  Pa. 
151. 

And  evidence  of  one  attesting  witness 
that  the  testator  was  incompetent  will 
not  affect  the  validity  of  the  will  as 
against  testimony  of  the  other  in  favor 
of  capacity,  where  the  testimony  of  the 
former  was  at  variance  with  previous 
statements  made  bv  him.  CJtcotJiam  v. 
Hatcher,  30  Gratt.\56,  32  Am.  Rep.  650. 

'"Garrison  v.  Blanton,  48  Tex.  299: 
Howard  v.  Braithivaite,  1  Ves.  &  B.  202. 

So,  in  Rigg  v.  Wilton,  13  111.   15,  54 


Am.  Dec.  419,  it  was  held  that  it  is  not 
necessary  that  the  attesting  witnesses 
to  a  will  should  be  called,  or  that,  when 
called,  they  should  concur  in  their  tes- 
timony. 

'*Re  Storey,  20  111.  App.  183;  McMeek- 
in  V.  McMeeldn,  2  Bush,  79;  Garrison 
V.  Garrison,  15  N.  J.  Eq.  266;  Cook's 
Estate,  16  Phila.  322;  Cheatham  v. 
Batcher,  30  Gratt.  56,  32  Am.  Rep. 
650;  Re  Lewis,  51  Wis.  101,  7  N.  W. 
829 ;  Jones  v.  Goodrich,  5  Moore  P.  C. 
C.  16. 

^'Boerth  v.  Zable,  92  Ky.  202,  17  S. 
W.  360;  Cook's  Estate,  41  Phila.  Leg. 
Int.  6;  Lambert  v.  Cooper,  29  Gratt.  61; 
Young  v.  Burner,  27  Gratt.  96;  Den  ex 
dem.  Stevens  v.  Vancleve,  4  Wash.  C.  C 
262,  Fed.  Cas.  No.  13,412;  Harrison  v. 
Rowan,  3  Wash.  C.  C.  580,  Fed.  Cas.  No. 
6.141;  Bootle  v.  BhindeU,  19  Ves.  Jr. 
494,  Cooper,  Ch.  136,  15  Revised  Rep. 
93 ;  Boward  v.  Braithioaite,  1  Ves.  &  B. 
202. 

Where  the  subscribing  witnesses  to  a 
will  disagree  as  to  the  testator's  capac- 
ity, other  proof  may  be  given,  leaving 
the  jury  to  decide  upon  the  whole  evi- 
dence. Rigg  V.  Wilton,  13  111.  15,  54 
Am.  Dec.  419. 

And  a  subscribing  witness  who  contra- 
dicts his  own  attestatio!  by  statement 
that  the  testator  was  incompetent  may 
be  a  good  witness  to  support  another 
witness  with  reference  to  other  matters 
Broome  v.  Ellis,  2  Lee,  Eccl.  Rep.  528. 

'■"'James  White  Memorial  Borne  v. 
Baeg,  204  111.  422,  68  N.  E.  568. 


§   104] 


WILLS, 


lo; 


testamentary  capacity  at  tlie  time  of  making  it.~^  It  is  prima  facie 
evidence  of  competency,  casting  the  burden  of  proof  upon  those  alleg- 
ing incapacity,  to  repel  the  presumption  of  capacity.^^  And  the  fact 
that  the  testator  procured  an  attorney  to  prepare  his  will,  and  dictated 
its  terms  and  provisions,  is  also  cogent  evidence  of  capacity.^^  And 
the  evidence  of  unsoundness  to  defeat  a  will  written  or  dictated  by 
the  testator  without  prompting,  which  is  in  itself  intelligent  and  con- 
sistent, disposing  of  all  his  property,  must  be  very  strong  and  con- 
vincing.'*''     A  will  not  sho^vn  to  have  been  written  by  the  testator, 


"Overton  v.  Overton,  18  B.  Mon.  61; 
Weir's  Will,  9  Dana.  434;  Violet's  Will, 

1  Bibb.  617;  M'Daniel's  Will,  2  J.  J. 
Marsh.  331;  Coghlan  v.  Coghlan,  cited 
in  1  Phillim.  EccL  Rep.  120;  Fulleck  v. 
Allinson,  3  Hagg.  Eccl.  Rep.  527;  Singer 
V.  Isbet/,  4  Lane.  L.  Rev.  193 ;  Berrien's 
Will,  35  N.  Y.  S.  R.  255,  12  N.  Y.  Supp. 
585;   Chambers  v.  T]ie  Queen's  Proctor, 

2  Curt.  Eccl.  Rep.  415.  And  see  Pen- 
coast  V.  Graham,  15  N.  J.  Eq.  294; 
Kinne  v.  Johnson,  60  Barb.  69;  Cutler 
V.  Cutler,  103  Wis.  258,  79  N.  W.  240. 

An  instruction  in  a  will  contest  that, 
unless  the  evidence  shows  that  the  tes- 
tator was  of  sound  mind,  the  will  can- 
not be  regarded  as  his  will,  liowever 
drawn,  is  not  objectionable  as  with- 
drawing it  from  the  consideration  of  the 
jury  as  evidence  of  testamentary  capac- 
ity. Vance  v.  Uj)Son,  66  Tex.  476,  1 
S.  W.   179. 

■'Martin  v.  Thayer,  37  W.  Va.  38,  16 
S.  E.  489.  And  see  Barry  v.  Butlin,  2 
Moore,  P.  C.  C.  482. 

-'Spratt  V.  Spratt,  76  Mich.  384,  43  N. 
W.  627;  Wood  v.  Carpenter,  106  Mo. 
465,  66  S.  W.  172;  Fulleck  v.  Allinson, 

3  Hagg.  Eccl.  Rep.  527;  White  v.  Ross, 
48  N.  Y.  S.  R.  599,  20  N.  Y.  Supp.  520. 

The  accurate  recollection  of  a  tes- 
tator of  instruction  given  for  the  prepa- 
ration of  his  will  until  some  time  after- 
wards is  cogent  evidence  of  capacity, 
though  his  mind  was  impaired.  Tom- 
kins  V.  Tomkins.  1  Bail.  L.  92,  19  Am. 
Dec.  656;  Napfle's  Estate,  134  Pa.  492, 
19  Atl.  679. 

And  a  testator  will  not  be  held  incom- 
petent, where,  after  his  will  was  read 
over  to  him,  he  objected  to  it  as  not 
being  as  he  wanted  it,  and  directed  that 
it  be  drafted  differentlv.  Stuyvesant  v. 
Wilcox,  92  Mich.  228,  52  N.  W.  617. 

But  mere  proof  that  a  testato-r  an- 
swered questions  relating  to  his  will  at 
the  time  of  its  execution  is  not  sufficient 


to     establish     testamentary      capacity. 
Goldie  V.  Murray,  6  Jur.  608. 

^"Singer  v.  Ishey,  4  Lane.  L.  Rev.  193. 
And  see  Wri(/ht's  Estate,  202  Pa.  395, 
51  Atl.  103liGavitt  v.  Moulton  (Wis.) 
90  N.  W.  395. 

The  fact  that  a  testator  either  wrote 
or  dictated  his  will  shows  his  mental 
and  physical  capability  of  doing  what- 
ever the  instrument  shows  was  done, 
leaving  only  the  question  whether  or  not 
the  will  on  its  face  indicated  that  it 
emanated  from  an  unsound  mind. 
Spratt  v.  Spratt,  76  Mich.  384,  43  N. 
W.  627. 

And  a  will  made  by  the  testator  him- 
self, making  just  disposition  of  his 
property,  which  was  not  procured  by 
duress  or  undue  influence,  will  be  sus- 
tained as  against  evidence  of  age  and  its 
attending  infirmities.  Watson  v.  Wat- 
son, 2  B.  Mon.  74;  Coghlan  v.  Coghlan, 
cited  in  1  Phillim.  Eccl.  Rep.  120; 
Pensyl's  Estate,  157  Pa.  465,  27  Atl. 
669. 

Or  as  against  evidence  of  forgetful- 
ness,  incoherency,  unreasonableness,  and 
inability  to  understand.  Pilling  v.  Pill- 
ing, 45  Barb.  86. 

Or  as  against  evidence  that  he  was 
weak-minded,  and  spoke  disconnectedly, 
and  talked  to  himself,  and  never  at- 
tended to  business.  Errickson  v.  Fields, 
30  N.  J.  Eq.  634. 

Or  as  against  a  strong  array  of  medi- 
cal and  other  testimony  against  sanity. 
Pancoast  v.  Graham,  15  N.  J.  Eq.  294; 
Spratt  V.  Spratt,  76  Mich.  384,  43  N.  W. 
627. 

And  tlie  facts  that  a  will  was  dic- 
tated to  a  strange  attorney',  who  knew 
nothing  of  the  testator's  property,  fam- 
ily, or  testamentary  purposes,  and  that 
the  will  itself  evidenced  an  intelligent 
understanding  of  its  terms  and  knowl- 
edge of  the  claims  upon  his  bounty,  are 
sufficient  to  show  that  the  will  represent- 


106  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   104 

however,  or  in  pursuance  of  suggestions  given  by  him,  is  not  of  itself 
evidence  of  testamentary  capacitj.^^ 

105.  Rationality  of  the  will. —  It  is  permissible  to  inquire  on  the 
question  of  testamentary  capacity  whetlier  a  will  is  just  and  reason- 
able and  consonant  with  the  state  of  tlie  testator's  family  relations.^^ 
The  rationality  of  the  will  is  a  circumstance  in  favor  of  capacity 
where  capacity  is  doubtful.^^  And  the  production  of  a  will  executed 
according  to  law,  which  is  rational  on  its  face,  furnishes  a  prima  facie 
case  of  testamentary  capacity.^*  And  rationality  and  equality  in  a 
will  made  without  dictation  from  others  have  been  held  to  be  conclu- 
sive evidence  of  sanity.^^     So,  a  much  greater  degree  of  evidence  is 

ed  his  intentions.     Dickie  v.  Tan  Vleck,  it  may  be  a  circumstance  Avhich  would 

5  Redf.  284.  aid  a  case  of  doubtful  capacity,  is  not 

^^Singer  v.  Ishey,  4  Lane.  L.  Rev.  193.  in   itself    sufficient    to    impeach  a  will. 

A  will  cannot  be  deemed  the  act  of  a  Tunison  v.  Tunison,  4  Bradf.  138. 

testator,    where    he   was    very    old    and  And  a  will  giving  a  legacy  to  a  dead 

infirm  and  deaf,  and  almost  blind,  and  sister  of  the  testatrix  does  not  tend  to 

it  was  drawn  from  directions  given  by  show    want    of    testamentary    capacity, 

the   executor,    and   no    instructions   are  where  it  docs  not  appear  that  she  knew 

proved    to    have    been    given    by    him.  of  her  death   when   she  made  the  will. 

Sankey  v.  Lilley,  1  Curt.  Eccl.  Rep.  391.  McMasler  v.    Scriven,   85    Wis.    162,   39 

And  a  will  of  a  woman,  made  on  her  Am.  St.  Rep.  828,  55  N.  W.  149. 

<lying  bed   the  day  before  death,  when  And   a  mistake  in  a  will,   as  to  the 

slie   could   neither   speak   nor   sign    her  testator's   age,   and   as  to  the  order  in 

name,  and  after  she  had,  when  in  health,  which  his  daughters  were  born,  and  in 

expressed   a   determination  to  make  no  calling  adopted   children  grandchildren, 

will,  and  her  principal  beneficiary,  who  will  not  invalidate  it  as  against  direct 

had  no  special   place  in  her  affections,  evidence    of   vigor   of   mind.      Mairs   v. 

listened  to  her  supposed  whispered  in-  Freeman,  3  Redf.  181. 

structions   and   reported    them    to    the  "^Grifjin  v.  Griffin,  R.  M.  Charlt.  (Ga. ) 

draftsman,  and  remained  present  while  217;  M'eir's  ^\■^ll,  9  Dana,  434;  Kinne  v 

the  paper  was  read  over  and  executea,  Johnson,  60  Barb.  69;  Tomkins  v.  Tom- 

and   when   she   answered    the    question  kins,   1   Bail.  L.   92,   19  Am.  Dec.   656; 

whether  she  acknowledged  the  mark  as  Chambers    v.    The    Queen's    Proctor,    2 

her  signature  by  saying  she  did  not  know  Curt.   p]ccl.  Rep.  415. 

whether  she  did  or  not,  should  not  be  "McCulloch  v.  Campbell,  49  Ark.  367, 

admitted   to   probate.     Be   Hopkins,   26  5  S.  W.  590;  Chandler  v.  Barrett,  21  La. 

N.  Y.  Week.  Dig.  97.  Ann.   58.   99   Am.   Dec.   701;    Savage  v. 

So,  the  fact  that  the  name  of  a  tes-  Bulger,  25   Ky.  L.  Rep.   763,  76  S.   W. 

tator,  signed  to  his  will,  is  written  and  361  ;     Kingshury    v.    Whitaker,    32    La. 

spelled  differently  from  his  usual  mode,  Ann.  1055,  36  Am.  Rep.  278;  Bey's  Suc- 

is  a  circumstance  for  the  consideration  cession,  46   La.  Ann.   773,   24  L.   R.  A. 

of  the  jury  on    the    question    of    testa-  577,   15   So.   297;    Pancoast  v.  Graham, 

mentary    capacity.     McMechen    v.    Mc-  15  N.  J.   Eq.    294;   Symes    v.  Green,  5 

Mechen,   17   W.   Va.   683,  41   Am.   Rep.  Jur.  N.  S.  742,  1  Swabey  &.  T.  401,  28  L. 

682.  J.  Prob.  N.  S.  S3. 

'^Fountain  v.  Broicn,  38  Ala.  72;  Den-  But  an  inquiry  as  to  the  validity  of 

ison's    Appeal,    29    Conn.    399;    Sturde-  a  will  on  the  question  of  testamentary 

rant's  Appeal,  71  Conn.  392,  42  Atl.  70;  capacity  is  not  cut  off  by  jjroof  of  facts 

Evans  v.  Arnold,  52  Ga.  109;  Gombault  tending'  to  vindicate  the  wisdom  and  fit- 

V.  Public  Administrator,  4  Bradf.  220:  ness  of  the  appointment  of  an  executor. 

Prather  v.  McClelland,  76  Tex.  574,   13  Praiher  v.  McClelland,  76  Tex.  574,  13 

S.    W.     543;      Scruby     v.    Fordham,    1  S.  W.  543. 

Addams  Eccl.  Rep.  90.  '^M' Daniel's  Will,  2  J.  J.  Marsh.  331. 

But  a  bequest  in  a  will  exceeding  the  And  see  Kempsey  v.  McGinniss,  21  Mich, 

amount  of  the  testator's  estate,  though  141 ;   Spencer  v.   Terry,   127   Mich.   420, 


§  105]  WILLS.  107 

required  to  support  a  will  showing  folly  or  frenzy  than  one  purport 
ing  to  give  effect  to  probable  and  rational  intentions,"''*''  And  a  will 
will  not  be  upheld  where  it  appears  that  the  testator  bad  been  afflicted 
with  a  delusion  affecting  its  provisions,  the  continued  existence  of 
which  he  was  iiLsti'ucted  to  conceal,  though  the  will  was  rational  and 
properly  executed.^*^  Irrationality  in  a  will,  at  least  when  it  is  of  sc 
extreme  a  character  as  to  indicate  the  existence  of  an  insane  delusior. 
affecting  its  provisions,  is  sufficient  to  avoid  it,^^  though  the  mere 
exclusion  of  heirs  will  not  f^  and  the  presumption  of  incapacity  and 
insanity  arising  from  the  existence  of  a  previous  deKision  is  not  over- 
come by  the  opinion  of  the  testator's  medical  attendant,  that  she  had 
recovered,  and  evidence  that  her  will  contained  a  probable  disposition, 
and  was  made  under  instructions  favoring  capacity.^^  Due  allow 
ance,  however,  must  be  made  for  caprice  in  judging  of  the  reasonable 
ness  of  a  will.*^      And  mere  obscurity  of  language  in  a  will  is  no^ 

86  N.  W.  998;  Spencer  v.  Terry  (Mich.)  testator   entertained   a   friendly  feeling, 

94   N.   W.   372 ;   Re  Lawrence,  48   App.  giving  his  property  to  a  churcli  associa- 

Div.  83,  62  N.  Y.  Supp.  673.  tion,  not  to    advance    the    cause  of  re- 

Biit  a  charge  in  a  will  contest  to  the  ligion,  but  with  the  idea  that  his  body 
effect  that  the  will  itself  is  the  best  would  be  preserved  to  the  end  of  timC 
evidence  of  sanity  is  objectionable  as  an  by  means  of  a  metallic  coffin,  or  other- 
instruction  upon  the  weight  of  evidence,  wise,  is  invalid.  Morse  v.  Scott,  4  Dem. 
Vance  v.  Upson,  66  Tex.  476,  1  S.  W.  507. 
179.  ^''Perkins  v.   Perkins,   116   Iowa,   253, 

^Evans    \.    Knight,    1    Addaras    Eccl.  90  N.   W.    55;     Spencer    v.   Terry,   127 

Rep.  229.  Mich.   420,   86   N.    W.   998;    Spencer  v. 

But  while  a  state  of  mind  unfavorable  Terry    (Mich.)    94  N.  W.  372. 

to   capacity  might   be   inferred   from   a  And  the  jury  in  a  will  contest  should 

bequest  of  property  which  the  testator  not  be  so  instructed  as  to  permit  them 

did  not  own,    it    ought    not  to  prevail  to   make    rationality    or    disposition   a 

against  positive  testimony  showing  ca-  test  of  competency.     Warren  v.   O'Con- 

pacity.     Marks  v.  Bryant,  4  Hen.  &  M.  nell,  23  Ky.  L.  Rep.  262,  62  S.  W,  890; 

91.     "  Woodford  v.   Buckner,   23   Ky.   L.   Rep. 

^'Prinsep  v.   Dyce  Sombre,   10  Moore  627,  63  S.  W.  617. 

P.   0.   C.   232;    Dyce  Sombre  v.    Troup,  *°Joh7ison  v.  Blane,  6  Notes  of  Cases, 

Deanc  &  S.  22.    And  see  Symes  v.  Green,  442. 

5  Jur.  N.  S.  742,  1  Swabey  &  T.  401,  28  The  fact  that  the  provisions  of  a  will 

L.  J.  Prob.  N.  S.  83.  were  wise  and  judicious   does  not  pro- 

^  See  Rivard  v.  Rivard,  109  Mich.  98,  vent  the   shifting   to   the   proponent   of 

63  Am.  St.  Rep.  566,  66  N.  W.  681 ;  Re  the    burden    of    proof    to    show    sanity, 

Ramsdell,  20  N.  Y.  S.  R.  466,  3  N.  Y.  upon  a  showing  of  previous  habitual  in- 

Supp.  499;   Cooper  v.  Benedict,  3  Dem.  sanity.  Chandler  v.  Barrett,  21  La.  Ann. 

136;   Re    Lockwood,  2    Connoly,   118,  8  58. 

N.  Y.  Supp.  345.  "Tofnkins  v.  Tomkins,  1   Bail.  L.  92, 

A  declaration  on  the  part  of  a  testator  14  Am.  Dec.  656. 
of  considerable  wealth,  that  he  wished  The  act  of  a  testator  in  placing  spec- 
to  put  it  where  it  would  roll  up  to  the  ulative  values  upon  his  property,  though 
day  of  judgment,  pursuant  to  which  he  perhaps  a  slight  circumstance,  wlien  con- 
willed  it  to  an, association,  is  evidence  nected  with  other  facts  tending  to  show 
of  an  insane  delusion  which  will  in-  testamentary  incapacity,  does  not  show 
ralidate  his  will.  Ampyican  Bible  Soc.  an  imbecile  mind.  Stokes  v.  Shippen, 
V.  Price,  115  111.  (123,  5  N.  E.  126.  13  Bush,  183. 

And    a    will    disinlirriting    a    sister.  And  a  will  giving  various  legacies  and 

nieces,  and  nephews,  for  all  of  whom  the  leaving  the  residue  of  the  testator's  es- 


108 


MENTAL  UNSOUNDNEbS  m  ITS  LEGAL  RELATIONS.         [§   105 


evidence  of  testamentary  incapacity,  where  the  testator  comprehended 
its  meaning  and  expressed  his  ideas  correctly.^"  And  a  testamentary 
disposition  which  is  indefinite  should  not  be  construed  so  as  to  be  so 
absurd  as  to  indicate  imsoundness  of  mind,  where  it  is  capable  of  a 
construction  which  would  be  more  reasonable.^^ 

106.  Equality  and  justice  of  the  provisions. — The  reasonableness, 
equality,  and  consistency  of  the  dispositions  of  a  will  are  a  proper 
subject  for  consideration  on  the  question  of  testamentary  capacity, 
particularly  when  the  evidence  is  conflicting.'*^  The  evidence  offered 
by  the  fact  that  a  will  was  apparently  rational,  just,  and  prudent, 
and  dictated  by  a  testator  of  self-poised  mind,  outweighs  the  mere 
opinions  of  witnesses  that  he  was  incompetent.^^  And  the  unequal 
distribution  of  a  testator's  estate  among  the  different  persons  who 
should  have  been  the  objects  of  his  bounty  is  a  suspicious  circumstance, 
and  should  go  to  the  jury  on  the  question  of  mental  incapacity ,^^  and 
undue  influence."^     A  testator  of  sound  mind,  however,  may  dispose 


tate  to  the  poor  of  a  designated  city,  for 
the  erection  of  a  cenotaph  therein,  in- 
scribed with  his  name,  is  not  so  absnrd 
and  irrational  as  to  invalidate  the  will, 
where  the  testator  was  familiar  with  the 
beliefs,  habits,  and  superstitions  exist- 
ing in  that  place.  A  usfen  v.  Graham, 
29  Eng.  L.  &  Eq.  Rep.  38,  8  Moore  P. 
C.  C.  403. 

«-7^e  Soule,  1  Connoly,  18,  3  N.  Y. 
Supp.  259;  Temple  v.  Temple,  1  Hen.  & 
M.  470. 

*^Veir's  Will,  9  Dana,  434. 

But  a  will  devising  land  for  home- 
steads, describing  it  in  such  a  manner 
as  to  be  about  a  mile  long  and  only  a 
few  rods  wide,  and  entirely  worthless 
for  homestead  purposes,  furnishes  cogent 
evidence  that  the  testator  did  not  know 
what  he  was  doing.  Lawrence  v.  Steel, 
GO  N.  C.  584. 

**Young  v.  Earner,  27  Gratt.  90;  Sim 
V.  Russell,  90  Iowa,  050,  57  N.  W.  001 ; 
Gombault  v.  Public  Administrator,  4 
Bradf.  220;  Cl-arlc  v.  Fisher,  1  Paige, 
171,  19  Am.  Dec.  402;  Frazer  v.  Frazer, 
2  Del.  Ch.  200.  And  see  Houard's  Will, 
5  T.  B.  Mon.  190,  17  Am.  Dec.  00. 

But  the  will  of  a  person  who  is  yion 
compos  mentis  is  invalid,  however  just 
and  prudent  its  provisions  are.  Polls 
V,  House,  0  Ga.  324,  50  Am.  Dec.  329. 

*'i[cMeeki7i  v.  McMeckin,  2  Bush,  79; 
GrifTin  v.  Grijfin,  R.  M.  Charlt.  (Ga.) 
217.  And  sec  Singer  v.  Isbey,  4  Lane. 
L.  Rev.  193. 

*^Tohin  V.  Jenkins,  29  Ark.  151; 
flushes  V.  Hughes,  31  .Ma.  519;  Knox  v. 


Knox,  95  Ala.  495,  36  Am.  St.  Rep.  235, 
11  So.  125;  Coleman  v.  Robertson,  17 
Ala.  84;  Roberts  v.  Traicick,  13  Ala.  08; 
Salisbury  v.  Aldrich,  118  111.  199,  8  N. 
E.  777;  Conway  v.  Vizzard,  122  Ind. 
260,  23  N.  E.  771;  Lamb  v.  Lamb,  105 
Ind.  450,  5  N.  E.  171;  Addington  v.  Wil- 
son, 5  Ind.  137.  61  Am.  Dec.  81; 
Broaddus  v.  Broaddus,  10  Bush,  299; 
DarAs  v.  Calrert,  5  Gill  &  J.  209,  25  Am. 
Dec.  282;  Clark  v.  Fisher,  1  Paige,  171, 
19  Am.  Dec.  402;  Gamble  v.  Gamble,  39 
Barb.  373;  Esterbrook  v.  Gardner,  2 
Dem.  543;  Thompson  v.  Kyner,  65  Pa. 
308;  Thomas  v.  Carter,  170  Pa.  272,  50 
Am.  St.  Rep.  770,  33  Atl.  81.  And  see 
Re  Rounds,  25  Misc.  101,  54  N.  Y.  Supp. 
710;  Re  Weil,  10  N.  Y.  S.  R.  1,  1  N.  Y. 
Supp.  91  ;  Re  Dorman,  5  Dem.  112. 

Gross  inequality,  without  reason 
therefor  appearing  in  the  will  itself, 
lenders  necessary  satisfactory  evidence 
that  the  will  was  the  free  and  deliberate 
offspring  of  a  disposing  mind.  Uarrel 
V.  Barrel,  1   Duv.  203. 

And  while  the  omission  of  a  testator 
to  provide  for  part  of  his  children  in  his 
will  is  not  alone  sufficient  to  establish 
testamentary  incapacity,  it  is  entitled 
lo  great  consideration  on  that  question 
when  not  satisfactorily  accounted  for, 
Gobel  v.  Grant,  3  N.  J.  Eq.  629;  Col- 
honn  v.  Jones,  2  Redf.  34. 

"Bledsoe  v.  Bledsoe,  8  Ky.  L.  Rep.  55, 
1  S.  W.  10;  Reynolds  v.  Root,  02  Barb. 
250.  And  see  Muller  v.  St.  Louis  Hos- 
pital Asso.  73  Mo.  242. 

Inequality  is  entitled  to   weight  in  a 


§   106]                                                         WILLS.  109 

of  his  property  contrary  to  the  dictates  of  duty  and  natural  and  moral 
obligations  if  he  chooses.^"*  And  the  fact  that  a  will  was  harsh, 
capricious,  and  unjust  will  not  affect  its  validity.^®     Nor  will  the  fact 

that  its  provisions  are  imprudent,  and  not  to  be  accounted  for;''®  or 
that  it  was  not  such  a  will  as  was  to  bo  expected  from  one  in  the 

testator's  situation,^^  or  because  its  provisions  were  not  to  be  regarded 
as  morally  right,^-  or  because  of  the  exhibition  in  the  will  of  moral 

will   contest  on    the    question  of  testa-  W.   10;   Re  Springstead,  28  N.  Y.  S.  R. 

nicntary  capaeity,   fraud,  or   controlling  18fi,  8  N.  Y.  Supp.  596;   Clarb  v.  Ellis, 

influence,  in  proportion  to  its  degree  of  9  Or.  128;  Cook's  Estate,  10  Phila.  322; 

flagrancy;   and,    unexplained,    and  com-  Kirkicood  v.  Gordon,  7  liich.  L.  478,  62 

bincd  with  other  corroborating  evidence,  Am.  Dec.  418. 

it   may   be  of    some    weight.     Kevil  v.  And    the    fact    that    a    testator    dis- 

Kevil,  2  Bush,  614.  tributes  his  property  among  certain  of 

^"^Bvlfier  V.  Ross,  98  Ala.  267,   12  So.  his  relatives,    entirely    omitting  others, 

803;  liocrth  v.  Zalle,  Q2  Ky.  202,  17  S.  does  not  tend  to  show  testamentary  in- 

W.  300;  King  v.  Roiran   (Miss.)   34  So.  capacity.      Spratt    v.    Spratt,    76   Mich. 

325;  Den  ex  dcm.  Trumbull  v.  Gibbons,  384,  43  N.  W.  627.     And  see  Morris  v. 

22  N.  J.  L.   117,  51   x\m.  Dec.  253;   Re  Morton,  14  Ky.  L.  Rep.  360,  20  S.   W. 

Dietz,  41  N.  J.  Eq.  284,  7  Atl.  443;  Boij-  287. 

Ian  V.   Meeker,   28   N.   J.   L.   274;    Van  And    bequeathing    one'3    property    to 

Pelt  V.   Van    Pelt,    30    Barb.   134;    Re  strangers  instead  of  to  relatives  raises 

Liddy,  2     Silv.   Sup.   Ct.   223,   5    N.   Y.  no  inference  of  testamentary  incapacity, 

Supp.  G36 ;  Hazard  v.  Hazard,  5  Thomp.  where  it  was  done  from  motives  of  grat- 

&  C.  79;   La  Ban  v.  Vanderbilt,  3  Rodf.  itude  or  personal  attachment.    Re  Snell- 

384;    Lee  v.  Lee,  4  McCord  L.   183,   17  ing,  136  N.  Y.  515,  32  N.  E.  1006;   Re 

Am.  Dec.  722;  Couch  v.  Eastham,  29  W.  Finn,  1  Misc.  280,  22  N.  Y.  Supp.  1066; 

Va.  784,  3  S.  E.  23.     And  see  Re  Glee-  8miih  v.  James,  72  Iowa,  514,  34  N.  W. 

spin,  26  N.  J.  Eq.  523;    Wintennute  v.  309;  Collins  v.  Brazill,  63  Iowa,  434,  19 

Wilson,  28  N.  J.  Eq.  437;    Coleman  V.  N.   W.   338;    Lueas   v.   Parsons,   27   Ga. 

Robertson,   17   Ala.   84;      Rutherford  v.  595. 

Morris,  77   111.  397.  '^'Watson  v.   Donnelly,   28   Barb.   653; 

The  aflections    of    a    testator,  rather  Rice  v.   Rice,   50  Mich.   448,   15   N.   W. 

than  the  apparent  equality  or  justice  of  545,  53  Mich.  432,  19  N.  W.   132.     And 

the  distribution,  are  the  true  test  of  a  see  Riggin  v.  Vi^estmingter  College,  160 

nntural  will.     Lncas  v.  Parsons,  27  Ga.  Mo.  570,  61  S.  W.  803. 

595.  A  will  devoting  a  large  portion  of  the 

^"Seftonv.  Hopicood,  1  Fost.  &  F.  578;  testator's  estate  to  the  purpose  of  aid- 

Gamble   v.    Gamble,   39    Barb.    373;    Se-  ing  in  the  payment  of  debt  incurred  in 

guine  v.   Seguine,   3  Keyes,  663;    Clapp  subduing  the    Rebellion     is    not   so   un- 

V.  Fullerton,  34  N.  Y.  196,  90  Am.  Dec.  reasonable    as    to    furnish    evidence    of 

681;   Re    Otis,   1    Misc.   258,   22    N.  Y.  testamentarv  incapacity.     Re  Leivis,  33 

Supp.  1060;  Hoyt  v.  Hoyt,  9  N.  Y.  S.  R.  N.  J.  Eq.  219. 

731;  Boylan  v.  Meeker,  28  N.  J.  L.  274;  And  the  fact  that  a  woman  gave  her 

Sanderson    v.  Sanderson,  52    N.  J.  Eq.  property  to    her    paramour,    whom   she 

243,  30  Atl.  326;  Nicholas  v.  Kershner,  seriously  thought  of  marrying,  and  her 

20  W.  Va.  251.  nurse  who  had  been  kind  to  her,  is  not 

™Hingins  v.   Carlton,  28  Md.   115,  92  such  an  unnatural  disposition  as  would 

Am.  Dec.  666;   Burr  y-  Davall,  8  Mod.  indicate  testamentary  incapacity,  where 

59;   Davis  v.   Calvert,  5  Gill  &  J.  269,  it  appears  that  she  had  entered  into  an 

25  Am.  Dec.  282.  irregular  and  dissolute  life,  and  striven 

A  \\\\\  is  not  invalidated  by  the  fact  to  cut  loose  from  her  kindred,  and  con- 
that  the  testator  omitted  to  mention  cealed  her  origin  even  from  her  inti- 
.some  of  his  children  in  it.  Snow  v.  mates.  Re  Heicitt,  31  Misc.  81,  64  N.  Y. 
Benton,  28  111.  306;  Addinqton  v.  Wil-  Supp.  571.  And  see  Re  Evans,  37  Misc. 
son,  5  Ind.  137,  61  Am.  Dec.  81;  Bled-  337.  75  N.  Y.  Supp.  491. 
soe  V.  Bledsoe,  8  Ky.  L.  Rep.  55,   1   S.  ''-Martin  v.  Mitchell,  28  Ga.  382;  Ross 


no  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  lOG 

obliquity  or  prejudice,^^  or  because  of  an  unnatural  or  unequal  dis- 
position of  property,  where  the  testator  was  apparently  of  vsound 
mind,^^  and  not  subject  to  undue  influence.^^  And  such  circum- 
stances, though  evidence  of  incapacity,  are  not  sufficient  to  raise  a 
presumption  thereof.^*^  It  is  sufficient  reason  for  setting  aside  a  will, 
however,  that  it  contains  provisions  whose  monstrosity  can  only  be 
explained  on  the  hypothesis  of  insanity,  or  of  submission  to  undue 
influence.^^  But  unless  a  will  carries  clear  marks  upon  its  face  of 
being  the  product  of  a  diseased  mind,  its  injustice  or  unreasonable- 

V.  Christman,  23  N.  C.  (1  Ired.  L.)  209;  her  small  estate  of  $8,000  to  religious 
Thompson  v.  Kyner,  65  Pa.  368.  And  bodies,  when  her  sisters  were  indigent, 
see  Deas  v.  Wandell,  3  Thomp.  &  C.  128.    Wightman  v.   Stoddard,  3   Bradf.   393. 

And  a  will  making  no  provision  for  "-'-Trezcrant  v.  Rains,  85  Tex.  329,  23 
the  testator's  wife  is  not  subject  to  at-  S.  W.  890;  Ross  v.  Christman,  23  N. 
tack  on  the  ground  of  testamentary  in-  0.  (1  Ired.  L. )  209. 
capacity,  where  she  had  been  cruel,  and  !Mere  inequality,  however  great, 
driven  him  from  her  house.  Re  Winter-  though  accompanied  by  evidence  of  im- 
miiie,  27  N.  J.  Eq.  447.  paired  mind,   is  not  evidence  of  undue 

And  the  act  of  a.  mother  in  disin-  influence.  Re  Storer,  28  Miim.  9,  8  N. 
heriting  her  child  does  not  show  testa-    W.  827. 

mentary  incapacity,  where  she  gave  her  And  family  differences,  and  likes  and 
property  to  another,  expecting,  as  she  dislikes,  are  not  to  be  considered  in  a 
stated,  that  he  would  care  for  the  child,  will  contest  excepting  as  they  bear 
Re  M^aliher,  26  N.  Y.  S.  R.  427,  7  N.  Y.  upon  the  testator's  mental  capacity  at 
Supp.  417;  Munday  v.  Taylor,  7  Bush,  the  time  of  the  execution  of  his  wiU. 
491.  Lanp's  Estate,  65  Cal.  19,  2  Pac.  491. 

^Wen  ex  dem.  Trumbull  v.  Gibbons,  ^Knox  v.  Knox,  95  Ala.  495,  36  Am. 
22  N.  J.  L.  117,  51  Am.  Dec.  253.  And  St.  Rep.  235,  11  So.  125;  Shaw's  Will, 
see    Rankin    v.    Rankin,    61    Mo.    295;    2  Redf.  107. 

Clarke  V.  Davis,  1  Redf.  249 ;  Barker  v.  "'  Sec  Parfitt  v.  Lawless,  L.  R.  2  Prob. 
Comins,  110  Mass.  477.  462,  41   L.  J.  Prob.  N.  S.  68,  27   L.  T. 

='.l/osser  v.  Mosser,  32  Ala.  551;  N.  S.  215,  21  Week.  Rep.  200;  Horn  v. 
Blakey  v.  Blakcy,  33  Ala.  611;  Hughes  Pullman,  72  N.  Y.  269;  Gudney  v.  Cud- 
V.  Hughes,  31  Ala.  519;  Coleman  v.  ney,  68  N.  Y.  148;  Booth  v.  Kitchen,  3 
Robertson.  17  Ala.  84;  Potts  v.  House,  Redf.  52;  Higgins  v.  Carlton,  28  Md. 
6  Ga.  328,  50  Am.  Dec.  329;  Schneider  115,  92  Am.  Dec.  666;  Kevil  v.  Kevil,  2 
V.  Manning,  121  111.  376,  12  N.  E.  267;  Bush,  614;  Carpenter  v.  Calvert,  83  111. 
Salisbury  V.  Aldrich,  118  111.  199,  8  N.  62;  Tingley  v.  Gowgill,  48  ]\Io.  290; 
E.  777;  "yl/ce/cer  v.  Meeker,  75  111.  260;  Thomas  v.  Stump,  62  Mo.  275;  Gonvey's 
Conway  v.  Vizzard,  122  Ind.  266,  23  N.  Will,  52  Iowa,  197,  2  N.  W.  1084.  But 
K.  771 ;  Kevil  v.  Kevil,  2  Bush,  614;  Re  see  Fulton  v.  Andrew,  L.  R.  7  H.  L.  Gas. 
Dietz,  41  N.  J.  Eq.  284,  7  Atl.  443;  448,  44  L.  J.  Prob.  N.  S.  17.  32  L.  T.  N. 
Boylan  v.  Meeker,  28  N.  J.  L.  274 ;  Re  S.  209.  23  Week.  Rep.  566 ;  May  v.  Brad- 
Humphrey,  26  N.  J.  Eq.  513;  Re  Glee-  lee,  127  Mass.  414;  Canada's  Appeal,  47 
npin,  26  N.  J.  Eq.  523;  Re  Gross,  25  Conn.  450;  Griffith  v.  Diffenderffer,  50 
N.  Y.  Week.  Dig.  305;  Re  Tracy,  27  N.  Md.  466;  Dennis  v.  Weekes,  51  Ga.  24; 
Y.  Week.  Dig.  280;  La  Ban  v.  Vander-  Lucas  v.  Cannon,  13  Bush,  650;  Rcy- 
hilt,  3  Redf.  284;  Van  Pelt  v.  Van  Pelt,  nolds  v.  Adams,  90  111.  134,  32  Am.  Rep. 
.30  Barb.  134;  Rowland  v.  Sullivan,  4  15;  Todd  v.  Fenton,  66  Ind.  25;  Con- 
Desauss.  Eq.  518;  'Sailing  v.  Nailing,  2  vcy's  Will,  52  Iowa,  197,  2  N.  W.  1084: 
Sneed,  630;  Couch  v.  Eastham,  29  W.  Mullcr  v.  St.  Louis  Hospital  Asso.  5 
Va.  784,  3  S.  E.  23.  Mo.  App.  390;  Mooney  v.  Olsen,  22  Kan. 

The  will  of  a  woman  sixty-seven  years    69. 
of   age,   though     in     feeble    health,    and        And   an   unequal   disposition   of  prop- 
though    she    once    suffered    a    sunstroke    erty,  when   there  was  other  evidence  of 
that  made  her   flighty   for  a  time,   will    undue   influence  and  mental   incapacity, 
uot  be  denied  probate  because  it  left  half    may  be  considered  with  such  other  eVi- 


§  lOG]  WILLS.  Ill 

ness  ought  not  to  be  a  foundation  for  a  verdict  against  it.^^  It  is 
imj^roper,  however,  for  the  court  to  single  out  inequality  of  disposi- 
tion in  a  will  contest  and  tell  the  jury  that  the  testator  had  a  right  to 
make  such  distribution  as  he  chose,  without  also  telling  them  that 
any  gi'oss  inequality  requires  evidence  that  it  was  the  act  of  a  rational 
mind.^^ 

107.  Conformity  to  previous  intentions. — Conformity  of  a  will  with 
previously-formed  intentions  when  the  testator  was  unquestionably 
sane  constitutes  an  important  item  of  evidence  to  be  considered  in 
determining  the  validity  of  a  will.^"  And  declarations  of  a  testator 
with  reference  to  the  intended  disposition  of  his  estate,  corresponding 
with  the  provisions  of  his  wdll,  are  strong  evidence  in  support  of  it  f^ 
especially  when  taken  in  connection  with  other  testimony  as  to  sanity 

dence  in  a  will  contest,  in  determining  Error   in   instructing   in   a   will    ccn- 

as    to    their    existence.      Schieffelin    v.  test,  however,   that  no  weight  is  to  be 

Schieffelin,  127  Ala.   14,  28  So.  687.  given  to  the  injustice  in   a  will  unless 

'^Boi/lan  V.  Meeker,  28  N.  J.  L.  274;  the  will   is  actually   invalid  because  of 

Collins   V.   Osborn,   34   N.   J.   Eq.   511;  unsoundness    of   mind    is   not    harmless 

La    Bau    v.    Vanderbilt,    3    Redf.    384;  where  there  is  evidence  of  unsoundness, 

Spencer  v.  Terry,  127  Mich.  420,  86  N.  though  the  will  appears  to  be  much  as 

W.   998;    Houe  v.   Richards,   112   Iowa,  the  testator  intended  to  make  it.     Sim 

220,  83  N.  W.  902.     And  see  Means  v.  v.  Rvssell,  90  Iowa,  656,  57  N.  W.  601. 

Means,  5  Strobh.  L.  167.  ""Frazer  v.    Frazer,    2    Del.  Oh.  260; 

An   unequal   disposition   of  her  prop-  Conicay  v.  Yizzard,  122  Ind.  266,  23  N. 

erty  by  a  testatrix  does  not  per  se  au-  E.   771;    Campbell  v.   Carnahan    (Ark.) 

thorize  an  inference  that  she  was  of  in-  13   S.  W.   1098;     Weir's    Will,  9  Dana, 

sane    mind.      Schieffelin    v.    Schieffelin,  434;    Exiim  v.  Canty,  34  Miss.  533;  Re 

127  Ala.  14,  28  So.  687.  Berrien,  35  N.   Y.  S.  R.  255,   12  N.  Y. 

An  injudicious  will,  though  it  will  be  Supp.  585;  Re  Pendleton,  \  Connoly, 
regarded  with  suspicion,  will  not  be  re-  480,  5  N.  Y.  Supp.  849;  Re  Comstoclc, 
garded  as  evidence  of  testamentary  in-  26  N.  Y.  S.  R.  292,  7  N.  Y.  Supp.  334; 
capacity  where  it  can  be  accounted  for  Brush  v.  Holland,  3  Bradf.  461 ;  Re  Dun- 
on  any  other  reasonable  hypothesis,  ham,  15  N.  Y.  S.  R.  869,  1  N.  Y.  Supp. 
Smith  V.  Smith,  48  N.  J.  Eq.  566,  25  120;  Re  Mahoney,  34  N.  Y.  S.  R.  183, 
Atl.  11.  12  N.  Y.  Supp.  122;  Re  Wilde,  38  Misc. 

"■"Sherley    v.    Sherley,    81    Ky.    240;  149,  77   N.  Y.   Supp.   164;    Goodacre  v. 

Bledsoe  v.  Bledsoe,  8  Ky.  L.  Rep.  55,  1  Smith,    15    Week.    Rep.    561,   36   L.   J. 

S.  W.   10;   Carpenter  v.  Calvert,  83  111.  Prob.  N.  S.  43,  15  L.  T.  N.  S.  511,  L.  R. 

62.     And  see  Baker  v.  Lewis,  4  Rawle,  1  Prob.  &  Div.  359;  Coghlan  v.  Coghlan, 

356;  Evans  v.  Arrold,  52  Ga.   169.  cited  in   1   Phillim.  Eccl.  Rep.   120;   Re 

So,    a    charge    that    an    unequal    dis-  Btakely,  48    Wis.    294,    4  N.   W.   337; 

tribution   requires   strict   proof   of  fair-  Evans  v.  Kniyht,  1  Addams  Eccl.  Rep. 

ness  is  erroneous  in  a  will   contest,  as  229.    And  see  Cutler  v.  Cutler,  103  Wis. 

tending  to  influence  the  jury  to  attach  258,  79  N.  W.  240. 

too    much    importance   to   it.      I'obin    v.  But  an   inference   in   favor  of  a   will 

Jenkins,  29  Ark.    151.  arising  from  the  fact  that  its  provisions 

And  an  instruction  in  a  will  contest  are  similar  to  those  of  a  former  will  ex- 
that  gross  inequality,  without  reason,  ecuted  when  the  testator  was  sane  i.^ 
requires  satisfactory  evidence  that  the  sufhciently  rebutted  by  the  fact  that  it 
will  was  the  ofl'spring  of  a  rational  bears  a  still  closer  resemblance  to  an- 
mind,  is  misleading  and  erroneous,  as  other  will  made  when  he  was  clearly  in- 
calculated  to  divert  the  minds  of  the  sane.  Carrico  v.  ISieal,  1  Dana,  163. 
jury  from  the  issue  of  testamentary  ca-  "'Starrett  v.  Douglass,  2  Yeates,  46; 
pacity  to  that  of  inequality.  Broaddus  Pancoast  v.  Grahoin.  15  N.  J.  Eq.  294. 
V.  Broaddus,  10  Bush,  299-  Subsequent    recollection    of    the    pro- 


112 


MEXTAl.  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   10- 


at  the  time  of  the  publication  of  the  wilL^^  So,  a  will  making  a  dis- 
position which  is  a  total  departure  from  former  testamentaiy  inten- 
tions long  adhered  to  is  to  be  closely  scnitinized  ;^'^  especially  when 
capacity  is  doubtful.^'*  Evidence  of  a  change  by  a  testator  of  his 
will,  however,  is  not  alone  suflicient  to  show  incapacity,^^  though  sup- 
ported by  evidence  of  forgetfulness  and  unreasonable  fear  of  personal 
violence.*'*'  But  a  will  docs  not  derive  strength  from  a  fixed  purpose 
to  make  it  where  it  is  not  shown  to  have  been  a  reasonable  act.*''^ 
And  one  who  is  easily  influenced  and  made  to  believe  things  incredi- 
ble and  impossible,  and  whose  purposes  frequently  change  with 
changes  of  scene,  association,  or  company,  is  not  competent  to  make  a 
will."^s 


vipions  of  a  Avill  is  strong  evidence  of 
capacity  to  make  it.  Hatliorn  v.  King, 
8  Mass!  371,  5  Am.  Dec.  106. 

'•-Siarrctt  v.  Douglass,  2  Yeates,  46. 
And  see  Moore  v.  Moore,  2  Bradf.  2()5. 

Evidence  that  a  testator  was  old,  in- 
tcinpr-rate,  and  irascible  does  not  estab- 
lish testamentary  incapacity  against  evi- 
dence of  rationality  and  business  ca- 
pacity: and  that  he  contemplated  tlie 
execution  of  the  will  for  some  time,  and 
made  inquiries  as  to  the  names  of  some 
persons  mentioned  in  it.  Keating's  Ap- 
peal, 2  Monaghan   (Pa.)   4,  17  Atl.  207. 

And  the  fact  that  a  testator  was  in 
extremis  at  the  time  his  will  was  made 
will  not  vitiate  it  as  against  evidence 
of  volition  and  capacity,  and  that  it  was 
in  accordance  with  previous  afl'ections 
and  intentions.  Ross  v.  Chester,  1 
llagg.  Eccl.  Rep.  227. 

'Ularsh  V.  Tyrrell,  2  Ilagg.  Eccl.  Rep. 
84;  Ki)ig  v.  Farley,  1  Hagg.  Eccl.  Rop. 
.502;  Kinleside  v.  Harrison,  2  Phillim. 
Eccl.  Rep.  449;  Esterbrook  v.  Gardner, 
2  DcTn.  543;  Home  v.  Home,  31  N.  C. 
(9  Ired.  L. )  99.  .  And  see  Peninsular 
Trust  Co.  V.  Barker,  IIG  Mich.  33,  74 
N.  W.  508. 

'"Marsh  v.  Tyrrell,  2  Hagg.  Eccl.  Rep. 
84.  And  see  Re  Liddington,  20  N.  Y.  S. 
R.  610,  4  N.  Y.  Supp.  648;  Alston  v. 
•Jones,  17  Barb.  276. 

A  will  should  not  be  admitted  to  pro- 
bate where  it  appears  that  a  change  was 
made  in  it  ata  time  when  the  testator  was 
in  such  an  enfeebled  condition  as  to  be 
incapable  of  dictating  the  change.  Roll- 
tcagcn  v.  Rollwagen,  5  Thomp.  &  C.  402. 

And  a  will  the  dis[)osition  of  which 
is  a  total  departure  from  previous  testa- 
mentary intentions  will  be  set  aside 
■*bere  the  person    in    whose    favor  the 


change  is  made  possessed  great  influence 
and  authority  over  the  testator,  and 
originated  and  conducted  the  whole 
transaction.  Marsh  v.  Tyrrell,  2  Hagg. 
Eccl.  Rep.  84;  Dodge  v.  Meech,  1  Hagg. 
Eccl.    Rep.    612. 

^'Vance  v.  Upson,  66  Tex.  476,  1  S.  W. 
179;  Jacohs's  iiucccssion,  109  La.  1012, 
34  So.  59;  Keicton  v.  Carhery,  5  Cranch 
C.  C.  626,  Fed.  Cas.  No.  10,189.  And 
see  Rutherford  v.  Morris,  77  111.  397; 
Irvin  v.  Deschanips,  11  W.  N.  C.  365. 

The  question  of  the  competency  of  a 
testator  to  change  liis  will  involves  the 
inquirj'  as  to  whether  he  was  of  sutU- 
cient  mental  soundness  to  change  any 
previously  existing  purpose  he  might 
have  formed,  and  the  mere  fact  that  a 
will  is  not  in  the  direction  of  a  precon,- 
ceived  purpose  is  of  no  weight  unless 
the  testator  was  of  imsound  mind.  Re 
Hoover,  8  Mackey,  495. 

And  a  variation  in  a  will  from  the 
previous  intentions,  accounted  for  by  a 
change  of  circumstances,  does  not  war- 
rant setting  the  will  aside  on  the  ground 
of  testamentary  incapacity.  Williants 
V.  Goude,  1  Hagg.  Eccl.  Rep.  577;  Mc- 
Donald's Estate,  130  Pa.  480,  18  Atl. 
617;  Re  Shoticell,  1  Pa.  Dist.  R.  257. 

''"Potter  V.  MeAlpine,  3  Dem.  108. 

"'Frazer  v.  Frazer,  2  Del.  Ch.  260. 

While  mere  proof  of  the  intention  of 
a  testator  to  make  a  will  difTerent  from 
the  one  made  will  not  defeat  it  where 
he  appears  to  have  been  of  sound  mind, 
if  he  dispose  of  all  his  property  to  a 
stranger,  proof  of  affection  on  his  part 
for  his  relatives  tends  to  increase  the 
probability  that  his  will  was  not  the  re- 
sult of  his  deliberate  judgment.  1^'orris 
V.  Hhciipard,  20  Pa.  475. 

"''Shropshire  v.   Reno,  5  J.  J.  Marsh. 


S   108]  WILLS.  113 

108.  The  act  itself  in  case  of  intoxication. —  The  character  of  the 
will  itself  is  also  a  subject  for  consideration  on  the  claim  that  the 
testator  was  intoxicated  when  making  it,  in  determining  whether  or 
not  it  departed  from  what  M'onld  be  considered  natural  to  snch  an 
extent  as  to  be  referable  to  no  other  cause  than  a  disordered  intellect.'^'* 
And  reasonableness  of  a  will  will  support  it  though  the  testator  wa? 
a  man  of  intemperate  habits,  or  suffering  from  the  effect  of  such 
habits  when  he  made  it;'^  especially  where  the  will  conformed  to 
previous  intentions.^* 

d.    Conduct  and  heliavior. 

109.  Of  testator. —  An  inference  on  the  question  of  testamentary 
capacity  may  be  legitimately  based  upon  the  acts  and  language  of  the 
party;  rational  and  sensible  discourse  indicating  capability  to  per- 
form a  rational  act;  and  the  language  of  insanity  indicating  inca- 
pacity.^"     But  mere  evidence  of  occasions  when  tlie  conversation  and 


91;  FarnsworiU's  Will,  62  Wis.  474,  22 
N.  W.  523. 

An  instruction  in  a  will  contest  that 
a  declaration  by  the  testator  of  an  in- 
tention to  make  a  different  will  is  a  cir- 
cumstance entitled  to  consideration  on 
the  question  of  competency  and  undue 
influence  is  erroneous  in  the  absence  of 
qualification,  as  authorizing  a  control- 
ling effect  to  be  given  to  a  single  item 
of  evidence,  without  regard  to  others. 
Quisenherry  v.  Quisenherry,  14  B.  Mon. 
481. 

^U^cclc  V.  Gary,  27  N.  Y.  9,  84  Am. 
Dec.  220.  And  see  Re  Ely,  16  Misc. 
228,  39  N.  Y.  Supp.  177. 

''"Re  Peck,  42  N.  Y.  S.  R.  898,  17  N.  Y. 
Supp.  248;  Hubbard's  Will,  6  J.  J. 
Marsh.  59. 

Proof  of  habits  of  excessive  drinking 
which  were  periodical  does  not  warrant 
an  issue  devisavit  vel  non  in  a  will  con- 
test, where  the  fact  of  even  ordinary  in- 
toxication at  the  time  of  the  execution 
of  the  will  was  not  proved,  and  it  was 
proved  witliout  contradiction  that  it  was 
dictated  by  himself  and  perfectly  well 
understood  by  him.  Harmon  >/  Lodge,  I. 
O.  0.  F.'s  Appeal,  127  Pa.  269,  18  Atl. 
10. 

'•'Wilie  V.  Etcalt,  66  111.  26;  Hub- 
hard's  Will,  6  J.  J.  Marsh.  59.  And  see 
Re  Hchreiher,  22  N.  Y.  S.  R.  802,  5  N. 
\.  Supp.  47 :  Belcher  v.  Belcher,  10  Yerg. 
121. 

So,  in  Ritter's  Appeal,  59  Pa.  9,  a 
deed,  in  the  nature  of  a  testamentary 
Vol.  I.  Med.  .Tur.— S. 


disposition,  by  a  man  of  intemperate 
habits  who  was  aware  of  his  tendencies 
to  drink  to  excess,  made  for  the  benefit 
of  his  family,  under  the  fear  that  he 
would  squander  his  property,  was  up- 
held, where  he  was  perfectly  sober  and 
in  full  possession  of  his  faculties,  ami 
thoroughly  understood  the  nature  and 
character  of  the  act  at  the  time. 

''-Kingslcy  v.  Blanchard,  66  Barb.  317; 
Duffield  V.  Robeson,  2  Harr.  (Del.)  375; 
Hoskins  V.  Hoskins,  9  Ky.  L.  Rep.  915, 
7  S.  W.  546:  Re  Well,  96  Me.  161,  51 
Atl.  868;  Williams  v.  Lee,  47  Md.  321; 
Haviland  v.  Hayes,  37  N.  Y.  25.  And 
see  Brock  v.  Luckett,  4  How.  (Miss) 
459;  Ring  v.  Latvless,  190  111.  520.  60 
N.  E.  881;  Boyd  v.  Eby,  8  Watts,  66. 

What  a  testator  said  and  did  at  the 
time  of  making  his  will  is  the  best  evi- 
dence of  what  he  was  capable  of  doing, 
on  the  question  of  testamentary  capac- 
ity. Martin  v.  Thayer,  37  W.  Va.  38. 
16  S.  E.  489. 

And  acts  and  declarations  showing 
that  the  testator  was  affectionate  toward 
his  relatives  may  tend  to  defeat  a  will 
giving  his  property  to  a  stranger ;  since 
it  would  tend  to  increase  the  improb- 
ability that  the  will  was  a  result  of  de- 
liberate judgment.  Norris  v.  Shcppard, 
20  Pa.  475. 

The  declarations  of  an  insane  person, 
however,  do  not  tend  to  establisli  his 
sanity.  Lang's  Estate,  65  Cal.  19,  2 
Pac.  491. 


114 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   109 


conduct  of  a  testator  were  inconsistent  with  what  might  have  been 
expected  of  a  man  of  sound  intellect  is  not  alone  sufficient  to  invali- 
date his  will.'^^  And  slo^vness,  feebleness,  eccentricity,  and  nervous- 
ness do  not  show  insanity,^'*  though  combined  with  filthy  habits  ;'^^ 
nor  do  fickleness  and  childish  tastes.'^®  ISTor  do  excitability  and 
quarrelsomeness,"^  or  miserliness,'^^  or  lavishness.'^^  Even  suicide 
is  not  conclusive  evidence  of  insanity  in  respect  of  a  will,  though 
executed  immediately  previous.*'^     But  the  suicide  of  a  testator  is 


^'Boi/Ian  V.  Meeker,  15  N.  J.  Eq.  310; 
Chandler  v.  Barrett,  21  La.  Ann.  58,  99 
Am.  Dec.  701.  And  see  Scarborough  v. 
Bashin,  65  S.  C.  558,  44  S.  E.  63;  Ir- 
vin  V.  Deschamps,  11  W.  N.  C.  365;  Re 
Dwyer,  29  Misc.  382,  61  N.  Y.  Supp.  903. 

A  mere  mistake  in  arithmetic  by  a  tes- 
tator does  not  prove  testamentary  inca- 
pacity. Berry  v.  Safe  Deposit  &  T.  Co. 
96  Md.  45,  53  Atl.  720. 

And  a  claim  of  ow-ning  more  propertj' 
than  she  in  fact  does  does  not  show  a 
testatrix  to  be  incompetent  to  make  a 
will.  ^Yaugh  v.  Moan,  200  111.  298,  65 
N.  E.  713. 

So,  the  remarriage  of  a  man  at  sixty- 
nine  years  of  age  is  not  evidence  of  tes- 
tamentary incapacity.  Perkins  v.  Per- 
kins, 116  Iowa,  253,  90  N.  W.  55. 

'^Banks  v.  Goodfelloio,  22  L.  T.  N.  S. 
819,  39  L.  J.  Q.  B.  N.  S.  237,  L.  R.  5  Q. 
B.  549;  Mercer  v.  Kelso,  4  Gratt.  106; 
Rush  V.  Megee,  36  Ind.  69 ;  Re  Murphy, 
41  App.  Div.  153,  58  N.  Y.  Supp.  450; 
Kettemann  v.  Metzger,  23  Ohio  C.  C. 
61;  Ekin  v.  McCracken,  11  Phila.  534; 
Hartwell  v.  McMaster,  4  Redf.  393 ;  Ful- 
leck  V.  Allinson,  3  Hagg.  Eccl.  Rep.  527. 
And  see  Reed  v.  Mclntyre,  86  Minn.  163, 
90  N.  W.  319;  Cash  v.  Lust,  142  Mo. 
630,  04  Am.  St.  Rep.  576,  44  S.  W.  724; 
Fulbrifjht  v.  Perry  County,  145  Mo.  432, 
46  S.  W.  955;  Spratt  v.  Sjiratt,  76  Mich. 
384,  43  N.  W.  627. 

The  fact  that  a  testator  was  sixty- 
eight  years  old  when  he  married,  and 
his  wife  about  eigliteen,  is  not  proof  per 
se  of  insanity  or  imbecility.  Thomas  v. 
Stump,  62  Mo.  275. 

Nor  is  the  fact  that  a  white  man 
wished  to  marry  a  negro  girl,  or  main- 
tain unlawful  relations  with  her.  Pat- 
ton  V.  Patton,  5  J.  J.  Marsh.  389. 

'''-Bennett  v.  Hibbcrt,  88  Iowa.  154,  55 
N.  W.  93;  Pilkinfjlon  v.  Gray,  68  L.  J. 
P.  C.  N.  S.  63  [1899]  A.  C.  401.  And 
see  Wriqht's  Estate,  202  Pa.  395,  51 
Atl.  1031. 

]>ut  profanity,  and  irreverence,  and 
disbelief   in  the  existence  of  God,  and 


filthy  habits  upon  the  part  of  a  testator, 
generally  show  a  mind  wanting  in  tes- 
tamentary capacitv.  Bennett  v.  Hib- 
bert,  88  Iowa,  154,' 55  N.  W.  93. 

'^Re  Merriam,  42  N.  Y.  S.  R.  619,  16 
N.  Y.  Supp.  738;  Jackson  v.  Hardin,  83 
Mo.  175 ;  Sehr  v.  Lindeniann,  153  Mo. 
276,  54  S.  W.  537.  And  see  Voglesong's 
Estate,  196  Pa.  194,  46  Atl.  424, 

Childishness  and  lack  of  coherency  in 
conversation  and  forgetfulness  and  the 
fact  that  the  testator  made  different  pro- 
visions from  those  contained  in  former 
wills  do  not  alone  suffice  to  show  tes- 
tamentary incapacity.  Re  Clearwater, 
17  N.  Y.  S.  R.  794,  2  N.  Y.  Supp.  99. 

Nor  do  fond  recollections  of  childhood 
days  and  scenes.  Riley  v.  Sherwood,  144 
Mo.  354,  45  S.  W.  1077. 

"See  Re  Woolsey,  17  Misc.  548,  41  N. 
Y.  Supp.  263 ;  Dobie  v.  Armstrong,  160 
N.  Y.  584,  55  N.  E.  302;  Re  McKean,  31 
Misc.  703,  66  N.  Y.  Supp.  44 ;  Spence  v. 
Spence,  4  Watts,  165. 

^^Newton  v.  Carbery,  5  Cranch  C.  C 
626,  Fed.  Cas.  No.   10,189. 

Nor  does  the  fact  that  a  testator  was 
miserly,  eccentric,  and  irrational  on 
some  subjects.  Ivison  v.  Ivison,  80  App. 
Div.  599,  80  N.  Y.  Supp.  1011. 

"•miller  V.  Oestrich,  157  Pa.  270,  27 
Atl.  742. 

^"Chambers  v.  The  Queen's  Proctor,  2 
Curt.  Eccl.  Rep.  415:  Burrows  v.  Bur- 
rows, 1  Hagg.  Eccl.  Rep.  109;  Wolff  v. 
Connecticut  Mut.  L.  Ins.  Co.  2  Flipp. 
355,  Fed.  Cas.  No.  17,929;  Brooks  v. 
Barrett,  7  Pick.  94;  Coffey  v.  Home  L. 
Ins.  Co.  44  How.  Pr.  481 ;  Weed  v.  Mu- 
tual Ben.  L.  Ins.  Co.  70  N.  Y.  501; 
Duffield  V.  Robeson,  2  Harr.  (Del.)  375; 
Knickerbocker  L.  Ins.  Co.  v.  Peters,  42 
Md.  414;  McElwee  v.  Ferguson,  43  Md. 
479:  Merritt  v.  Cotton  States  L.  Ins.  Co. 
55  Ga.  103 ;  Phadenhaucr  v.  Germania 
L.  Ins.  Co.  7  Hoisk.  567,  19  Am.  Rep. 
623;  Crum  v.  Thornley,  47  HI.  192; 
Hathaway  v.  National  L.  Ins.  Co.  48  Vt. 
335. 


§  109] 


WILLS. 


115 


evidence  tending  to  show  want  of  testanientaiy  capacity,^^  though  it 
is  not  conclusive,*^-  and  does  not  raise  a  presumption  of  insanity  at 
the  time  the  will  was  made  f^  but  it  is  to  be  considered  as  a  circum- 
stance in  connection  with  others.'**  In  judging  of  the  soundness  of 
a  testator's  mind,  however,  he  is  to  be  compared  with  himself,  and 
not  with  others.^"  And  the  conduct  of  an  asred  testator  a  lone;  time 
after  making  his  will,  while  he  was  gradually  sinking,  is  of  little ' 
weight.^'' 

110.  Conduct  of  others. — The  conduct  of  parties  surrounding  the 
testator  is  of  like  influence  in  determining  his  condition  as  opinions 
of  witnesses  on  the  trial.^^  A  mere  agreement  made  years  before, 
however,  with  reference  to  the  care  of  a  testator's  estate,  reciting  his 
age  and  incapacity,  is  an  expression  of  opinion  only,  and  not  evidence 
of  mental  incapacity. '^^ 

HI.  Change  of  character  or  disposition. —  A  marked  change  in  a 
man's  habits  and  thought  is  strong  evidence  of  mental  unsoundness, 
and  absence  of  such  change  is  evidence  of  capacity.^^  Insanity  is 
indicated  by  proof  of  acts,  declarations,  and  conduct  inconsistent 
with  the  character  and  previous  habits  of  the  party.^°  The  inquiry, 
however,  is  not  whether  there  was  good  reason  for  the  change,  but  as 


"Pettitt  V.  Pettitt,  4  Humph.  191; 
Re  Card,  28  N.  Y.  S.  R.  .528,  8  N.  Y. 
Supp.  297 ;  Duffield  v.  Robeson,  2  Harr. 
(Del.)    375. 

^-BrooJcs  V.  Barrett,  7  Pick.  94;  Pet- 
titt V.  Pettitt,  4  Humph.  191;  McElwee 
V.  Ferguson,  43  Md.  479.   ' 

The  acts  of  a  testator  in  committing 
suicide  will  not  invalidate  his  will, 
where  it  was  reasonable,  and  such  as  a 
man  in  his  senses  might  be  supposed  to 
make.  Levy  v.  Linda,  3  Meriv.  85;  Re 
Bailey,  7  Jur.  N.  S.  712. 

^^Beif's  Succession,  40  La.  Ann.  773, 
24  L.  k.  A.  577,  15  So.  297;  Re  Card,  28 
N.  Y.  S.  R.  528,  8  N.  Y.  Supp.  297; 
Duflleld  V.  Robeson,  2  Harr.  (Del.)  375; 
Hoby  V.  Eoby,  1  Hagg.  Eccl.  Rep.  14G. 

"A'e  Card,  28  N.  Y.  S.  R.  528,  8  N.  Y. 
Supp.  297. 

Suicide  should  go  to  the  jury  in  a  will 
contest  in  connection  with  the  other 
facts  for  consideration,  in  determining 
the  question  of  testamentary  capacity, 
not  as  of  the  time  of  the  commission  of 
the  suicide,  but  as  of  the  time  of  the 
execution  of  the  will.  McElicce  v.  Fer- 
gusoji,  43  Md.  479. 

*'At/aM.  V.  Weckerly,  19  Mich.  482. 

^"Kinne  v.  Kinne,  9  Conn.  102,  21  Am. 
Dec.  732. 


"Stebbins  v.  Hart,  4  Dem.  501 ;  Irwin 
V.  West,  81*  Pa.  157. 

''Dale's  Appeal,  57  Conn.  127,  17  Atl. 
757. 

Power  to  make  a  testamentary  dispo- 
sition, under  certain  restrictions,  given 
by  a  father  in  his  will  to  a  weak-minded 
son,  of  the  property  given  him  by  the 
will,  furnishes  no  evidence  of  the  testa- 
mentary capacity  of  the  son.  Re  Alex- 
ander, 27  N.  J.  Eq.  463. 

So,  suggestions  made  to  a  testator  at 
the  time  of  making  his  will,  not  to  for- 
get certain  persons,  though  proper  to  be 
considered,  raise  no  presumption  that 
someone  would  have  been  forgotten  but 
for  such  suggestions,  thus  raising  an 
inference  against  capacitv.  Thornton  v. 
Thornton,  39  Vt.  122. 

'"McCurry  v.  Hooper,  12  Ala.  823.  46 
Am.  Dec.  280;  Re  Carpenter,  79  Cal. 
382,  21  Pac.  835;  Pelamourges  v.  Clark, 
9  Iowa,  1;  Conely  v.  McDonald,  40  Mich. 
150;  Groom  v.  Thomas,  2  Hagg.  Eccl. 
Rep.  433. 

^"McCurry  v.  Hooper,  12  Ala.  823,  4',) 
Am.  Dec.  280;  Groom  v.  Thomas,  2 
Hagg.  Eccl.  Rep.  432.  And  see  Re  Kahn, 
1  Connoly,  510,  5  N.  Y.  Su^p.  650. 


116 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  111 


to  whether  it  was  caused  by  insanity  or  a  delusion.^ ^  And  while 
prejudice,  hatred,  or  ill  will,  or  violence  by  a  person  usually  pleasant 
and  agreeable,  do  not  of  themselves  constitute  insanity,  they  may 
indicate  mental  derangement,  and  evidence  of  their  existence  with 
reference  to  persons  actually  entitled  to  the  testator's  bounty,  which 
might  affect  the  disposition  of  his  property,  should  be  left  to  the 
jury,^^  But  a  mere  loss  of  affection  for  persons  whose  conduct  had 
been  offensive  is  not  evidence  of  incapacity.^^ 

112,  Intoxication  in  connection  with  conduct  and  circumstances. — 
Occasional  or  habitual  fits  of  intemperance,  though  combined  witli 
general  bad  conduct  on  the  part  of  the  testator,  do  not  show  testa- 
mentary incapacity.^^  Xor  does  intoxication,  either  occasional  or 
habitual,  together  with  drmiken  actions  and  pranks  ordinarily  in- 
dulged in  by  drunken  persons  f^  or  habitual  drunkenness  together 
with  old  age,  shortness  of  memory,  and  irascible  temper  f*^  or  frequent 
sleepiness,  flightiness,  and  violent  outbreaks  of  passion.^'^  Nor  does 
intemperance  combined  with  disease  indicate  testamentary  incapacity, 
as   against  evidence  of  business  capacity.''^       So,   inebriety  accom- 


"Carpenter's  Estate,  94  Cal.  416,  29 
Pac.  1101.  And  see  Miller  v.  White,  5 
Redf.  321. 

But  no  period  of  a  designated  number 
of  days  can  be  stated  as  a  positive  limit 
within  which  a  radical  diange  of  mental 
condition  can  take  place  wliich  would 
warrant  a  finding  of  testamentary  in- 
capacity, where  there  is  abiuidant  tes- 
timony as  to  the  testator's  actual  condi- 
tion during  tlie  time.  Reichenhach  v. 
Ruddach,  127  Pa.  504,  18  Atl.  432. 

And  testamentary  incapacity  is  not 
sufficiently  established  by  evidence  that 
tlie  testatrix  became  estranged  from  her 
adopted  son,  of  whom  she  had  been 
very  fond,  and  refused  to  permit  him  to 
be  known  by  lier  name  and  destroyed  her 
will,  and  made  baseless  charges  against 
him,  and  mutilated  his  portrait  to  indi- 
cate lier  displeasure.  Merrill  v.  Rals- 
ton, 5  Kedf.  220. 

And  proof  that  a  husband,  after  the 
death  of  his  wife,  began  to  pay  more  at- 
tention to  his  dress  and  tried  to  look 
youtliful,  and  took  an  interest  in  the 
opposite  sex,  not  comporting  with  his 
former  dignity,  and  that  he  lost  in- 
terest in  his  business,  and  became  for- 
getful and  despondent,  and  suddenly 
commenced  to  drink  to  excess,  does  not 
alone  show  want  of  testamentary  ca- 
pacitj'.  Sanderson  v.  Sanderson,  52  N. 
J.  Eq.  24.3,  30  Atl.  326. 


^-Sherley  v.  Shcrlei/,  81  Ky.  240.  And 
see  Re  Leiris,  33  X.  J.  Eq.  219. 

-Vnd  evidence  that  a  testator  suddenly 
conceived  the  idea  that  a  person  whom 
he  had  treated  as  his  son  for  thirty-five 
years  was  illegitimate,  and  that  he  told 
his  confidential  adviser  so  under  circum- 
stances justifying  the  inference  that  he 
did  so  in  explanation  of  his  purpose  to 
disinherit  him,  is  admissible  on  the  ques- 
tion of  testamentary  capacity,  as  tend- 
ing to  show  an  insane  delusion.  Haines 
V.  Hayden,  95  Mich.  332,  35  Am.  St. 
Rep.  566,  54  N.  W.  911. 

^^Rilcy  V.  Shericood,  144  Mo.  354,  45 
S.  W.  1077. 

"^Harpers  ^Yill,  4  liibb,  244. 

"'-Billin (/hurst  v.  VicKers,  1  Phillim. 
Eccl.  Rep.  193;  I'cck  v.  Cary,  27  N.  Y. 
9,  84  Am.  Dec.  220. 

"•"Hiffht  V.  Wilson,  1  Dall.  94,  1  L.  ed. 
51 ;  Keating's  Appeal,  2  Monaghan 
(Pa.)  4,  17  Atl.  207;  Julke  v.  Adam,  1 
Redf.  454.  And  see  Pliiladelphia  Trust 
d  H.  D.  Co.  V.  Drinkhottse.  17  Phila.  23; 
Whitcnack  v.  Stryker,  2  N.  J.  Eq.  8. 

'■''•McCullough's  Will,  35  Pittsb.  L.  J. 
109. 

■'\UcIntt/re  v.  McConn,  28  Iowa.  483; 
Re  Hchreiher,  22  N.  Y.  S.  R.  892,  5  N. 
Y.  Supp.  47;  Re  Tacke,  17  N.  Y.  S.  R. 
805,  3  N.  Y.  Supp.  198. 

Proof  that  a  testator  had  spells  of  in- 
temperance and  spells  of  sobriety,  .and 


I  112] 


WILLS. 


117 


panied  eitlier  by  attempted  or  accomplished  suicide,  docs  not  neces- 
sarily show  incapacity  to  make  a  will.'-*" 

e.   Conditions,  circumstances,  and  surroundings. 

113.  Business  acts  and  capacity. —  That  a  testator  possessed  capac- 
ity to  make  money  and  take  care  of  property,  though  not  conclusive, 
is  evidence  of  sanity  and  testamentary  capacity.^  And  that  a  testa- 
tor was  capable  of  transacting  bnsiness,  and  was  shrewd  and  firm  in 
his  bargains,  is  snflicient  to  establish  such  capacity.^  Such  evidence 
is  good  as  against  proof  of  folly  and  eccentricity  f  or  of  weakness  of 
mind  ;"*  or  as  against  proof  of  old  age  and  failing  memory  f  or  of 
occasional  epileptic  fits  f  or  as  against  evidence  of  failure  to  make 
provision  for  a  person  having  a  natural  claim  upon  the  testator's 


that  whenever  he  drank  for  some  time 
he  became  crazy,  foolish,  and  delirious, 
is  insufficient  to  invalidate  his  will,  as 
against  evidence  that  he  was  rational 
when  sober,  and  proof  by  subscribing 
witnesses  that  he  was  sober  and  rational 
when  he  made  it.  77ar<  v.  Thompson, 
15  La.  88. 

'^Koegel  v.  Egner,  54  N.  ^.  Eq.  G23, 
35  Atl.  394;  McElwee  v.  Ferguson,  43 
Md.  479. 

•Go.ss  V.  Gass,  3  Humph.  278. 

Substantial  business  acts  -upon  the 
part  of  a  testator  are  of  more  weight  on 
the  question  of  his  testamentary  ca- 
pacity than  mere  conversations  or  occa- 
sional doings.  Turner  v.  Hand,  3  Wall. 
Jr.  120,  Fed.  Cas.  No.  14,257.  Or  than 
the  opinions  of  witnesses  against  testa- 
mentary capacity.  Messner  v.  Elliott, 
184  Pa.  41,  39  Atl.  46. 

But  entries  made  by  a  testator  in  his 
business  books  are  not  conclusive  of  san- 
ity, the  weight  to  which  they  are  en- 
titled being  a  question  for  the  jury. 
Irish  V.  Smith,  8  Serg.  &  R.  573,  11  Am. 
Dec.  648. 

^Re  Gleespin,  26  N.  J.  Eq.  523;  Chand- 
ler V.  Barrett,  21  La.  Ann.  58,  99  Am. 
Dee.  701 ;  Prentis  v.  Bates,  88  Mich. 
567,  50  N.  W.  637;  Coit  v.  Patchen,  77 
N.  Y.  533. 

A  person  of  common  sense  must  be 
deemed  to  have  testamentary  capacity. 
Hoioard's  Will,  5  T.  B.  Mon.  199,  17  Am. 
Dec.  60. 

And  the  fact  that  a  testator  has  suf- 
ficient capacity  to  acquire  a  fortune  will 
prevail  upon  the  question  of  testamen- 
tary capacity,  as  against  the  opinions 
of  a  large  number  of  ignorant  witnesses 


that  he  did  not  have  testamentary  ca- 
pacity. Eddeys  Appeal,  109  Pa.  400.  1 
Atl.  425.  And  see  Comb's  Appeal,  103 
Pa.  155. 

^Arbery  v.  Ashe,  1  Hagg.  Eccl.  Rep. 
214;  Wldle  v.  Driiwr,  1  Phillim.  Eccl. 
Rep.  84;  Turner  v.  Hand,  3  Wall.  Jr.  88, 
Fed.  Cas.  No.  14,257;  Brick  v.  Brick,  6 
N.  Y.  144;  Ean  v.  Snyder,  40  Barb.  230; 
Re  Merriam,  42  N.  Y.  S.  R.  619,  16  N. 
Y.  Supp.  738,  Affirmed  in  136  N.  Y.  58, 
32  N.  E.  621;  Skinner's  Will,  40  Or.  571, 
62  Pac.  523,  67  Pac.  951. 

*White  V.  Farley,  81  Ala.  563,  8  So. 
215;  Tomkins  v.  Tomkins,  1  Bail.  L.  92, 
19  Am.  Dee.  656. 

'"Gardiner  v.  Gardiner,  34  N.  Y.  155 ; 
Re  Stewart,  39  N.  Y.  S.  R.  801,  15  N.  Y. 
Supp.  601  ;  Re  Bartholick,  1  Connoly, 
373,  5  N.  Y.  Supp.  842;  Re  Cline,  24  Or. 
175,  41  Am.  St.  Rep.  851,  .33  Pac.  542. 

Proof  that  a  testator  was  incoherent 
in  speech  will  not  affect  his  testa- 
mentary capacity,  as  against  evidence  of 
ability  to  transact  business,  wliere  the 
will  was  reasonable.  Re  Bucklei/,  16  N. 
Y.  S.  R.  983,  2  N.  Y.  Supp.  24.  ' 
'Broivn  v.  Torrey,  24  Barb.  583. 
So,  proof  of  ability  to  transact  busi 
ness  is  not  overcome  in  a  will  contest, 
on  the  question  of  testamentary  capac- 
ity, by  evidence  drawn  from  the  au- 
topsy, that  the  testator  had  tumors  in 
his  brain,  which  could  not  e.xist  without, 
serious  mental  weakness.  Re  Fricke, 
47  N.  Y.  S.  R.  10,  19  N.  Y.  Supp.  315. 
And  so  also  with  reference  to  paralysis. 
L'e  Iredale,  53  App.  Div.  45,  65  N.  Y. 
Supp.  533. 

And    .sensible    and     coherent     letters, 
written  to  the  relatives  about  business 


118  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   113 

bounty,  where  reasons  are  given  for  tlie  omission.'^  Evidence  of 
great  derangement  causing  foolish  actions  and  forgetfulness  of  friends 
and  relatives,  however,  may  be  such  as  to  invalidate  a  will  even  as 
against  evidence  of  ability  to  conduct  private  business  matters.^  And 
where  evidence  shows  incajiacity  to  transact  ordinai-y  business,  testa- 
mentary incapacity  is  usually  sufficiently  shown.^  Proof  of  business 
capacity  in  ordinary  transactions  will  not  sustain  a  will  as  against  • 
evidence  of  the  existence  of  insane  delusions  with  reference  to  the 
subject-matter  and  object  of  the  disposition  itself.^'' 

114.  Business  acts  by  drunkard. —  The  fact  that  a  testator  managed 
his  business  affairs  properly  will  sustain  his  will  even  against  proof 
of  excessive  drinking,  and  that  he  totally  excluded  some  of  his  next 
of  kin  with  whom  he  had  quarreled.^ ^  * 

115.  Previous  and  subsequent  insanity. —  The  jury  in  a  \vill  contest 
may  consider  the  question  of  sanity  or  insanity  of  the  testator  both 
before  and  after  tho  execution  of  the  will,  as  tending  to  show  the  state 
of  his  mind  at  that  time.^^     And  where  habitual  insanity  is  estab- 

matteis,  shortly  before  the  execution  of  presumption  raised  by  proof  that  a  de- 
ft will,  are  of  great  weight  upon  the  lusion  existed  a  short  time  before;  its  ' 
question  of  testamentary  capacity,  sufficiency  for  that  purpisse  being  a  qucs- 
where  it  is  claimed  that  the  testator  tion  for  the  jury.  Wood  v.  Sawyer,  61 
was  afflicted  with  chronic  dementia,  N.  C.  (Phill.  L.)  251. 
which  is  of  slow  progress,  marked  in  its  "Wheeler  v.  Alderson,  3  Hagg.  Eccl. 
regular    stages   by   general    impairment  Rep.  574. 

of     the     mental     faculties,     ending     in        Evidenc'e  that  a  testator  was   of  in- 

idiocy.     Re  Blalcely,  48  Wis.  298,  4  N.  temperate  habits  and  sometimes  became 

W.  337.  insensible    wiUi    intoxication,    and    that 

''Re  Ogden,  2  N.  Y.    Supp.    345 ;    Re  his  death  was  probably  caused  by  expo- 

Giay,  1  Silv.  Sup.  Ct.  338,  5  N.  Y.  Supp.  sure  while  intoxicated  and  by  effects  of 

464.  intoxication,     together     with    the    opin- 

^Bever  v.  Spongier,  93  Iowa,  576,  61  ion  of  experts  that  he  was  insane,  is  not 

N.  W.  1072;  Yf/lesias  v.  Dyke,  Preroga-  sufficient     to     invalidate     his     will,     as 

live  Court    (1852)    cited    in    2    Taylor,  against  evidence  that  he  would  remain 

Principles  of  Med.  Jur.  556.  sober  for  a  considerable  length  of  time, 

The    rule    that    affirmative   testimony  and  was  considered  a  man  of  good  judg- 

should  outweigh  negative  testimony  does  ment   when   sober,   and   that   of   parties 

not   apply   in   a   will     contest,     on    the  ^yith  whom  he  lived  and  at  whose  house 

ground     of     mental     incapacity,     where  1,^  jj^d  that  his  mind  was  not  impaired, 

some  of  the  witnesses  swore  that  the  tes-  ^..jj^j.^  ^j^g  opinions  of  experts  were  given 

tator  could  do  business,  and  others  that  .yitj^out    personal     examination.     Mcln- 

he  ex)uld  not.     Potts  v.  House,  6  Ga.  324,  ^  .^^  ^    McConn,  28  Iowa.  483. 
j(i  Am.  Dec.  .i-.i.  ^-Moore  v.  Heineke,   119  Ala.  627,  24 

"Minor   V.    Thomas,    12   B.   Mon.    10(>;  .  '.  ' 

Tovnsend  v.  Jioqart    5  Redf.  93.  ^O"  f^^;   A/«»e  v.  Kuine,  9  Conn.   102. 

''Morse  v.   Seolf,    4    Dem.    507;     Re  21   Am.   Deo.    /32;    Terry  y    Buffing  ton, 

Shaic,-1  Redf.  107:  Banks  v.  Goodfcllow,  ^  ^«-  3^/,  of,  Am.  Dec.  423;   Re  Bull, 

22  L.  T.  N.  S.  S19,  39  L.  J.  Q.  B.  N.  S.  14  Daly,  510,  2  N.  \.  Supp.  52;  MiteheJl 

237.  L.  r's  Q.  B.  549;  Smec  v.  Since,  L.  v.  Corpening,  124  N.  C.  472.  32  S.  E.  798; 

R.  5  Prob.  Div.  84,  49  L.  J.  Prob.  N.  S,  Thompson  v.  Kyncr.  65  Pa.  3G8;  Irish  v. 

8,  28  Week.  Rep.  703,  <I4  J.  P.  220.  Smith,   8   Serg.  &  R.  573,    11   Am.   Dec. 

But  proof  of  business  capacity  in  or-  648;   Harrison  v.  Roiran,  3  Wash.  C.  C. 

dinarv    transactions    tends    to    rebut    a  580,  Fed.  Cas.  No.  6,141.   And  see  Eastis 


§  115] 


WILLS. 


119 


listed  preceding  and  folloAving  the  making  ot  a  will,  the  burden  is 
shifted  to  the  proponent  to  show  sanity  at  the  time  of  its  execution.'" 
But  tlie  weight  and  value  of  such  evidence  is  usually  regarded  as  di- 
minishing in  proportion  to  the  remoteness  from  the  date  of  making 
the  will.'^  And  proof  of  insanity  at  one  period  as  an  independent 
fact  will  not  impeach  a  will  made  at  another  period.'^  And  prior  or 
subsequent  insanity  is  only  important  as  showing  the  actual  condi- 
tion of  the  testator's  mind  when  the  will  was  executed;'^  evidence  of 
such  insanity  being  liable  to  be  overcome  by  the  evidence  of  com- 
petency at  the  time  the  will  was  made.'' 


V.  Montgomery,  95  Ala.  486,  36  Am.  St. 
Rep.  227,  11  So.  204;  Reiclienlach  v. 
Ruddach,  127  Pa.  564,  18  Atl.  432;  Bur- 
ton V.  t^coit,  3  Rand.  (Va.)  399. 

The  fact  that  evidence  in  a  will  con- 
test relates  to  a  period  prior  and  subse- 
quent to  the  execution  of  the  will  goes 
to  the  effect  or  weight  and  importance 
to  be  attached  to  it  rather  than  to  its 
admissibility.  Conely  v.  McDonald,  40 
Mich.   150. 

^^Chandler  v.  Barrett,  21  La.  Ann.  58, 
99  Am.  Dec.  701;  Ford  v.  Ford,  7 
Humph.  92;  Elkinton  v.  Bride,  44  N.  J. 
Eq.  154,  1  L.  R.  A.  161,  15  Atl.  391. 

Acts  of  an  habitual  character  are  of 
much  force  in  proof  of  the  existence  of 
insanity,  where  insanity  has  been  clearly 
established,  existing  at  a  prior  time; 
and  a  subsequent  insane  act  may  reflect 
back  on  acts  otherwise  equivocal. 
Wheeler  v.  Anderson,  3  Hagg.  Eccl. 
Rep.  574. 

And  evidence  tending  to  show  that  a 
testatrix  was  of  unsound  mind  shortly 
prior  to,  and  shortly  after,  the  execution 
of  her  will,  and  that  she  died  of  acute 
mania  about  three  weeks  thereafter,  is 
sufficient  to  justify  the  submission  of 
the  issues  in  a  contest  of  her  will  to  the 
jurj%  though  the  unsoundness  of  mind 
was  not  shown  to  have  been  of  a  perma- 
nent character.  Moore  v.  Heineke,  119 
Ala.  627,  24  So.  374. 

"Thompson  v.  Ish,  99  Mo.  160,  17  Am. 
St.  Rep.  552,  12  S.  W.  510.  And  see 
Davis  V.  Lntta,  94  Iowa,  727,  62  N.  W. 
17;  Lillihridfle's  Estate,  133  Pa.  211, 
19  Atl.  352;  Bever  v.  Spanqler,  93  Iowa, 
576,  61  N.  W.  1072;  Hoban  v.  Cam- 
pau,  52  Mich.  346,  50  Am.  Rep.  253,  17 
N.  W.  797. 

But  flightiness  or  wandering  of  intel- 
lect on  the  part  of  a  testator  during  his 
last  sickness  furnishes  very  slight,  if 
anv.  evidence  at   all  that  that  state  of 


mind  continued  so  ?s  to  afTcct  the  valid- 
ity of  a  will  subsequently  executed.  Mc- 
Masters  v.  Blair,  29  Pa.  298. 

And  a  jury  in  a  will  contest  is  not 
bound  to  find  that  the  testator  was  in- 
sane because  he  had  been  found  so  at  the 
time  of  making  a  subsequent  will,  a 
few  weeks  later,  by  another  jury,  though 
they  find  that  there  had  been  no  ma- 
terial change  in  his  mental  condition  be- 
tween the  times  at  which  the  wills  were 
made,  i^leirall  v.  Rohhins,  139  Mass.  164. 
29  IS.  E.  650. 

"7'en-i/  V.  Bufpngion,  11  Ga.  337,  56 
Am.  Dec.  423;  Holloicay  v.  Galloicay,  51 
111,  159;  Broicn  v.  Torrey,  24  Barb.  583: 
Reichenbach  v.  Ruddach,  127  Pa.  564,  18 
Atl.  432. 

Where  the  evidence  in  a  will  contest 
tends  to  show,  on  the  one  hand,  that  the 
testatrix  was  almost  an  idiot,  and,  on 
the  other  hand,  that  she  retained  her 
mental  faculties,  the  controversy  is  nar- 
rowed to  the  time  of  the  execution  of 
the  will.     Sheldon  v.  Dow,  1   Dem.  503. 

^'^Chrisman  v.  Chrisman,  16  Or.  127. 
18  Pae.  G. 

The  testimony  adduced  in  a  will  con- 
test on  the  question  of  testamentary  ca- 
pacity must  speak  as  of  the  time  when 
the  will  was  made.  Re  Johnson,  7  Misc. 
220,  27  N.  Y.  Supp.  649. 

^''Chambers  v.  The  Queen's  Proctor,  2 
Curt.  Eccl.  Rep.  415;  Davis  v.  Latta. 
94  Iowa,  727,  62  N.  W.  17;  Jacobs's  Suc- 
cession, 109  La.  1012,  34  So.  59;  R< 
Davis,  91  Hun,  209.  36  N.  Y.  Supp.  822: 
Re  Heuntt,  31  Misc.  81,  64  N.  Y.  Supp. 
571;  Higqins  v.  Nethery,  30  Wash.  239, 
70  Pac.  489. 

But  the  presumption  of  incapacity 
arising  from  insanity  of  a  testator  be- 
fore the  execution  of  his  will  is  not  re- 
butted by  proof  of  calnmess  on  his  part, 
and  of  his  transacting  formal  matters  of 
business     under     the     sanction     of    his 


'120 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  116 


116.  Previous  and  subsequent  intoxication. —  Intoxication  is  a  tem- 
porary condition  and  the  point  of  time  under  investigation  in  an  in- 
quiry into  testamentary  capacity  as  affected  by  intoxication  is  that 
at  which  the  will  was  made.^^  And  to  avoid  a  will  on  that  ground  it 
must  be  proved  that  the  testator  was  so  excited  by  liquor,  or  so  con- 
ducted himself  at  the  time,  as  to  be  at  that  moment  legally  disquali 
tied  from  giving  effect  to  it.^** 

All  that  is  necessary  to  establish  a  will  questioned  on  that  ground 
is  the  absence  of  the  excitement  of  liquor  at  the  time,  in  a  degree 
which  would  affect  the  testator's  judgment.-*^  And  proof  of  a  long- 
continued  habit  of  intoxication,  and  the  fact  tliat  such  habit  tends 
to  impair  the  intellect  and  moral  sense,  is  not  enough  to  invalidate  a 
A\dll,  unless  it  appears  that  the  testator  was  so  enfeebled  in  mind  as 
to  be  incapable  of  making  a  will.^^  The  legal  presumption  of  the 
testator's  capacity  is  not  destroyed  by  proof  of  the  existence  of  longer 


family.  Groom  v.  Thomas,  2  Hagg.  Eccl. 
Rep.  433. 

And  evidence  of  the  acts  and  conduct 
of  a  testator  tending  to  show  soundness 
of  mind  at  or  near  the  time  of  the  exe- 
cution of  his  will  is  entitled  to  more 
weight  than  the  opinions  of  witnesses, 
based  upon  his  erratic  conduct  and  ec- 
centricities. Ward  V.  Broiim  (W.  Va. ) 
44  8.  E.  488. 

The  question  as  to  how  far  acts  of  a 
testator  before  and  after  the  execution 
of  his  will  tend  to  throw  light  upon  his 
actual  condition  at  the  date  of  the  will 
is  one  for  the  determination  of  the  pre- 
siding judge.  Shailer  v.  Bumstead,  99 
Mass.  11 2. 

But  the  weight  to  be  given  evidence 
in  a  will  contest,  to  previous  or  subse- 
quent insanity  with  respect  to  the  length 
of  the  time  elapsing,  is  for  the  determi- 
nation af  the  jury.  Dale's  Appeal,  .57 
Conn.  127,  17  Atl."'7.57. 

^"Hennessey  v.  'Woulfc,  49  La.  Ann. 
137G,  22  So.  394;  Pierce  v.  Pierce,  38 
Mich.  412;  Dimond's  Estate,  3  Pa.  Dist. 
R.  r)54;  Diiffield  v.  Roheson,  2  Harr. 
(Del.)  375;  Wheeler  v.  Alderson,  3 
Hagg.  Eccl.  Rep.  574. 

"/-•ecfc  V.  Caret/,  27  N.  Y.  9.  84  Am. 
Dec.  220 ;  Re  Tracy,  27  N.  Y.  Week.  Dig. 
280,  11  N.  Y.  S.  R.  103:  Re  Woolsei/. 
17  Misc.  547,  41  N.  Y.  Supp.  203;  Re 
fiutherland,  28  Misc.  424.  59  N.  Y.  Sypp. 
989;  Re  Tlalhert,  15  Misc.  308,  37  N.  Y. 
Supp.  757;  Andress  v.  Weller,  3  N.  J. 
Eq.  004;  Fluek  v.  Rea,  51  N.  J.  Eq.  233, 
27  Atl.  (530;  fianderson  v.  Hauderson,  52 
N.  J.  Eq.  243,  30  Atl.  320;  Bannister  v. 


Jackson,  45  N.  J.  Eq.  702,  17  Atl.  692; 
Hehert  v.  Winn,  24  La.  Ann.  385 ;  Hen- 
nessey V.  Wotilfe,  49  La.  Ann.  1376.  22 
So.  394. 

The  presumption  of  sanity  of  a  tes- 
tator is  not  rebutted  by  proof  that  his 
intellect  was  greatly  impaired  by  the  use 
of  opium  and  ardent  spirits,  and  in  con- 
sequence thereof  he  \\as  frequently  in- 
capable of  transacting  business,  in  the 
absence  of  proof  that  such  was  his  con- 
dition at  the  time  the  will  was  executed. 
Temple  v.  Temple,  1  Hen.  &  M.  476. 

""Ayrey  v.  Hill,  2  Addams  Eccl.  Rep. 
200;  Dimond's  Estate,  3  Pa.  Dist.  R. 
554. 

A  will  prepared  at  the  request  of  the 
testator,  which  was  his  voluntary  act, 
without  force  or  fraud  or  imposition  or 
importunity,  is  valid,  though  the  testa- 
tor was  addicted  to  drink  and  had  de- 
lirium tremens  a  few  days  before,  and 
though  it  was  drawn  up  by  one  of  the 
devisees,  at  his  own  house.  Handley  v. 
Hiacey,  1  Post.  &  F.  574. 

And  proof  that  a  testator  at  times 
acted  with  whimsical  and  ridiculous  lev- 
ity does  not  warrant  setting  aside  his 
will,  where  this  was  accounted  for  and 
attributable  to  fits  of  intemperance,  and 
he  acted  with  firm,  collected,  and  effi- 
cient mind  in  framinir  rnd  executing  it. 
Violet's  Will,   1   Bibb.  017. 

-'Whitenack  v.  Stryker.  2  N.  J.  Eq.  8; 
Oruhhs  V.  McDonald,  91  Pa.  230; 
Cheney  v.  Price,  90  Hun.  238.  37  N.  Y. 
Supp.  117;  Re  Liddy.  2  Silv.  Sup.  Ct. 
223.  5  N.  Y.  Supp.  636. 


§  116] 


WILLS. 


121 


or  shorter  incapacity  from  drunkenness.^^  x\nd  the  burden  of  show- 
ing the  want  of  testamentary  capacity  because  of  drunkenness  at  the 
time  of  the  execution  of  tlie  will  rests  witli  the  party  contesting  it^'* 
Nor  does  Imbitual  intoxication  raise  a  presumption  of  incapacity  or 
drunkenness  at  the  time  of  making  the  will ;  such  condition  must  be 
affirmatively  proved,  or  the  assumption  of  capacity  will  prevail.^** 
And  long-continued  inebriety,  though  resulting  in  fits  of  insanity, 
does  not  require  proof  of  a  lucid  interval  to  uphold  the  will  of  a  drunk^ 
ard,  as  is  required  where  insanity  is  proved.^*"  Where  the  mind  of 
a  testator  was  generally  in  a  state  of  derangement,  however,  produced 
by  the  habitual  and  intemperate  use  of  liquor,  though  he  enjoyed  some 
intervals  in  which  he  might  be  deemed  competent,  it  should  be  shown 
by  clear  and  satisfactory  evidence  that  his  wall  Avas  made  in  one  of 
such  intervals."^ 

117.  Hereditary  tendency. —  As  a  general  rule,  insanity  which  will 
invalidate  a  will  cannot  be  established  by  mere  proof  of  hereditary 
or  constitutional  insanity  on  the  part  of  collateral  kinsmen.^^  And 
no  presumption  that  a  testator  was  insane  arises  from  proof  that  his 
mother  had  been  so,  as  against  clear  proof  of  sanity.-^     But  while 


""BJaclc  V.  FAUs,  3  Hill  L.  68.  And  see 
Ue  HeuAtt,  31  Misc.  81,  64  N.  Y.  Supp. 
571;  Gohle  v.  Grant,  3  N.  J.  Eq.  629. 

Mere  vague  statements  to  the  effect 
that  the  testator  was  more  or  less  under 
the  influence  of  liquor  at  an  early  hour 
on  the  morning  of  the  day  on  which  his 
will  was  executed  are  insufllcient  to  de- 
stroy the  presumption  of  testamentary 
capacity.  Dimond's  Estate,  3  Pa.  Dist. 
R.  554. 

And  a  finding  that  a  testator  was  of 
sound  mind  will  not  be  disturbed  on  ap- 
peal where  there  was  some  evidence  to 
sustain  it,  though  there  was  other  evi- 
dence tending  to  sliow  that  for -twenty 
years  he  had  been  addicted  to  the  use  of 
intoxicating  liquors,  and  had  been  for 
years  a  drunkard.  Re  Johnson,  57  Cal. 
529. 

■"•Harper's  Will,  4  Bibb,  244;  Starrett 
V.  Douf!lass,  2  Yeates,  48. 

"Kocgel  v.  Egner,  54  N.  J.  Eq.  623, 
35  Atl.  394;  EUcinton  v.  Brick,  44  N.  J. 
Eq.  154.  1  L.  R.  A.  161,  15  Atl.  391;  Re 
Lee.  46  N.  J.  Eq.  193,  18  Atl.  525;  Re 
Halbert,  15  Misc.  308.  37  N.  Y.  Supp. 
757;  Re  Woolseij,  17  Misc.  547,  41  N.  Y. 
Supp.  263. 

^Gardner  v.   Gardner,  22  Wend.  526, 


34  Am.  Dec.  340;  Koegel  v.  Egner,  54  N. 
J.  Eq.  623,  35  Atl.  394;  Re  Lee,  46  N.  J. 
Eq.  193,  18  Atl.  525. 

To  insanity  from  intemperance  the 
usual  presumption  of  continuance  does 
not  apply.  DuffieLd  v.  Robeson,  2  Harr. 
(Del.)   375. 

'^Cochran's  Will,  1  T.  B.  Mon.  264,  15 
Am.  Dec.  116. 

The  legal  presumption  that  a  testator 
understood  the  contents  of  his  will, 
which  had  been  read  over  to  him,  is 
prima  facie  only,  where  he  was  of  great 
age  and  addicted  to  the  use  of  opiates 
and  ardent  spirits  to  such  an  extent  as 
to  enfeeble  and  impair  his  faculties. 
Rutland  v.  Gleavens,  1  Swan,  198. 

-'Frere  v.  Feacocke,  3  Curt.  Eccl.  Rep. 
664. 

"^'^noto  v.  Benton,  28  111.  306. 

So,  the  insanity  of  a  sister  and  niece 
does  not  tend  to  prove  hereditary  insan 
ity  which  will  affect  testamentary  ca- 
pacity, wjiere  their  malady  was  attrib- 
uted to  disease,  and  its  characteristics 
were  not  similar  to  those  exhibited  by 
the  testator.  Prentis  v.  Bates,  88  Jlicli. 
567,  50  N.  W.  637.  Afllrmed  in  93  Midi. 
234,  17  L.  R.  A.  494,  53  N.  W.  153. 


122  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   11? 

evidence  of  hereditary  insanity  will  not  of  itself  make  out  a  case,  it 
is  admissible  as  tending  to  corroborate  direct  proof  of  insanitv.^^ 

118.  Insanity,  fraud,  and  incapacity  combined. — Much  less  evidence 
is  required  to  invalidate  a  will  on  the  ground  of  undue  influence  or 
fraud  when  it  is  doubtful  whether  the  testator  was  sane  than  when 
he  is  in  full  possession  of  his  faculties.^^*  And  the  condition  of  the 
testator's  mind  at  the  time  of  executing  his  will  may  be  considered 
in  determining  whether  fraud  or  undue  influence  had  been  used,  in 
view  of  the  relative  situation  of  the  testator  and  the  beneficiaries,  and 
the  SLiiTOundings  and  conditions  and  all  tlie  other  circumstances  im- 
der  which  the  will  was  made,  as  well  as  the  provisions  of  the  will  it- 
self.^ ^  But  though  a  person  of  weak  intellect  may  more  readily  be- 
come a  victim  of  undue  influence  than  one  of  mental  strength,  there 
must  be  other  evidence  aside  from  that  of  mere  intellectual  weak- 
uess.^^  Where  inequality  of  provision  is  not  so  monstrous  as  to  be 
only  explainable  on  the  hypothesis  of  insanity  or  undue  influence, 
there  must  be  independent  proof  tliat  such  influence  has  been  ap- 
plied.^^  And  the  physical  condition  and  age  of  a  testator  are  not 
proper  to  be  considered  apart  from  the  condition  of  his  mind  and 
memory  in  determining  as  to  undue  influence,^*  though  a  less  amount 
of  mental  incapacity  would  be  required  to  be  proved  in  case  of  a  very 
old  person.^^  The  fact  that  a  person  acting  as  spiritual  adviser  of  a 
testator,  however,  uses  his  advantage  to  become  the  agent  and  man- 
ager of  his  temporal  affairs,  and,  acting  in  both  capacities,  becomes  a 
donee  of  large  gifts  under  his  will,  furnishes  strong  evidence  of  un- 
due influence.^^     And  evidence  of  the  employment  of  interested  per- 

'^S'm)//i  V.  Krainer,  5  Clark  (Pa.)  226.  "Cndyiey  v.  Cudyxey,  68  N.  Y.  148.  But 

^Coqhill  V.  Kennedii,  119  Ala.  641,  24  see  Fulton    v.    Avdreiv,    L.    R.    7  H.  L. 

So.  4.59;  Dennis  v.  Weekes,  40  Ga.  514;  448.  44  L.  J.  Prob.  N.  S.  17,  32  L.  T.  N. 

Kafes's  Estate.  16  W.  N.  C.  100.  S.  209,  23  Week.  Rep.  566,  contra. 

="Reichenbach  v.  Ruddach,  127  Pa.  564,  ^'Muiv  v.  Miller,  72  Iowa,  585,  34  N. 

18  Atl.  432.  W.  429. 

Probate  will  be  refused  a  will  though  Where  the  competency  of  a  testator 
instructions  for  it  were  given,  where  the  making  a  will  is  established,  the  bur- 
testator  was  in  a  very  weak  condition  of  den  of  showing  that  it  was  procured  by 
mind  at  the  time,  and  a  testamentary  undue  influence  rests  with  the  party  al- 
disposition  in  favor  of  his  wife  had  been  leging  it.  Marvin  v.  Marvin,  4  Keyes,  9. 
overruled  in  favor  of  a  third  person,  who  "'''Smith  v.  Smith,  60  Wis.  329,  19  N. 
liad  acquired  influence  over  him.  Darley  W.  47. 
V.  Darley,  3  Bradf.  481.  "^Middleton  v.  Sherburne,  4  Younge  & 

"-Rcyiiolds    V.    Root,    62    Barb.    250;  C.  358.     And  see  Parfitl   v.  Lau:less,  L. 

Thompson  v.   Kyner.  65   Pa.  368.  R.   2   Prob.  &  Div.   462,  41    L.   J.   Prob. 

Though  the  feeble  condition  of  a  tes-  N.  S.  68,  27  L.  T.  N.  S.  215,  21  Week, 

latrix  renders   her  more   susceptible  to  Rep.  200. 

artifice,     fraud,     and     undue     influence.  But  the  facts  that  a  person  directing 

that  condition  alone  does  not  shift  the  the  preparation  of  a  will   had  been  the 

burden  of  proof  of  undue  influence  from  testator's  attorney,  and  that  there  wore 

the  contestants.     Re  Pike,  83  Tlim,  327.  slight  discrepancies   in   the  evidence  as 

31  N.  Y.  Supp.  689.  to  execution,  are  not  material  to  affect 


§  118] 


WILLS. 


123 


sons  about  the  drawing  of  a  will  when  disinterested  persons  were  near 
at  hand,  in  connection  with  weakness  and  imbecility  incapacitating 
the  testator  from  attending  to  ordinary  business,  should  be  considered 
in  determining  as  to  the  existence  of  undue  influence.^^  And  any 
circumstances  may  be  considered  which  lead  to  the  inference  of  un- 
due influence,^^  though  tliey  must  be  such  as  to  lead  logically  to  it.^^ 
119.  Drunkenness  in  connection  with  undue  influence  and  fraud. — 
Evidence  of  intoxication  tending  to  show  testamentary  incapacity, 
though  it  may  be  insufficient  to  show  want  of  capacity  to  make  a  will, 
is  admissible,  and  to  be  considered  upon  the  question  of  undue  in- 
fluence in  procuring  it."*^  And  the  will  of  an  aged  testator  is  not  en- 
titled to  probate,  where  his  mental  capacity  was  greatly  impaired  by 
habitual  intemperance,  and  the  beneficiaries  under  it  directed  his  in- 
tentions and  controlled  his  acts.'*^      So,  a  will  prepared  by  an  attor- 


the  validity  of  the  will,  as  against  proof 
of  capacity,  volition,  and  free  agency, 
and  that  the  will  conformed  to  the  testa- 
tor's affections  and  previous  declara- 
tions. Bird  V.  Bird,  2  Hagg.  Eccl.  Rep. 
142. 

"Jenkins  v.  Tobin,  31  Ark.  306. 

^Barnes  v.  Barnes,  66  Me.  286;  Ruth- 
erford V.  Morris,  77  111.  397;  Mooney  v. 
Olscn,  22  Kan.  69;  Clark  v.  Stanshury, 
49  Md.  346;  Cadicallader  v.  West,  48 
Mo.  483 ;  Marvin  v.  Marvin,  3  Abb.  App. 
Dec.  192. 

Illicit  cohabitation  is  not  enough  of 
itself  to  raise  a  presumption  of  undue 
influence.  Rndy  v.  Vlrich,  69  Pa.  177, 
8  Am.  Rep.  238;  Wainicright's  Appeal, 
89  Pa.  220.  But  it  may  be  taken  into 
consideration  with  other  circumstances 
tending  to  produce  undue  influence. 
Dean  v.  Negley,  41  Pa.  317,  80  Am.  Dec. 
620;  Main  v.  Ryder.  84  Pa.  217;  Kes- 
singer  v.  Kessinger,  37  Ind.  341. 

^^Brick  V.  Brick,  66  N.  Y.  144;  Snyder 
V.  Sherman.  23  Hun.  139. 

And  it  is  said  that  wherever  sus- 
piciovis  circumstances,  pointing  to  undue 
influence,  exist,  it  is  due  to  the  parties 
to  frame  an  issue  for  a  jury.  Reynolds 
V.  Root,  62  Barb.  2.50. 

'"Re  Miller,  179  Pa.  645,  39  L.  R.  A. 
220.  36  Atl.  139. 

Evidence  of  the  bad  character  of 
women  who  had  combined  with  others  to 
impose  upon  a  testator  after  he  had  lost 
the  use  of  his  rational  faculties  is  ad- 
missible upon  an  issue  of  devisavit  vcl 
non,  where  it  appears  that  they  kept  him 
in  a  state  of  intoxication,  and  had  rep 
resented  each  other  to  him  as  persons  of 


virtxie  and  good  character,  and  urged 
him  to  make  a  will  in  their  favor,  to  the 
exclusion  of  his  relatives.  Nussear  v. 
Arnold,  13  Serg.  &  R.  323. 

But  declarations  made  by  a  testator 
to  the  effect  that  he  had  never  made  the 
will  in  question,  and  if  he  signed  it  they 
got  him  drniik  and  made  him  do  it,  for 
he  had  no  recollection  of  it,  are  inadmis- 
sible in  evidence  in  a  proceeding  to  in- 
validate the  will  on  the  ground  of  undue 
influence  and  unsoundness  of  mind  by 
reason  of  intoxication,  since  such  decla- 
rations are  not  evidence  of  the  truth  of 
the  facts  stated.  Gibson  v.  Gibson,  24 
Mo.  227. 

"Julke  V.  Adam,  1  Redf.  454. 

Evidence  that  a  testator  was  about 
seventy  years  old,  and  had  been  an  ha- 
bitual drunkard  for  fifty  years,  and  that 
his  appetite  for  drink  was  uncontrolla- 
ble, and  that  he  went  to  live  with  his 
brother,  a  saloon  keeper,  who  offered 
him  a  home  with  free  opportunity  to 
drink  when  and  what  he  pleased,  and 
that  the  brother  resisted  the  efforts  of 
the  testator's  guardians  to  take  him 
away,  and  that  he  had  been  drinking 
to  some  extent  on  the  day  he  made  his 
will,  -vvhich  made  such  brother  his  sole 
legatee,  warrants  a  finding  of  undue  in- 
fluence, invalidating  it.  Slinger's  Will, 
72  Wis.  22,  37  N.  W.  236. 

And  a  will  in  English,  drawn  for  a 
<Terman  who  possessed  little  familiarity 
Avith  the  English  language,  and  was  ha- 
l)it  ually  intoxicated,  l)y  his  partner,  who 
suyiervised  its  execution  and  took  sub- 
stantial benefits  under  it,  will  be  looked 
upon  by  the  court  upon  an  allegation  of 


124 


ilENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  119 


nej,  who  takes  a  large  part  of  the  estate  thereunder  to  the  exclusion 
of  the  testator's  own  family,  will  be  viewed  with  suspicion,  where  tlie 
testator  was  a  person  of  slender  capacity,  addicted  to  drink.^"  But 
the  will  of  a  person  of  intemperate  habits  will  not  be  invalidated  on 
the  ground  of  undue  influence  exercised  by  members  of  his  family, 
where  the  influence  arose  from  kind  offices  and  acts  occasioned  by 
attachment  or  affection.'*'^  And  a  will  by  a  testator  of  slender  capac- 
ity, addicted  to  drink,  giving  a  large  part  of  his  estate  to  his  attor- 
ney to  the  exclusion  of  a  son  and  heir,  is  valid,  where  a  complete 
alienation  appears  between  him  and  his  son.^*  And  the  mere  fact 
that  a  testator  had  become  weak  in  will  and  impaired  in  memory,  and 
was,  therefore,  an  easy  prey  to  fraud,  will  not  warrant  setting  aside 
his  will,  in  the  absence  of  anything  to  show"  fraud."*^ 

120.  Instructions,  knowledge,  and  intent. —  Where  the  capacity  of 
a  testator  is  doubtful  at  the  time  of  the  execution  of  his  will,  proof  of 
instruction  or  of  knowledge  of  its  contents,  and  of  his  intent  to  make 
the  disposition  therein  provided  for,  is  generally  necessary,'*^  particu- 
larly where  the  will  is  drawn  or  procured  through  an  agent  or  the 
principal  legatee  or  a  party  interested.^'^     And  a  codicil  varying  from 


fraud  or  undue  influence  as  an  indica- 
tion of  fraud,  and  will  at  least  induce  a 
suspicious  scrutinj",  if  it  is  not  sufficient 
to  raise  a  presumption  against  the  in- 
slruiiient.  Koccjcl  v.  Egner,  54  N.  J. 
Eq.  623,  35  Atl.  394. 

*-Barry  v.  Butli/ii,  2  Moore  P.  C.  C. 
482. 

In  M'Diarmid  v.  M'Diarmid,  3  Bligh 
N.  R.  374,  a  deed  by  an  old  man  eightj'- 
tliree  years  old,  by  which  he  relinquished 
his  interest  in  a  fund  of  £6,000,  assign- 
ing it  to  his  daughter  and  her  husband, 
to  whom  the  reversion  belonged,  in  con- 
sideration of  an  annuity  of  £40  a  year 
for  life  and  his  finieral  expenses,  was 
held  to  be  void  upon  evidence  that  he 
was  weak  and  infinn  and  addicted  to  in- 
toxication, and  that  the  deed  was  drawn 
by  agents  of  the  daughter  and  her  hus- 
band, and  that  no  one  was  employed  on 
the  part  of  the  father. 

*^Re  Johnson,  7  Misc.  220,  27  N.  Y. 
Supp.  640;  (lardner  v.  (lanhxer,  22 
WcwiX.  Ti-H\.  :!4  Am.  Dee.  340. 

"Harry  v.  Ihitlin,  2  Moore  P.  C.  C. 
482. 

So,  a  will  in  favor  of  a  legatee  who 
had  treated  the  testator  kindly  and  had 
furnished  him  with  a  home  and  cared 
for  him,  which  he  declared  conformed 
with  his  wishes,  will  not  be  denied  pro- 


bate upon  the  ground  of  mental  incapac- 
ity and  undue  influence,  upon  proof  that 
he  was  addicted  to  drink  and  had  been 
found  an  habitual  drunkard,  and  had 
been  such  for  two  years,  and  had  been 
committed  to  the  penitentiary  for  drunk- 
enness, where  a  similar  will  had  pre- 
viously been  made,  and  the. persons  who 
otherwise  would  have  been  entitled  to 
his  bounty  had  attempted  to  restrain  his 
appetite  for  liquor,  and  had  refused  him 
admission  into  their  homes.  Re  Reed,  2 
Connolv,  403,  20  N.  Y.  Supp.  91. 

''"Re  "storey,  20  III.  App.  183. 

^"MeSorley  v.  McHorley,  2  Bradf.  188; 
Hyatt  v.  Lunnin,  1  Dem.  14;  Moicry  v. 
Silber,  2  Bradf.  133;'  Tomkins  v.  Tom- 
kins,  1  Bail.  L.  92,  19  Am.  Dec.  (i.oG; 
Key  V.  HoUonay,  7  Baxt.  576;  Billing- 
hurst  v.  Vickcrs,  1  Pliillim.  Eccl.  Rep. 
199.  And  sec  Burger  v.  Hill,  1  Bradf. 
360. 

^'Rcnn  V.  Snmos,  33  Tex.  760;  Billing- 
hnrst  V.  ^'ickers,  1  Phillim.  Eccl.  Rep. 
199:  Mitchell  v.  Thomas,  G  :Moore  P.  C. 
C.  137,  12  Jur.  967,  5  Notes  of  Cases, 
(100;  Muelccnzie  v.  Handasydc.  2  Hagg. 
Eccl.  Rep.  211.  And  see  Wilson  v. 
Mitchell,   101    Pa.  405. 

But  a  will  may  be  established  by  evi- 
dence oilier  than  of  instructions  a/Tect- 
ing  its  execution,  though  the  testator's 


8   120]  WILLS.  125 

the  original  will  to  the  advantage  of  the  drawer,  executed  when  tlie 
testator's  capacity  was  doubtful,  will  only  be  admitted  on  proof  of 
knowledge  of  its  contents."*^  The  presumption  of  law  is  against  a 
will  made  by  a  testator  of  uncertain  capacity,  which  was  prepared 
by  a  legatee,  in  his  own  favor;  and  the  burden  of  overcoming  the 
presumption  rests  with  the  party  claiming  under  it.^^  And  proof  of 
knowledge  of  contents  and  approval,  to  meet  and  overcome  the  burden 
thus  imposed,  must  be  strong  and  satisfactory.^^  Mere  proof  of  the 
execution  is  not  sufficient;  there  must  also  be  proof  of  free  will,^^  and 
of  soundness  of  mind,^^  and  knowledge  of  the  contents.''"^  A  will  in 
accordance  with  the  previous  intentions,  however,  will  be  admitted 
to  probate  though  prepared  witliout  instructions,  by  an  interested 
party,  and  not  read  to  the  testator,  and  though  made  in  favor  of  a 
stranger.^*  And  the  presumption  arising  where  a  strauger  prepares 
a  will  under  which  he  receives  a  large  legacy  does  not  apply  where 
the  party  preparing  it  was  a  near  relative,  who  would  have  inherited 
a  large  portion  of  the  estate  had  the  testator  died  intestate.^^  No 
definite  rule  as  to  the  amount  of  mental  incapacity  which  will  impose 
the  duty  of  explanation  upon  a  beneficiary  can  be  laid  down.-'^°  This 
must  be  governed  bj^  the  character  and  circumstances  of  each  particu- 
lar case.^^  And  proof  of  knowledge  of  contents  of  a  will,  and  of  in- 
capacity was  doubtful  and  tho  will  was  '^''Caldtoell  v.  Anderson,  104  Pa.  100; 
drawn  by  a  person  taking'  an  interest  Brogden  v.  Brown,  2  Addnms  Eccl.  Rep.} 
under  it.  Davis  v.  Rogers,  1  Houst.  441 ;  Reece  v.  Presses/,  2  Jur.  N.  S.  380. 
(Del.)   44.  And   see   Cramer  v.   Crumbaugh,  3  Md. 

*^Mitc}ieU  V.  Tliomas,  6  Moore,  P.  C.    401 ;  Bonner  v.  Matthews,  cited  in  Shel- 
0.   137,   12  Jur.  0G7,  5  Notes  of  Cases,    ford  on  Lunatics,  327. 
600.  ^'Yardley  v.  Cuthbertson,  108  Pa.  395, 

"^Hnrrey  v.  Mullens,  46  Mo.  147,  2  Am.  56  Am.  B-).  218,  1  Atl.  765. 
Rep.  401;  Whelpleij  v.  Lodcr,  1  Dem.  "Trivial  and  inconsequent  declara- 
368;  Weir  v.  Fitzgerald,  2  Bradf.  42;  tions  of  a  testator,  and  sligbt  evidence 
Gomhaiilt  v.  Public  Administrator,  4  of  mental  impairment,  do  not  establisii 
Bradf.  220;  Moicry  v.  Silber,  2  Bradf.  theoperation  of  undue  influence  upon  him 
12S;  Caldwell  V.  Anderson,  IQi  Va.  \d?):  in  making  his  will,  as  against  over- 
Cuthbertson's  Appeal,  97  Pa.  163;  Croft  whelming  evidence  that  he  retained  busi- 
V.  Dag,  1  Curt.  Eccl.  Rep.  782;  Barry  v.  ness  capacity,  especially  where  such  dec- 
Butlin,  1  Curt.  Eccl.  Rep.  637.  larations  were  made  several  years  after 

'^"McKniqht    v.    Wrir/ht,    12    Rich.    L.   the  will  was  executed,     flersier  v.  Hers- 
232:   McDaniel  v.  Crosby,  19  Ark.  533;    ter,  122  Pa.  239,  9  Am.  St.  Rep.  95,  16 
Bntlin  v.  Barry,  1  Curt.  Eccl.  Rep.  614;    Atl.  342. 
Burn  ell  v.  Cor  field,  8  Jur.  915.  But    knowledge   upon    the   part    of   a 

"Breed  v.  Pratt,  18  Pick.  115;  Bo%jd  testator  of  the  contents  of  his  will,  and 
V.  Boyd,  66  Pa.  283;  McKnight  v.  assent  to  its  provisions,  are  not  estab- 
Wright,  12  Rich.  L.  232.  lished    so   as   to   uphold    it   by    evidence 

^-Morrison  v.  Smith,  3  Bradf.  209.  that    he    intended    that    what    was    left 

'^^Yardley  v.  Cuthbertson,  108  Pa.  395,  after  three  annuities  were  provided  for 
56  Am.  Rep.  218.  1  Atl.  765;  Breed  v.  should  go  to  the  executors  as  therein 
PraAt,   18  Pick.   115.  provided,  where  he  believed  this  to  be  a 

^*Ooodacre  v.  Smith,  15  Week.  Rep.  small  amount,  when  in  reality  it  was 
661.  36  L.  J.  Prob:  N.  R.  43.  L.  R.  1  large.  Durling  v.  Lovcland,^  2  Curt. 
Prob.  &  Div.  359,  15  L.  T.  N.  S.  511.         Eccl.  Rep.  225. 


126  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  120 

tention  to  make  it,  may  be  made  either  by  the  subscribing  witnesses  or 
other  persons.^^  So,  the  nature,  as  to  simplicity  or  complexity,  of  a 
will,  is  material  to  be  considered  on  the  question  of  the  knowledge  of 
the  testator  of  its  contents,  where  his  capacity  is  questioned,  and  the 
party  who  drew  it  took  a  benefit  under  it.^® 

121.  Knowledge  of  contents  in  case  of  drunkenness. —  Proof  that  a 
testator  knew  the  contents  of  his  will  is  also  imperatively  demanded 
where  it  appears  that  his  mental  faculties  were  seriously  impaired  by 
the  use  of  drink  and  opiates,  and  there  is  nothing  to  show  that  he  had 
anything  to  do  Avith  its  preparation,  or  ever  read  it  or  heard  it  read.*'^ 

122.  Ratification  or  subsequent  recognition. —  A  subsequent  recog- 
nition by  a  testator,  either  in  conversation  or  action,  of  his  will,  affords 
strong  evidence  of  consciousness  and  mental  capacity,  and  of  the  ab- 
sense  of  imposition  at  the  time  it  was  made.^^  And  where  a  codicil 
is  added  to  a  will  the  will  is  to  be  regarded  as  valid  if  the  testator 
had  testamentary  capacity  at  the  time  of  the  execution  of  the  codicil, 
without  reference  to  his  condition  at  the  time  of  making  the  original 
AAall."^  But  if  a  person  v/ho  places  a  holographic  will  among  his  pa- 
pers was  insane  at  the  time,  it  would  require  clear  proof  of  retaining 
it  there  during  a  lucid  interval  with  knowledge  of  the  facts,  to  give 
effect  to  it  as  a  valid  disposition  of  his  property,  and  its  mere  retention 
during  a  period  when  he  was  of  disposing  mind  is  not  conclusive.®^ 

f.  Old  age. 

123.  Old  age  does  not  per  se  incapacitate. —  Testamentary  incapac- 
ity does  not  necessarily  presuppose  the  existence  of  insanity,  in  its 
technical  sense.  Weakness  of  intellect  from  extreme  old  age,  whether 
arising  from  great  bodily  infirmity  or  from  intemperance,  when  it 
disqualifies  the  testator  from  knowing  or  appreciating  the  nature, 
effect,  or  consequences  of  the  act  he  is  engaged  in,  works  a  similar 
disability.^^     But  extreme  age  on  tlie  part  of  a  testator  is  not  alone 

'*Keii  V.  EoUoicay,  7  Baxt.  576.  presumption   that  it  was  not  procured 

So,    knowledjje   of   the    contents    of    a  againpt   the   testator's   consent,   whether 

will  by  the  testator  may  be  established  fraud,  undue  influence,  or  mental  inca- 

by  evidence  of  knowledge  and  assent  to  pacity  is   set   up.     Pierce  v.   Pierce,  38 

the  disposition  contained  in  it;  proof  of  Mich.  412. 

instructions  or  of  reading  it  over  is  not  '^-Broicn  v.  Rifigin,  94  111.  560. 

indispensable.      McNinch   v.    Charles,   2  ^^Poricr  v.  CampheJl.  2  Baxt.  81. 

Rich.  L.  229.  "'Leech  v.  Leech.  21   Pa.  67.     See,  in 

^"Diirncll  V.  Corfiehl,  8  Jur.  915.  this    connection.    Dr.    Day's    "Practical 

*^Burritt   v.    SUliman,    IG    Barb.    198;  Treatise  on  the  Domestic  Management  of 

Durling  v.  Loveland,  2  Curt.  Eccl.  Rep.  the    Most    Important    Diseases    of    Ad- 

22.5.  vanced  Life."     T.  &  W.  Boome,  London, 

""Jones  V.  Harris,  3  Rich.  L.  14.  1849. 
Keeping   a    will    uncanceled    raises    a 


§   123]  WILLS.  127 

sufficient  to  prove  incapacity  to  make  a  will,^^  and  raises  no  presump- 
tion against  capacity.^*^  Great  caution,  indeed,  should  be  lased,  lest 
the  existence  of  extreme  old  age  should  lead  the  medical  witness  to 
presume  consequent  imbecility.  Against  such  a  sequence  the  policy 
of  tlie  law  and  the  interests  of  humanity  unite  in  protesting.  The  will 
of  an  aged  man  ought  to  be  regarded  with  great  tenderness  when  it 
appears  not  to  have  been  procured  by  fraudulent  acts,  but  contains 
those  very  dispositions  which  the  circumstances  of  his  situation  and 
the  course  of  tlie  natural  affections  dictated.*''' 

124.  So  of  partial  loss  of  faculties. — In  harmony  with  these  views, 
wills  have  been  sustained  when  the  testator  was  eighty  years  of  age, 
very  deaf,  and  partially  blind  f^  where  he  was  of  the  same  age,  and 
was  afflicted  with  a  palsy,  so  that  he  could  neither  write  nor  feed  him- 
self ;^^  and  when  he  was  between  ninety  and  a  hundred,  and  greatly 
debilitated.'^'^  Probate  will  not  be  refused  because  the  powers  of  a 
man's  mind  were  somewhat  impaired  by  age,  in  the  absence  of  traces 
of  fraud,  where  the  provisions  of  the  will  are  consonant  with  the  state 
of  the  testator's  affections;''^  or  where  it  was  plain  that  the  testator 

^Spencer  v.  Moore,  4  Call   (Va. )  423;  must  otherwise  be  made  acquainted  with 

Balcer  v.  Baker,  202  111.  595,  07   N.  E.  its    contents.      Fincliam   v.    Edicards,   3 

410;    RiJei)   v.   Shernood,    144   Mo.   354,  Curt.  Eccl.  Rep.  63;  Barton  v.  Robins, 

45  S.  W.  1077;  Lingle  v.  Lijigle  (Iowa)  3  Thillim.  Eccl.  Rep.  442,  note. 

9fi  N.  W.   708;    Van  Alst  v.  Hunter,  5  But  a   blind  man's  will   need  not  be 

•Johns.   Ch.    148;    Maverick  v.  Reynolds,  read  over  to  him  in  the  presence  of  the 

2  Bradf.  260;  Re  Iredale,  53  App.  Div,  witnesses  thereto.     Longchamp  ex  dem. 

45,   65  N.  Y.  Supp.  533 ;   Re  Journeay.  Goodfelloio  v.  Fish,  2   Bos.  &  P.  N.  R. 

80  Hun.  31.5,  30  N.  Y.  Supp.  80;   Kerr  415,  9  Revised  Rep.  670. 

V.  Lunsford,  31  W.  Va.  680,  2  L.  R.  A.  And  it  is  sufficient  if  the  jury  is  satis- 

rt68,  8  S.  E.  493;  Nicholas  v.  Kershner.  fied  by  other  means  that  it  was  his  will. 

20  W.  Va.  251.                                              '  Clifton  v.   Murray,  7   Ga.   564,   50  Am. 

^Bleecker    v.    Lynch,    1    Bradf.    458;  Dec.  411. 

Cormrcll  v.  Riker,  2  Dem.  354;  Horn  v.  ^"Reed's  Will,  2  B.  Mon.  79. 

^ullman,  72  N.  Y.  269;  Re  Otis,  1  Misc.  '"Van   Alst    v.    Hunter,   5   Johns.    Ch. 

258,  22  N.  Y.  Supp.  1060;  Re  Rohe,  22  148.     See  Collins  v.  Townley,  21  N.  J. 

Misc.  415,  50  N.  Y.  Supp.  392;  Re  Folts,  Eq.  353. 

71  Hun,  492.  24  N.  Y.  Supp.   1052;   Re  ''Carroll  v.  Norton,  3  Bradf.  291;  Re 

Drake,  45  App.  Div.  206,  60  N.  Y.  Supp.  Blalcer,  27  Week.  Dig.  486;  Re  Wheeler, 

1020:  Re  Dixon,  42  App.  Div.  481,  59  N.  5  Misc.  279,  25  N.  Y.  Supp.  313:  Collins 

Y.  Supp.  421;  Stevenson  v.  Kingsley,  8  v.  Tou-nley,  21  N.  J.  Eq.  353;  Lyons  v. 

Pa.  Dist.  R.  245.  Van  Riper,  26  N".  J.  Eq.  337. 

''Van  Alst  v.  Hunter,  5  .Johns.  Ch.  148.  The  fact  that  a  testator  was  seventy 

^^Lowe  v.  Williamso?},  2  N.  J.  Eq.  82;  years  old  and  had  had  an  epileptic  at- 

Davis    V.    Rogers,   1   Houst.    (Del.)    44;  tack  a  few  days  before  making  his  will 

Ray  V.  Hill,  3   Strobh.  L.  297,  49  Am.  does  not  invalidate  it  as  against  evidence 

Dec.  647.  that  he  was  able  to  recognize  his  attend- 

Blindness,  however,  or  other  ineapac-  ants   and   visitors    and    remembered   the 

•ty  which  renders  the  testator  unable  to  existence  of  a  former  will,  and  conversed 

icad  his  will,  shifts  the  burden  of  proof  intelligently  with   reference  to  the  new 

of   capacity  to   the   proponent.     Day  v.  one,   and   expressed   satisfaction   with   it 

Dai/,  3  N.  J.  Eq.  549.  wlien  read  over  to  him.     Harris  v.  Bet- 

And  to  sustain  the  will  of  a  blind  tes-  son,  28  N.  J.  Eq.  213. 

tator  it  must  be  read  over  to  him  or  he  And  evidence  that  a  testator  was  ex- 


128  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  124 

understood  the  mil  and  knew  the  disposition  he  was  making.'^  And 
old  age  combined  with  declining  health  and  failing  memoryj^  or  with 
defective  eyesight,  hearing,  and  memorj,'^^  or  the  fact  that  an  aged 
person  is  forgetful  and  at  times  labors  under  slight  delusions,^^  doe.s 
not  per  se  establish  want  of  testamentary  capacity. 

125.  And  bodily  infirmities.— The  same  view  is  to  be  taken  of  the 
bodily  infirmities  peculiar  to  old  age.  If  they  produce  mental 
impotence,  of  course  they  work  incapacity."^ ^  But  their  mere  existence 
will  not  be  sufficient  to  produce  this  result,'^ "^  though  the  disposition 

citable  and  sickly,  and  went  into  fits  of  when  he  had   previously    been    prompt 

passion  on  slight  provocation,  and  dis-  and    particular   in   the   payment   of   his 

played    many    symptoms   of   a    diseased  debts,  has  no  tendency  to  prove  him  in- 

mind,  will  not  invalidate  a  will  accord-  sane.     Eraser  v.  Jennison,  42  Mich.  206, 

ing  with   previous  affections  and  inten-  3  N.  W.  882. 

tions.     Re  Mac-pherson,  1  Connoly,  223,  ''*Napflc's  Estate,  134  Pa.  494,  19  Atl. 

4  N.  Y.  Supp.   181.     And  see  Blakely's  679;  McEadinv.  Catron,  138  Mo.  197,  38 

Will,  48  Wis.  294,  4  N.  W.  337.  S.  VV.  732.  39  S.  W.  771;  Gash  v.  Lust, 

"Ke  Snellinfi,  44  N.  Y.  S.  R.  477,  17  142  Mo.   630,  64  Am.  St.  Rep.  576,  44 

N.  Y.  Supp.  683;  Lawrence  y.  Lawrence,  S.  W.  742. 

4  N.   Y.   Week.  Dig.   299 ;    Chrisman  v.  So,  evidence  of  age  and  impaired  eye- 

Chrisman,  16  Or.  127,  18  Pac.  6;  Wood-  sight,  and  attacks  of  vertigo,  attended 

fall's    Will,    7    Phila.    528;     Taylor    v.  by    brief    unconsciousness    and    loss    of 

Kelly,   31    Ala.    59,    68    Am.    Dec.    150;  memory    and    physical    exhaustion,   and 

Lodge  v.   Lodge,  2   Houst.    (Del.)    419;  the  fact  that   the  testator  had   surren- 

Riley  v.  Sherwood,  144  Mo.  354,  45  S.  dered   most   of   his   business   into   other 

W.    1077.      And    see    Re    Bartholick,    1  hands,    ^v^ll     not     invalidate     his     will, 

Connoly.  373,  5  N.  Y.  Supp.  842;   Rig-  where  it  appears  that  he  still  transacted 

gin  V.  Westminster  College,  160  Mo.  570,  business,    and    was   able   to   understand 

61  S.  W.  803.  what  he  was  doing.     Re  Soule,   1  Con- 

Tho  fact  that  a  testator  was  of  weak  noly,  18.  3  N.  Y.  Supp.  259. 

understanding  is  not  alone  sufficient  to  ''^Children's  Aid  Soc.  v.  Loveridge,  70 

require  the  courts  to  examine  into  the  N.  Y.  387;  Re  Eolts,  71  Hun,  492,  24  N. 

wisdom  or  prudence  of  the  dispositions  Y.   Supp.   1052;   Oilman  v.  Ayer    (N.  J. 

in  his  will.     Hill  v.  Iflash,  41  Me.  585,  Eq.)   47  Atl.  1049,  Affirmed  in  63  N.  J. 

(')6  Am.  Dec.  266.  Eq.  806,  52  Atl.  1131;  Merrill  v.  Rush, 

'''Clarke  v.  Davis,  1  Redf.  249;  Re  33  N.  J.  Eq.  537. 
Stewart,  36  N.  Y.  S.  R.  56,  13  N.  Y.  And  evidence  that  a  testatrix  was  il- 
Supp.  219;  Creely  v.  Ostrander,  3  Bradf.  literate,  penurious,  and  eccentric,  violent 
107 ;  M'atson  v.  Donnelly,  28  Barb.  653 ;  and  slatternly  in  her  household  duties 
/''oic's  Estate,  147  Pa.  264,  23  Atl.  447;  and  dress,  and  that  she  at  times,  upon 
Montague  v.  Allan,  78  Va.  592.  49  Am.  losing  her  temper,  appeared  to  be  irra- 
Rep.  384;  Prcntis  v.  Bates,  88  Mich,  tional,  and  that  she  drove  away  callers 
567,  50  N.  W.  637;  Re  Eddy,  32  N.  J.  and  grocers' boys  delivering  her  supplies, 
Eq.  701.  And  see  Martin  v.  Thayer,  37  and  was  uncivil  and  profane,  and  mut- 
W.  Va.  38,  16  S.  E.  489;  Jackson  v.  tered  to  herself,  and  kept  chickens  in 
Hardin,  83  Mo.  175.  her  house,  and  occasionally  got  intoxi- 
And  the  omission  by  a  testator  of  the  cated,  does  not  show  inability  to  man- 
name  of  one  of  his  eleven  children  in  age  her  property,  or  incompetency  to 
giving  instructions  for  his  will,  and  mis-  mnke  a  will.  Re  Murphy,  41  App.  Div. 
takes  in  the  names  of  some  of  the  others,  153.  58  N.  Y.  Supp.  450. 
are  not  sufficient  evidence  of  testamen-  '"'■Harvey  v.  Sullcns,  46  Mo.  147,  2  Am. 
tarv  incapacity.     Re  Wintermute,  27  N.    Rep.  491. 

•J.  Eq.  447.  ''Re    Vanauken,    10    N.    J.    Eq.    186; 

And  the  fact  that  two  of  the  trustees    O'Connor  v.  Madison,  98  Mich.   183,  57 

of    a    testator    presented    a    large    bill    N.  W.  105;  Linolc  v.  Lingle   (Iowa)   96 

against  his  estate  for  services  performed,    N.  W.  708;   Re  Murphy,  41   App.  Div. 


$   125]  WILLS.  129 

was  unequal.'^'  As  long  as  it  can  be  clone  consistently  witli  public 
justice,  the  policy  of  the  law  requires  that  the  protection  to  old  a^e, 
afforded  by  the  right  of  testamentary  disposal,  should  continue  un- 
impaired; and  it  is  permitted  to  cease  only  when  actual  \vrong  would 
be  done  to  third  parties  by  its  continuance,  or  where,  by  exposing  the 
possessor  to  undue  solicitation  or  to  imposition,  it  proves  an  annoyance 
rather  than  an  advantage.  And  the  fact  that  a  testator  was  a  man  of 
advanced  years,  or  feeble  in  body  or  mind  at  the  time  of  the  execution 
of  his  will,  raises  no  presumption  against  its  validity.'''^ 

12(v.  Excessive  failure  of  memory  invalidates. — A  will  made  by  a 
testator  of  great  age  and  impaired  mind  and  memory,  however,  ought 
not  to  be  sustained,  imless  it  appears  that  the  disposition  emanated 
from  free  will,  without  the  interposition  of  others,  and  accorded  with 
intentions  previously  expressed  or  implied  from  family  relations.^* 
And. failure  of  memory  which  includes  the  testator's  estate  and  the 
objects  of  his  bounty  establishes  incapacity.^^ 

127.  And  senile  dread  of  relatives. — It  is  also  to  be  observed  that  a 
party  in  extreme  old  age  may  fall  under  the  subjection  of  relatives  or 
attendants  to  such  an  extent  as  to  deprive  him  of  freedom  of  volition. 
His  mind  may  be  quite  intelligent,  his  understanding  of  business 
clear,  his  competency  to  converse  upon  and  transact  [business]  un- 
doubted, and  his  bodily  strength  good ;  but  there  may  grow  upon  him 
such  a  fear  and  dread  of  relatives  or  servants  who  may  have  surround- 
ed him,  and  on  whom  he  may  have  become  perfectly  dependent,  so  that 
his  nervous  system  is  wholly  overcome,  and  he  has  no  power  to  exert 
liis  mind  in  opposition  to  their  wishes,  or  to  resist  their  importunities. 

1.5.'>,  58  N.  Y.   Supp.  450;   Re  Birdsall,  consistent    with    testamentary    capacity 

2  Connoly,  433,  13  N.  Y.  Supp.  421.  is   objectionable   where   no   reference    i'a 

~'*Kise  V.  Heath,  33  N.  J.  Eq.  239.  made   to   the   signficance   of   such    facts 

"72e  Drake.  45  App.  Div.  206,  60  N.  Y.  as  evidence,  as  constituting,  in  effect,  a 

Supp.  1020;  /ie  Diajon,  42  App.  Div.  481,  withdrawal   of   such   evidence   from   the 

59  N.  Y.  Supp.  421.  consideration  of  the  jury.     Richmond'a 

^"Re  Ames,  51  Iowa,  596,  2  N.  W.  408.  Appeal,  59  Conn.  226,  21  Am.  St.  Rep. 

And  see  Jones  v.  Goodrich.  5  Moore  P.  85,  22  Atl.  82. 

C.  C.  16;   Re  Soden,  38  Misc.  25,  76  N.        But  while  the  fact  that  after  receiv- 

Y.  Supp.  877.  ing  an  injury  a  testator  became  forgef- 

"  See  Gait  v.  Provan,  108  Iowa,  561,  ful  of  neighbors  and  friends,  and  wept 

79   N.   W.   357;    Uoslcins  v.   Hoskins,  9  upon  being  informed  who  they  were,  in- 

Ky.  L.  Rep.  915,  7  S.  W.  546;  Z)i(TOO)ifZ  dicates  a  iccMe  intellect,  and  ia  strong 

V.  Kift,  7  Lans.  465;  Aijhcard  v.  Briggs,  evidence     of     mental     disability     wheii 

145  AIo.   604,  47   S.   W.  510;   Langley's  standing   alone,    it   is   also   evidence   of 

Estate   (Cal.)   73  Pac.  824.  nervous  excitement,  and  will  not  inval- 

And  an  instruction  in  a  will  contest  idate  a  will  sustained  by  proof  that  the 
that  great  physical  weakness  or  disease,  testator  not  only  understood  the  matters 
old  age,  eccentricity,  blunted  perception,  of  business  he  transacted,  but  also  re- 
weakened  judgment,  and  failing  mem-  membered  them.  Reynolds  v.  Root,  62 
ory  or  mind  are  not  necessarily  in-  Rarb.  256. 
Vol.  I.  Med.  Juk. — 9. 


i;jo 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   127 


His  mind  is  enslaved  by  his  fears  and  a  feeling  of  helplessness,  so  that, 
to  tliat  extent,  and  in  matters  in  which  he  may  be  moved  by  them,  hi; 
really  is  facile  and  imbecile.  This  state  of  things  seems  to  be  easily 
brought  on  in  old  age,  when  the  faculties  are  otherwise  entire,  and  the 
bodily  strength  considerable.^- 

g.  Physical  condition. 

128.  Mere  weakness  and  its  effects. —  Mere  physical  weakness  on  the 
part  of  a  testator  is  not  evidence  of  testamentary  incapacity,^'*  though 
death  is  near;^*  and  a  diseased  bodily  condition  on  his  part  is  not  en- 
titled to  weight  imless  the  bequests  are  extravagant,  or  widely  different 
from  those  Vv^hich  the  situation  of  the  testator  and  of  his  family  would 
warrant,''^  or  unless  there  Avere  some  actual  manifestations  of  irration- 
ality.^^    And  this  is  the  rule  thotigh  the  physical  weakness  is  accom- 


*^  See  2  Taylor,  Principles  of  Med.  Jur. 
2d  ed.   (1873)   558. 

J^'orgetfulness  upon  the  part  of  a  tes- 
tator, together  with  the  fact  that  he 
ivas  under  the  influence  of  a  colored 
woman  whom  he  had  emancipated,  yield- 
ing implicitly  to  all  her  wishes,  and  had 
lost  all  regard  for  the  dictates  of  natural 
affection,  furnish  evidence  tending  to 
show  testamentary  incapacity.  Denton 
V.  Franklin,  9  B.  Mon.  28. 

"Hiice  V.  Rice,  50  Mich.  448,  15  N.  W. 
545,  53  Mich.  432,  19  N.  W.  132;  Stout- 
enbiirgh  v.  Hopkins,  43  N.  J.  Eq.  577, 
12  Atl.  689;  Kimball  v.  Cuddy,  117  111. 
213,  7  N.  E.  589;  Re  Patterson,  26  Abb. 
N.  C.  425,  13  N.  Y.  Supp.  463;  Re  Pike, 
83  Hun,  327,  31  N.  Y.  Supp.  089; 
Doyle's  Estate,  7  Pa.  Co.  Ct.  657; 
Thompson  v.  Kijner,  05  Pa.  368;  Berry 
Will  Case,  93  Md.  560,  49  Atl.  401. 

VAhc-re  the  lack  of  ability  upon  the 
part  of  a.  testator,  at  the  time  of  the 
execution  of  his  will,  to  speak  plainly 
and  to  discharge  the  duties  in  connec- 
tion with  the  execution  of  the  instru- 
ment that  testators  usually  perform,  is 
due  to  illness,  the  question  which  should 
be  passed  upon  in  the  contest  of  the 
will  is  whether  he  was  so  far  gone  with 
his  illness,  or  suffering  such  pain  and 
disquietude  therefrom,  that  he  did  not 
properly  comprehend  what  he  was  doing, 
and  act  inteUigently  upon  the  subject. 
Re  McGraio,  9  App.  Div.  372,  41  N.  Y. 
Supp.  481. 

And  the  facts  that  a  testator  was  at 
times  of  an  irascible  disposition,  whicli 
was  increased  in  the  latter  part  of  his 
life  by  excessive  drinking,  and  that  at 


the  time  his  will  was  executed  he  was  in 
a  feeble  condition,  do  not  show  testamen- 
tary incapacity,  as  against  proof  that  he 
closed  a  real  estate  deal  that  had  been 
running  for  months,  on  the  day  before 
he  died.  Re  Woolsey,  17  Misc.  547,  41 
N.  Y.  Supp.  203. 

^*.Jackson  v.  Jackson,  39  N.  Y.  153; 
Re  Connor,  27  N.  Y.  S.  R.  905,  7  N.  Y. 
Supp.  855;  Re  Patterson,  26  Abb.  N.  C. 
395,  13  N.  Y.  Supp.  463;  Arjres  v.  Ayres, 
43  N.  J.  Eq.  505,  12  Atl.  621. 

And  though  the  testator  was  without 
moral  nature  or  natural  affection.  Re 
(iorkow,  20  Wash.  563,  56  Pac.  385. 

^"■Clarke  v.  Sawyer,  3  Sandf.  Ch.  352, 
Reversed  on  other  grounds,  2  N.  Y.  498 ; 
Re  Rohe,  22  Misc.  415,  50  N.  Y.  Supp. 
392;  Re  Lacy,  35  Misc.  581,  71  N.  Y. 
Supp.  1129;  Houard's  Will,  5  T,  B. 
Mon.  199,  17  Am.  Dec.  60;  Spellier's  Es- 
tate, 2  Pa.  Dist.  R.  513. 

Evidence  that  a  testator  had  a  sore 
leg  has  no  tendency  to  disqualify  him 
from  making  a  will.  Thomas  v.  Stump, 
62  Mo.  275. 

And  declarations  by  a  dyspeptic  that 
he  had  no  stomach  do  not  furnish  evi- 
dence of  testamentary  incapacity.  Pren- 
tis  V.  Bates,  88  Mich.  567,  50  N.  W.  637, 
Affirmed  in  93  Mich.  234,  17  L.  R.  A. 
494,  53  N.  W.  153. 

And  proof  of  drowsiness  and  that  the 
testator  appeared  delirious  a  day  or  two 
before  making  a  change  in  his  will  are 
not  suflicient  to  establish  incompetency 
to  make  such  change.  Jackson  v.  Har- 
din, 83  Mo.  75. 

'"La  Ban  v.  Yanderhilt.  3  Bedf.  382; 
Re   Hamilton,   29   Misc.   724,   62   N.   Y. 


§  128] 


WILLS. 


131 


panied  by  nervousness  and  its  effects,  interfering  with  the  transaction 
of  complicated  business  ;^'^  or  by  disease  which  might  or  might  not 
cause  insanity  ;^^  or  by  great  pain,^®  or  temporary  lapses  of  under- 


Supp.  820;  Wood  v.  Carpenter,  166 
Mo.  465,  66  S.  W.  172;  McMaster  v. 
Scrircn,  85  Wis.  162,  39  Am.  St.  Rep. 
828,  55  N.  W.  149.  And  see  Lennig's 
Estate,  4  la.  Dist.  R.  94. 

And  a  natural  will  for  which  the  tes- 
tator was  able  to  give  instruction  and 
the  execution  of  which  he  was  able  to 
complete  will  not  be  invalidated  on  the 
testimony  of  medical  experts,  based  upon 
anterior  observation,  that  he  was  very 
sick  and  could  not  have  been  competent. 
Re  Connor,  27  N.  Y.  S.  R.  905,  7  N.  Y. 
Supp.  855. 

"Hohan  v.  Campau,  52  Mich.  346,  17 
N.  W.  797;  Kearney's  Estate,  148  Pa. 
218,  23  Atl.  1058;  Linton's  Appeal,  104 
Pa.  228;  Kinleside  v.  Harrison,  2  Phil- 
lim.  Eccl.  Rep.  449. 

And  evidence  of  frequent  sleeplessness 
and  flightiness  or  violent  outbursts  of 
passion  from  the  use  of  intoxicating 
liquors  and  narcotics  does  not  show  tes- 
tamentary incapacity.  McCttllough's 
Will.  35  Pittsb.  L.  J.  169,  Affirmed  in 
Keating's  Appeal,  36  Pittsb.  L.  J.  283. 

"'  Paralysis,  however  universal,  does 
not  necessarily  show  absence  of  testa- 
mentary capacity,  since  it  does  not  al- 
ways afreet  the  mind  equally  with  the 
body.  M'DamvVs  Will.  2  J.  J.  Marsh. 
331":  Rothrock  v.  Rothrock,  22  Or.  551, 
30  Pac.  453.  And  see  Gatlei/'s  Estate, 
4  Pa.  Dist.  R.  52;  Re  King,  29'Misc.  268, 
61  N.  Y.  Supp.  23S;  Rundell  v.  Doim- 
ing,  5  N.  Y.  S.  R.  253. 

And  proof  of  general  paresis  and  that 
the  testator  had  become  confined  in  an 
asylum  does  not  invalidate  his  will  as 
agninst  evidence  of  entire  business  ca- 
pacity. Re  Kiedaisch,  2  Connoly,  438,  13 
N.  Y.  Supp.  255. 

As  to  paresis,  see  also  Re  Cruger,  36 
Misc.  477,  73  N.  Y.  Supp.  812. 

And  testimony  that  a  testator  was  af- 
fected by  a  disease  of  the  brain,  produc- 
ing occasional  convulsions  and  partial 
paralysis,  and  that  he  had  two  such  con- 
vulsions while  he  was  dictating  his  will, 
is  not  sufficient  to  invalidate  it,  where 
they  are  not  shown  to  have  had  any 
eflect  upon  his  mind.  Parramore  v.  Tay- 
lor, 11  Gratt.  220. 

And  the  evidence  of  physicians  that 
the  invariable  effects  of  a  disease  with 
which  a  testator  was  afflicted  was  to  pro- 


duce frenzy  previous  to  death  will  not 
invalidate  his  will,  where  it  does  not 
appear  that  the  state  of  frenzy  had  com- 
menced at  the  time  the  will  was  exe- 
cuted, and  there  was  evidence  that  he 
was  in  his  right  mind  at  the  time.  Berry 
v.  Hamilton,  10  B.  Mon.  129. 

So,  the  fact  that  a  will  Avas  made 
after  the  testator  had  an  epileptic  con- 
vulsion does  not  invalidate  it,  where  he 
had  recovered  from  the  convulsion,  and 
his  mind  had  become  clear  and  strong 
and  his  will  was  reasonable.  Re  Rapp- 
lee.  06  Hun,  558,  21  N.  Y.  Supp.  801; 
Wood  V.  Carpenter,  166  Mo.  465,  06  S. 
W.  172. 

And  the  fact  that  a  testator  had  an 
epileptic  fit  about  five  minutes  after 
signing  his  will,  after  which  he  sank 
rapidly  and  died,  and  the  opinion  of  the 
subscribing  witnesses  to  his  will,  that 
he  did  not  know  what  he  was  doing, 
are  not  sufficient  to  invalidate  it,  as 
against  the  testimony  of  the  person  who 
drew  it  and  who  had  no  interest  in  it, 
that  the  testator  fully  comprehended  its 
provisions.  Re  Leivis,  51  Wis.  101,  7 
N.  W.  829. 

A  will  made  by  an  epileptic  will  be 
admitted  to  probate  where  there  is  noth- 
ing to  show  incapacity  except  during  the 
continuance  of  the  influence  of  the  fits, 
though  there  is  an  entire  absence  of 
proof  of  instructions  or  knowledge  of 
contents,  and  though  the  attesting  wit- 
nesses could  recollect  nothing  of  the  cir- 
cumstances attending  its  execution. 
Foot  V.  Stanton,  Deane  &  S.  19. 

So,  in  Re  McKean,  31  Misc.  703,  66  N. 
Y.  Supp.  44,  the  will  of  the  testator 
was  sustained,  thovigh  wlien  he  died  his 
left  side  was  almost  wholly  paralyzed, 
and  he  was  afflicted  with  Bright's  dis- 
ease, and  was  morose,  cynical,  ungrate- 
ful, and  selfish,  and  found  no  relief  in 
travel,  physicians,  or  medicines,  and 
characterized  the  doctors  as  humbugs, 
and  drugs  as  poisons ;  and  his  temper 
increased  in  sourness  and  he  grew  more 
peevish  and  irascible  daily,  and  was  sus- 
picious of  the  kindness  of  his  relatives, 
thinking  it  proceeded  from  mercenary 
motives,  and  the  physicians  regarded 
him  as  crazy. 

''"Stevens  v.  Leonard,  154  Ind.  67,  77 
Am.  St.  Rep.  446,  56  N.  E.  27. 


132 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  128 


standing.^*^     ISTor  will  the  taking  of  large  quantities  of  medicine  or 
stimulants  be  deemed  to  have  caused  testamentary  incapacity.'^^ 

129.  Absolute  prostration. — In  determining  questions  of  testamen- 
tary capacity,  the  court  adopta  a  more  rigorous  rule,  however,  where 
the  testator  was  weak  and  suffering  than  where  he  was  in  comparative 
liealth.^^  And  evidence  that  a  testator  was  in  a  state  of  chronic 
stupor  at  the  time  his  will  was  made,  from  which  he  could  be 
aAvakened,  but  into  which  he  would  speedily  relapse,  the  interval  of 
his  lucidity  being  too  brief  for  any  considerable  mental  exertion,  to- 
gether with  evidence  that  he  had  but  partly  signed  his  name,  is  suffi- 
cient to  justify  cancelation  of  his  will.^"^  And  probate  will  be  re- 
fused where  the  testator's  physical  powers  had  so  failed  as  to  render 
it  impossible  for  him  to  perform  the  act  of  making  a  will  intelligent- 
ly,'''* — especially  where  it  does  not  conform  to  previous  intentions.^^ 

130.  Deaf  and  dumb  testators. — The  rule  has  been  asserted  that  the 
party  offering  the  will  of  a  deaf  and  dumb  person  for  probate  has 
the  burden  of  proving  that  the  testator  knew  the  contents  and  was  not 
imposed  upon.^*^  The  necessity  for  this  rule,  however,  vanishes  "in 
the  case  of  educated  mutes,  who  are  capable  of  communicating  by  writ- 


^'Holmberg  v.  Phillips  (Iowa)  78  N. 
W.  60. 

"'Martin  v.  Bowdern,  158  Mo.  379,  59 
S.  W.  227;  Ortt  v.  Leonhardy  (Mo.)  74 
S.  W.  423. 

'•"-Re  McGraw,  9  App.  Div.  372,  41  N. 
Y.   Supp.   481. 

^^Knupp  V.  Reilly,  3  Dem.  427.  And 
see  Gray  v.  Rumrill,  9  Va.  Law  Reg. 
310,  44  S.  E.  697. 

•^  See  Byard  v.  Conover,  39  N.  J.  Eq. 
244;  Re  Loewenstine,  2  Misc.  323,  21  N. 
Y.  Supp.  931;  Kingsley  v.  Blanchard,  60 
Barb.  317:  Re  Rayno'r,  44  N.  Y.  S.  R. 
468,  18  N.  Y.  Supp.  426;  Re  McCarthy, 
48  N.  Y.  S.  R.  315,  20  N.  Y.  Supp.  581; 
Re  Barbineau,  27  Misc.  417,  59  N.  Y. 
Supp.  375;  Renihan  v.  Dennin,  103  N. 
Y.  573,  57  Am.  Rep.  770,  9  N.  E.  320; 
Re  Coop,  24  N.  Y.  S.  R.  417,  6  N.  Y. 
fiupp.  664;  Re  Rounds,  25  Misc.  101,  54 
N.  Y.  Supp.  710;  Manatt  v.  i^cott,  106 
Iowa,  203,  68  Am.  St.  Rep.  293,  76  N. 
W.  717;  Re  Burroics,  8  Ohio  N.  P.  358; 
Earwood  v.  Baker,  3  Moore  P.  C.  C.  282. 

Evidence  of  the  attending  physician 
of  a  testatrix  that  she  was  not  of  sound 
mind,  and  tliat  she  had  gastritis,  which 
tends  to  weaken  the  mind,  and  that  sl>e 
was  easily  persuaded  and  would  contra- 
dict herself,  and  testimony  hy  her 
friends   that  she   wjvs    melancholy    and 


nervous  and  a  mental  and  physical 
wreck,  are  sufficient  in  a  will  contest  to 
entitle  contestants  to  have  the  question 
of  capacity  submitted  to  a  jury.  Crock- 
ett V.  Davis,  81  Md.  134,  31  Atl.  710. 

And  where  it  appears  that  a  testator 
was  afflicted  with  senile  cystitis,  a  dis- 
ease which  causes  the  severest  pain, 
rendering  mechanical  assistance  neces- 
sary to  obtain  relief,  and,  unless  ob- 
tained at  frequent  intervals,  rendering 
the  sufferer  unable  to  concentrate  his 
thoughts  on  anything  but  his  sufferings, 
and  that  the  drafting  of  his  will  was 
not  commenced  until  three  and  one  half 
hours  after  such  assistance  had  been 
given,  and  that  the  draftsman  was  en- 
gaged one  and  one  half  hours  and  the 
nurse  testified  that  when  tlie  draftsman 
and  witnesses  left  the  room  slie  found 
him  in  intense  agony,  and  that  he  later 
told  her  that  he  had  been  having  some 
writing  done,  but  his  head  would  not  lot 
him  finish  it, — the  question  of  testa- 
mentary inca])acity  and  imdue  influence 
should  be  given  to  a  jury.  Re  Jacott,  2 
Silv.  Sup.  Ct.  544,  6  N.  Y.  Supp.  122. 

"'Re  Ehmiyine,  30  Misc.  21,  62  N.  Y. 
Supp.   1006. 

""  1  Jarman,  Wills,  5th  Am.  ed.  chap. 
3.  And  see  Davis  v.  Rogers,  1  Houst. 
(Del.)  44. 


§   130]  WJLLS.  133 

ing."  And  "the  fact  that  the  testator  wrote  the  will  might  fairly  be 
regarded  as  sufficient  evidence,  prima  facie  at  least,  that  he  made  it 
understandingly.""^  And  the  deaf  and  dimib  testator  may  communi- 
cate his  intention  to  execute  by  signs,^^  or  by  writing.^**  Whatever 
may  once  have  been  thought,  it  is  now  clear  that  even  a  concurrence  of 
blindness  with  deafness  and  dumbness  necessarily  works  no  inca- 
pacity.^*'^ The  question  depends  upon  the  education  of  the  party 
afflicted  with  this  calamity.  Under  recent  improved  culture  deaf- 
mutes  are  enabled  to  receive  instruction  freely,  and  freely  to  communi- 
cate their  views;  and,  when  this  is  the  case,  their  testamentary  ca- 
pacity cannot  be  questioned  on  the  ground  that  they  are  deaf-mutes.^ ^* 

h.  Inquisition  of  lunacy  or  drunkenness  as  evidence. 
See  infra,  chapter  VI.,  Commissions  of  lunacy  and  drunken- 

N'ESS. 

VIII.  Lucid  intervals. 

131,  Application  of  doctrine  to  wills. — The  doctrine  that  an  act  per- 
formed by  a  lunatic  during  a  lucid  interval  is  binding  applies  to  wills,* 
though  the  testator  was  subject  to  complete  insanity.^  And  the  will  of 
a  testator  who  was  suffering  from  an  attack  of  delirium  tremens  will 
be  sustained  if  executed  during  a  lucid  interval,^ 

132.  Restoration  of  disposing  mind  must  be  shown. —  When  a  lucid 
interval  is  set  up  as  the  period  in  which  a  will  was  executed,  it  being 
established  that  the  testator  was  previously  habitually  insane,  it  is  nec- 
essary to  show  not  merely  a  cessation  of  the  more  violent  symptoms  of 
the  disease,  but  a  restoration  of  the  faculties,  at  the  very  period  of  sueh 

"1  Redf.  Wills,  chap.  3,  §  5.  bury  v.  Whitaker,  32  La.  Ann.  1055,  36 

'^Owston's  Goods,  2  Swabey  &  T.  461,  Am.   Rep.  278;    Re  Cornelius,  23  Misc. 

31  L.  J.  Prob.  N.  S.   177,  6  L.  T.  N.  S.  434,   51   N.   Y.   Supp.    877;     Wright    v. 

368,  10  Week.  Rep.  410;   Geale's  Goods,  Lewis,  5  Rich.  L.  212,  55  Am.  Dec.  714; 

3  Swabey  &  T.  431,  33  L.  J.  Prob.  N.  S.  Clarke  v.   Cartioright,   1   Phillim.  Eccl. 

125,  12  \Veek.  Rep.  1027.  Rep.  90. 

"'iloore  V.  Moore,  2  Bradf.   205.       Seo  A  rational  will,  made  by  one  who  un- 

Christmas  v.  Mitchell,  38  N.  C.   (3  Ired.  derstood    his    position,    during    a    lucid 

Eq.)    535.  interval,    will    be    sustained    though    he 

""IFeir    v.    Fitzgerald,    2    Bradf.    42.  was    suffering   from    tubercular    inflam- 

And   see   Wampler  v.   Wampler,  9   Md.  mation  of  the  brain, — a  progressive  dis- 

540.  ease, — which  began  before  the  will  was 

^"^  The  earlier  cases  will  be  found  in  made,  and  rendered  him  frequently  de- 

a  learned  essav  by  Dr.  H.  P.  Peet,  in  lirious.     Re  Cornelius,  23  Misc.  434,  51 

the  13th  vol.  of  the  Am.  Journal  of  In-  N.  Y.  Supp.  877. 

sanity.  -Kingsbury  v.  Whitaker,  32  La.  Ann. 

Nuffield  V.  Robeson,  2  Harr.    (Del.)  1055,  36  Am.  Rep.  278. 

375;    James   Wldte   Memorial   Home  v.  ^Crouzeilles's  Succession,  106  La.  442, 

Haeg.  204  111.  422.  68  N.  E.    568;    Au-  31  So.  64.     And  see  Re  Heicitt,  31  Misc. 

bcrt  V.  Auber^,  6  La.  Ann.   104;   Kings-  81.  04  N.  Y.  Supp.  571. 


134  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   132 

execution.*  But  it  is  not  necessary  that  the  restoration  be  to  a  state 
of  mind  equal  to  that  originally  possessed  by  the  patient.  It  is 
enough  if  he  have  a  disposing  mind.^ 

133.  How  proven. —  Evidence  to  establish  a  lucid  interval  after  de- 
rangement is  required  to  be  as  strong  and  demonstrative  as  evidence 
to  establish  derangement  f  and  it  should  go  U)  the  state  and  habits  of 
the  person  generally,  and  not  to  an  accidental  interview  or  to  the  degree 
of  capacity  demonstrated  in  a  particular  act.'^  Stronger  proof  of  lucid- 
ity is  necessary  to  uphold  a  will  in  cases  of  general  insanity  than  in 
cases  of  insanity  of  a  temporary  or  fluctuating  character.^  The  fact 
that  a  will  by  an  insane  person  was  a  rational  one,  however,  and  made 
in  a  rational  manner,  is  strong  though  not  conclusive  evidence  that  it 
was  made  during  a  lucid  interval,^  imposing  upon  those  who  attack  it 


*Halley  v.  Webster,  21  Me.  461;  Gom-ihe   state   of   his   affections,   suflBciently 
lault  V.  Public  Administrator,  4  Bradf.    proves  that  it  was  made  during  a  lucid 
226;  Boyd  v.  Eby,  8  Watts,  60;  Harden    interval.     Dimes  v.  Dimes,  10  Moore  P. 
V.   Hays,  9  Pa.  ^151;    Re   Gangicere,   14    C.  C.  422. 

Pa.  417,  53  Am.  Dec.  554;  Chandler  v.  And  so  do  declarations  by  a  testator 
Barrett',  21  La.  Ann.  58,  99  Am.  Dec.  as  to  his  intention  to  make  such  a  vill, 
701;  Rush  v.  Megee,  36  Ind.  69;  Hall  made  while  sane.  Coghlan's  Case,  cited 
Ves.  Jr.  605:     Ex    parte    in  19  Ves.  Jr.  508. 

And  proof  that  a  will  written  by  a  t'?s- 


Warren,  9  Ves.  Jr.  605:  Ex  parte 
Holyland,  11  Ves.  Jr.  10,  8  Revised  Rep. 
67;  Steed  v.  Calley,  1  Keen,  &20;  Brog- 
den  V.  Broion,  2  Addams  Eccl.  Rep.  441 ; 
Ayrey  v.  Hill,  2  Addams  Eccl.  Rep.  206 ; 
White  V.  Driver,  1  Phillim.  Eccl.  Rep. 
84;  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87, 
26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  S. 
1150,  5  Week.  Rep.  880;  Duffield  v. 
Robeson,  2  Harr.  (Del.)  375.  And  seo 
Jarman,  Wills,  5th  Am.  ed.  Randolph  & 
T.  77. 

=  See  cases,  supra;  Clark  v.  Fisher,  1 
Paige,  171,  19  Am.  Dec.  402;  Jackson 
ex  dem.  Van  Dusen  v.  Van  Dusen,  5 
Johns.  144,  4  Am.  Dec.  330;  Lucas  v. 
Parsons,  24  Ga.  640,  71  Am.  Dec.  147; 
Lilly  v.  Waggoner,  27  111.  395. 

He  must  be  in  such  a  condition  as  to 
know  the  nature  of  the  business  he  is 
doing.  James  White  Memorial  Home  v. 
Haeg,  204  111.  422,  68  N.  E.  568. 

*Atty.  Gen.  v.  Parnther,  3  Bro.  Ch. 
441;  Pike  v.  Pike,  104  Ala.  642,  16  So. 
689;  Rickelts  v.  Jolli^,  62  Miss.  441; 
Hall  v.  Warren,  9  Ves.  Jr.  606. 

Tiie  knowledge  and  admission  of  the 
testator  himself,  that  his  mind  had  been 
disordered,  are  strong  proofs  of  re-es- 
tablished faculties.  Hoby  v.  Hoby,  1 
Hagg.  Eccl.  Rep.  146. 

^Allif.  (Jen.  v.  Parnther.  3  Bro.  Cli. 
441;  Rickelts  v.  Jolliff,  62  Mi.ss.  441. 

The  fact  that  a  will  corresponded 
with  a  former  will  made  while  the  te-^- 
tator  was  unquestionably  sane,  and  witli 


tator  was  proper  and  natural  and  con- 
formable to  his  affections,  and  that  he 
consequently  recognized  it  during  a  lucid 
interval,  is  sufticient  to  sustain  it, 
though  he  was  at  times  so  violent  as  to 
render  it  necessary  to  tie  him.  Clarke 
v.  Cartivright,  1  Phillim.  Eccl.  Rep.  90. 

^Duffield  v.  Robeson,  2  Harr.  (Del.) 
375. 

Lucid  intervals  are  mueh  more  easily 
proved  in  cases  of  delirium  than  in  cases 
of  fixed  mental  derangement  or  perma- 
nent insanity.  Brogden  v.  Brown,  2 
Addams  Eccl.  Rep.  441. 

And  evidence  that  a  testator  had 
.softening  of  the  brain,  finally  culminat- 
ing in  his  death  shortly  after  the  execu- 
tion of  his  will,  and  of  severe  prostra- 
tion at  times,  during  whWi  his  intellect 
was  feeble  and  his  memory  ..^'rly  gone, 
does  not  show  testamentary  incapacity, 
where  it  appears  that  there  were  inter- 
vals between  attacks  in  which  his  mind 
was  reasonal)ly  clear,  during  one  of 
which  the  will  was  executed,  and  it  was 
simple  and  reasonable  in  its  provisions. 
Silrcrihorn's  Will,  68  Wis.  372.  32  N. 
W.  287. 

'•'irciV's  Will,  9  Dana,  434:  Combuult 
V.  Public  Administrator,  4  liradf.  226; 
Clarke  v.  Cartwright,  1  Phillim.  Feci. 
Rep.  90;  yichols  v.  Binns  1  Swabey  & 
T.  239. 


I  133] 


WILLS. 


135 


the  burden  of  proving  insanity  at  the  moment  it  was  made.^®  But  in- 
firmity of  mind  after  derangement  is  evidence  tending  to  show,  not 
that  there  had  been  a  lucid  interval,  but  that  the  disorder  had  not  been 
entirely  rooted  out.^^  And  evidence  of  sanity  before  and  after  a  day 
on  which  a  will  was  made  by  a  testator  generally  insane  is  not  sufficient 
to  establish  a  lucid  interval  at  that  time,^^  though  it  would  be  if  there 
were  no  signs  of  irrationality  at  tlie  time,  and  the  disposition  harmon- 
ized witii  previous  declarations.-^^ 

IX.  Unexecuted  or  nuncupative  wills. 

134.  Nature;  strict  proof  of  intent  necessary. —  In  some  jurisdic- 
tions wills  of  personal  estate  corresponding  to  long-entertained  inten- 
tions upon  the  part  of  a  testator  are  held  valid  as  unexecuted  papers, 
Avhere  the  execution  was  delayed  for  the  want  of  witnesses  or  other 
causes  until  insanity  intervened.^*  And  such  insanity  will  not  reflect 
back  on  previous  eccentricities  so  as  to  invalidate  the  will.^^  But  tc 
render  such  a  will  effectual  the  cause  which  prevented  its  being  signed, 
where  the  tostator  kncAv  how  to  write,  must  have  been  a  physical,  and 


^"Kingsbury  v.  Whitaker,  2  La.  Ann. 
1055,  3G  Am.  Rep.  278 ;  Bey's  Succession, 
46  La.  Ann.  773.  24  L.  R.  A.  577,  15  So. 
297 ;  Mifflin  v.  Smedley,  3  Del.  Co.  Rep. 
143. 

A  will  of  a  simple  nature,  which  is 
rational  and.  natural  under  the  circum- 
stances of  the  case,  may  be  admitted  to 
probate  as  having  been  made  during  a 
lucid  interval,  though  the  testator  had 
been  confined  and  remained  so  until  his 
death,  and  he  was  afterwards  found 
upon  inquisition  to  have  been  insane, 
without  lucid  intervals,  for  a  period  cov- 
ering the  date  of  the  will.  Bannatyne 
V.  Bannatyne,  16  Jur.  864,  14  Eng.  L.  & 
Eq.  Rep.  .581,  2  Rob.  Eccl.  Rep.  472.  And 
see  Mifflin  v.  Smedley,  3  Del.  Co.  Rep. 
145. 

And  fluctuating  capacity,  and  that 
a  will  may  have  been  made  during 
a  lucid  interval,  will  be  inferred  from 
contradictory  opinions  as  to  the  testa- 
tor's capacity,  particularly  where  it  ap- 
pears that  he  was  occasionally  capable. 
Williams  v.  Goude,  1  Hagg.  Eccl.  Rep. 
577. 

^'^Atty.  Gen.  v.  Parntiier,  3  Bro.  Ch. 
441. 

A  will  of  one  who  had  been  insane, 
but  who  acted  sanely  for  an  interval  of 
•i    month,    after    which    he     became     de- 


pressed as  to  his  religious  condition, 
executed  during  the  time  of  such  depres- 
sion, will  not  be  sustained,  where  the 
attesting  witnesses  deemed  him  incom- 
petent, thovigh  it  was  in  his  own  hand- 
writing, and  rational  in  its  provisions. 
Symes  v.  Green,  5  Jur.  N.  S.  742,  1 
Swabey  &  T.  401,  28  L.  J.  Prob.  N.  S.  83. 

^"Harden  v.  Hays,  9  Pa.  151. 

So,  the  presumption  against  a  will 
arising  from  the  fact  that  the  testator 
had  been  insane,  and  from  evidence  of 
delusion  and  other  indications  of  de- 
rangement existing  shortly  before  the 
will  was  made,  is  not  rebutted  by  proof 
of  calmness  on  his  part  and  of  his  trans- 
acting matters  of  business  luider  the 
sanction  of  his  family.  Groom  v.  Thom- 
as, 2  Hagg.  Eccl.  Rep.  433. 

"Gombault  v.  Public  Administrator, 
4  Bradf.  226. 

^*FuUeclc  V.  Allinson,  3  Hagg.  Eccl. 
Rep.  527 ;  Uoby  v.  Eohy,  1  Hagg.  Eccl. 
Rep.  146. 

A  will  of  a  person  whose  physical  con- 
dition was  such  that  she  could  not  write 
is  good,  as  an  unexecuted  paper,  where 
it  was  drawn  from  her  instructions,  and 
read  over  to  and  approved  by  her. 
Martin  v.  Wotton,  1  Lee  Eccl.  Rep.  130. 

^'Uohy  V.  Moby,  1  Hagg.  Eccl.  Rep. 
146. 


136 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS  [§   134 


not  a  mental,  one.''*'  And  such  instruments  changing  the  whole  tes- 
tamentary plan  of  the  testator  will  not  be  upheld  unless  the  change  of 
intention  was  so  distinctly  ascertained  that  there  could  be  no  doubt  of 


the  testator's  meaning.^ ^  So,  testamentary  capacity  and  intent  of 
the  testator  at  tlie  time  of  making  a  nuncupative  will  must  appear  by 
the  clearest  and  most  indisputable  testimony. ^^ 


X.    REVOCATIOiSr. 

135.  Effect  of  destruction  or  defacement. —  The  destruction  of  a  will 
by  a  lunatic  testator  does  not  revoke  it,  the  insane  intent  to  destroy  not 
being  sufficients^  And  a  will  partially  defaced  by  a  testator,  while 
insane,  will  be  probated  as  it  existed  in  its  integral  state,  if  that  can  be 
ascertained.^"  One  who  is  mentally  incompetent  to  make  a  will  is 
equally  so  to  revoke  a  will  previously  made.-^  And  the  destruction 
of  a  will  does  not  constitute  revocation  unless  the  testator  at  the  time 
had  capacity  to  understand  the  nature  and  effect  of  the  act,  and  to 
perform  it  or  to  direct  its  performance  freely  and  voluntarily,  with  in- 


^'Jackson  v.  Moore,  14  La.  Ann.  209. 

"Wood  V.  Wood,  1  Phillim.  Eccl.  Rep. 
357. 

^"Dorsey  v.  Sheppard,  12  Gill  &  J.  192, 
37  Am.  Dec.  77 ;  Re  Yarnall,  4  Rawle, 
46,  26  Am.  Dec.  115;  Blewitt  v.  Blewitt, 
4  Hagg.  Eccl.  Rep.  410. 

To  sustain  a  nuncupative  will  the  evi- 
dence must  show  tliat  it  contains  at 
least  the  true  substance  and  import  of 
the  declarations  made  by  the  testator. 
Re  Yarnall,  4  Rawle,  46,  26  Am.  Dec. 
115. 

^'Lang's  Estate,  65  Cal.  19,  2  Pac. 
491;  Porhing  v.  Weber,  99  Ind.  iSS; 
fimith  V.  Wait,  4  Barb.  28;  Re  For  man. 
Tucker,  205 ;  Dominiok  v.  Dominick, 
20  Abb.  N.  C.  286;  Ford  v.  Ford,  7 
Humph.  92;  Brunt  v.  Brunt,  L.  R.  3 
Prob.  &  Div.  37,  28  L.  T.  N.  S.  368,  21 
Week.  Rep.  392. 

A  sub.sequent  revocation  of  a  will 
made  by  a  testator  while  he  was  unques- 
tionably sane,  without  any  evidence  of  a 
change  of  purpose  or  any  ground  for  a 
change,  after  he  had  shown  signs  of 
mental  collapse,  may  be  attributed  to 
mental  delusion.  Miller  v.  White,  5 
Redf.  321. 

'-"Hnruby  v.  Fordham,  2  Addams  Eccl. 
Rep.  74 ;  Borlase  v.  Borlase,  4  Notes  of 
rases,  106. 

So,  probate  of  a  will  in  its  original 
state  will  be  granted  when  an  alteration 


had  been  made  while  the  testator  was 
of  unsound  mind.  Bicknell's  Goods,  3 
Addams  Eccl.  Rep.  231. 

And  the  contents  of  a  will  destroyed 
by  an  insane  testator  may  be  proved  in 
the  same  manner  as  other  facts  are  es- 
tablished.    Ford  v.  Ford,  7  Humph.  92. 

And  an  unexecuted  draft  of  a  will 
may  be  admitted  to  probate  where  the 
will  itself  was  destroyed  by  the  testator 
while  insane,  after  which  he  recovered 
and  gave  directions  for  the  preparation 
of  another  will  to  the  same  effect,  but 
killed  himself  before  its  completion. 
Downers  Goods,  1  Spinks  Eccl.  &  Adm. 
Rep.  106,  26  Eng.  L.  &  Eq.  Rep.  600. 

^Smith  V.  Wait,  4  Barb.  28;  Allison 
v.  Allison,  7  Dana,  94;  Mclntire  v. 
Worthington,  68  Md.  203,  12  Atl.  251. 

A  codicil  cannot  be  regarded  as  effec- 
tive as  a  revocation  of  a  former  will, 
where  it  is  invalid  as  an  affirmative  tes- 
tamentary disposition  because  of  the  in- 
sullicient  r-ental  capacity  of  the  testa- 
tor.    Delafiild  v.  Parish,  25  N.  Y.  9. 

And  where  there  is  r&ason  to  suppose 
that  a  t^jitator  was  wanting  in  testa- 
mentary capacity  at  the  time  of  the  exe- 
cution of  a  will  which  revoked  a  preced- 
ing one,  an  issue  as  to  testamentary  ca- 
pacity at  the  time  of  the  execution  of 
the  preceding  will  should  be  awarded. 
Thomas's  Estate,  20  W.  N.  C.  336. 


135] 


VVILI.S. 


137 


tent  to  effect  a  revocation.^^  But  where  a  will  is  produced  for  probate 
with  the  signature  of  the  testator  torn  off,  a  presumption  is  rai-cd 
that  it  was  personally  revoked,  and  that  he  had  capacity  to  revoke  it.^^ 
A  commission  of  lunacy  against  a  testator  does  not  work  a  revocation 
of  a  will  made  when  he  was  of  sound  mind.-^  But  an  act  of  destruc- 
tion by  one  under  inquisition  is  not  followed  by  a  presumption  of  rev- 
ocation; the  burden  of  showing  it  still  rests  with  the  party  affirming 


it.^ 


XI.  Morphinism  aitd  other  addictions. 


136.  Rules  as  to  drunkenness  apply. — Mental  incapacity  of  a  testa- 
tor at  the  time  of  making  a  will  invalidates  it,  though  it  was  caused  by 
morphine  or  other  drugs,  and  though  they  were  taken  for  medicinal 
purposes.^^  And  the  use  of  such  drugs  for  many  years,  together  with 
great  age,  raise  a  presumption  that  the  mental  faculties  of  the  testator 
may  have  become  so  enfeebled  that  he  would  be  unable  to  understand 
the  provisions  of  a  complicated  will  without  explanation.^^  But  the 
existence  of  imsoundness  of  mind  from  such  causes  must  be  shown  to 


''Rhodes  v.  Vinson,  9  Gill,  169,  52 
Am.  Dec.  085;  Re  Forman,  54  Barb. 
279;  Re  Forman,  Tucker.  205;  Richard- 
son V.  Adams,  110  Ga.  425,  35  S.  E.  684. 

The  rationality  or  irrationality  of  a 
testator  at  the  time  of  defacing  his  will 
is  to  be  inferred  from  the  rationality  or 
irrationality  of  his  act,  where  there  is 
nothinfj  to  eTidence  it  aliunde.  Hciuby 
V.  Fordham,  1  Addanis  Eccl.  Rep.  74. 

And  the  fact  that  a  testator  was  weak 
and  approaching  his  death,  and  wander- 
ing in  his  mind,  does  not  incapacitate 
him  to  revoke  his  will,  where  he  was 
easily  restored  to  his  normal  condition, 
and  understood  the  disposition  the  law 
would  make  in  the  absence  of  a  will, 
and  intended  to  adopt  it,  and  had  no  set- 
tled and  unchangeable  delusion  and  no 
antipathy  toward  any  legatee  or  bene- 
ficiary. Re  Jones,  2  Ohio  S.  &  C.  P. 
Dec.  409.  And  see  Laing  v.  Bruce,  1 
Dunlop,  B.  &  M.  59. 

-^Re  Jones,  2  Ohio  S.  &  C.  P.  Doc.  409. 

But  where  a  will  was  drawn  by  a 
testator  and  was  in  his  custody  botli 
while  he  was  of  unsound  mind  and  of 
sound  mind,  the  burden  of  showing  that 
it  was  not  done  after  he  became  insane, 
and  that  therefore  it  amounted  to  a 
revocation  of  a  former  will,  rests  with 


the  person  asserting  such  revocation. 
Harris  v.  Berrall,  1  Swabey  &  T.  153,  7 
Week.  Rep.  19. 

-*HuQhes  v.  Hughes,  2  Munf.  209. 

"^Re^ Jones,  2  Ohio  S.  &  C.  P.  Dec.  409. 

^"Stedham  v.  Stedham,  32  Ala.  525. 
And  see  Re  Underhill,  21  Ohio  L.  J.  279. 

'"Rutland  v.  Gleaves,  1  Swan,  198. 

And  where  the  mind  of  a  testatrix 
had  been  seriously  impaired  by  strong 
drink  and  opiates,  and  it  appears  that 
she  had  nothing  to  do  with  the  prepara- 
tion of  her  will,  and  that  she  had  not 
read  it  or  heard  it  read,  and  its  con- 
tents had  not  been  stated  to  her,  proof 
that  she  knew  what  was  in  it  when  she 
signed  it  is  imperatively  demanded  be- 
fore it  can  be  admitted  to  probate. 
Burritt  v.  Silliman,   16  Barb.  198. 

But  a  finding  sustaining  a  will  will 
not  be  disturbed  on  appeal,  where  the 
testator  disinherited  a  daughter  because 
of  her  desire  to  marry  a  man  whom  he 
did  not  like,  though  he  was  an  invalid, 
subsisting  largely  upon  whisky  and  mor- 
phine, but  not  taking  the  latter  in  quan- 
tities sufficient  to  afl'ect  him  mentally, 
and  a  majority  of  the  witnesses  were  of 
the  opinion  that  he  was  competent. 
Carlin  v.  Baird,  11  Ky.  L.  Rep.  932,  13 
S.  W.  434. 


138  MENTAL  UNSOUNDNESS  IN  ITS  LEUAL  IIELATIONS.         [§  136 

have  been  actually  present  at  the  time  of  the  making  of  the  will.-^ 
And  such  addictions  will  not  invalidate  it  though  the  testator's  mind 
was  apparently  weakened  thereby,  where  he  fully  understood  what  he 
was  doing  at  the  time.^^  So,  though  the  ordinary  effect  of  morphine 
is  to  weaken  the  will  power,  such  use  is  not  material  in  an  action  to  set 
aside  a  will  for  undue  influence,  where  no  weakening  of  the  will  is 
shown  and  no  effort  to  control  the  testator  appears.^*^  But  it  is  proper 
that  full  inquiry  should  be  made  as  to  the  effect  of  such  addictions 
upon  the  mind,  and  costs  will  not  be  imposed  upon  the  contestant  of  a 
will  where  such  addiction  is  established.^^  A  moderate  u^e  of  nar- 
cotics for  medicinal  purposes  does  not  affect  testamentary  capacity, 
where  no  impairment  of  mental  power  appears.^^ 

"Miller  v.   Oestrich,   157   Pa.  264,  27  Evidoncj  that  a  testator's  mind  was 

Ail.  742;  McCullough's  Will,  35  Pittsb.  greatly   impaired  by  the  use  of  opium 

L.  J.   169.  and  liquor,  in  consequence  of  which  he 

Incapacity  of  a  testator  arising  from  was  frequently  incapable  of  transacting 

the  use  of  morphine  is  but  temporary,  business,    will    not    repel    the   presump- 

and  where   he   did  not   have   the   habit  tion  of  sanity  arising  from  the  fact  that 

fixed  there  is  no  presumption  in  favor  he  wrote  his  will  himself,  in  the  absence 

of  a  continuance  thereof.   Camp  v.  Shaw,  of  anything  to  show  that  he  was  incapa- 

52  111.  App.  241.  ble  of  transacting  business  at  the  very 

But  when  a  will  is  made  by  a  testator  moment  the  will  was  executed.     Temple 

upon   his  death-bed  and  shortly  before  v.  Temple,  1  Hen.  &  M.  476. 

death,  and  it  appears  that  he  was  de-  ^'Bush  v.  Lisle,  89  Ky.  393,  12  S.  W. 

lirious  or  in  a  stupor  from  the  use  of  762. 

drugs,  there  is  no  presumption  that  it  ^^Frost  v.  Wheeler,  43  N.  J.  Eq.  573, 

was    made     during     a     lucid     interval,  12  Atl.  612. 

though  such  intervals  are  shown  to  have  ''"Re  Gloclcner,  17  N.  Y.  S.  R.  798,  2  N. 

existed.     Elliott  v.  Welhy,  13  Mo.  App.  Y.  Supp.  97 ;  Brown  v.  Torrent,  24  Barb. 

19.                                                             -  583:  Miller  v.  Oestrich,  157  Pa.  264,  27 

"Frost  V.  Wheeler,  43  N.  J.  Eq.  577,  Atl.    742;    Epling    v.    Button,    121    IlL 

12  Atl.  612;  Re  Glockner,  17  N.  Y.  S.  R.  555,  13  N.  E.  242. 
798,  2  N.  Y.  Supp.  97;   Epling  v.  Hut- 
ton,  121  111.  555,  13  N.  E.  242, 


OHAPTEE  V. 

GIFTS. 

137.  Gifts  inter  vivos. 

138.  Testamentary  gifts. 

139.  Habitual  drunkenness  afTeeting  gifts. 

137.  Gifts  inter  vivos. —  The  degree  of  capacity  to  make  a  valid  gift 
inter  vivos  is  the  same  as  that  required  to  make  a  valid  contract  or 
deed  ;^  which  is  a  higher  degTee  of  capacity  than  that  necessary  for  the 
making  of  a  valid  will.^  One  who  is  conscious  of  his  acts  and  under- 
stands their  nature  and  effect  has  sufficient  mental  capacity  to  make 
such  a  gift.^  And  the  fact  that  a  donor  was  declining  in  health,  and 
that  his  understanding  was  greatly  weakened,  does  not  necessarily  im- 
ply the  absence  of  capacity  to  dispose  of  property  by  gift.*  That  a 
donor  was  laboring  under  a  delusion,  however,  out  of  which  he  could 
not  be  reasoned,  and  which  so  took  possession  of  his  mind  that  he  could 
not  act  reasonably  upon  the  subject  of  the  gift,  and  which  led  him  to 
make  it,  is  sufficient  to  invalidate  it,  and  prior  idiocy  or  imbecility 

^Crum  V.  Thornley,  47  111.  192.  *Ralston  v.  Turpin,  129  U.  S.  663,  32 

Where  one  embezzles  the  property  of  L.  ed.  747,  9  Sup.  Ct.  Rep.  420. 

another  knowing  that  the  latter  was  of  So,  mere  failure  of  memory  does  not 

unsound  mind  and  not  capable  of  trans-  establish   incapacity   to    make    a    gift, 

acting  the  ordinary  business  of  life,  it  ftaler  v.  Goier,  108  Iowa,  496',  79  N.  W. 

is     not     material     whether    the     latter  257. 

parted   with   the   property   willingly   or  And  the   fact  that  a   father  w^as  in- 

unwillingly.     Hobbs  v.   People,   183   111.  sane  directly  before  making  a  gift  to  a 

336,  55  N.  E.  692.  son,  and  again  directly  afterwards,  from 

^Lemon  v.  Jenkins,  48  Ga.  313.     And  the  violence  of  disease,  does  not  invali- 

see  Clarke  v.  Saioyer,  3  Sandf.  Ch.  351.  date  the  gift.     Richardson  v.  Smart,  65 

^Richardson  v.  Smart,   65    Mo.    App.  Mo.  App.  14. 

14;  Coffey  v.  Coffey,  179  111.  283,  53  N.  And  a  finding  that  a  grantor  was  of 

E.   590,    Affirming    74     111.    App.     241;  sound  mind  up  to  within  three  days  of 

Jennings  v.  Hennessy,  26  Misc.  265,  55  making  a  deed  of  gift,   and  from  that 

N.   Y.    Supp.    833 ;    Zeltner  v.   Bodman  time  on  his  mind  was  unsound,  will  be 

German    Protestant    Widows'    Home,    1  set   aside   as    against     evidence,     where 

Ohio  S.  &  C.  P.  Dec.  306.  characteristics  indicating    insanity    ap- 

A  gift  by  a  father  to  a  son,  who  had  pear,  which  were  exhibited  continuously 

performed    occasional    services    for   him  for  at  least  three  months  prior  to  the 

without    charge,    is    valid    when    made  date  of  the  commencement  of  insanity 

while    the    donor    had    sufficient   mental  as    specified   in    the     findiJig.     Field    v. 

capacity  to  understand  the  transaction.  Shorb,  99  Cal.  661,  34  Pac.  504. 

though  he  had  not  capacity  to  transact  A  finding  that  a  donor  was  of  unsound 

business     generally.       Van     Detisen     v.  mind   is   a  mere  conclusion,   and  not  a 

Rowley,  8  N.  Y.  358.  sufficient  basis  for  a  iudgment  invalidat- 

139 


140 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIOlfS.         [§137 


need  not  be  shown.^  Where  a  gift  from  a  principal  to  an  agent  is  im- 
peached on  the  ground  of  incapacity,  frand,  or  undue  influence,  it 
should  be  made  to  appear,  in  order  to  support  it,  that  the  confidence  of 
the  donor  had  not  been  abused,  and  that  it  was  made  freely  and  know- 
ingly.« 

138.  Testamentary  gifts. —  A  disposition  of  property  in  anticipation 
of  death,  by  atiie  morlem  transfers,  is  governed  by  the  same  tests  of 
capacity  as  a  disposition  thereof  by  will;'^  the  rule  of  testamentary 
capacity,  tliat  the  testator  must  have  a  fair  appreciation  of  the  nature 
of  his  act,  of  his  property,  and  of  what  he  wishes  to  do  with  it,  applying 
substantially  in  case  of  a  gift  during  life  of  a  not  clearly  undue  por- 
tion of  the  donor's  estate  to  a  natural  object  of  his  bounty.^  And  such 
a  gift  is  not  invalidated  by  the  fact  that  tlie  donor  was  advanced  in 
years,  and  did  not  liave  independent  advice.®  Nor  will  extreme  old 
age  and  loss  of  memory  affect  a  gift  to  a  natural  object  of  the  donor's 


ing  a  gift.  Tceqarden  v.  Lewis,  145  Ind. 
98,  40  N.  E.  1047,  44  N.  E.  9. 

^Riqgs  v.  American  Tract  Soc.  95  N. 
Y.  503;  Nottidge  v.  Prince,  2  Giff.  246, 
29  L.  J.  Ch.  N.  S.  857,  6  Jur.  N.  S.  1066, 
8  Week.  Rep.  742. 

And  a  conveyance  by  a  grantor  of  ad- 
vanced age,  to  his  son  in-law,  of  all  his 
property,  to  the  exclusion  of  his  chil- 
dren, who  were  needy  and  worthy,  in 
consideration  of  the  agreement  of  the 
.son-in-law  to  take  care  of  him  and  his 
wife  for  life,  will  be  set  aside  after  his 
death,  where  the  evidence  as  to  his  men- 
tal capacity  was  conflicting,  and  the 
rental  of  the  property  was  sufficient  to 
pay  the  expenses  of  their  keeping,  the 
unreasonableness  of  the  transaction  be- 
ing decisive.  Bussey  v.  Gross,  9  Ky.  L. 
Rep.  843,  7  S.  W.  150. 

'Parris  v.  Cobb,  5  Rich.  Eq.  450. 

A  deed  of  gift,  subject  to  a  power  of 
appointment  by  the  donor,  from  an  eld- 
erly person  to  a  confidential  agent, 
though  withoHt  intervention  of  a  dis- 
interested third  person,  and  though  the 
.solicitor  drawing  the  deed  was  the  so- 
licitor for  the  person  taking  the  benefit 
under  it,  is  valid  and  will  bo  upheld 
where  the  circumstances  do  not  indicate 
undue  influence  exerted  over  an  insuffi- 
cient understanding.  Hunter  v.  Atkins, 
8  Myl.  &  K.  113. 

'Yojing  V.  Otto,  57  Minn.  307,  59  N. 
W.  199;  (ireer  v.  Greer,  9  Gratt.  330. 
And  see  Dinges  v.  Branson,  14  W.  Va. 
100. 

The  question  as  to  the  validity  of  a 


gift  made  a  few  days  before  the  donor's 
death  is  not  what  he  contemplated  or 
intended,  but  whether  his  intentions 
were  carried  into  effect;  and  an  intelli- 
gent will  directing  or  assenting  to  the 
act  is  essential.  Duncombe  v.  Richards, 
40  Mich.  166,  9  N.  W.  149. 

^Elcessor  v.  Elcessor,  146  Pa.  359,  23 
Atl.  230.  And  see  Greer  v.  Greer,  9 
Gratt.  330. 

A  deed  by  a  parent  to  a  child,  with- 
out consideration,  will  not  be  set  aside 
because  it  constitutes  an  unequal  dis- 
tribution of  the  parent's  property,  un- 
less incapacity  appears,  or  it  is  shown 
that  some  imposition  was  practised,  or 
confidence  abused,  or  undue  influence 
used.     Moore  v.  Moore,  67  Mo.   191. 

And  evidence  that  a  father,  believing 
that  his  son  had  wronged  him,  and  at- 
tempted to  kill  him,  inflicted  a  mortal 
wound  upon  himself,  and  gave  a  pack- 
age of  bonds  to  a  favorite  daughter-in- 
law,  thereby  departing  from  a  previous- 
ly declared  intention  as  to  their  dispo- 
sition, does  not  establish  insanity  which 
will  defeat  the  gift.  Crum  v.  Thornley, 
47  111.   192. 

"Soberancs  v.  Soberanes,  97  Cal.  140, 
31  Pac.  910. 

The  fact  that  an  aged  man,  who  made 
a  gift  to  one  of  his  heirs  to  the  exclu- 
sion of  the  others,  manifested  prudence 
and  judgment  in  determining  the  best 
mode  of  giving  the  conveyance  effect 
after  liis  death,  raises  a  presumption  of 
capacity  to  make,  the  gift.  Clearwater 
V.  Kinder,  43  111.  272. 


§  138]  GIFT8.  141 

bounty,  where  it  was  apparently  voluntary  and  the  donor  appeared  to 
be  competent  to  attend  to  his  own  affairs.^ *^  Gifts  causa  mortis,  how- 
ever, like  wills,  are  usually  made  when  the  donor  is  in  a  situation  ren- 
dering him  particularly  susjceptible  to  undue  influenc-e,  and  should, 
therefore,  be  closely  scrutinized,  and  set  aside  in  every  case  of  doubt 
as  to  capacity  and  volition.^ ^  And  a.  jury  is  authorized  to  find  a  gift 
void  from  undue  influence  where  the  donor  acted  without  independent 
and  disinterested  advice,  at  a  time  when  his  mind  was  enfeebled  by 
age  and  disease,  though  not  to  the  extent  of  producing  mental  unsound- 
ness, where  it  comprised  a  large  portion  of  his  estate  and  operated  to 
deprive  those  having  a  natural  claim  on  his  bounty  of  all  benefit  there- 
from.-^- A  person  receiving  a  voluntary  conveyance  from  an  infirm 
person,  whether  the  relation  existing  between  them  is  confidential  or 
not,  or  that  of  consanguinity  or  otherwise,  is  bound  to  make  it  satis- 
factorily appear  that  the  donor  fully  understood  the  character,  nature, 
and  eftect  of  his  act.^^ 

139.  Habitual  drunkenness  affecting  gifts. —  Dnmkenness  of  a  do- 
nor, produced  by  the  donee,  or  intoxication  so  extreme  that  he  did  not 
know  what  he  was  about,  is  a  material  circumstance  to  be  considered 
in  deciding  as  to  the  validity  of  a  gift.^^  And  the  gift  of  one's  whole 
estate,  disinheriting  the  natural  objects  of  his  bounty,  without  reason- 

'"Re  Allison,  35  N.  Y.  S.  R.  323,  12  Mere  proof  by  a  subscribing  witness 
N.  Y.  Supp.  324.  to  a  deed,  that  he  saw  it  executed,  is 

Declarations  of  a  donor  while  of  sound  not  sufficient  to  sustain  it,  Avhere  it  was 
mind,  as  to  his  intentions  concerning  in  the  nature  of  a  testamentary  disposi- 
the  disposal  of  certain  property,  made  tion,  purporting  to  have  been  signed  by 
before  a  sickness  claimed  to  have  re-  the  grantor  by  his  mark  when  lie  was  in 
suited  in  unsoundness  of  mind,  are  not  his  ninetieth  year,  partly  deaf  and  near- 
of  themselves  evidence  that  he  was  in-  ly  blind  and  helpless,  and  it  Avas  drawn 
sane  at  a  subsequent  period,  when  he  in  the  handwriting  of  the  husband  of 
deeded  the  same  property  to  others,  the  grantee,  and  witnessed  only  by  her 
Hoioe  v.  Hoice,  99  Mass.  88.  son.     Lansing  v.  Rtissell,   13  Barb.  521. 

"Duncombc  v.  Richards,  46  Mich.  166,        "Jones  v.  Thompson,  5  Del.  Ch.  374. 
9  N.  W.   149:   FAlis  v.  Hecor,  31  Mich.        ''Samuel   v.   Marshall,    3    Leigh,   567. 
185,   18  Am.  Rep.   178;   Thorp  v.  Amos,    And  see  Blagg  v.  Hunter,  15  Ark.  246. 
1  Sandf.  Ch.  26;   Shirley  v.  Whitehead,        And  a  deed  based  on  a  consideration 
36  N.  C.   (1  Ired.  Eq.)    130.  of  love  and  affection,  made  by  a  person 

And  a  deed  made  by  a  man  eighty-  of  weak  intellect  and  habitual  drunken- 
two  years  of  age  a  few  days  after  an  ness,  upon  the  day  of  his  marriage,  to 
accident  resulting  in  the  death  of  his  his  brother,  without  reservation  'for 
wife,  to  one  for  whom  he  had  no  pecul-  himself  or  family,  and  a  bill  of  sale  to 
iar  or  excessive  affection,  without  con-  such  brother,  made  after  marriage 
sideration,  should  be  set  aside  as  the  raises  a  trust  in  equity  for  the  benefit'of 
probable  result  of  weakness  of  mind  the  wife  and  other  representatives  of 
and  undue  influence.  Musiclc  v.  Fisher,  the  donor,  though  there  was  no  positive 
96  Ky.  1.5,  27  S.  W.  812.  proof  of  fraud,  and  though  sometimes  he 

'-Woodhurij  v.  Woodbury,  141  Mass.  expressed  satisfaction  with  the  trana- 
330,  55  Am.  Rep.  479,  5  N.  E.  275  ;Li/ort  action,  his  intoxication  having  been 
V.  Ilo-me,  L.  R.  6  Eq.  655,  37  L.  J.  Ch.  N.  contributed  to  in  some  measure  by  the 
S.  674,  18  L.  T.  N.  S.  451,  16  Week.  Rep.  grantee.  Rutherford  v.  Ruff,  4  De- 
824.  sauss.   Eq.  350. 


142  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§139 

able  motive,  warrants  an  inference  of  fraud  which  will  invalidate  it.^^ 
And  a  conveyance  without  consideration  will  be  relieved  against  in 
equity,  where  the  grantor  was  so  intoxicated  as  not  to  know  what  he 
was  doing,  thoagh  the  intoxication  was  not  induced  or  produced  by  the 
grantee. ^*^  An  habitual  drunkard,  however,  is  presumed  to  be  compe- 
tent to  make  a  valid  gift,  unless.it  appears  that  his  intemperance  had 
produced  a  settled  derangement  of  his  faculties.^ '^  And  a  gift  will  not 
be  set  aside  because  the  donor's  memory  was  somewhat  impaired  from 
advancd  age  and  the  use  of  intoxicating  liquors,  where  he  still  pos- 
sessed a  sound  practical  judgment  in  business  matters,  and  exhibited 
judgment  in  making  the  disposition,  which  was  not  unreasonable  or 
unjust.^* 

^'^Samuel  v.  Marshall,  3  Leigh,  567.  A  deed  of  trust  for  the  benefit  of  the 

^'Hutchinson  v.   Tindall,  3   N.  J.   Eq.  grantor's     wife    and     children,     though 

357 ;  Warnock  v.  Campbell,  25  N.  J.  Eq.  made  while  intoxicated,  will  not  be  set 

485;  Ryerson  v.  Adams,  6  N.  J.  Eq.  618.  aside   in   equity  upon   the  ground   that 

^''Gardner  v.  Gardner,  22  Wend.  526,  undue  advantage  had  been  taken  of  his 

34  Am.  Dec.  340.  condition.     Hutchinson  v.  Tindall,  3  N. 

"'Wiley  V.  Ewalt,  66  HI.  26  j  Belcher  J.  Eq.  357. 
V.  Belcher,  10  Yerg.  12 U 


CHAPTEK  VI. 

COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 

L  Lunacy. 

140.  Process  to  determine  lunacy  by  a  commission. 

141.  Jurisdiction. 

142.  General  manner  of  issuing. 

143.  Nature  and  necessity  of. 

144.  Issue  before  a  commission  is  general  incompetency, 

145.  Tests  of  incapacity. 

146.  Age,  disease,  weakness. 

147.  Eccentricity  or  partial  unsoundness. 

148.  Question  for  jury. 

149.  Proof   to   establish    incompetency. 

150.  Inquisition  as  evidence;   conclusiveness  generally. 
1^1.  Effect  of  inquisition  on  overreached  acts. 

152.  Right  to  traverse. 

153.  Evidence  necessary  to  rebut  inquisition. 

154.  Proceedings  may  be  set  aside  if  irregular  or  inequitable^ 

155.  Superseding  on  recovery. 
H.  Deunkenkess. 

156.  Drunkenness  warranting  inquisition. 

157.  Inquisition  of  habitual  drunkenness  as  evidence. 

158.  Discharge  and  restoration. 

I.  Lunacy. 

140.  Process  to  determine  lunacy  by  a  commission. — In  most  of  the 
United  States,  as  in  England,  process  exists  by  which,  when  a  party 
is  incapable  of  the  management  of  his  estate,  whether  from  mental  un- 
soundness or  from  habitual  drvmkenness,  a  committee  may  be  ap- 
pointed to  whom  the  custody  of  his  property  is  committed.  It  would 
be  out  of  place  to  set  forth  here  the  statutes  by  which  this  process  is  de- 
fined and  settled;  it  is  enough  now  to  notice  the  general  scheme  of 
practice  which  exists  in  England,  and  which  has  been,  with  the  excep- 
tion of  only  slight  alterations  of  detail,  adopted  in  this  country.^ 

141.  Jurisdiction. — In  the  absence  of  statutory  provision  on  the  sub- 
ject, a  court  of  chancery,  under  the  rules  of  the  common  law,  will  have 

'See  Ordronaux,  Insanity  (1877)  2  cf 
seq. 

143 


144 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


I§   14) 


authority  to  protect  the  estates  of  persons  who,  by  reason  of  mental 
infirmities,  are  nnable  to  do  so;  and,  tx>  accomj)lisli  this  end,  can  ap- 
point a  projier  person  for  the  purpose.^ 

And  the  jurisdiction  of  a  court  to  appoint  guardians  for  persons  of 
unsound  mind  is  as  extensive  iis  is  its  jurisdiction  to  probate  wills, 
grant  letters  testamentary^,  and  to  sell  property  of  an  intestate,  and  al- 
lot dower  and  partition,  where  such  powers  are  all  conferred  by  the 
same  statutory  provision.^  x\nd  a  constitutional  provision  granting 
the  general  assembly  power  to  establish  courts  of  probate  with  general 
jurisdiction  for  the  granting  of  letters  testamentary  does  not  deny  it 
the  power  to  invest  probate  courts  with  original  jurisdiction  in  matters 
pertaining  to  persons  of  unsound  mind."*  To  acquire  jurisdiction, 
notice  to  the  alleged  lunatic  is  held  to  be  necessary  by  a  majority  of 
the  cases.^     But  the  contrary  rule  has  also  been  asserted.®     And  the 


-Chapter  v.  Pillar,  28  Colo.  209,  63 
Pac.  302. 

An  appointment  of  a  guardian  of  an 
inonnipctent  person,  showing  upon  its 
face  that  the  court  was  without  juris- 
diction, is  subject  to  collateral  attack 
in  an  action  brought  in  the  name  of  the 
incompetent  person  by  the  guardian. 
McCee  v.  Hayes,  127  Cal.  336,  78  Am. 
St.  Rep.  57,  59  Pac.  767. 

%'raft  V.  Simon,  118  Ala.  625,  24  So. 
380. 

In  Ohio,  where  a  person  has  been  in- 
dicted for  a  crime  his  sanity  can  only 
be  investigated  by  a  jury  in  the  common 
pleas  court,  as  provided  by  law ;  and  the 
probate  court  cannot  entertain  juris- 
diction of  a  lunacy  inquisition  before 
his  trial.  Slate  ex  rel.  Palmer  v. 
South,  7  Ohio  N.  P.  442,  5  Ohio  S.  &  C. 
P.  Dec.  588. 

*Craft  V.  Simon,  118  Ala.  625,  24  So. 
380. 

'  Among  the  numerous  cases  frori  the 
different  states  holding  this  rule  are: 
Moody  V.  Bibb,  50  Ala.  245;  McCurry  v. 
Hooper,  12  Ala.  823,  46  Am.  Dec.  280; 
Chase  v.  Hathaway,  14  Mass.  222;  Mc- 
Gee  V.  Hayes,  127  Cal.  336,  78  Am. 
St.  Rep.  57,  59  Pac.  767 ;  State  ex  rel. 
Bluisdell  v.  Billings,  55  Minn.  467,  43 
Am.  St.  Rep.  524,  57  N.  W.  206,  794: 
Slate  ex  rel.  Kelly  v.  Kilbourne,  68 
Minn.  320.  71  N.  VV.  396;  ^Vinslow  v. 
Troy,  97  Me.  130.  53  Atl.  1008;  Re  Yan- 
auhen,  10  N.  J.  Eq.  186;  Re  Rust,  177 
Pa.  340,  35  Atl.  623;  Haines  v.  Cear- 
lock,  95  111.  App.  203;  Lance  v.  McCoy, 
34  W.  Va.  416,  12  S.  E.  728;  Arrinfjton 
V.  Arrinfjton,  32  Ark.  674;  Jones  V. 
Lamed  (Colo.  App.)  66  Pac.  1071;  Kim- 


ball V.  Fish,  39  N.  H.  110,  75  Am.  Dec. 
213:  North  v.  Joslin,  59  Mich.  624,  26 
N.  W.  810:  Stewart  v.  Taylor,  23  Ky.  L. 
Rep.  577,  C3  S.  W.  783;  Hunt  v.  Searcy, 
167  Mo.  158,  67  S.  W.  206;  Ex  parte 
Dozier,  4  Baxt.  81;  Moshy  v.  Oisborn, 
17  Utah,  257,  54  Pac.  121;  Evans  v. 
Johnson,  39  W.  Va.  290,  23  L.  R.  A. 
737,  45  Am.  St.  Rep.  912,  19  S.  E.  623; 
Berry  v.  Berry,  147  Ind.  176,  46  N.  E. 
470. 

And  it  has  been  held  that  the  pres- 
ence of  the  alleged  lunatic  cannot  sup- 
ply the  requirement  of  the  statute  that 
he  should  be  served,  since  he  is  incap- 
able by  reason  of  his  incompetency  to 
consent  to  the  jurisdiction  of  the  court, 
or  waive  any  of  the  steps  necessary  to 
confer  jurisdiction.  McGee  v.  Hayes, 
127  Cal.  336,  78  Am.  St.  Rep.  57,  59 
Pac.  767. 

Proper  service  of  citation  will  be  pre- 
sumed, however,  in  the  absence  of  evi- 
dence to  tlie  contrary.  Reason  v.  Jones, 
119  Mich.  672,  78  N.  W.  899;  Soules  v. 
Robinson,  158  Ind.  97.  92  Am.  St.  Rep. 
301,  62  N.  E.  999,  affirming  (Ind.  App.) 
00  N.  E.  726. 

And  a  proceeding  to  declare  a  person 
to  be  of  unsound  mind,  and  for  the  ap- 
pointment of  a  guardian,  in  which  the 
sheriff's  return  was  complete  and  regu- 
lar in  every  respect  and  conformed  to 
the  statute,  and  the  meaning  of  the  writ 
was  evident,  is  not  subject  to  objection 
that  the  alleged  incompetent  had  no  op- 
portunity to  be  heard  at  the  inquisition, 
though  the  writ  was  not  technically  ac- 
curate. Craft  V.  Simon,  118  Ala.  625, 
24  So.  380. 

•See    Granger    v.    Shcrriff,    133    Cal. 


5  141]  COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS.  ,  145 

doctrine  that  notice  may  be  dispensed  with  upon  a  clear  showing  that 
it  would  be  improper  or  unsafe  is  supported  by  reason  as  well  as  au- 
thority.''' 

142.  General  manner  of  issuing. —  When  there  is  reason  to  believe 
that  a  party,  from  unsoundness  of  mind  or  habitual  drunkenness,  is 
incapable  of  managing  his  affairs,  a  petition  lies  generally  from  any 
person  interested  in  his  person  or  estate,  for  the  issuing  of  a  commis- 
sion.* Upon  the  reception  of  the  petition,  the  court  directs  a  commis- 
sion to  issue  to  one  or  more  persons — generally  required  to  be  learned 
in  the  law — directing  the  inquiry  by  commissioner  and  jury,  as  to  the 
facts  of  the  petition.  The  commissioner,  being  thus  author- 
ized, directs  a  precept  to  the  sheriff,  commanding  him  to  summon  a 
jury,  who,  when  they  meet,  hear  testimony — on  both  sides  if  desired — 
on  the  matter  submitted  to  them,  and,  after  being  charged  by  the  com- 
missioner as  to  the  law  of  the  case,  return  a  finding  as  to  whether,  from 
the  lunacy  or  habitual  drunkenness  complained  of,  the  respondent  is 
incapable  of  managing  his  estate.^  Should  the  finding  be  in  the  af- 
firmative, the  court  will  appoint  a  committee,  who  w'ill  take  charge 
of  the  respondent's  estate,  subject,  however,  to  the  absolute  right  of  the 
respondent  to  traverse  the  finding,  i.  e.,  to  put  in  a  formal  denial  of 
it,  in  which  case  the  question  is  determined  before  a  court  and  jury, 
in  the  same  way  as  any  other  contested  fact.     Whether   the   alleged 

41G,  65  Pac.  873;   Chavamies  v.  Priest-  I'ayn,  8  How.    Pr.    220 j    Re    Mason,    1 

ley,  80  Iowa,  31G,  9  L.  R.  A.  193,  45  N.  Barb.  430. 

W.  760;  Re  Dowdell,  109  Mass.  387,  61  But  the  appointment  of  a  conservator 

Am.  St.  Rep.  290,  47  N.  E.  1033;  State  of  an  alleged  lunatic,  made  on  applica- 

ex    rel.    Kelly    v.    Kilbourne,    08    Minn,  tion   of  four   selectmen   who  authorized 

320,    71    N.    W.    390;    Re   Bellenger,   32  one  of  tlieir  number  to  inquire  into  the 

Misc.    414,    06    N.   Y.    Supp.    531;    Med-  case  and  make  the  application,  signing 

lock  V.  Cof/hurn,  1  Rich.  Eq.  477;  Davi-  their  names,  is  not  subject  to  collateral 

son  V.  Tipton,  10  Ohio  L.  J.  321.  attack    under    a    statute    providing    for 

So,  in  Bunipus  v.  French,   179  Mass.  such  an  application  to  be  signed  by  the 

131,  00  N.  E.  414,  it  was  held  that  the  person  preferring  it.     State  v.  Flyde,  29 

appointment    of   a    temporary   guardian  Conn.  564. 

without  notice  is  constitutional.  ®  The  New  Y''ork  practice  is  given   in 

But  absence  of  notice  should  be  con-  Ordronaux,  Insanity  (1877)  14.     See,  as 

sidered  on  application  by  the  lunatic  to  to  the  practice  in  regard  to  the  appoint- 

be  permitted  to  traverse  the  proceedings,  ment      and      removal      of      committees, 

Re  Sweeney,  81  App.  Div.  231,  81  N.  Y.  Black's    Gate,    18   Pa.   434;    Eulings    v. 

Supp.  47.  Laird,  21  Pa.  265. 

'  See  Re  Blewitt,  131  N.  Y^.  541,  30  N.  A  proper  instruction  to  the  jury  on  a 

E.   587;    O'Brien  v.    O'Brien,    2    N.    Y.  commis-t?n  of  lunacy  is  that  a  finding 

Anno.    Cas.    117,    38    N.    Y'.    Supp.    157;  against   the   inquisition   should   be   that 

Ostcr  v.  Meyer,  23  Ky.  L.  Rep.  245,  67  the    person    sought    to    be    put    under 

S.  W.  857;   Simon  v.  Craft,    1S2    U.    S.  guardianship  is  of  sound  mind  and  capa- 

427,  45  L.  ed.  1105,  21  Sup.  Ct.  Rep.  830.  ble  of  managing  his  estate;  and  a  find- 

*The    petition    must    be    sustained    by  ing  in  its  favor  sjiould  be  that  he  is  of 

aflidavits.      Ex   parte  Perssc,    1    ]\Iolloy,  imsound  mind  and  incapable  of  nianag- 

219;    Re  Lincoln,   1   Brewst.    (Pa.)    392.  ing  his  estate.     Cochran  v.  Ainsden,  104 

And  it  is  necessary  to  jurisdiction.     Re  Ind.  282,  3  N.  E.  934. 
Vol.  I.  Med  .Tur.— 10. 


146 


MENTAJ.  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   142 


hmatic  really  is  capable  of  volition  as  to  a  traverse,  and  desires  that  y 
traverse  should  be  entered,  will  be  determined,  it  seems,  by  the  chan- 
cellor himself,  by  personal  examination  or  otherwise.^" 

143.  Nature  and  necessity  of. —  The  proceeding  to  put  a  person  un- 
der a  conservator  or  guardian  is  in  the  nature  of  a  commission  on  a 
^\Tit  de  IvAiatico  inquirendo}'^  And  one  cannot  be  regarded  as  in- 
sane so  as  to  authorize  the  appointment  of  a  g-uardian  or  conservator 
without  the  issue  of  such  a  writ  and  a  finding  of  a  jury  thereon  ;^2  an 
appointment  without  an  inquisition  being  absolutely  void;^^  and  im- 
peachable in  any  court  in  a  collateral  proceeding  in  which  a  party 
seeks  a  benefit  thereby,^*  though  chancery  may  exercise  a  temporary 
jurisdiction  over  a  lunatic  before  inquisition,  when  necessary  for  the 
protection  of  his  estate  or  his  maintenance.^^ 

144.  Issue  before  a  commission  is  general  incompetency. —  It  will  be 
seen  that  the  point  at  issue  under  a  commission  of  lunacy  or  habitual 
drunkenness  is  the  general,  and  not  the  partial  or  particular,  incompe- 
tency of  the  party  who  is  the  subject  of  the  inquiry.^ ^     A  commis- 


"iJe  Gumming,  11  Eng.  L.  &  Eq.  Rep. 
202,  1  De  G.  M.  &  G.  537,  21  L.  J.  Ch. 
N.  S.  753,  16  Jur.  483. 

'^Griswold  v.  Butler,  3  Conn.  227. 

It  13  a  quasi  criminal  proceeding. 
Taylor  v.  Barker,  20  Ky.  L.  Rep.  582, 
47  S.  W.  217;  Oster  v.  Meyer,  23  Ky.  L. 
Rep.  2455,  67  S.  W.  851.  And  see  State 
V.  Duestroiv,  70  Mo.  App.  311. 

^-Eslava  v.  Lepretre,  21  Ala.  504,  56 
Am.  Dec.  266 ;  Coon  v.  Cook,  6  Ind.  268 ; 
Martin  v.  Steioart    (Kan.l    73  Pac.  107. 

The  finding  must  conform  to  the 
statute  providing  for  it.  Re  Wendel,  33 
Misc.  532,  68  N.  Y.  Supp.  904. 

A  finding,  in  a  proceeding  for  guard- 
ianship, that  one  is  mentally  incapable, 
is  equivalent  to  a  finding  of  mental  in- 
competency. Ke  Leonard,  95  Mich.  295, 
64  N.  W.  1082. 

And  the  finding  of  a  jury  that  a  per- 
son named  was  of  unsound  mind  is  suf- 
ficient under  a  statute  requiring  the 
court  to  appoint  guardians  for  persons 
of  unsound  mind,  to  authorize  such  an 
appointment,  at  least,  on  collateral  at- 
tack. Craft  V.  Simon,  118  Ala.  625,  24 
So.  380. 

But  a  finding  on  a  commission  of 
lunacy  that  a  person  whose  sanity  was 
in  question  was  of  unsound  mind,  not 
stating  how  or  when  it  became  unsound, 
;ind  not  finding  liim  to  be  an  idiot,  is 
not  suflicient  to  support  an  inquisition 
so  as  to  render  it  admissible  in  evidence 


as  prima  facie  proof  of  his  idiocy. 
Christmas  v.  Mitchell,  38  N.  C.  (3  Ired. 
Eq.)  535. 

And  a  return  to  a  commission  of 
lunacy  that  the  request  to  have  a  guard- 
ian appointed  is  right  and  reasonable 
is  not  a  finding  that  the  party  is  insane 
and  incapable  of  taking  care  of  himself, 
— that  being  the  subject-matter  of  the 
inquiry.  Smith  v.  Burnham,  1  Aik. 
(Vt.)  84.  And  see  Re  Beaumont,  1 
Whart.  52,  29  Am.  Dec.  33. 

^"Moody  V.  Bibb,  50  Ala.  248;  Esla/va 
V.  Lepretre,  21  Ala.  504,  56  Am.  Dec. 
260 ;  Re  Payn,  8  How.  Pr.  220. 

A  judgment  declaring  a  person  to  be 
of  unsound  mind  wi>ll  be  set  aside  when 
procured  by  falsely  representing  that 
he  was  confined  in  a  hospital  and  could 
not  be  produced  without  injury  to  his 
health.  Asbury  v.  Frisz,  148  Ind.  513, 
47  N.  E.  328. 

^*Eslava  v.  Lepretre,  21  Ala.  504,  56 
Am.  Dec.  266.  And  see  Asbury  v.  Frisz, 
148  Ind.  513.  47  N.  E.  328. 

'■•Vane  v.  Van^,  L.  R.  2  Ch.  Div.  124; 
Re  Harris,  7  Del.  Ch.  42.  28  Atl.  329; 
Nailor  v.  Nailor,  4  Dana,  340;  Re  Dey, 
9  N.  J.  Eq.  181;  Re  Wendell,  1  Johns. 
Ch.  600;  Re  Kenton,  5  Binn.  613. 

'"^^Wal son's  Interdiction,  31  La.  Ann. 
757. 

In  determining  the  question  as  to  the 
issue  of  a  commission  of  lunacy,  no  re- 
gard is  had  for  the  possible    results  of 


§   144]  COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS.  147 

sion  of  lunacy  is  executed  with  deliberation,  after  a  cann  and  full  re- 
\iew  of  the  previous  life  of  the  party  under  consideration.  And  he 
is  not  likely,  as  in  criminal  defenses,  to  obtain  a  verdict  of  insanity 
through  undue  sympathy,  for  his  interests  and  his  pride  are  both  en- 
listed in  resisting  his  moral  and  intellectual  disfranchisement.  It  be- 
comes, therefore,  a  simple  test :  Is  the  respondent  prevented,  by  men- 
tal unsoundness  or  habitual  drunkenness,  from  managing  his  own  es- 
tate ?^^  If  he  is,  no  matter  how  responsible  he  may  be  for  crime,  or 
capable  at  particular  times  of  making  a  bargain,  the  finding  must  be 
against  him. 

145.  Tests  of  incapacity. —  The  rule  has  been  declared  that  to  au- 
thorize the  appointment  of  a  committee  or  guardian,  the  mind  of  the 
alleged  lunatic  must  have  been  so  far  impaired  as  to  reduce  it  to  the 
standard  of  idiocy ;  and  that  it  is  not  sufficient  that  he  is  incapable  of 
managing  his  affairs  or  governing  himself  in  consequence  of  mental 
imbecility  and  weakness.  ^^  But  it  now  seems  to  be  settled  that  the 
issuance  of  a  commission  of  lunacy  is  governed  solely  by  a  considera 
tion  of  what  is  necessary  for  the  protection  of  the  person  and  prop- 
erty, and  well-being  and  happiness  of  the  alleged  lunatic  ;^^  and  that 
one  need  not  be  a  technical  idiot  or  lunatic,  or  absolutely  or  utterly 
mad,  to  justify  the  appointment  of  a  committee  or  guardian  ;^'^  and 
that  want  of  discretion,  from  whatever  cause,  is  sufficient  reason  for 

the  commission  as  to    the    validity    of  Sherwood  v.  Sanderson,  19  Ves.  Jr.  280, 

antecedent  acts,  when  motives  actuating  13  Revised  Rep.  193. 
the  proceeding  are  taken  into  considera-        "T^e  J.  B.  1  Myl.  &  C.  138;  Re  Hoblyn, 

tion.      Re  J.  B.  1  Myl.  &  C.  538.  29  L.  T.  305;   Com.  ex  rel.  Euchenberg 

And  title  to  land  is  not  involved  in  a  v.   Schneider,   59   Pa.   328;    Calderon  v. 

lunacy  proceeding,  and  a  commission  in  Martin,  50  La.  Ann.    1153,  23  So.  909; 

such  a  proceeding  has  no  power  to  settle  Re  Clifford,  57    N.    J.    Eq.   14,  41   Atl. 

any    such    question.      Hughes   v.    Jones,  356;  Re  Clark,  57  App.  Div.  5,  67  N.  Y. 

116  N.  Y.  667,  5  L.  R.  A.  632,  15  Am.  St.  Supp.  631,  175  N.  Y.  139,  67  N.  E.  212, 

Rep.  386,  22  N.  E.  446.  reversing  the  previous  case  on  the  ques- 

^''Titcomb  v.  Vantyle,  84  111.  371;  Ja-  tion    of    the    sufficiency    of    the    return. 

cox  V.  Jacox,  40  Mich.  473,  29  Am.  Rep.  And  see  Flympton  v.  Ball,  55  Minn.  22, 

547;     Fentress    v.    Fentress,    7     Heisk.  21    L.    R.   A.    675,    56    N.   W.    351;    Re 

428;   Gray  v.  Obear,  59  Ga.  675.     And  Streiff  (Wis.)   97  N.  W.  189. 
see  infra,  §   145,  Tests  of  iNCAPACiXir.        Upon    an    inquisition    of    lunacy    the 

In   actions   for   the   interdiction   of  a  court  does  not  merely  consider  the  medi- 

party  for   insanity,   however,   investiga-  cal  evidence  to  ascertain  whether  the  ir- 

tion   of   the   motives   of   those   who   are  regularities   and   defects   do   or   do   not 

provoking  the  interdiction  is  of  the  ut-  amount  to  insanity,  but  is  governed  by 

most  consequence.    Francke  v.  His  Wife,  a  regard  for  the  well-being  and    happi- 

29  La.  Ann.  302.  ness  of  the  alleged  lunatic,  and  the  con- 

"iie  Morgan,  7  Paige,  236;  Re  Shaul,  dition  and  security  of  his  property.    Re 

40   How.   Pr.    205.     And   see   Ex   parte  Hoblyn,  29  L.  T.  305. 
Barnsley,    3    Atk.    168;    Re   Donegal,    2        -'Shapter  v.  Pillar,  28  Colo.   209,  63 

Ves.  Sr.  407.  Pac.  302;   Cleveland's  Appeal,  72  Conn. 

Within    this    rule    a    verdict    of    un-  340,   44   Atl.   476;    McCammon  v.   Cun- 

soundness  on  a  commission  of  lunacy  is  ningham,    108    Ind.    545,    9   N.    E.   455 ; 

equivalent   to  one  o'   idiocy  or   lunacy.  Hhaw  v.  Dixon,  6  Bush,  644;   Calderon 


148 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   145 


the  appointment  of  a  guardian,  where  it  is  likely  to  bring  the  party  tc 
want  and  render  him  a  public  charge.^^  But  a  committee  cannot  be 
appointed  in  a  proceeding  de  lunatico  inquirendo  unless  it  is  clearly 
established  that  the  party  is  either  an  idiot,  a  lunatic,  or  a  person  of 
unsound  mind.^^  The  question  at  issue  in  such  a  proceeding  is 
whether  the.  defendant  was  so  far  deprived  of  his  reason  and  under- 
standing as  to  be  unable  to  e-overn  himself  and  manage  his  affairs.^'' 


V.  Martin,  50  La.  Ann.  1153,  23  So.  909; 
Re  Conover,  28  N.  J.  Eq.  330;  Jackson 
V.  Jackson,  37  Hun,  30(5;  Rigys  v.  Amer- 
ican Tract  Soc.  95  N.  Y.  511;  Re  Clark, 
57  App.  Div.  5,  67  N.  Y.  Supp.  631;  Re 
Anderson,  132  N.  C.  243,  43  S.  E.  049; 
Re  Emsiviler,  8  Ohio  N.  P.  132,  11  Ohio 
S.  &  C.  P.  Dec.  10;  Smith's  Case,  22  Pa. 
Co.  Ct.  487;  Com.  ex  rel.  Euchenberg  v. 
Schneider,  59  Pa.  328;  Re  Streiff  (Wis.) 
97  N.  W.  189 ;  Ridgeiray  v.  Darwin,  8 
Ves.  Jr.  65,  6  Revised  Rep.  227. 

'J'he  term,  "non  compos  mentis,"  used 
in  the  Maryhiiid  act  giving  power  to 
rourts  to  superintend  and  direct  the  af- 
fairs of  such  persons,  embraces  not  only 
lunatics  and  idiots,  but  all  others  whose 
minds  are  unsound.  Greenwade  v. 
Greenwade,  43  Md.  313. 

And  an  inquisition  vmder  the  Tennes- 
see statute  contemphitos  three  l<inds  of 
incapacity,  idiocy,  lunacy,  and  unsound- 
ness of  mind  short  of  that  involving  an 
inability  to  govern  one's  self  and  prop- 
erty. Fentress  v,  Fentress,  7  Heisk. 
428. 

And  an  instruction  in  a  proceeding 
for  the  appointment  of  a  guardian, 
which  distinguished  between  unsound- 
ness of  mind  from  idiocy  on  the  one 
hand  and  lunacy  on  the  other,  is  proper 
under  a  statute  like  that  of  Iowa,  desig- 
nating three  classes  for  whom  guardians 
may  be  appointed.  Smith  v.  Hickenbot- 
torn,  57  Iowa,  733,  11  N.  W.  064. 

Under  the  Michigan  statute  as  to 
commissions  of  lunacy  the  infirmity 
which  justifies  the  appointment  of  a 
guardian  must  be  equivalent  to  insan- 
ity, and  such  as  to  render  the  person 
incompetent  to  have  charge  of  or  do  any 
business.  And  a  petition  alleging  that 
the  party  is  feeble  in  body  an'd  mind  so 
as  to  be  unable  to  manage  her  business 
affairs  with,  a  proper  degree  of  judg- 
ment and  skill,  her  miiul  being  so  weak 
that  she  could  be  inlluenced  by  others 
in  any  direction,  even  against  her  own 
interest  and  that  of  her  family,  and 
c(iul(l  be  induced  to  part  with  her  prop- 
city   witliout  just   compensation,  is  not 


sufficient  to  give  the  court  jurisdiction 
of  a  proceeding  for  the  appointment  of 
a  giundian.  Re  Slorick,  64  Mich.  685, 
31  N.  W.  582. 

""Wngell  v.  Probate  Court, \\  R.I.  187: 
McCammon  v.  Cunningham,  108  Ind. 
545,  9  N.  E.  455;  Xailor  v.  Nailor,  4 
Dana,  340;  Greenwade  v.  Greenwade,  43 
Md.  313;  Re  Tracy,  1  Paige,  580;  Re 
Streiff  (Wis.)  97  N.  W.  189;  Ridgeway 
V.  Darwin,  8  Ves.  Jr.  05,  6  Revised  Rep. 
227.  And  see  Franiz  v.  Frantz,  6  Ohio 
S.  &  C.  P.  Dec.  555. 

A  guardian  may  be  appointed  for  an 
alleged  lunatic  where  there  is  reason- 
able ground  to  apprehend  that  the  luna- 
tic may  do  violence  to  himself  or  others, 
or  squander  his  property,  though  no  act 
of  madness  has  been  committed.  Com. 
V.  Meredith,  14  W.  N.  C.  188.  And  see 
Re  Cope,  7  Pa.  Co.  Ct.  400. 

So,  the  fact  that  a  female  defendant 
in  an  action  was  unmarried  and  above 
sixty  years  of  age,  and  had  been  deaf 
and  dumb  from  infancy,  renders  her  in- 
capable of  defending  the  action,  and 
authorizes  the  appointment  of  a  guardi- 
an ad  litem  to  defend  it  for  her. 
Markle  v.  Markle,  4  Johns.  Ch.  168. 

"Re  Sliaul,  40  How.  Pr.  204;  Re 
Mason,  3  Kdw.  Ch.  380;  Re  Morgan,  7 
Paige,  23(j;  Re  Fcrrinc,  41  N.  J.  Eq. 
409,  5  Atl.  579;  Re  Beaumont,  1  Whart. 
52,  29  Am.  Dec.  33 ;  Hopkins  v.  Howard, 
20  R.  I.  395,  39  Atl.  519;  Re  Holmes,  4 
Russ.  Ch.  182,  28  Revised  Rep.  42. 

Jilere  incompetency  to  manage  one's 
own  affairs  will  not  alone  support  a 
charge  of  lunacy  against  him.  Slier 
wood  V.  Sanderson,  19  Ves.  Jr.  280, 
Cooper  Ch.  108,  13  Revised  Rep.  193. 
Rut  see  Re  Burr,  17  Barb.  13;  Re 
Monahan,  9  Ir.  Eq.  Rep.  253,  3  Jones  & 
L.  258. 

'^Shaptcr  v.  Pillar,  28  Colo.  209,  63 
Pac.  302;  Gray  v.  Obcar,  59  (In.  675; 
Uamrick  v.  State,  134  Ind.  324,  34  N.  E. 
3;  Fiscus  v.  Turner,  125  .'nd.  4(),  24  N. 
E.  662;  McCammon  v.  Cunningham,  108 
Ind.  545,  !)  N.  E.  455:  Snyder  v.  >-'nyder, 
142    111.    60,   31    N.   E.   303;    Guthrie  V. 


S   145] 


COxMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 


14!) 


And  the  question  on  an  inquisition  against  one  afflicted  witli  a  delusion 
shown  to  have  a  dangerous  tendency  is  whether  there  is  such  imminent 
danger  as  to  require  his  control  for  his  own  good  or  that  of  others.-^ 
Some  of  the  cases  have  qualified  this  rule,  however,  by  requiring  inca- 
pacity for  the  carrying  on  of  ordinary  business  with  reasonable  pru- 
dence.^^  And  within  this  rule  one  who  has  sufficient  sense  and  judg- 
ment to  transact  the  business  affairs  pertaining  to  the  situation  in  life 
in  which  he  is  placed  is  not  an  .incompetent  for  whom  a  guardian 
should  be  appointed.^^     But  the  general  rule  holds  that  the  mere  fact 


(hithrie,  84  Iowa,  372,  51  N.  W.  13; 
S]taw  V.  Dixon,  6  Bush,  G44 ;  Lackey  v. 
Lackey,  8  B.  Mon.  107;  Re  Lindsley,  43 
N.  J.  Eq.  9,  10  Atl.  549;  Re  James,  35 
N.  J.  Eq.  58;  Re  Hill,  31  N.  J.  Eq.  203; 
Re  Collins,  18  N.  J.  Eq.  253;  Re  Con- 
over,  28  N.  J.  Eq.  330;  Jackson  v.  Jack- 
son, 37  Hun,  301^  R(^  Rogers,  9  Abb.  N. 
C.  141;  Re  Burr,  17  Barb.  13;  Re 
Mason,  1  Barb.  430;  Re  Barker.  2  Johns. 
Ch.  232;  Re  Emsiciler,  8  Ohio  N.  P. 
132,  11  Ohio  S.  &  C.  P.  Dec.  10;  Com. 
ex  rel.  Haskell  v.  Haskell,  2  Brewst. 
(Pa.)  491;  Re  Cope,  7  Pa.  Co.  Ct.  40G; 
Com.  V.  Meredith,  14  W.N.C.  188;  M'El- 
roy^s  Case,  6  Watts  &  S.  451;  Com.  v. 
Reeves,  140  Pa.  258,  21  Atl.  315;  Robert- 
son V.  Lyon,  24  S.  C.  200 ;  Henderson  v. 
McGregor,  30  Wis.  78;  Ex  parte  Cran- 
mer,  12  Ves.  Jr.  445;  Gibson  v.  Jeyes,  6 
Ves.  Jr.  206,  5  Revised  Rep.  295;  Sher- 
wood  V.  Sanderson,  19  Ves.  Jr.  280, 
Cooper  Ch.  108,  13  Revised  Rep.  193. 
And  see  Jones  v.  Learned  (Colo.  App) 
m  Pac.  1071. 

And  a  finding  on  a  commission  of 
lunacy  that  the  alleged  lunatic  i.^ 
mentally  incapable  of  governing  himself 
or  managing  his  affairs  is  sufficient  to 
^ivc  the  court  jurisdiction  to  authorize 
the  appointment  of  a  committee  of  his 
estate.  Re  Mason,  1  Barb.  430:  Re 
Barker,  2  Johns.  Ch.  232. 

An  allegation  in  a  petition  that  the 
plaintiff  employed  counsel  to  set  aside  a 
judgment  rendered  against  him  does  not 
overthrow  a  finding  by  the  court  that 
he  was  at  the  time  of  vmsound  mind, 
and  incapable  of  managing  his  own  af- 
fairs. Lantis  v.  Davidson,  60  Kan. 
389,  56  Pac.  745. 

"Com.  V.  Meredith,  14  W.  N.  C.  188, 
17  Phila.  90;  Owing's  Case,  1  Bland  Ch. 
290;  Re  Colvin,  3  Md.  Ch.  278;  Re 
Chattin,  10  N.  J.  Eq.  490. 

While  the  abstract  belief  in  spiritual- 
ism raises  no  presumption  of  incompe- 
tency, the  fact  that  a  per.son  has    sur- 


rendered his  will  to  the  control  of  such 
influences,  rather  than  to  the  exercise 
of  sound  judgment,  and  that  the  sup- 
posed communications  from  deceased 
persons  are  allowed  to  influence  him  in 
the  distribution  of  the  property,  or  the 
contracting  of  marriage,  so  tliat  his 
property  would  go  to  others  than  the 
natural  objects  of  his  bounty, — a  case  is 
presented  which  requires  an  investiga- 
tion as  to  his  competency.       Re  Beach, 

23  App.  Div.  411,  48  N.  Y.  Supp.  437. 
-"Hamrick  v.  Slate,  134  Ind.    324,    34 

N.  E.  3;  Fiscus  v.  Turner,  125  Ind.  40, 

24  N.  E.  662;  Re  Williams,  24  App'. 
Div.  247,  48  N.  Y.  Supp.  475;  Re  Streiff 
(Wis.)   97  N.  W.  189. 

A  commission  may  issue  against  a 
person  incapable  of  managing  his  affairs, 
though  he  is  not  totally  incapable  of 
taking  care  of  himself.  Com.  ex  rel. 
Euchcnberg  v.  Schneider,  59  Pa.  328. 

■'■Re  Storick,  64  Mich.  685,  31  S.  W. 
582. 

When  unsoundness  of  mind  is  proved 
on  a  commission  of  lunacy  the  question 
is  as  to  its  degree;  and  the  court  shouhl 
look  at  the  value  and  importance  of  the 
property  to  be  controlled,  and  consider 
the  question  whether  or  not  the  alleged 
lunatic  had  ever  previously  had  proper 
ty  to  control,  since  his  capacity  would 
be  greater  if  he  were  used  to  managing 
property.  Re  Collins,  18  N.  J.  Ecj. 
253.' 

And  a  commission  of  lunacy  will  not 
issue  against  a  man  under  the  care  of 
his  wife,  where  it  does  not  appear  to  be 
required  for  his  comfort  and  protectior-, 
and  might  be  attended  with  injuri'.'us 
results,  though  his  mind  was  un- 
balanced. Re  Clement,  Shelford  on 
Lunatics,  92. 

And  a  woman  able  to  take  care  of  her- 
self in  the  home  provided  for  her.  and 
who  knows  how  to  care  for  lier  house 
and  table  and  clothing,  and  transact  the 
ordinary  affairs  of  the  household  which 


150  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  145 

that  a  person  cannot  manage  his  estate  judiciously,  or  that  his  man- 
agement is  not  such  as  a  person  of  intellect,  vigor,  and  skill  might  ap- 
prove, does  not  warrant  the  appointment  of  a  guardian  or  commit- 
tee f"^  mental  health  and  fitness  to  manage  the  common  and  ordinary 
aliairs  of  life  being  required  to  exempt  one  from  inquisition,  and  not 
<'ompetency  proportioned  to  tlut?  extent  of  one's  estate."^ 

146.  Age,  disease,  weakness. —  A  commission  of  lunacy  is  not  con- 
fined to  direct  insanity,  but  applies  to  cases  of  imbecility  of  mind  from 
any  cause, — as  age,  disease,  weakness,  or  habitual  drunkenness.^'' 
But  the  imbecility  of  age  must  amount  to  unsoundness  of  mind.'^^  A 
person  is  not  a  person  of  unsound  mind  because  he  is  aged,  if  he  is 
capable  of  transacting  all  ordinary  business  involving  the  taking  care 
of  his  property,  and  understands  the  nature  and  effect  of  wtat  he  does, 
and  can  exercise  his  will  with  discretion,  notwithstanding  the  infiuence 
of  others,^ ^  though  he  requires  something  more  than  his  own  mind  fur- 
nishes for  the  protection  of  himself  and  of  his  property.^^  Nor  is 
mere  weakness  of  intellect  of  itself  sufficient  to  establish  insanity  jus- 
tifying the  issue  of  a  commission  of  lunacy.^^    But  a  guardian  may 

she  is  accustomed  to  deal  with,  is  not  an  Ves.  Jr.  446;  Re  Perrine,  41  N.  J.  Eq. 

incompetent  for  whom  a  guardian  will  411,  5  Atl.  579;  Re  Collins,  18  N.  J.  Eq. 

be  appointed.       Re    Storick,    64    Mich.  25.3;  Re  Barker,  2  Johns.  Ch.  232;    Re 

685,  .31  N.  W.  582.  Clark,  57  App.  Div.  5,  67  N.  Y.    Supp. 

But  an  inquisition  of  lunacy    will  lie  631;  Re  Htreiff  (Wis.)  97  N.  W.  189. 

against  a  deaf-mute  sixty-five  years  of  ^"Re  Collins,   18  N.    J.    Eq.    253;    Re 

age,  who  had  been  so  since  infancy,  and  Rush,  53    N.    Y.    Supp.  581 ;   Taylor  v. 

could  neither  read  nor  write, nor  express  Moore,  23  Ky.  L.  Rep.  1572,  65    S.    W. 

her  understanding,    nor    transact     busi-  612;  Re    Htreiff    (Wis.)   97  N.  W.  189; 

ness,  and  had  always  been  cared  for  by  Ex  parte  Grunmer,   12  Ves.  Jr.  445. 

lier  relatives,  though  she    could    sweep,  '^Emerick  v.  Emerick,  83    Iowa,    411, 

cook,  and  sew,and  do  common, eveiy-day  13  L.  R.  A.  757,  49  N.  W.    1017;    Dar- 

work,  and  it  was   possible  to  communi-  linr)  v.  Bennet,  8  Mass.  129;  Re  Shaul, 

cate  to  her  a  desire  that  she  should  do  40  How.  Pr.  204;  Re  Brown,    45    Mich, 

such   work.     Re  Perrine,   41    N.   J.   Eq.  326,  7  N.  W.  899;  Re  Ulielleig,  11  Ohio 

409,  5  Atl.  579.  S.  &  C.  P.  Dec.  81;  /?e  Holmes,  4   Russ. 

-'Com.  V.  Reeves,  140  Pa.  258,  21  Atl.  Ch.  182,  28  Revised  Rep.  42;  Ex  parte 

315;  Com.  ex  rel.  Euchenbenj  v.  Schnei-  Cranmer,   12   Ves.  Jr.  445. 

der,  59  Pa.  328;  Com.  v.  Meredith,  14  W.  To  warrant  a  commission    of    lunacy 

N.  C.  188,  17  Phila.  90;  Darling  v.  Ben-  the  mind  of  an  aged  person  must    have 

net,    8    !Mass.      129;      Schick    v.    Stuhr  been  so  impaired  that  he  was  not    only 

(Iowa)    94  N.  W.   915;   Re  Hhellcig,   11  incapable  of  managing  his  property,  but 

Ohio  S.  &  C.  P.  Dec.  81.  also     incapable    of    governing    himself. 

And  the  fact  that  a  man  is  not  able  Re  Lindsley,  44  N.  J.  Eq.  564,  G  Am.  St. 
to  provide  a  comfortable  and  suitable  Rep.  913,  15  Atl.  1. 
maintenance  for  his  family  does  not  But  a  person  afflicted  with  senile  de- 
authorize  the  apj)ointment  of  a  guardi-  mentia  or  imbecility  may  be  declared  a 
an,  though  he  made  foolish  bargains  and  lunatic.  Re  Kclli/,  6  Ont.  Pr.  Rep.  220. 
squandered  his  eariiiuirs.  Parlcllo  v.  ^-Re  Lanqley,  cited  in  Shelford  on 
nolton,  79  Midi.  372,  44  N.  W.  619.  Lunatics,  90. 

""•Re  Mason,  60  Ilun,    46,    14    N.    Y.  "^Franeke  v.  His  Wife.  29    La.    Ann. 

Supp.  434.  302;  Walson's  Interdiction,  31  La.  Ann. 

•^Uidgeiixiy  v.  Daricin.  8  Ves.    Jr.    65,  757;    Crcnuvadc  v.   (Ircenuadc,   43  Md. 

G    Revised   Rep.    227;    Re   Cranmer,    12  313;   Re,  Mason,  60  Hun,  46,  14    N..  Y. 


I  146] 


COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 


151 


be  appointed  for  one  who  is  of  such  mental  weakness  that  his  judg 
ment  cannot  be  trusted  in  the  management  of  business,  whether  it 
arises  from  unsoundness  of  mind,  idiocy,  or  lunacy.^* 

147.  Eccentricity  or  partial  unsoundness. —  An  inquisition  should 
not  issue  unless  the  evidence  shows  something  more  than  eccentricity 
or  partial  unsoundness,^^  or  than  superstition,  folly,  or  unfounde<l 
jealousy.^^  And  the  mere  fact  that  a  party  is  a  lunatic  will  not  war 
rant  a  commission,  where  he  enjoys  lucid  intervals,  and  during  such 
intervals  he  is  competent  to  govern  himself  and  his  affairs.^'^  But  an 
inquisition  will  lie  against  one  incapable  of  governing  himself  or  his 
estate,  notwithstanding  the  fact  that  he  has  lucid  intervals.^* 

148.  Question  for  jury. —  The  existence  of  such  a  state  of  unsound- 
ness of  mind  as  will  give  tlie  courts  jurisdiction  to  superintend  the  af- 
fairs of  a  person  is  a  question  of  fact  depending  upon  proof.^"  And 
the  question  whether  a  delusion  upon  a  particular  subject  will  author- 
ize a  finding  of  lunacy  upon  an  inquisition  is  for  the  determination 
of  the  jury.'**^     But  it  would  appear  to  be  proper  to  provide  for  the 


Supp.  434;  Co7}i.  ex.  rel.  Haskell  v.  77 as- 
kell,  2  Brewst.  (Pa.)  491;  Re  Heft,  8 
Pa.  Dist.  R.  99:  Smith's  Appeal,  12  Pa. 
Super.  Ct.  649,  22  Pa.  Co.  Ct.  487;  Re 
Donegal,  2  Ves.  Sr.  407,  Ves.  Sr.  Supp. 
3G9.  ' 

And  mere  weakness  of  mind  does  not 
justify  the  issue  of  a  commission  of 
lunacy,  though  it  is  combined  with 
lack  of  business  capacity  or  experience. 
Re  Mason,  60  Hun,  46,  14  N.  Y.  Supp. 
434. 

And  partial  failure  of  memory  and 
decay  and  feebleness  of  the  intellectual 
faculties  are  not  evidence  of  unsound- 
ness of  mind  which  will  justify  a  find- 
ing of  lunacy.  To  warrant  sucli  a  find- 
ing there  must  have  been  a  total  do- 
privation  or  suspension  of  the  ordinary 
powers  of  the  mind.  Re  Vanauken,  10 
N.  J.  Eq.  192. 

^*Smith  V.  Hlckenbottom,  57  Iowa, 
733,  11  N.  W.  664;  Re  Flint,  Shelford 
on  Lunatics,  91;  Re  J.  B.  1  Myl.  &  C. 
538. 

But  an  instruction  in  an  action  for 
the  discharge  of  a  trustee  and  to  have 
the  trust  property  turned  over  to  the 
cestui  que  trust,  in  which  insanity  is  al- 
leged as  a  defense,  that  mere  weakness 
of  mind,  where  there  is  no  fraud  or  im- 
position, will  not  relieve,  is  inapplicable 
to  the  case,  and  fragmentary  in  its 
character  and  therefore  erroneous. 
Obear  v.  Grat/,  73  Ga.  455. 

*»fie  Cope,  7  Pa.  Co.  Ct.  406. 


*^Com.  ex  rel.  Rnhright  v.  Western 
Pennsijlvania  Hospital,  3  Pittsb.  299. 

And  where,  by  statute,  a  guardian 
may  be  appointed  for  a  spendthrift,  to 
warrant  such  appointment  there  must 
be  evidence  of  excessive  drinking,  gam- 
ing, debauchery,  and  the  like.  Proof  of 
weak-minded  habits  in  the  management 
of  money  is  not  enough.  Morey's  Ap- 
peal. 57' N.  H.  54. 

^''Ex  parte  Atkinson,  Jac.  333. 

^Re  Hill,  31  N.  J.  Eq.  203;  Guthrie  v. 
Guthrie,  84  Iowa,  372,  51  N.  W.  13. 

'^"Grcenivade  v.  Greenicade,  43  Md. 
313. 

A  proceeding  to  declare  a  person  to  be 
of  unsound  mind,  and  for  the  appoint- 
ment of  a  guardian,  in  which  a  jury  is 
drawn  in  accordance  with  the  methods 
prescribed  for  drawing  juries  in  probate 
court,  is  not  subject  to  objection  that  no 
jury  was  summoned  as  provided  by  law, 
jurisdiction  of  such  proceedings  having 
been  conferred  upon  probate  courts. 
Graft  V.  Simon,  118  Ala.  625,  24  So. 
380' 

And  there  can  be  no  review  on  the 
merit?,  except  on  the  question  of  juris- 
diction, in  the  absence  of  a  provision  for 
making  the  evidence  a  part  of  the 
record.  Co7n.  ex  rel.  Cope  v.  Harrold, 
204  Pa.  154,  53  Atl.  760. 

^'M'Elroy's  Case,  6  Watts  &  S. '  451. 
And  see  A'e  Weaver,  116  Pa.  225,  9  Atl. 
323. 

An  application  to  set  aside  an  inquisi- 


152 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  148 


submission  of  the  question  either  to  the  court  or  to  the  jury,  since  the 
constitutional  and  statutory  provisions  that  in  all  cases  involving  life 
and  liberty  the  accused  should  have  a  speedy  trial  before  an  impartial 
jury  apply  only  to  accusations  of  oifenses  against  the  criminal  law, 
and  not  to  the  appointment  of  a  guardian  for  an  insane  person  by  vir- 
tue of  an  adjudication  of  lunacy.*^  And  it  has  been  held  that  the  is- 
suance of  a  commission  of  lunacy  is  a  matter  of  judicial  discretion.*^ 
149.  Proof  to  establish  incompetency. —  Mere  eccentricity  or  pecul- 
iarity is  not  evidence  of  insanity  in  a  proceeding  for  the  issue  of  a 
commission,  where  that  is  a  normal  characteristic  of  the  party.*^  Nor 
does  the  fact  that  the  physical  and  mental  powers  of  a  person  were 
weakened  and  impaired  show  him  to  be  incompetent  to  manage  his  af- 
fairs, so  as  to  warrant  a  guardianship.*"*  And  old  age  and  impaired 
sight  and  hearing  raise  no  presumption  against  soundness  of  mind.*^ 
Nor  does  an  improvident  or  unusual  bargain.**^  And  a  delusion 
which  is  slight  and  harmless  will  not  authorize  a  finding  of  lunacy  on 
an  inquisition,  where  there  was  no  jDrospect  or  probability  of  its  effect- 


tion  as  against  the  weight  of  evidence 
is  properly  denied  where  tliere  was  evi- 
dence of  lunacy,  and  the  jury  had  the 
advantage  of  a  personal  examination. 
Re  Davenport,  G3  N.  J.  Eq.  342,  50  Atl. 

4n. 

*^Rlack  JJairJc  County  v.  Springer,  58 
Iowa,  417,  10  N.  W.  79 L  And  see  Re 
Welch,  108  Wis.  387,  84  N.  W.  550. 

It  has  be^n  held,  however,  that  the 
procedure  on  an  application  for  a  coni- 
nii=;sion  of  lunacy  must  be  conducted 
with  the  same  sanctions  as  other  judici- 
al investigations.  Re  Lincoln,  1 
Brevvst.  (Pa.)  392;  Re  Petit,  2  Paige, 
174;   Re  Russell,  1   Barb.  Ch.  38. 

And  it  is  the  duty  of  the  sheriff  to 
select  and  summon  jurors  on  an  inquisi- 
tion of  lunacy,  and  it  is  both  improper 
and  irregular  for  the  commissioners  to 
dictate  wliat  persons  should  be  sum- 
moned.      Re  Wnoer,  6  Paiee.  11. 

«/2e  Clifford,  57  X.  J.  Eq.  14.  41  Atl. 
356. 

Although  an  issue  has  been  directed 
to  ascertain  the  sanity  or  insanity  of  a 
person,  and  a  verdict  of  insanity  is  re- 
turned, and  the  judge  certifies  tiiat  he 
cannot  say  that  it  was  improper,  yet  an 
appellate  court  will  disregard  the  pro- 
ceedings if  the  evidence  at  the  hearing 
was  such  that  the  chancellor  should 
have  made  a  different  decision  in  the 
first  instance.  Attcood  v.  Smith,  11 
Ala.  894. 

**Com.   ex  ret.   Haskell  v.    Haskell,   2 


Brewst.  (Pa.)  491;  Re  Cope,  7  Pa.  Co. 
Ct.  40G.  And  see  Smith's  Case,  22  Pa. 
Co.  Ct.  487. 

"/?e  Collins,  18  N.  J.  Eq.  253. 

''^Re  Collins,  18  N.  J.  Eq.  253;  Re 
Vanauken,  10  N.  J.  Eq.  180.  And  see 
Encjlish  v.  Porter,  109  111.  285. 

wind  proof  that  a  man  is  old  and 
under  the  influence  of  liis  children,  and 
was  induced  to  dissipate  his  property  for 
their  indulgence  when  he  had  usually 
been  careful  of  it,  is  not  sufficient  to 
warrant  placing  his  property  in  the 
hands  of  a  guardian.  Darling  v.  Beti- 
nef,  8  Mass.  129. 

^Re  Welch,  108  Wis.  387,  84  N.  W. 
550. 

And  the  fact  that  one  makes  an  im- 
provident bargain,  or  many  such  bar- 
gains, or  that  one  is  unthrifty  or  un- 
successful in  business,  though  tending 
to  show  insanity  in  connection  with 
other  evidence,  is  not  sufficient  to  eriab- 
lisli  it  in  a  proceeding  for  the  issue  of 
a  commission.  Re  Carmichael,  36  Ala. 
514. 

But  evidence  of  forgetfulness  on  the 
part  of  a  person  against  whom  an  in- 
quisition is  issued  of  the  fact  that  he 
had  a  considerable  sum  of  money  whicli 
he  had  himself  deposited  in  a  savings 
bank,  and  of  the  recent  execution  by 
him  of  important  jiapcrs,  and  the  in- 
ability on  his  part  to  comprehend  the 
nature  of  the  proceedings  in  lun.acy 
against  liim,   warrants    setting    aside  j 


S   149] 


COMMISSIONS  OF  LUNACY  AND  DKUNKENNESS. 


153 


ing  any  harm.*^  But  evidence  of  insane  delusions,  together  with 
opinions  of  competent  and  expert  medical  witnesses,  having  good  op- 
portunities for  observation,  that  a  person  was  so  insane  as  to  be  unfit 
to  manage  his  affairs,  is  sufficient  to  justify  a  commission."*®  And  evi- 
dence of  impaired  health  by  excessive  drinking,  and  of  sudden  change 
of  character  and  feeling  with  reference  to  both  domestic  and  business 
matters,  and  unusual  behavior  and  delusion,  is  sufficient  to  sustain  a 
finding  of  insanity  and  inability  to  care  for  one's  self.*^  An  order 
ought  not  to  be  made  assigning  a  guardian  ad  litem  for  a  party  alleged 
to  be  of  insane  mind,  however,  where  there  was  a  bona  fide  dispute  as 
to  such  unsoundness.''^  And  where  the  questions  of  the  well-being  of 
the  alleged  lunatic  and  condition  and  security  of  his  property  are  left 
at  all  in  doubt  upon  an  inquisition,  a  further  inquiry  should  be  di- 
rected.^^  And  but  little  weight  can  be  given  in  such  cases  to  the  opin- 
ions of  nonexpert  witnesses  as  to  mental  condition.^^  But  while  the 
courts  will  not  be  controlled  by  the  opinion  of  medical  experts,  they 
will  give  them  respectful  consideration.^^  So,  insanity  in  the  family 
of  the  person  against  whom  the  inquisition  is  issued  is  entitled  to 


return  that  he  was  capable  of  governing 
himself  and  his  property  as  against 
evidence.  Re  Lawrence,  28  N.  J.  Eq. 
331. 

"M'Elroifs  Case,  6  Watts  &  S.  451. 

Where  the  relator  in  an  inquisition  of 
lunacy  charges  delusion,  the  alleged 
lunatic  has  the  right  to  show  that  the 
alleged  delusion  was  founded  on  fact. 
Com.  ex  rel.  Haskell  v.  Haskell,  2 
Brewst.   (Pa.)   491. 

*^Re  Fitzgerald,  30  N.  J.  Eq.  59. 

And  evidence  that  the  alleged  in- 
competent was  much  cast  down,  and 
thouglit  tliat  his  sons  had  misused  him 
and  were  wasting  his  property,  and  that 
he  desired  somebody  to  take  care  of  it, 
mny  be  considered  as  tending  to  show 
his  mental  condition,  and  that  he  was 
subject  to  delusions.  SinUli,  v.  Hicken- 
hnt'tom,  57  Iowa,  733,  11  N.  W.  604. 

'"Barho  V.  Rider,  67  Wis.  598,  31  N. 
W.  155. 

'■'"Fry  V.  Fry,  L.  R.  15  Prob.  Div.  25, 
Affirmed  in  KR.  15  Prob.  Div.  50,  59  L. 
J.  P.  N.  S.  43.  62  L.  T.  N.  S.  501,  38 
Week.  Rep.  615. 

The  oath  of  a  party  applying  for  the 
appointment  of  a  guardian  ad  litem  for 
a  person  alleged  to  be  of  unsound  mind, 


but  not  so  found  by  inquisition,  is  not 
sufficient  evidence  of  lunacy.  Facts 
should  be  shown  from  which  the  court 
may  judge  for  itself.  Mclntyrc  \. 
Kingsley,  1  Ch.  Chambers  Rep.  (Ont.) 
281. 

'^\Re  Hoblyn,  29  L.  T.  305.  And  se-^ 
Re  Persse,  1  Molloy,  219;  Re  Shaul,  40 
How.  Pr.  204;  Re  Russell,  1  Barb.  Ch. 
38 ;  Re  Cope,  7  Pa.  Co.  Ct.  400. 

"•-Eloi  v.  Eloi,  36  La.  Ann.  563. 

The  jury  on  a  proceeding  for  the  ap- 
pointment of  a  guardian  for  an  alleged 
lunatic  should  be  left  at  liberty  to  ap 
ply  the  same  general  rules  to  nonexperi, 
testimony  as  are  applicable  to  the  testi- 
mony of  other  witnesses  when  estimat- 
ing its  value.  Cuneo  v.  Bessoni,  63 
Ind.  524. 

^^Francke  v.  His  Wife,  29  La.  Ann. 
302. 

A  person  will  not  be  interdicted  on 
the  ground  of  idiocy  and  imbecility  on 
the  evidence  of  two  medical  witnesses, 
neither  of  whom  had  ever  conversed  with 
him  until  the  day  before  the  filing  of 
their  report,  and  who  had  not  had  op- 
portimity  to  test  his  mental  condition. 
Watson's  Interdiction,  31  La.  Ann.  457. 


154 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   149 


consideration.^^     And  the  alleged  lunatic  may  be  brought  into  court 
after  a  return  of  the  inquisition,  and  inquiry  made  by  inspection.^^ 

150.  Inquisition  as  evidence;  conclusiveness  generally. — The  pre- 
vailing rule  in  the  absence  of  statutory  j^rovisions,  both  in  England 
and  the  United  States,  is  that  the  finding  of  an  inquest  in  a  lunacy 
proceeding  is  only  presumptive  proof  of  insanity,  making  a  prima 
facie  case  only.^"     It  is  not  conclusive  evidence  of  incapacity,^^  ex- 


"Com.  ex  rel.  Haskell  v,  Haskell,  2 
Brcwft.    (Pa.)    49L 

So,  evidence  of  previous  insanity  may 
be  considered  on  a  commission  of  lunacy 
as  tending  to  prove  permanent  unsound- 
ness of  mind  which  might  liave  con- 
tinued up  to  the  time  of  the  trial. 
Obear  v.  Gray,  73  Ga.  455. 

'^lie  Wendell,  1  Johns.  Ch.  600;  Re 
Paijn,  8  How.  Pr.  224;  Re  Rush,  53  N. 
Y.  Supp.  SSL 

The  commissioners  may  compel  the 
production  of  the  lunatic,  in  a  proceed- 
ing for  an  inquisition  before  them,  for 
their  inspection  and  that  of  the  jury,  if 
deemed  desirable;  and  this  should  be 
done  in  all  possible  cases.  Re  Russell, 
1  Barb.  Ch.  38. 

And  the  custodian  of  a  lunatic  or 
other  person  who  interposes  to  prevent 
the  inspection  of  a  lunatic  by  the  com- 
missioners or  the  jury  is  punishable  as 
for  contempt  oi  court.  Wenman's 
Case,  1  P.  Wms.  701. 

But  other  evidence  should  be  given  in 
determining  whether  a  guardian  should 
be  appointed  for  a  person  alleged  to  be 
non  compos  mentis  than  that  arising 
from  an  examination  of  the  person  him- 
self. Brigliam  v.  Brigham,  12  Mass. 
504. 

And  the  alleged  lunatic  cannot  be 
examined  without  oath  as  to  matter 
upon  which  the  jury  are  to  act.  Re 
Rush,  53  N.  Y.  Supp.  581. 

And  a  person  under  examination  for 
unsoundness  of  mind  cannot  be  com- 
pelled to  disclose  the  contents  of  a  will 
made  by  him.  Alvord  v.  Ahord,  109 
Iowa,  113,  80  N.  W.  306. 

"Wall  v.  Hill,  1  B.  Mon.  290,  36  Am. 
Dec.  578;  Hopson  v.  Boyd,  6  B.  Mon. 
296;  Den  ex  dem.  Aher  v.  Clark,  10  N. 
J.  L.  218,  18  Am.  Dec.  417;  Hill  v.  Day. 
34  N.  J.  Eq.  150;  Kern  v.  Kern,  51  N. 
J.  Eq.  574,  %Q  Atl.  837;  Van  Deusen  v. 
SM-eei,  51  N.  Y.  386;  Hur/hes  v.  Jones, 
116  N.  Y.  67,  5  L.  R.  A.  632,  15  N.  Y.  S. 
R.  386,  22  N.  E.  446;  Hotjt  v.  Adee,  3 
Lans.  173;  Denielt  v.  Leonard,  19  How. 
Pr.  141;   Hirsch  v.  Trainer,    3    Abb.    N. 


C.  274;  Armstrong  v.  Short,  8  N.  C. 
( 1  Hawks )  11;  Rippy  v.  Gant,  39  N. 
C.  (4  Ired.  Eq. )  443;  Christmas  v. 
Mitchell,  38  N.  C.  (3  Ired.  Eq.)  535; 
Messenger  v.  Bliss,  35  Ohio  St.  587 ; 
Moore  v.  Hershey,  90  Pa.  196;  Diaper's 
Estate,  26  W.  N.  C.  218;  Lancaster 
County  Nat.  Bank  v.  Moore,  78  Pa.  407, 
21  Am.  Rep.  24;  McGinnis  v.  Com.  74 
Pa.  245;  Miskey's  Appeal,  107  Pa.  611; 
Leckey  v.  Cunningham,  56  Pa.  373; 
Koons  V.  Benscoier,  2  Kulp,  451;  Gresh 
V.  Tamany,  2  Kulp,  453;  Wolf's  Case, 
195  Pa.  438,  46  Atl.  72;  Com.  v.  Spink, 
137  Pa.  255,  20  Atl.  680;  Sergeson  v. 
Sealey,  2  Atk.  412,  9  Mod.  370;  Price  v. 
Berrington,  2  Beav.  286;  Faulder  v.  Silk, 
3  Campb.  126;  Rodd  v.  Lewis,  2  Lee 
Eecl.  Rep.  176;  Hall  v.  Warren,  9  Ves. 
•Jr.  608,  7  Revised  Rep.  306;  Baxter  v. 
Portsmouth,  5  Barn.  &  C.  170,  2  Car. 
&  P.  178,  7  Dowl.  &  R.  614;  Yates  v. 
Been,  2  Strange,  1104.  And  see  also 
Portsmouth  v.  Portsmouth,  1  Hagg. 
Ecc\.  Rep.  355;  Johnson  v.  Kincade,  37 
N.  C.   (2  Ired.  Eq.)   470. 

Nor  is  an  inquisition  finding  a  party 
not  to  be  of  unsound  mind  conclusive 
evidence  of  his  soundness  of  mind. 
Hume  V.  Burton,  1  Ridgeway  P.  C.  204. 

And  a  verdict  determining  the  sanity 
of  a  party  on  a  jiarticular  day  is  not 
even  prima  facie  evidence  that  he  was 
sane  at  a  prior  or  subsequent  date,  on  a 
question  of  the  validity  of  a  contract 
then  made.  Emery  v.  Hoyt,  46  111. 
258. 

"Pittard  v.  Foster,  12  111.  App.  132; 
Blandy  v.  Blandy,  20  App.  D.  C.  535; 
Yauqer  v.  Skinner,  14  N.  J.  Eq.  389: 
Hunt  v.  Hunt.  13  N.  J.  Eq.  161;  Den  ex 
dem.  Aher  v.  Clark,  10  X.  J.  L.  217,  IS 
Am.  Dec.  417:  Whitenack  v.  Stryker,  2 
N.  J.  Eq.  8;  Hart  v.  Deanicr,  6  Wend. 
407;  Osferhout  v.  Shoemaker,  3  Hill, 
513;  Rider  v.  Miller,  86  N.  Y.  507; 
Cook  v.  Cook,  53  Barb.  180;  Johnson  v. 
Kincade,  37  N.  C.  (2  Ired.  Eq.)  470; 
Parker  v.  Davis,  53  N.  C.  (8  Jones  L.) 
460;  McCleary  v.  Baradou;  6  Ohio  C.  C. 
481;  Willis  v.   Willis,  12  Pa.  159;  Com. 


§   150] 


COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 


155 


oept  as  against  parties  and  privies  or  perhaps  persons  dealing  with  the 
lunatic  under  the  inquisition."'^  And  it  is  not  necessarily  a  bar  to 
habeas  corpus.^''  It  is  admissible  as  evidence  of  incompetency,  how- 
ever, even  as  against  strangers. *^*^  And  a  judgment  of  a  court  of  com- 
petent jurisdiction  on  an  inquisition  of  lunacy,  finding  the  party  to  be 
insane,  is  prima  facie  evidence  of  the  fact  adjudged..''^  And  a  com- 
mission finding  a  testator  to  have  been  of  unsound  mind  remaining 


V.  Spink, 137  Pa.255,  20  Atl.  G80;  Dyre's 
Estate.  12  Phila.  156;  Keys  v.  NoiTis,  0 
Rich.  Eq.  388;  Btannard  v.  Bums,  63 
Vt.  244,  22  Atl.  4U0;  Williams  v.  Robin- 
son, 39  Vt.  207;  Price  v.  Berrington,  2 
Bonv.  2S6;  Scrgeson  v.  Sealcy,  2  Ark. 
412.  9  Mod.  370.  And  see  Kellogg  v. 
Cochran,  87  Cal.  192,  12  L.  R.  A.  104, 
25  Pac.  677. 

And  a  determination  of  a  surrogate  or 
of  a  higher  court  having  power  to  re- 
view his  decision  with  relation  to  the 
competency  of  a  testator  to  make  a 
will  of  personal  property  is  not  con- 
clusive upon  the  parties  in  a  subsequent 
suit  as  to  the  validity  of  the  devise  of 
real  estate  in  the  same  will.  Bogardus 
V.  Clark,  4  Paige,  623. 

In  -Sims  v.  Sims,  121  N.  C.  297,  40 
L.  R.  A.  737,  61  Am.  St.  Rep.  665,  28 
S.  E.  407,  however,  it  was  held  that  in 
North  Carolina  a  marriage  with  a  per- 
son who  had,  in  appropriate  proceed- 
ings, been  found  to  be  mentally  imbecile, 
is  absolutely  void  ah  initio,  and  can  be 
at  any  time  so  declared  by  the  court. 

""Draper's  Estate,  26  W.  N.  C.  218; 
Hoyt  V.  Adee,  3  Lans.  173;  Goodell  v. 
Harrington,  3  Thomp.  &  C.  345;  De- 
mclt  V.  Leonard,  19  How.  Pr.  140; 
Hart  V.  Deamer,  6  Wend.  497  ;  Hughes 
V.  Jones,  116  N.  Y.  67,  5  L.  R.  A.  632, 
15  Am.  St.  Rep.  386,  22  N.  E.  446; 
Frazcr  v.  Frazcr,  25  Ky.  L.  Rep.  882, 
76  S.  W.  546. 

Under  a  statutory  provision  that  pro- 
ceedings for  the  appointment  of  a 
guardian  of  an  insane  inhabitant  of 
the  county  shall  be  the  same  as  in  any 
other  ordinary  action,  however,  the  pro- 
ceedings are  in  personam,  and  a  finding 
therein  that  the  defendant  was  a  resi 
dent  of  a  certain  county  does  not  estop 
even  the  guardian  from  denying  it  in  a 
proceeding  for  the  collection  of  taxes 
from  him.  Brown  v.  Lambe  (Iowa)  93 
N.  W.  486, 

But  a  commission  of  idiocy  finding  a 
party  to  be  of  sound  mind  and  a  fin^i 
and  recovery  suffered  by  him  and  a 
warrant  of  attorney  made  by   him   are 


conclusive  evidence  of  sufficient  sanity 
to  make  the  warrant  of  attorney  and 
suffer  the  recovery,  where  the  issue  as 
to  his  sanity  is  joined  after  his  death, 
and  the  warrant  of  attorney  and  caption 
of  the  fine  are  acknowledged  before  the 
same  officer  at  the  same  time.  Hume  v. 
Burton,  1  Ridgeway  P.  C.  204. 

A  petitioner  in  hniacy  proceedLngs  is 
not  a  party  to  the  record  so  as  to  be 
personally  estopped  by  the  finding  of  the 
jury  therein,  except  to  the  extent  that 
all  the  rest  of  the  world  is  estopped 
Hughes  v.  Jones,  116  N.  Y.  67,  5  L.  R. 
A.  632,  15  Am.  St.  Rep.  386,  22  N.  E. 
446. 

And  the  fact  that  one  is  a  party  who 
promoted  lunacy  proceedings  and  signed 
a  petition  and  was  subsequently  ap- 
pointed the  committee  of  the  lunatic 
does  not  estop  him  from  traversing  the 
truth  of  the  inquisition,  and  saying  that 
at  the  time  of  the  act  in  question  the  al- 
leged lunatic  had  sufficient  capacity  to 
perform  it.  Titlow  v.  Titlow,  54  Pa. 
216,  93  Am.  Dec.  691. 

'"^Com.  ex  rel.  Draper  v.  Kirkbride,  3 
Brewst.  (Pa.)  393;  Noel  v.  Karper,  53 
Pa.  97. 

^"Osterhout  v.  Shoemaker,  3  Hill.  513; 
Pittard  v.  Foster,  12  111.  App.  132; 
Rogers  v.  Walker,  6  Pa.  371,  47  Am. 
Dec.  470;  M'Creight  v.  Aiken,  Rice  L. 
56;  Hemdon  v.  Vick,  IS  Tex.  Civ.  App. 
583,  45  S.  W.  852;  Sergeson  v.  Sealey, 
2  Atk.  412,  9  Mod.  370;  Frank  v.  Main- 
loarinq,  2  Beav.  115;  Hall  v.  Warren,  9 
Ves.  jr.  609,  7  Revised  Rep.  306.  And 
see  Covenhoven's  Case,  1  N.  J.  Eq.  27. 

'''Wall  V.  Hill,  1  B.  Mon.  290.  36  Am. 
Dec.  578;  Clark  v.  Trail,  1  Met.  (Ky.« 
35;  White  v.  Palmer,  4  Mass.  147;  fit- 
lov:  V.  Titlow,  54  Pa.  216,  93  Am.  Dec. 
691;  Willis  v.  Willis,  12  Pa.  159;  Noel 
V.  Karper,  53  Pa.  97 ;  Rogers  v.  Walker. 
6  Pa.  371,  47  Am.  Dec.  470;  Com.  ex  rel. 
Cope  V.  Harrold,  204  Pa.  154,  53  Atl. 
760;  Hamilton  v.  Hamilton,  10  R.  1. 
538;  Keys  v.  N orris,  6  Rich.  Eq,.  388; 
Tltomasson  v.  Kercheral,  10  Humph. 
322;  Hemdon  v.  Vick,  18  Tex.  Civ.  App. 


156 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§   150 


unsupersedcd  raises  a  presumption,  in  a  subsequent  proceeding,  that 
he  remained  a  lunatic  until  his  death,  though  it  might  be  rebutted  by 
positive  proof  of  recovery  or  a  lucid  interval.^^  And  the  effect  of 
such  adjudication  is  to  shift  the  burden  of  proof  to  the  party  asserting 
capacity.^^  But  the  other  party  to  the  action  may  traverse  the  truth  of 
the  inquisition,  and  attempt  to  show  that  at  the  time  of  the  act  he  had 
sufficient  capacity  to  perform  it.^*  Under  statutes  invalidating  con- 
tracts, gifts,  etc.,  of  persons  of  unsound  mind,  and  placing  the  man- 
agement of  the  affairs  of  such  persons  in  the  hands  of  the  court,  how- 
ever, an  inquisition  has  been  regarded  as  a  proceeding  in  rem,  and  as 
conclusive  evidence  of  insanity  as  to  all  acts  done  after  the  inquisi- 
tion.*"^     And  evidence  of  a  lucid  interval,  or  of  recovery,  is  inadmis- 


583,  45  S.  W.  852;  Stevens  v.  Stevens, 
127  Ind.  5(iO,  26  N.  E.  1078;  Hughes  v. 
Eufjhcs,  2  Munf.  209. 

Tlie  force  of  an  adjudication  of  in- 
sanity is  not  aflected  by  the  marriage 
and  consequent  change  of  name  of  an  in- 
sane woman  against  whom  it  was 
rendered.    Redden  v.  Baker,  86  Ind.  191. 

So,  the  appointment,  by  the  court  in 
a  pending  action  of  a  guardian  ad  litem 
for  a  party  on  the  ground  of  insanity  is 
prima  facie  evidence  of  the  party's  in- 
sanity in  any  subsequent  stage  of  the 
case.'     Little  v.  Little,  13  Gray,  264. 

^Prinsep  v.  Dyce  Sombre,  10  Moore  P. 
C.  C.  232;  Clarke  v.  Carticright,  1 
Phillim.  Eccl.  Rep.  90. 

But  an  inquisition  of  lunacy  against 
a  testator  is  of  little  weight  in  a  will 
contest  unless  it  finds  idiocy  from 
birth.     Uopson  v.  Boyd,  5  B.  Mon.  296. 

"Leckeu  v.  Cunningham,  56  Pa.  373; 
Willis  V."  Willis.  12 'Pa.  159:  Glass  v. 
Hilberg,  1  Pa.  Dist.  R.  621;  Pittsburgh 
d-  W.  R.  Co.  V.  Thompson,  27  C.  C.  A. 
333,  54  U.  S.  App.  222,  82  Fed.  720; 
Snook  V.  Watts,  11  Beav.  105,  12  Jur. 
444;  Bannatyne  v.  Bannatyne,  14  Eng. 
L.  &  Eq.  Rep.  581,  16  Jur.  864,  2  Rob. 
Eccl.  Rep.  472. 

The  court  will  issue  a  commission  on 
a  prima  facie  case.  Ex  parte  Tomlinson 
1  Ves.  &  B.  57,  12  Revised  Rep.  191. 

And  a  determination  in  a  trial  at  law 
that  a  party  was  7ion  compos  mentis  is 
decisive  and  conclusive  as  against  a  de- 
termination that  he  was  compos  mentis 
in  an  ecclesiastical  court  in  a  proceed- 
ing with  relation  to  the  same  matter, 
and  no  appeal  lies  from  it.  Maxicell  v. 
Mountague,  cited  in  3  Atk.  546. 

"*i'au</er  v.  Skinner,  14  N.  J.  Eq.  380; 
Covenhoven's  Case,  1  N.  J.  Eq.  27;  Den 


ex  dem.  Aber  v.  Clark,  10  N.  J.  L.  217,. 
18  Am.  Dec.  417;  Re  Christie,  5  Paige, 
242;  Christmas  v.  Mitchell,  38  N.  C.  (3 
Ired.  Eq.)  535;  Parker  v.  Davis,  53  N- 
C.  (8  Jones  L. )  460;  Armstrong  v. 
Short,  8  N.  C.  (1  Hawks)  11:  Johnson 
V.  Kincade.  37  N.  C.  (2  Ired.  Eq.)  470; 
Moore  v.  Hcrshey,  90  Pa.  196;  Willis  v. 
Willis,  12  Pa.  159;  Sergeson  v.  Sealey,. 
2  Atk.  412,  9  Mod.  370. 

But  to  require  the  jury  in  an  action 
by  an  heir  for  lands  conveyed  by  his  an- 
cestor who  had  been  found  insane,  to 
find  for  the  plaintiff,  unless  they  be- 
lieved from  the  evidence  that  the  an- 
cestor was  capable  of  transacting  hi» 
own  business  with  judgment  and  dis- 
cretion, is  error.  Wall  v.  Hill,  1  B. 
Mon.  290,  36  Am.  Dec.  578. 

''Redden  v.  Baker,  86  Ind.  191;  Mus- 
selman  v.  Cravens,  47  Ind.  1 ;  Soiiles  v. 
Robinson,  158  Ind.  97,  92  Am.  St.  Rep. 
301,  62  N.  E.  999;  Leonard  v.  Leonard, 
14  Pick.  280;  Willwerth  v.  Leonard,  156 
Mass.  277,  31  N.  E.  299;  Wait  v.  Max- 
well, 5  Pick.  217,  16  Am.  Dec.  391; 
Thorpe  v.  Hanscom,  64  Minn.  201,  66  N. 
W.  1;  Rhoadcs  v.  Fuller,  139  Mo.  179, 
40  S.  W.  760:  A'ie/iJ(e  v.  Wessell,  53  Mo. 
App.  667;  Payne  v.  Burdettc,  84  Mo. 
App.  332;  Soulhern  Tier  Masonic  Re- 
lief Asso.  v.  Laudcnbnch,  5  N.  Y.  Supp. 
901 ;  Re  Patterson,  4  How.  Pr.  35;  Fitz- 
Inigh  V.  Wilcox,  12  Barb.  235 ;  Hughes 
V.  Jones,  116  N.  Y.  67.  5  L.  R.  A.  632,  15 
Am.  St.  Rep.  386,  22  N.  E.  446;  Brown 
V.  Miles,  61  Hun,  453,  16  N.  Y.  Supp. 
251:  Wailsuorth  v.  Sharpsteen,  8  N.  Y. 
388,  59  Am.  Rep.  499;  Wallace  v.  Freif, 
27  Misc.  29.  56  X.  V.  Supp.  1051  ;  Wads- 
north  V.  Sherman,  14  Barb.  171; 
L'Amomeux  v.  Crosby,  2  Paige,  422, 
22  Am.  Dec.  655;  Mitchell  v.  Spaulc^in^, 


§   150] 


COMMISSIONS  OF  LUNACY  AND  DRUNKKNNESS. 


157 


;uble  to  controvert  the  insanity  of  a  person  under  guardianship."** 
And  it  has  been  hehl  that  the  presumption  remains  conchisive  so  long 
as  the  adjudication  of  incapacity  remains  in  force,  though  there  be  no 
acting  guardian."'  But  the  rule  has  also  been  laid  down  that  the  act 
of  an  alleged  incompetent  will  be  valid  where  he  is  actually  of  sound 
mind,  though  he  was  under  guardianship  at  the  time;"^  and  that  it  is 
not  conclusive  where  the  guardianship  has  been  either  terminated,  sus- 
pended, or  abandoned ;"''  and  that  the  party  claiming  against  an  in- 
•  [uisition  may  show\  by  lapse  of  time  or  otherwise,  that  the  patient 
lias  recovered  and  become  aeain  able  to  contract. '^^     And  the  doctrine 


•JO  Pa.  Super.  Ct.  296;  Elston  v.  Jasper, 
45  Tex.  409.  And  see  KIolis  v.  Klohs, 
61  Pa.  245;  Tozer  v.  Saturlee,  3  Grant 
Cas.  162;  American  Trust  d-  Bkg.  Co.  v. 
Boone,  102  Ga.  202,  40  L.  R.  A.  250,  06 
Am.  St.  Rep.  167,  29  S.  E.  182;  White  v. 
Palmer,  4  Mass.  147;  Heff  v.  Cox,  5 
Ohio  N.  P.  413. 

x\n  order  finding  a  person  legally  in- 
competent to  contract,  and  unfit  to  man- 
age his  property,  and  appointing  a 
guardian  for  him,  is  not  subject  to  col- 
lateral attack  when  made  by  a  court  of 
competent  jurisdiction,  and  will  be  pre- 
sumed to  have  been  correctly  made  in 
the  absence  of  direct  attack.  Isaacs  v. 
Jones,   121  Cal.  257,  53  Pac.  793,   1101. 

And  the  appointment  of  a  guardian 
by  a  court  of  competent  jurisdiction 
cannot  be  attacked  on  the  ground  of  ir- 
regularity, in  a  criminal  prosecution  in 
which  the  authority  of  the  appointee  to 
make  a  demand  for  the  return  of  prop- 
erty is  called  in  question.  State  v. 
Thompson,  28  Or.  290,  42  Pac.  1002. 

'^^Rannells  v.  Gerner,  80  Mo.  475; 
Kichne  v.  Wesscll,  53  Mo.  App.  667 ; 
Wallace  v.  Frey,  27  Misc.  29,  56  N.  Y. 
Supp.   1051. 

'''Redden  v.  Baker,  86  Ind.  191; 
Hufihes  V.  Jones,  116  N.  Y.  67,  5  L.  R.  A. 
fj32,  15  Am.  St.  Rep.  386,  22  N.  E.  446; 
Wadsicorth  v.  Bharpsteen,  8  N.  Y.  388, 
59  Am.  Rep.  499;  Wallace  v.  Frey,  27 
Misc.  29,  56  N.  Y.  Supp.  1051;  L'Amou- 
reux  V.  Crosby,  2  Paige,  422,  22  Am. 
Dec.  655;  Re  Patterson,  4  How.  Pr.  34. 

So,  a  guardian  will  not  be  heard  to 
assert  that  his  ward  is  sane  and  com- 
petent to  testify  as  a  witness  in  his 
favor.  Hart  v.  Miller,  29  Ind.  App.  222, 
64  N.  E.  239. 

<^Breed  v.  Pratt,  18  Pick.  115;  St07ie 
V.  Damon,  12  Mass.  487. 

And  an  adjudication  that  a  person  is 
insane  and  the  appointment  of  a  guard- 


ian for  him  do  not  necessarily  show  that 
his  insanity  is  of  such  a  character  as  to 
disqualify  him  from  making  a  valid  con- 
tract, so  as  to  terminate  an  agency 
which  he  had  previously  conferred  upon 
his  wife,  in  the  absence  of  proof  that 
the  insanity  was  of  such  character.  Mot- 
ley v.  Head,  43  Vt.  033. 

^""Wilhi-crth  v.  Leonard,  156  Mass.  277, 
31  N.  E.  299;  Thorpe  v.  Hanscom..  64 
Minn.  201,  66  N.  W.  1 ;  Grimes  v.  Shaw, 
2  Tex.  Civ.  App.  20,  21  S.  W.  718;  Els- 
ton V.  Jasper,  45  Tex.  409.  And  see 
Hempton  v.  State,  111  Wis.  127,  80  N. 
W.  596. 

This  is  so  though  the  guardianship 
is  subsequ'3ntly  reinstated.  Mitchell  v. 
Spaulding,  206  Pa.  220,  55  Atl.  968. 

And  a  sale  of  real  estate  by  one  whoi 
had  been  adjudged  insane  seven  years 
before,  but  for  whom  no  guardian  had 
been  appointed,  and  who  had  in  the  in- 
terval recovered  her  reason,  is  voidable 
only,  and  not  void,  although  there  had 
been  no  adjudication  of  recovery.  To- 
pcka  Water  Supply  Co.  v.  Root,  56 
Kan.  187,  42  Pac.  715. 

And  when  no  guardian  was  appointed 
an  inquisition  is  not  conclusive  against 
the  right  of  the  lunatic  to  choose  a 
domicil.  Re  Fidelity  Trust  Co.  27  Misc. 
118,  57  N.  Y.  Supp.  361. 

'"'Southern  Tier  Masonic  Relief  Asso. 
V.  Laudenbach,  5  N.  Y.  Supp.  901;  To- 
peka  Water  Supply  Co.  v.  Root,  56  Kan. 
187,  42  Pac.  715;  Lower  v.  Schumacher, 
61  Kan.  025,  60  Pac.  538;  Clark  v. 
Trail,  1  Met.  (Ky.)  35;  Elston  v.  Jas- 
per, 45  Tex.  409.  And  see  Lucas  v.  Par- 
sons, 23  Ga.  267 ;  Mutual  L.  Ins.  Co.  v. 
Wisicell,  56  Kan.  765,  35  L.  R.  A.  258, 
44  Pac.  996. 

A  party  claiming  against  an  inquisi- 
tion, and  seeking  to  show  that,  by  lapse 
of  time  or  otherwise,  the  patient  has  re- 
covered and  become  again  able  to  cou- 


158 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  150 


that  an  inquisition  is  conclusive  has  been  held  to  be  applicable  to  con- 
tracts and  gifts  only ;  and  that  the  rule  adopted  with  reference  to  wills 
is  that  the  inquisition  is  only  prima  facie  evidence  of  inconspetency.'^^ 
So,  an  order  for  admission  to  an  asylum,  having  no  bearing  on  the  legal 
mental  status  of  the  jDatient,  is  not  entitled  to  the  faith  and  credit  of  a 
judgment.''^  Nor  will  an  ex  parte  order  appointing  a  guardian  ad 
litem  shift  the  burden  of  proof  of  insanity, '^^ 

151.  Effect  of  inquisition  on  overreached  acts. — The  rule  is  uni- 
versal that  an  inquisition  of  lunacy  is  prima  facie  evidence  only  of 
mental  incapacity  at  the  time  of  acts  done  by  a  lunatic  before  the  is- 
suing of  the  commission,  but  which  are  overreached  by  the  finding.'^"* 


tract,  should  do  so  by  motion  to  dis- 
charge the  guardian,  but  may  be  allowed 
to  set  up  such  claim  in  a  collateral  ac- 
tion. Southern  Tier  Masonic  Relief 
Asso.  V.  Laudcnhach,  5  N.  Y.  Supp.  901 : 
Clark  V.  Trail,  1  Met.  (Ky.)  35. 

'"Lewis  V.  Jones,  50  Barb.  645;  South- 
ern Tie)-  Masonic  Relief  Asso.  v.  Lauden- 
bach,  5  N.  Y.  Supp.  901;  Re  Widmayer, 
74  App.  Div.  336,  77  N.  Y.  Supp.  663, 
Affirming  34  Misc.  439,  69  N.  Y.  Supp. 
1014;  Re  Coe,  47  App.  Div.  177,  62  N. 
Y.  Supp.  376 ;  Stone  v.  Damon,  12  Mass. 
487;  Breed  v.  Pratt,  18  Pick.  115;  Har- 
rison V.  Bishop,  131  Ind.  161,  31  Am.  St. 
Rep.  422,  30  N.  E.  1069;  Pittard  v. 
Foster,  12  111.  App.  132;  Ames  v.  Will, 
40  Or.  49.5,  67  Pac.  737 ;  Jenckes  v.  Pro- 
bate Court,  2  R.  I.  255;  Slinger's  Will, 
72  Wis.  22,  37  N.  W.  236. 

A  court  of  equity  may  commit  the 
property  of  a  person  not  capable  of 
managing  his  estate  to  the  charge  of  a 
committee  and  still  give  effect  to  a  will 
subsequently  made  by  him  while  labor- 
ing under  such  incapacity.  Stewart  v. 
Lispenard,  26  Wend.  255;  Brady  v.  Mc- 
Bride,  39  N.  J.  Eq.  495. 

But  while  an  inquisition  finding  a 
person  insane  does  not  of  itself  estab- 
lish fncompetency  to  make  a  will,  when 
taken  in  connection  with  proof  that  the 
testator  died  insane,  it  is  sufficient  to 
cast  the  burden  of  proof  of  testamentary 
capacity  upon  the  proponent  of  the 
will.  Re  Taylor,  1  Edm.  Sel.  Gas.  375. 
And  see  infra,  chapter  xx. 

''Re  Maas,  10  Okla.  302,  61  Pac.  1057. 
And  see  Uempton  v.  State,  111  Wis.  127, 
86  N.  W.  596. 

And  statements,  declarations,  and  ad- 
missions of  a  person  accused  of  crime, 
made  while  an  inmate  of  an  insane  hos- 
pital are  noC  to  be  deemed  those  of  a 
person  of  unsound  mind  and  allowed  no 


weight,  unless  he  is  proved  by  other  evi- 
dence to  have  been  of  unsound  mind 
when  he  made  them;  since  being  con- 
fined in  the  hospital  is  not  prima  facie 
evidence  of  insanity.  Goodwin  v.  State, 
96  Ind.  550. 

But  the  certificate  of  a  judge,  given 
pursuant  to  a  positive  law  authorizing 
the  confinement  of  an  insane  person  in 
a  lunatic  asylum,  is  an  adjudication  in 
rem  upon  the  subject  of  lunacy,  and  is 
prima  facie  evidence  of  the  existence  of 
facts  asserted  therein  as  against  all  per- 
sons notified  to  attend  the  hearing  and 
investigation.  Monroe  County  v.  Bud- 
long,  51  Barb.  493. 

'^Isle  V.  Cranby,  199  111.  39,  64  N  E. 
1065,  Reversing  101  111.  App.  221. 

And  a  finding  of  a  board  of  commis- 
sioners of  insanity  as  to  the  residence 
of  an  insane  person  under  a  statutory 
provision  with  reference  to  confinement 
in  a  hospital  of  persons  having  legal 
settlements  in  another  county  is  ex 
parte,  and  does  not  estop  the  guardian 
of  an  insane  person  from  denying  such 
residence  in  a  proceeding  for  the  collec- 
tion of  personalty  taxes.  Brown  v. 
Lambe   (Iowa)   93  N.  W.  486. 

-•'Hopson  V.  Botjd,  6  B.  Mon.  296; 
Wall  V.  Hill,  1  B.  Mon.  290,  36  Am.  Dee. 
578 ;  Harvey  v.  Sullcns,  56  Mo.  372 ; 
Gridley  v.  Boqqs,  02  Gal.  201 ;  Yauger 
V.  Skinner,  14  N.  J.  Eq.  389;  Brady  v. 
McBride,  39  N.  J.  Eq.  495;  J/Amou- 
reiix  V.  Crosby,  2  Paige,  422,  22  Am. 
Dec.  655;  Hughes  v.  Jones,  116  N.  Y. 
67,  5  L.  R.  A.  632,  15  Am.  St.  Rep.  386^ 
22  N.  E.  440;  Banker  v.  Banker,  63  N. 
Y.  409;  Van  Deusen  v.  Sweet,  51  N.  Y. 
378;  Demclt  v.  Leonard,  19  How.  Pr. 
140;  Lewis  v.  Jones,  50  Barb.  648; 
Hicks  V.  Marshall,  8  Hun,  327 ;  Searles 
V.  Harvey,  6  Hun,  058;  Goodell  v.  Har- 
rington, 3  Thomp.  &  G.  345;  Re  Patter- 


§    151] 


COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 


159 


And  it  inaj  be  rebutted  by  proof  of  soundness  of  mind  or  lucid  inter- 
vals, and  that  the  act  in  question  was  done  during  such  an  interval.''^ 
The  mere  fact  that  an  act  is  overreached  by  inquisition  against  the 
party  performing  it  does  not  render  it  prima  facie  invalid."^®  An  in- 
quisition finding  a  party  to  be  insane,  however,  may  be  given  in  evi- 
dence even  against  strangers,  and  is  strongly  confirmatory  of  other  evi- 
dence of  incompetency,'''^  shifting  the  burden  of  proof  to  the  person 


son,  4  How.  Pr.  35;  Klohs  v.  Klohs, 
Gl  Pa.  245;  Imhof  v.  Witmer,  31  Pa. 
243;  Tiiloio  v.  TUlow,  54  Pa.  224,  93 
Am.  Dec.  691;  Re  Gangioere,  14  Pa. 
417,  53  Am.  Dec.  554:  Willis  v.  Willis, 
12  Pa.  159;  Clark  v.  Caldwell,  6  Watts, 
139;  Tozer  v.  Saturlee,  3  Grant  Cas. 
162;  Wood  v.  Wood,  4  Brewst.  (Pa.) 
75 ;  Hutchinson  v.  Sandt,  4  Rawle,  234, 
26  Am.  Dec.  127;  Bowman  v.  Taji  Baiun, 
17  Phila.  633,  14  W.  N.  C.  185;  Frank  v. 
Mainicaring,  2  Beav.  115. 

An  inqui-sition  against  a  husband, 
fonnd  two  days  after  his  marriage, 
declaring  him  to  have  been  of  un- 
sound mind  for  six  months,  is  only  pre- 
sumptive evidence  of  incapacity  in  an 
action  for  the  annulment  of  the  mar- 
riage, and  the  fact  that  the  wife  had 
notice  of  the  inquisition  does  not  make 
it  conclusive.  Banker  v.  Banker,  63  N. 
Y.  409. 

So,  a  decree  dismissing  a  petition  for 
the  appointment  of  a  guardian  for  an  al- 
leged incompetent  person  and  a  verdict 
and  judgment  on  appeal  in  favor  of  san- 
ity are  not  conclusive  thereof  in  an  ac- 
tion subsequently  brought  for  the  recov- 
ery of  land  conveyed  by  him  between 
the  time  of  the  decree  and  the  time  of 
the  verdict,  but  may  be  given  in  evi- 
dence as  tending  to  prove  sanity.  Gib- 
son V.  Soper,  6  Gray,  279,  66  Am.  Dec. 
414. 

"''^Hutchinson  v.  Sandt,  4  Rawle,  234, 
26  Am.  Dec.  127 ;  Bowman  v.  Van 
Baum.,  17  Phila.  633,  14  W.  N.  C.  185; 
Re  Gangirere,  14  Pa.  417,  53  Am,  Dec, 
554;  Yaiiqer  v.  Skinner,  14  N.  J.  Eq. 
389;  Palmer  v.  Parkhurst,  1  Ch.  Cas. 
112. 

The  fact  that  a  commission  of  lunacy 
overreached  the  act  in  question  does  not 
prevent  an  issue  to  inquire  whether  or  • 
not  the  party  performing  it  was  of  un- 
sound mind  at  the  time  of  performanco. 
Frank  v.  Mainicaring,  2  Beav.  115. 

''^Jackson  ex  dein.  Cadicell  v.  King,  4 
Cow.  207,  15  Am.  Dec,  354;  Jacobs  v, 
Richards,  18  Beav,  300,  5  DoG,  M,  &  G. 
55,  23  L,  J,  Ch.  N.  S.  557,  18  Jur.  52/,  2 


Eq.  Rep.  299;  Ex  parte  Bradbury,  3 
Jur.  1108,  4  Deacon  Bankr.  202.  And 
.see  Rice  v.  Rice.  50  Mich.  448,  15  N.  W. 
545,  53  Mich.  432.  19  N.  W.  132;  Jones 
V.  Hughes,  15  Abb.  N.  C.  141. 

And  the  fact  that  an  application  for 
the  appointment  of  a  guardian  for  a 
grantor  was  made  on  the  day  on  which 
his  deed  was  made,  which  appoint- 
ment was  subsequently  made,  does  not 
change  the  presumption  of  business  ca- 
pacity at  the  time  of  the  deed.  Doty  v. 
Hubbard,  55  Vt.  278. 

And  where  a  guardian  had  been  ap- 
pointed for  a  testator,  the  submission 
of  the  question  to  the  jury  in  a  will  con- 
test as  to  whether  the  testator  was  in- 
sane the  day  the  will  was  made  and 
when  the  guardian  was  appointed  is  ob- 
jectionable as  tending  to  prejudice  the 
minds  of  the  jury  against  the  will,  and 
give  undue  prominence  to  the  fact  of  the 
appointment  of  a  guardian.  Rice  v. 
Rice,  53  Mich.  432,  19  N.  W.  132. 

''Nichol  v.  Thomas,  53  Ind.  43:  Hop- 
son  V.  Boyd,  6  B.  Mon.  296;  Wall  v. 
Hill,  1  B.  Mon.  291,  36  Am.  Dec.  578; 
Rice  V.  Rice,  50  Mich.  448,  15  N.  W,  545, 
53  Mich.  432,  19  N.  W.  132;  Griswold 
V.  Miller,  15  Barb.  523;  Dominick  v. 
Dominick,  20  Abb.  N.  C.  286;  Rider  v. 
Miller,  86  N.  Y.  507;  Browning  v. 
Reane,  2  Phillim.  Eccl.  Rep.  69.  But 
see  Southern  Tier  Masonic  Relief  Asso. 
v.  Laudenbach,  5  N.  Y.  Supp.  901. 

An  inquisition  finding  a  grantor  to 
have  been  a  lunatic  for  twenty  years  is 
sufficient  to  invalidate  a  deed  made  dur- 
ing that  period,  where  the  consideration 
was  inadequate  and  the  grantee  held  a 
position  of  trust  and  confidence  with  re- 
spect to  the  grantor.  Arnold  v.  Towns- 
end,  14  Phila.  216. 

And  the  finding  that  a  grantor  had 
been  a  lunatic  without  lucid  intervals 
from  a  time  anterior  to  the  date  of  his 
deed  casts  a  sufficient  eloud  upon  the 
purchaser's  title  to  warrant  him  in  com- 
ing into  equity  for  relief.  Yauger  v. 
Skinner,  14  N.'.J,  Eq,  389, 

But,  as  against  strangers,  but  slight 


I  GO 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   151 


asserting  the  validity  of  the  act;^^  the  strength  of  the  inquisition  as 
evidence  depending  upon  the  attendant  circumstances.'^"  Neither  h 
an  inquisition  of  lunacy  conclusive  evidence  of  the  precise  period  at 
which  the  lunacy  commenced  f^  nor  has  it  any  effect  upon  the  validity 
of  acts  performed  before  the  time  named  in  it  as  that  of  the  commence- 
ment of  the  period  of  lunacy.^^  And  the  fact  that  a  contract  is  over- 
reached by  an  inquisition  does  not  justify  setting  it  aside  where  it  is 
fair,  and  was  made  without  notice  of  incompetency  to  the  other  party, 
— especially  where  the  parties  cannot  be  placed  in  their  original  posi- 


tions. 


152.  Right  to  traverse. —  A  traverse  to  a  commission  of  lunacy  will 


consideration  will  be  given  an  inqiiisi- 
tion  of  previous  unsoundness  of  mind, 
especially  when  it  does  not  expressly 
find  the  party  to  have  been  an  idiot 
from  birth.  Hopson  v.  Boyd,  6  B.  Mon. 
296. 

'^Glass  V.  Hilberg,  1  Pa.  Dist.  R.  621: 
Hope  V.  Everkart,  70  Pa.  231;  Goodell 
V.  Harrington,  3  Thomp.  &  C.  345;  De- 
melt  v.  Leonard,  19  How.  Pr.  142. 

Where  a  testator  had  been  adjudged 
insane  and  was  confined  in  an  asylum, 
and  was  generally  incompetent,  a  pre- 
sumption of  continued  lunacy  must  be 
overcome  by  evidence  of  lucidity  at  the 
time  the  will  was  made.  lie  Ely,  10 
Misc.  228,  39  N.  Y.  Supp.  177. 

And  an  inquisition  finding  a  grantor 
to  have  been  a  lunatic  for  five  years  is 
prima  facie  evidence  of  incompetency 
to  make  a  deed,  though  the  deed  was 
made  four  years  before  the  finding. 
Bowman  v.  Van  Baum,  17  Phila.  633,  14 
W.  N.  C.  185. 

''"Bannaiyne  v.  Bannatyne,  14  Eng.  L. 
&  Eq.  Rep.  581,  16  Jur.  864,  2  Rob.  Eccl. 
Rep.  472. 

It  would  be  greatly  diminished  by 
the  fact  that  the  proceedings  were  ex 
parte  and  no  person  was  present  inter- 
ested in  procuring  a  verdict  carrying 
the  lunacy  back  to  the  particular  period, 
or  to  point  out  to  the  jury  the  efTcct  the 
verdict  would  have  upon  the  interests 
of  others.     Ibid. 

Greater  efl'ect  should  be  given  an  ad- 
judication of  idiocy  of  a  testator,  made 
two  years  after  the  execution  of  his 
will,  as  evidence  of  incompetency,  than 
would  be  given  an  adjudication  of  lun- 
acy made  at  such  time.  Townsend  v. 
Bogart,  5  Redf.  93. 

'^Ex  parte  Bradbury,  3  Jur.  1108,  4 
Deacon  Bankr.  202. 


When  the  statute  limits  the  inquiry 
as  to  sanity  to  the  particular  time  when 
the  inquiry  is  being  made,  the  finding 
on  an  inquisition  cannot  be  used  to  nul- 
lif}^  previous  acts.  Reals  v.  Weston,  28 
Misc.  67,  59  N.  Y.  Supp.  807 ;  Re  Grote, 
31  Misc.  99,  64  N.  Y.  Supp.  1035. 

^\^ullivan  v.  Flynn,  9  Mackey,  39G; 
Elioood  V.  O'Brien,  105  Iowa,  239,  74  N. 
W.  740;  Shirley  v.  Taylor,  5  B.  Mon. 
99;  Jennings  v.  Hennessy,  26  Misc.  265, 
55  N.  Y.  Supp.  833;  Mutual  L.  Ins.  Co. 
v.  Hunt,  79  N.  Y.  541 ;  Rippy  v.  Ganl, 
39  N.  C.  (4  Ired.  Eq.)  443;  Small  v. 
Champeny,  102  Wis.  61,  78  N.  W.  407. 
And  see  Hix  v.  Whittemore,  4  Met.  545; 
Hovey  v.  Chase,  52  Me.  305,  83  Am.  Dec. 
514. 

An  act  done  prior  to  the  interdiction 
cannot  be  annulled  except  by  proving 
that  the  cause  of  the  interdiction  notor- 
iously existed  at  the  time  the  act  was 
done,  or  that  the  person  who  dealt  with 
the  party  of  unsound  mind  could  not 
have  been  deceived  as  to  the  state  of 
his  mind.  Wolf  v.  Edwards,  106  La. 
477,  31  So.  58. 

Under  N.  Y.  Code  Civ.  Proc.  § 
2335,  the  inquiry  on  an  inquisition  ia 
restricted  by  statute  to  competency  at 
the  time  it  was  made.  See  Southern 
Tier  Masonic  Relief  Asso.  v.  Lauden- 
bach.  5  N.  Y.  Supp.  901;  Dominiek  v. 
Domimek,  20  Abb.  N.  C.  286;  Re  De- 
melt,  27  Hun,  480;  Re  Cook,  25  N.  Y. 
S.  R.  64,  6  N.  Y.  Supp.  720. 

^■NicU  V.  Morley,  9  Ves.  Jr.  478. 

A  lunatic  of  whose  incompetency  the 
other  party  had  no  notice  will  be  held 
liable  for  goods  purchased  suited  to  his 
situation,  notwithstanding  the  exist- 
ence; of  a  commission  of  lunacy.  Bax- 
ter V.  Portsmouth,  5  Barn.  &  C.  171,  2 
Car.  &  P.  178,  7  Dowl.  &  R.  614. 


i   162]  COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS.  161 

be  allowed  when  intelligently  desired,  where  there  is  a  reasonable 
doubt  as  to  the  propriety  of  the  result  of  the  inquisition.^^  And  it  is 
for  the  court  to  determine  as  to  the  intelligence  of  the  desire.^^  There 
may  be  a  traverse  in  part.^^  But  an  inquisition  will  not  be  set  aside 
for  a  mere  irregularity  where  the  court  is  satisfied  that  substantial  jus- 
tice has  been  done.^°  Any  person  having  an  interest  is  usually  per- 
mitted to  traverse  an  inquisition,^'^  though  in  some  jurisdictions  the 
right  is  confined  to  relatives  either  by  blood  or  marriage.^^  An  or- 
der appointing  a  guardian  for  an  alleged  incompetent  person  is  also 
held  to  be  appealable,  and  the  alleged  incompetent  is  an  aggrieved 
party  having  the  right  to  appeal.^^ 

153.  Evidence  necessary  to  rebut  inquisition. —  One  who  seeks  to  es- 
tablish the  validity  of  acts  of  a  person  under  guardianship  as  insane 
Avhile  the  adjudication  remains  in  force  must  show  by  clear  and  ex- 
plicit and  satisfactory  evidence  that  he  had  at  the  time  such  mental 
capacity  and  freedom  of  will  as  are  required  to  render  such  acts 
valid,®**  or  that  such  a  consideration  had  been  received  that  justice 
and  equity  would  require  the  enforcement  of  the  obligation."^  De- 
fects of  judgment,  however,  may  coexist  with  legal  capacity,  and  ca- 
pacity to  transact  business  with  judgment  and  discretion  need  not  be 

"iJe  Comfort,   63   N.  J.   Eq.   377,   53  The  wife  of  an  alleged  lunatic  is  a 

Atl.    133;   Re  Davenport,  63   N.  J.  Eq.  person  aggrieved  who  may  traverse  an 

342,  50  Atl.  441.  inquisition      under     the      Pennsylvania 

'*i?e  Davenport,  63  N.  J.  Eq.  342,  50  statute.     Com.  ex  rel.  Pitcairn  v.  Pit- 
Ail.  441.  cnirn,  204  Pa.  514,  54  Atl.  328,    Contra, 

''Wolfs  Case,  195  Pa.  438,  46  Atl.  72.  Re  Varnum,  70  Vt.  147,  40  Atl.  43.   And 

""Sa;  parte  Glen,  4  Desauss.  Eq.  546.  so  is  a  niece   {Re  Heft,  8  Pa.    Dist.    R. 

And  a  judgment  finding  a  person  in-  99).     And  so  is  a  sister    {Re  Miller,  7 

sane  on  an  inquisition  is  not  invalidated  Pa.  Dist.  R.  269). 

by  the  n^^re   fact  that  the  action  was  But  the  plaintiff  in  an  action  against 

pending  for  ten  years  before  the  judg-  the    lunatic    for    trespass    is    not.      Re 

ment   was   rendered.      Hunt    v.    Searcy,  Wolf,  9  Kulp,  523. 

167  Mo.  158,  67  S.  W.  206.  ^"Re  Moss,  120  Cal.  695,  53  Pac.  357; 

"See  Re  Cumming,  11  Eng.  L.  &  Eq.  Shapter  v.  Pillar,  28  Colo.  209,  63  Pac. 

Rep.  202,  1  De  G.  M.  &  G.  537,  21  L.  J.  302. 

Ch.  N.  S.  753,  16  Jur.  N.  S.  483.  ''"Stevens  v,  Stevens,  127  Ind.  560,  26 

A  proceeding  by  an  adjudged  lunatic  N.   E.    1078;    Breed  v.   Pratt,    IS   Pick, 

for  a  discharge  from  guardianship  estops  115;    Grimani    v.    Draper,    6    Notes    of 

him  from  subsequently  going  into  equity  Cases,  418. 

and  attacking  the  validity  of  the  orig-  The    court    on    appeal    in    an    action 

inal    inquisition.      Cornett    v.    Cornett,  for  tlie  appointment  of  a  guardian,   in 

122  Mich.  685,  81  N.  W.  920.  which  the  party  was  twice  adjudged  in- 

But  refusal  of  counsel  for  an  alleged  competent,  will  not  set  aside  the  find- 
lunatic  to  apply  for  the  appointment  of  ings  of  the  lower  court,  in  the  absence 
a  master  to  ascertain  as  to  his  intelli-  of  a  strong  showing  of  sanity.  Spon- 
gence  is  not  a  waiver  of  the  client's  able  v.  Hanson,  87  Mich.  204,  49  N.  W. 
right  to  a  traverse.  Re  Davenport,  63  644. 
N.  J.  Eq.  342,  50  Atl.  441.  "Hicks  v.  Marshall,  8  Hun,  327. 

"Re  Wolf,  195  Pa.  438,  46  Atl.  72. 
Vol*  I.  Med  Jvh. — 11. 


1G2  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§   153 

s}iOAvn.°-  And  the  presumption  of  insanity  arising  from  an  inquisi- 
lion  of  lunacy  may  be  rebutted  by  proof  of  a  will  having  nothing  on 
its  face  sounding  of  folly,*^^  or  by  one  containing  the  same  provisions 
a5  a  previous  will  made  when  the  sanity  of  the  testator  was  unques- 
tionable.^* 

154.  Proceedings  may  be  set  aside  if  irregular  or  inequitable. — If  a 
commission  be  found  to  have  been  irregular  in  its  inception  or  execu- 
tion, or  if  substantial  justice  has  not  been  done,  either  the  commission 
may  be  quashed,  or,  if  it  has  matured  into  an  inquisition,  the  inquisi- 
tion may  be  set  aside.  Thus  inquisitions  have  been  set  aside  because 
of  undue  interference  by  the  commissioners  with  the  summoning  of 
the  jury  f^  because  the  sheriff  improperly  interfered  with  the  delibera- 
tions of  the  jury  f^  because  the  alleged  lunatic  had  no  notice  given  him 
of  its  occurrence  ;^^  because  a  stranger  was  appointed  committee  with- 
out the  assent  of  the  relatives  of  the  lunatic  and  without  a  reference  f^ 
because  the  commissioners  refused  to  issue  subpoenas  in  behalf  of  the 
alleged  lunatic  f^  because,  upon  the  personal  examination  of  the  luna- 
tic by  the  court,  and  of  the  evidence  adduced  upon  the  trial,  the  court 
held  that  the  jury  erred  in  finding  their  verdict;  though  in  such  case 
the  introduction  of  new  evidence,  where  no  valid  reason  can  be  shown 
why  the  same  was  not  produced  upon  the  trial,  will  not  be  permitted 
ex  parte  to  contradict  the  verdict,  unless  there  has  been  gross  error  or 

"Wall  V.  Hill,  1  B.  Mon  290,  36  Am.  appeared   sane   and   his   delusions   were 

Dec.  578.  no  longer  apparent,  unless  the  proof  of 

"J?e  Watts,  1  Curt.  Eccl.  Rep.  594.  sanityand  capability  is  clear  and  con- 

The  fact  that  a  commission  de  luna-  vincing.     Grimani  v.  Draper,  6  Notes  of 

tico    inquirendo    was    issued    against    a  Cases,  418. 

testator  covering  the  time  at  which  his  The  members  of  an  inquisition  which 
will  was  made  will  not  invalidate  it  as  found  a  grantor  to  be  of  unsound  mind 
against  a  showing  of  full  capacity  by  the  are  competent  witnesses  to  prove  un- 
subscribing witnesses  and  others  who  soundness  or  a  lucid  interval  where  the 
gave  minute  accounts  of  what  he  said  facts  are  within  their  knowledge,  but 
and  did  at  the  time.  Rodd  v.  Lewis,  2  they  cannot  give  their  opinions  as  to 
Lee  Eccl.  Rep.  176.  the   nature   of   their    finding   and   what 

And  testimony  as  to  the  sanity  of  the  they    intended    by    it.     Hutchinson    v. 

grantor  at  the  time  of  the  execution  of  Sandt,  4  Rawle,  2.34,  26  Am.  Dec.   127; 

his  deed  is  not  overcome  by  an  inquisi-  Bowman  v.  Van  Baum,  17  Phila.  633,  14 

tion    finding  him   to  be   a   lunatic   with  W.  N.  C.  185. 

lucid  intervals,  and  that  that  state  had  And  they  cannot  be  examined  as  wit- 
continued  for  twenty  years.  Craig  v.  nesses  for  the  purpose  of  impeaching 
Feland,  4  T.  B.  Mon.  232.  the  regularity  of  their  finding.    Bouman 

"7?e  Pendleton,   1   Connoly,  480,  5  N.  v.   Van  Baum,  17  Phila.  633,   14  W.  N. 

Y.  Supp.  849.  C.  185. 

But  a  will  Tuade  by  a  person  who  had  *'/?c  Waxier,  6  Paige,  11. 

been    afflicted    with    delusions,    against  ^Tte  Arnhout,  1  Paige.  497. 

whom   a   commission   had   issued   which  '"Re  Tracy,   1  Paige,  580. 

was  not  superseded,  and  who  had  never  '^Lamoree's  Case,  11  Abb.  Pr.  274,  32 

quilted    the    asylum,    will    not    be    ad-  Barb.   122,   19  How.  Pr.  375. 

mitted  to  probate  upon  evidence  that  he  '"Re  Plank,  5  Clark   (Pa.)   35. 


S   1541 


COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS. 


1G3 


undue  prejudice  exhibited  on  the  part  of  the  jury.^^*'  The  inquisi- 
tion, also,  is  defective  if  it  docs  not  conform  to  the  statute  in  its  find- 
ing;^ though  a  mere  misnomer  of  the  hmatic  in  the  inquisition  and 
other  proceedings  will  not,  of  itself,  invalidate  them;  for  this  may 
be  amended  by  an  order  entering  such  amendment  into  future  docu- 
ments in  which  such  lunatic's  name  is  mentioned,  the  only  point  to  be 
considered  being  the  establishment  of  his  identity.-  Where  the  inqui- 
sition and  proceedings  have  been  set  aside  for  any  cause,  a  second 
commission  cannot  be  issued  on  the  original  petition,  because  the  con- 
tinuance of  the  reasons  upon  which  the  first  was  based  cannot  be  pre- 
sumed at  law,  but  must  be  proved  de  novo.^  i 
155.  Superseding  on  recovery. — Where  one  has  been  adjudged  a  per- 
son of  unsound  mind  and  incapable  of  managing  his  person  and  prop- 
erty, he  is  entitled  to  have  the  commission  superseded  when  he  has  re- 
covered his  mind.^  The  test  of  recovery  warranting  the  superseding 
of  a  commission  rests  on  the  question  whether  or  not  the  party  is  now 
of  sane  mind,  and  capable  of  managing  his  estate.^  A  commission 
of  lunacy,  however,  will  not  be  at  once  superseded  on  the  ground  of 
recovery  of  the  lunatic  on  evidence  that  he  no  longer  exhibits  un- 


'""Re  Russell,  1  Barb.  Ch.  38  j  Te- 
boat  Case,  9  Abb.  Pr.  211. 

^Re  Morgan,  7  Paige,  236. 

Uie  Crawford,  1  Myl.  &  C.  240; 
Ordronaux,  Insanity,  ut  supra. 

'Hincliman  v.  Richie,  Brightly  (Pa.) 
144,  182;  Ordronaux,  Insanity,  ut  supra. 

*Greenwade  v.  Oreentcade,  43  Md.  313; 
Re  Rogers,  5  N.  J.  Eq.  46;  Ex  parte 
Drayton,  1  Desauss.  Eq.  144.  And  see 
Lackey  v.  Lackey,  8  B.  Hon.  107 ;  Re 
Russell,  1  Barb.  Ch.  38;  Re  Lasher,  2 
Barb.  Ch.  97;  Re  Mason,  1  Barb.  436; 
Re  Beaumont,  1  Whart.  52,  29  Am.  Dec. 
33 ;  Cockrill  v.  Cockrill,  79  Fed.  143. 

The  provisions  of  Cal.  Code  of  Civ. 
Proc  §  1706,  authorizing  the  restoration 
of  a  person  adjudged  insane  or  incom- 
petent, are  only  applicable  to  those  for 
whom  guardians  have  been  appointed, 
and  cannot  be  applied  to  the  order  of 
the  judge  committing  a  person  to  an 
insane  hospital  under  the  provisions  of 
the  political  code.  Kellogg  v.  Cochran, 
87  Cal.  192,  12  L.  R.  A.  104,  25  Pac. 
677. 

In  Sims  v.  Sims,  121  N.  C.  297,  40 
L.  R.  A.  737,  61  Am.  St.  Rep.  665,  28 
S.  E.  407,  however,  it  was  held  that  a 
guardian  of  a  hmatic  cannot  be  removed 
in  an  ex  parte  proceeding  in  which  no 
notice  was  served  on  him. 


^Cochran  v.  Amsden,  104  Ind.  282,  3 
N.  E.  934;  Re  Brugh,  61  Hun,  193,  16 
N.  Y.  Supp.  551 ;  Re  Ferris,  74  App.  Div. 
619,  77  N.  Y.  Supp.  309.  And  see  Re 
Bischofl',  37  Misc.  734,  76  N.  Y.  Supp. 
467. 

To  warrant  superseding  a  commission 
of  lunacy  it  is  not  necessary  that  the 
mind  of  the  lunatic  should  be  restored 
to  its  original  state,  it  is  sufficient  if 
the  party  is  competent  for  ordinary  pur- 
poses, such  as  the  making  of  a  will  of 
personal  estate.  Ex  parte  Holyland, 
11  Ves.  Jr.   10,  8  Revised  Rep.  67. 

It  is  fitness  to  manage  property  and 
the  ordinary  affairs  of  life  which  will 
warrant  superseding  a  commission  of 
lunacy,  and  not  competency  proportioned 
to  the  extent  of  the  lunatic's  estate. 
Re  Mason,  60  Hun,  46,  14  N.  Y.  Supp. 
434. 

But  a  committee  of  a  lunatic  should 
not  be  discharged  upon  a  claim  that 
he  liad  so  far  recovered  as  to  be  able 
to  govern  himself,  where  it  does  not 
appear  that  he  was  also  able  to  man- 
age his  estate,  and  no  application  had 
been  made  for  the  discharge  of  the  com- 
mittee of  the  estate.  Re  Burr,  1 7  Barb.  9. 


164  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§155 

i?oundness  of  mind,  but  will  be  ordered  to  stand  over  until  it  can  be 
seen  how  the  removal  of  the  restraint  will  aifect  him.^  And  the  con- 
tinuance of  an  insane  delusion  is  sufficient  to  prevent  the  superseding 
of  a  commission,  though  its  existence  was  but  slightly  manifested^ 
The  burden  of  proof  of  recovery  on  an  application  to  supersede  a  com- 
mission rests  with  the  person  whose  mind  has  been  adjudged  insane.* 
And  evidence  which  will  warrant  superseding  it  is  usually  required  to 
be  stronger  in  favor  of  sanity  than  would  have  been  required  to  have 
prevented  the  commission  originally.^  An  order  of  restoration  to  ca- 
pacity is  to  all  intents  and  purposes  a  judgment,  which  may  be  re- 
viewed by  certiorari  where  no  appeal  is  provided  for.^^ 

II.  Dkunkenness. 

156.  Drunkenness  warranting  inquisition. — Courts  of  chancery  are 
entitled  to  the  custody  and  control  of  the  person  as  well  as  of  the  es- 
tate of  habitual  drunkards,  and  may  exercise  that  control  by  means  of 
a  committee,  as  in  the  case  of  a  lunatic.-^ ^  And  where  a  person's  mind 
has  become  unsound  from  the  constant  use  of  alcoholic  liquors,  ren- 
dering him  incapable  of  conducting  his  owm  affairs,  the  appointment 

i 

'Re  Blackmore,  1  De  G.  J.  &  S.  84,  1  To  warrant  superseding  a  commission 

New  Reports,    187,   32   L.  J.   Ch.   N.   S.  of   lunacy   the   person   adjudged   insane 

436,  9  Jur.  N.  S.  90,  8  L.  T.  N.  S.  264,  must    satisfactorily    establish    the    ab- 

476.    And  see  Eovey  v.  Harmon,  49  Me.  sence   of   any   disorder,   especially   of   a 

269;  lie  Burr,  2  Barb.  Ch.  208;  Re  Rog-  dangerous  tendency,  by  the  evidence  of 

ers,  5  X.  J.   Eq.  46.  persons  having  competent  knowledge  of 

So,  where  a  party  who  had  been  found  the   whole   subject,   not   only   as   to   his 

a  lunatic  with  lucid  intervals  had  fre-  present  state,  but  with  reference  to  his 

quent   relapses,   the   commission   should  former   incompetency.      Ex  parte   Holy- 

iiot  be  superseded,  but  merely  suspended  land,  11  Ves.  Jr.  10,  8  Revised  Rep.  67. 

for   a   time   to   see   if   recovery   is    per-  The  most  satisfactory  proof  of  recov- 

fect.     Ex  parte  Ferrars,  IMosely,  332.  ery  upon  which  to  base  the  superseding 

^Re  Di/ce  Sombre,  13  Jur.  857,  1  Macn.  of  a  commission  of  lunacy  is  the  con- 

&  G.  116,  1  Hall  &,  T.  285.  viction  on  the  part  of  the  patient  of  the 

A  commission   in  lunacy  will  not  be  nonreality   of  the  delusions   which  pre- 

superseded  where  the  alleged  lunatic  is  viously  arose  from  his  disease.    Re  Dyce 

liable  at  any  moment  to  be  excited  be-  Sombre,  13  Jur.  857,  1  Alacn.  &  G.  116, 

yond  his  power  of  control  and  requires  1  Hall  &  T.  285. 

constant  supervision  and  care  to  prevent  A  complaint  in  an  action  by  a  person 

the  stjuandering  of  his  property,  though  under  guardianship  as  of  unsound  mind, 

at  times  he  acts  like  a  sane  man.     Re  in  an  action  brought  by  him  to  impeach 

Uelmbold,   12   Phila,  424.  sales  of  his  property  made  by  his  guard 

•Orecnwade  V.  CfrccHiDade,  43  Md.  313 ;  ian,  alleging  that  they  occurred  before 

/ic   Thompson,    16   Montg.   Co.   L.   Rep.  he    was    released    from    disability,    doea 

102.  not  show  a  termination  of  the  guardian- 

A   person   under   inquisition   applying  ship.     Robeson  v.  Martin,  93  Ind.  420. 

to  supersede   it   cannot   be   rccjuired   to  ^"State  ex  rel.  Kelly  v.  Probate  Court, 

submit   to    a    personal    examination    by  S3   Miim.   58,   85   N.   W.   917. 

physicians.     72c  Newcomb,  58  App.  Div.  "Re  Lynch,  5  Paige,  120;  Re  Tracy,  1 

338,   68   N.   Y.   Supp.   988.  Paige,  580;    Hill  v.  Horton,  4  Deni.  90. 

•/(•e  %ce  .S'om6>e,  13  Jur.  857,  1  Macn.  But   see   Re    Broun,    1     Abb.   Pr.   112; 

fc  G.   110,   1  Hall  &  T.  285.  Tome  v.  Stump,  89  Md.  264,  42  Atl.  902. 


§   156]  COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS.  165 

of  a  guardian  is  authorized  under  the  statutes  providing  for  such  ap- 
pointment, and  for  the  care,  custody,  and  management  of  idiots,  in- 
sane persons,  and  persons  incapable  of  conducting  tJieir  own  affairs,^^ 
though  proceedings  are  generally  taken  against  them  under  special 
statutes.  And  statutes  authorizing  proceedings  to  determine  whether 
a  person  is  an  habitual  drunkard  and  incapable  of  managing  his  own 
estate  are  not  unconstitutional  as  depriving  the  person  of  the  right  to 
control  and  dispose  of  his  property,  and  to  make  contracts.^  ^  Drunk- 
enness is  habitual  and  will  authorize  the  issue  of  a  commission  when 
it  is  customary,  usual,  or  .common,  as  distinguished  from  seldom,  un- 
usual, or  uncommon.^^  Mere  occasional  acts  of  drunkenness  are  not 
sufficient  to  constitute  one  an  habitual  drunkard  ;^^  though  it  is  not 
necessary  that  one  should  be  constantly  intoxicated.***  But  where  a 
person  is  intoxicated  during  any  considerable  portion  of  his  time  to 
such  a  degree  as  to  deprive  him  of  his  ordinary  reasoning  faculties  it 
is  prima  facie  evidence  that  he  is  incapable  of  managing  his  affairs. ■*' 
And  one  who  is  found  by  inquest  to  be  an  habitual  drunkard  need  not 
also  be  found  incapable  of  managing  his  estate,  to  justify  the  confirma- 
tion of  the  inquisition,  as  such  incapacity  is  presumed  and  is  a  ques- 

"Re  Wetmore,  6  Wash.  271,  33  Pac.       "^Luditnck  v.  Com.  18  Pa.  174;  Murphy 
61.5.  V.  People,  90  111.  59;  Re  Hoyt,  20  Abb. 

But  it  cannot  be  laid  down  as  a  rule    N.  C.  162. 
of  law  that  because  a  man  is  a  drunkard        Before   one   can   be    regarded    as    an 
he  is  of  unsound  mind,    and    unsound-    habitual  drunkard,    for    whom    a    com- 
ness  of  mind  is  not  presumed  therefrom,    mission  may  be  appointed,  it  must   ap- 
Lang's  Estate,  65  Cal.  19,  2  Pac.  491.        pear  that  he  drinks  to    excess    so    fre 

"■^Devin  v.  Scott,  34  Ind.  67.  quently    tliat    it    has   become   a     fixed 

A  finding  that  a  person  is  an  practice  or  habit  with  him.  Walton  v 
habitual  drunkard,  without  reference  to  Walton,  34  Kan.  195,  8  Pac.  110. 
whether  or  not  he  is  of  unsound  mind,  iVnd  evidence  as  to  the  conduct  of  a 
violates  no  constitutional  right.  Com.  person  at  other  times  when  intoxicated 
ex  rel.  McGinnis  v.  McGinnis,  3  Pittsb.  may  be  given  for  the  purpose  of  showing 
445.  the  character  of  acts  relied  upon  as  evi 

But  where  there  is  a  dispute,  a  com-    dence  of  intoxication,  on  an  application 
mittee  for  an  alleged  habitual  drunkard    for  a  commission,  though  it  would  not 
should  not  be  appointed  without  notice   be    evidence    of    present     intemperance, 
to  the  alleged  incompetent.     Re  Coffin,   State  v.  Hvxford,  47  Iowa,  16. 
83  N.  Y.  Supp.  941.  ^"Ludwick  v.  Com..  18  Pa.  174;    Wal 

"Com.  ex  rel.  McGinnis  v.  McGinnis,    ton  v.  Walton,  34  Kan.  195,  8  Pac.  110; 
3  Pittsb.  445;  Ludioick  v.  Cotn.  18  Pa.    State  v.  Pratt,  34  Vt.  323. 
174;  State  v.  Pratt,  34  Vt.  323.  ''lie  Tracij,  1  Paige,  580. 

One  who  has  a  fixed  habit  of  frequent-  In  Murphy  v.  People,  90  111.  59,  it 
ly  getting  drunk,  though  he  may  be  was  held  that  a  judgment  finding  a  per- 
oftener  sober  than  drunk,  and  may  be  son  to  be  an  habitual  drunkard  will  not 
sober  for  weeks  at  a  time,  is  an  habitual  be  reversed  on  appeal,  where  the  evi- 
drunkard,  for  whom  a  commission  may  dence  shows  that  he  had  been  drunk 
be  issued.  Brown  v.  Brown,  38  Ark.  three  to  five  times  within  the  preceding 
S24.  two  years. 


166 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   156 


tion  of  law.^^    The  sufficiency  of  evidence  of  habitual  intoxication  in 
a  proceeding  for  a  commission  is  one  for  the  jury.-'^ 

157.  Inquisition  of  habitual  drunkenness  as  evidence. —  An  inquisi- 
tion of  habitual  drunkenness  is  only  presumptive,  and  not  conclusive, 
evidence  of  incapacity  as  to  acts  done  by  the  habitual  drunkard  before 
the  issuing  of  the  commission,  but  which  are  overreached  by  a  retro- 
spective finding.-"  And  the  rule  is  general  in  the  absence  of  statute, 
that  an  inquistion  finding  a  party  to  be  an  habitual  drunkard  is  only 
prima  facie  evidence  of  incapacity  as  to  any  acts,  its  only  effect  being 
to  shift  the  burden  of  proof  to  the  party  agserting  capacity.^^  But 
under  statutes  contemplating  a  complete  transfer  of  property  of  an 
habitual  drunkard  to  the  custody  of  the  law,  and  prohibiting  all  gifts 
of  goods  and  chattels  of  an  habitual  drunkard,  and  prohibiting  him 
from  contracting,  such  transfers  and  contracts  are  utterly  void,  and  an 
inquisition  finding  a  person  to  be  an  habitual  drunkard  is  conclusive 
of  his  incapacity  to  dispose  of  his  property,  or  to  contract  debts  from 
the  time  it  was  made,^^  even  as  against  a  bona  fide  holder  of  a  bill  or 


"^LudvAck  V.  Com.  18  Pa.  172. 

The  fact  that  a  person  is  able  to  care 
for  himself  and  manage  his  estate  is  no 
defense  to  a  proceeding  to  have  him  de- 
clared an  habitual  drnnkard,  where 
habitual  drunkenness  is  shown.  Com. 
ex  reL  McGinnis  v.  McGinnis.  3  Pittsb. 
445. 

^"State  V.  Pratt,  34  Vt.  324;  Re 
,Tracy,  1  Paige,  580. 

Affirittative  evidence  of  witnesses 
acquainted  with  the  habits  of  a  person, 
that  they  had  seen  him  drunk^  will  sus- 
tain <a  determination  that  he  is  an 
habit>ual  drunkard,  as  against  negative 
testimony  of  others  that  they  never  saw 
him  intoxicated,  though  they  had 
knowledge  of  his  habits.  Murphy  v. 
People,  90  111.  59. 

'^ L' Amour e II X  v.  Croshy,  2  Paige,  427, 
22  Am.  Dec.  G55;  Wadsworth  v.  Siher- 
man,  14  Barb.  169;  Tozcr  v.  Haturlee,  3 
Grant  Cas.  102;  Re  Havilaml,  1  W.  N. 
C.  345;  Klohs  v.  Klohs,  Gl  Pa.  245. 

"Leckey  v.  Cunmnr/ham,  56  Pa.  370 ; 
Noel  V.  Karpor,  53  Pa.  97 ;  McGinnis  v. 
Com.  74  Pa.  245 ;  Miskey's  Appeal,  107 
Pa.  611;  Leonard  v.  Leonard,  14  Pick. 
280.  And  see  Re  Johnson,  57  Cal.  529; 
Lewis  V.  Jones,  50  T5arb.  645. 

A  finding  at  an  inquisition  of  habitual 
drunkenness  is  prima  facie  only,  and  not 
conclusive  evidence,  whether  it  was 
negative  or  alTirmativc  Miskey's  Ap- 
peal, 107  Pa.  611. 


And  the  continuance  of  a  person, 
found  by  an  inquisition  to  be  an  habitu- 
al drunkard,  in  his  business  as  a  me- 
chanic in  the  regular  way,  after  the 
finding  as  before,  is  sufficient  proof  of 
mental  soundness  to  rebut  the  presump- 
tion arising  from  the  inquisition,  and  to 
sustain  his  receipt  for  money  from  his 
employer,  in  discharge  of  an  indebted- 
ness for  labor  performed.  Black's 
Estate,  132  Pa.   134,  19  Atl.  31, 

"Devin  v.  Scott,  34  Ind.  67;  Wads- 
ii-orih  V.  Sharpsfeen,  8  N.  Y.  888,  59 
Am.  Dec.  499;  Wadsworth  v.  Sherman, 
14  Barb.  171;  L'Anioureux  v.  Crosby, 
2  Paige,  427 ;  Re  Patterson,  4  How.  Pr. 
34.  Niblo  V.  Harrison,  9  Bosw.  668; 
Cockrill  V.  Cockrill,  79  Fed.  143,  Af- 
firmed in  34  C.  C.  A.  254,  92  Fed.  811. 

An  inquisition  finding  a  person  in- 
capable of  conducting  his  own  affairs  in 
consequence  of  habitual  drunkenness  is 
conclusive  ondence  of  his  incapacity 
sul)sequently  to  waive  notice  of  non- 
jjaymont  and  protest  of  a  promissory 
note,  though  the  note  was  made  previous 
to  the  finding,  and  evidence  that  at  the 
time  of  signing  the  waiver  he  was 
perfectly  sober  and  competent  is  in- 
admissible. Wadsicorth  v.  Sherman, 
14  Barb.  169. 

And  where  a  judgment  is  rendered 
against  a  person  under  guardianship  a.s 
an  habitual  diunkard,  the  guardian  not 
having  been  made  a  party,  and  not  hav- 


5  157]  COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS.  167 

note,  and  even  though  he  might  have  enjoyed  lucid  intervals.^^  This 
doctrine,  however,  does  not  apply  to  wills,  and  a  will  is  not  rendered 
absolutely  void  by  the  fact  that  the  testator  was  subject  to  a  commis- 
sion as  an  habitual  drunkard  at  tlie  time  it  was  made.  It  is,  never- 
theless, valid  if  at  that  time  he  had  sufficient  mental  capacity  to  make 
it,  the  commission  being  only  prima  facie  evidence  of  incapacity  in 
such  case,  which  may  be  rebutted  by  proof,^*  the  effect  thereof  being 
merely  to  shift  the  burden  of  proof  to  the  party  asserting  capacity.^^ 
And  to  invalidate  a  will  made  by  a  person  under  a  commission,  the 
testimony  must  go  to  the  extent  of  showing  that,  at  the  time  of  its 
execution,  the  testator  was  mentally  unfit  to  dispose  of  his  property.^^ 
It  has  been  held,  however,  that  Avhile  a  commission  remains  unre- 
voked, an  habitual  drunkard  cannot  make  a  valid  will  without  permis- 
sion of  the  court,  the  existence  of  the  commission  being  conclusive 
against  the  validity  of  the  will  f  but  this  doctrine  was  subsequently 
overruled,  in  a  case  distinguishing  and  explaining  the  former  case,^^ 
158.  Discharge  and  restoration. —  The  court  will  not  discharge  a 
committee  and  restore  the  property  of  an  habitual  drunkard  to  him, 
where  he  had  been  found  incapable  of  managing  his  affairs  by  reason 
of  his  habitual  drunkenness,  upon  mere  proof  of  the  fact  that  he  is 
competent  to  manage  his  affairs,  unless  it  also  appears  that  a  perma- 
nent reformation  has  been  made,  and,  as  proof  of  permanent  reforma- 
tion, it  is  usually  required  to  be  shown  that  he  has  voluntarily  re- 
frained from  the  use  of  intoxicating  liquors  for  at  least  one  year  pre- 
ceding the  application.^^  And  a  party  asserting  capacity  after  an  in- 
quisition of  habitual  drunkenness  has  the  burden  of  proving  that  the 

ing  had  knowledge  thereof  until  after  an  habitual  drunkard  was  actually  re- 
its  rendition,  on  a  contract  made  after  stored  to  capacity  at  the  time  of  the 
the  inquisition,  collection  thereof  will  execution  of  his  will.  Re  Johnson,  57 
be  enjoined  at  the  suit  of  the  guardian,  Cal.  529. 

where  it  does  not    affirmatively    appear  ^'^Leclcey  v.  Cunningham,  56  Pa.    370; 

that  the  contract  on  which  it  was  ren-  Dugan's  Estate,    6    Pa.    Dist.    R.    222; 

dered  was  for  necessaries  furnished,  and  Hannum  v.  Worrall,  2  Del.  Co.  Rep.  49. 

that  the  guardian  had  failed  to    make  '^Dugan's  Estate,  6  Pa.  Dist.    R.  222. 

needful  provisions.      Rogers  v.  State,  33  "'Re  Patterson,  4  How.  Pr.  34. 

Ind.  543.  An   application   to  the    court,    under 

'^Wadsworth  v.  Sharpsteen,  8    N.    Y.  this  rule,  to  suspend  an    inquisition  of 

388,  59  Am.  Dec.  499;  Tozer  v.  Saturlee,  habitual  drunkenness  so  far  as  to  per- 

3  Grant  Cas.  1G2.  mit  a  person  to  make  a  will,    was  ad- 

^*Re  Patterson,  4  How.  Pr.  34 ;  Leekey  dressed  to  the  discretion  of  the    court, 

V.   Cunningham,  56    Pa.    370;    Dugan's  and  might  be  made  ex  parte  or  on  notice 

Estate,  6    Pa.    Dist.    R.    222 ;    Leicis  v.  to  the  committee  and  next  of  kin,  as  the 

Jones.  50  Barb.  645;    Re    Johnson,    57  court    might    direct.       Re    Patterson    4 

Cal.  529.  How.  Pr.  '34. 

The   court,   in    a    will    contest,    may  '^Leicis  v.  Jones,  50  Barb.  645. 

properly  hear  evidence  as  to  whether  or  ^Re  Hoag,  7  Paige,  312. 
not  a  testator  who  had    been    adjudged 


168 


AIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  158 


alleged  habitual  drunkard  was  able  to  understand  the  character  of  his 
acts  at  the  time  of  the  act  in  question.^"  After  discharge  and  restora- 
tion the  proceedings  may  generally  be  reinstated  upon  proof  of  relapse 
into  habitual  intoxication.^^ 


"Noel  V.  Ear  per,  52  Pa.  97.  And  see 
Cockrill  V.  Cockrill,  79  Fed.  143,  Af- 
firmed in  34  C.  C.  A.  254,  92  Fed.  811. 

Proceedings  for  the  appointment  of  a 
committee  of  an  alleged  habitual  drunk- 
ard are  in  part  for  the  protection  of  his 
family;  and  where  such  family  and  the 
committee  fail  to  procure  the  allowance 
of  the  committee's  bond,  and  the  com- 
mittee fails  to  take  charge  of  his  proper- 
ty for  over  twenty  years,  leaving  the 
drunkard  the  management  thereof  until 
his  death,  it  is  presumed  that  the  pro- 


ceedings were  abandoned,  and  that  they 
had  been  discharged.  Leckey  v.  Cunning- 
ham, 56  Pa.  370. 

And  property  sold  by  a  person  de- 
clared an  habitual  drunkard  by  inquisi- 
tion cannot  be  recovered,  where  the  com- 
missioner neither  acted  nor  gave  bond, 
and  the  drunkard's  friends  permitted 
him  to  buy  and  sell.  Bixler  v.  Oille- 
land,  4  Pa.  156. 

""Roberts's  Estate,  197  Pa.  621,  47 
Atl.  987. 


CHAPTEK  vrr. 


RESTRAINT. 


159.  Right  to  restrain  generally. 

160.  Discharge  from  confinement. 

161.  In  the  case  of  habitual  drunkards. 

159.  Right  to  restrain  generally. —  A  person  should  not  be  re- 
strained of  his  liberty  or  confined  in  an  asylum  unless  he  is  actually 
insane/  and  his  welfare  or  the  safety  of  society  requires  it^  The 
law  in  such  a  case  undoubtedly  is,  that  confinement  is  justifi.able  if 
the  safety  either  of  the  patient  or  of  others  requires  it,  or  it  is  neces- 
sary for  his  restoration  to  health.^  But  the  general  practice  is  not  to 
direct,  even  under  a  finding  of  lunacy,  the  confinement  of  the  lunatic, 
unless  such  confinement  be  required  by  the  public  peace  and  morals, 


Wan  Deusen  v.  Newcomer,  40  Mich. 
90. 

^Com.  ex  rel.  Rubright  v.  Western 
Pennsylvania  Hospital,  3  Pittsb.  299 ; 
Com.,  ex  rel.  Draper  v.  Kirkbride,  3 
Brewst.  (Pa.)  393;  Com.  ex  rel.  Nyce  v. 
Kirkbride,  2  Brewst.  (Pa.)  400; 
Gresh's  Case,  12  Pa.  Co.  Ct.  295;  Hinch- 
man  v.  Richie,  Brightly  (Pa.)  143; 
Look  V.  Dean,  108  Mass.  116,  11  Am. 
Rep.  323 ;  Anderdon  v.  Burrotcs,  4  Car. 
&  P.  210;  Nottridge  v.  Ripley,  2  Journal 
of  Psychological  Med.  &  Med.  Jur.  030. 

A  statute  providing  for  an  inquiry  as 
to  sanity  and-  the  removal  to  a  lunatic 
asylum  of  persons  in  confinement  under 
indictment  does  not  confer  authority  to 
order  the  confinement  of  such  a  person 
out  on  bail,  on  the  ground  that  the 
property  of  others  is  endangered  by  his 
being  at  liberty.  Ex  parte  Trice,  53 
Ala.  546. 

All  persons  who  unite  in  the  pro- 
curement of  an  illegal  commitment  to 
a  lunatic  asylum  are  liable  for  false  im- 
prisonment, and  a  statute  providing  for 
the  admission  into  an  asylum  of  persons 
not  adjudged  insane  does  not  remove  the 
liability  of  persons  giving  false  or 
fraudulent  certificates  for  the  purpose 
of  procuring  such  commitment.  Bacon 
».  Bacon,  76  Miss.  458,  24  So.  908. 


^Hinckman  v.  Richie,  Brightly  (Pa.) 
143.  And  see  Biddle  v.  Jenkins,  61  Neb. 
400,  85  N.  W.  392. 

Under  the  Louisiana  code  there  are 
three  things  necessary  to  justify  the 
interdiction  of  a  party  as  insane:  1, 
the  absolute  incapacity  to  administer 
one's  estate;  2,  the  absolute  incapacity 
to  take  care  of  one's  person;  and  3,  an 
actual  and  unavoidable  necessity  to 
interdict.  Francke  v.  His  Wife,  29  La. 
Ann.  302. 

And  a  person  who,  though  originally 
bright,  lost  her  mind  from  epilepsy,  and 
became  unable  to  take  the  slightest  care 
of  herself,  though  not  an  idiot,  is  an  in- 
sane person  within  the  meaning  of  the 
provisions  of  the  Iowa  Code  for  the  care 
and  custody  of  the  insane.  Speedling 
v.  Worth  County,  68  Iowa,  152,  26  N. 
W.  50. 

And  insanity  which  leads  the  person 
afflicted  with  it  to  make  improper  ex- 
posure of  his  person  in  public  renders 
him  a  person  dangerous  to  the  com- 
munity, within  the  meaning  of  a  statute 
providing  for  the  restraint  of  such  per- 
sons at  public  expense.  Montgomery 
County  V.  Ristine,  124  Ind.  242,  8  L.  R. 
A.  461,  24  N.  E.  990. 


169 


170 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   159 


or  by  the  interest  of  the  patient.*  Confinement  of  a  dangerous  lunatic, 
however,  is  always  justifiable.^  And  it  is  just  as  competent  for  a 
magistrate,  as  consen^ator  of  the  peace,  to  order  into  custody  an  in- 
sane man  who  causes  a  breach  of  the  peace,  as  to  order  the  arrest  of  m 
saoe  man  under  like  circumstances.^  And  a  person  who  is  so  insane 
that  it  would  be  dangerous  to  suffer  him  to  be  at  liberty  may  be  con- 
fined from  necessity  by  any  person  witliout  a  warrant  until  the  proper 
proceedings  can  be  had  for  his  security.''^  But  no  man  can  be  de- 
prived of  his  liberty  without  due  process  of  law,  whether  the  alleged 
cause  of  the  detention  is  insanity  or  crime.®     And  an  adjudication 


*Com.  ex  rel.  Nyce  v.  Eirkbride,  2 
Brewst.  ( Pa. )  400.  See  Re  Kings  Coun- 
ty Insane  Asylum,  7  Abb.  I^.  C.  425. 

A  mere  unchangeable  belief  in  things 
which  have  no  existence  on  the  part  of 
an  ignorant  man  is  not  such  insanity  as 
■will  authorize  his  confinement,  though  a 
belief  in  an  unnatural  or  disgraceful 
state  of  affairs  existing  beyond,  and  in 
a  direction  entirely  contrary  to,  the 
ordinary  elements  of  rational  belief, 
without  cause;  might  be  sufficient.  Com. 
ex  rel.  Rubright  v.  Western  Pennsyl- 
vania Hospital,  3  Pittsb.  299. 

^Van  Deusen  v.  'Newcomer,  40  Mich. 
90:  Emmerich  v.  Thorley,  35  App.  Div. 
452,  54  N.  Y.  Supp.  791;  Scott  v. 
Wakem,  3  Fost.  &  F.  328 ;  Brookshaw  v. 
Hopkins,  Lofft,  243. 

"Lott  V.  Sueet,  33  Mich.  308. 

A  law  authorizing  justices  of  the 
peace  to  confine  lunatics  is  not  uncon- 
stitutional as  conferring  ministerial 
power  upon  a  judicial  officer.  Madison 
County  V.  Moore  (Ind.)   68  N.  E.  905. 

And  a  magistrate  is  not  deprived  of 
the  authority  to  commit  ;in  insane  per- 
son, believed  by  him  to  be  dangerous,  to 
an  insane  asylum,  by  the  fact  that,  upon 
suggestion  of  insanity  before  trial 
under  an  indictment,  a  commission  was 
appointed  to  inquire  into  his  mental 
condition,  which  reported  him  insane 
and  he  was  remanded  to  prison.  State 
ex  rel.  Kennedy  v.  XJniacke,  48  La.  Ann. 
1230,  20  So.  749. 

'•Colby  V.  Jackson,  12  N.  H.  526; 
Davis  V.  Merrill,  47  N.  H.  208;  Van 
Deusen  v.  Newcomer,  40  Mich.  90.  And 
see  Re  Sherman,  17  R.  I.  356,  22  Atl. 
276;  Emmerich  v.  Thorley,  35  App.  Div. 
452,  54  N.  Y.  Supp.  791;  Fletcher  v. 
Fletcher,  28  L.  J.  Q.  B.  N.  S.  136.  1 
El.  &  El.  420,  5  Jur.  N.  S.  678,  7  Week. 
Rep.  187. 

An  order  by  a  judge  for  the  temporary 


confinement  of  a  person  alleged  to  be  in- 
sane, pending  proceedings  for  the  de- 
termination o(  that  question,  is  not  a 
denial  of  due  process  of  law  when  made 
on  a  written  complaint  and  aflBdavit  to 
the  fact  of  insanity,  but  is  clearly  with- 
in the  police  power  of  the  state  to  re 
strain  dangerous  persons  in  case  of  an 
emergency.  And  such  an  order  is  an 
adjudication,  and  is  not  void  on  its  face 
because  it  fails  to  recite  the  affidavit  of 
a  physician  on  which  it  was  based,  or 
the  fact  that  the  proceedings  for  a  hear- 
ing as  to  sanity  were  then  pending. 
Porter  v.  Riteh,  70  Conn.  235,  39  L.  R 
A.  353,  39  Atl.  169. 

But  the  right  ceases  when  confinement 
is  no  longer  reasonably  necessary.  Kel- 
eher  v.  Putnam,  60  N.  H.  30,  49  Am. 
Rep.  304. 

And  where  proceedings  for  the  re- 
straint of  an  alleged  lunatic  are  com- 
menced and  abandoned  and  the  impris- 
onment still  continues,  the  authority  is 
abused,  and  the  party  causing  it  be- 
comes a  trespasser  from  the  beginning. 
Colby  v.  Jackson,  12  N.  H.  526. 

^Com.  ex  rel.  Steicart  v.  Kirkbridc,  2 
Brewst.  (Pa.)  419;  Smith  v.  People,  65 
111.  375;  Underxcood  v.  Pedple,  32  Mich. 
1,  20  Am.  Rep.  633;  People  ex  rel.  Sulli- 
van V.  Wendel,  33  Misc.  496,  68  N.  Y. 
Supp.  948. 

A  statute  authorizing  the  commit- 
ment to  or  retention  in  an  asylum  of  a 
person  alleged  to  be  insane,  without  giv- 
ing him  particular  notice  and  opportu- 
nity to  be  heard,  is  unconstitutional, 
=ince  it  lacks  the  essential  element  of 
due  process  of  law.  Re  Lambert,  131 
Cal.  626,  55  L.  R.  A.  856,  86  Am.  St. 
Rep.  290,  66  Pac.  851. 

But  a  statute  providing  for  the  re- 
moval of  insane  convicts  to  an  asylum, 
and  their  return  to  prison  on  recovery, 
is   not   unconstitutional   as   authorizing 


f  159] 


RESTRAINT. 


171 


without  notice,  under  which  a  party  is  confined,  is  void,  where  the 
statute  gives  him  the  right  to  be  present  at  the  trial.^  A  finding  of 
a  duly  appointed  commission  de  lunatico  inquirendo  is  not  conclusive 
on  the  question  of  the  propriety  of  the  confinement  of  a  person  in 
an  asylum.^^  And,  as  a  general  rule,  the  committee  of  a  lunatic 
should  confine  him  only  when  authorized  to  do  so  by  the  court ^* 

160.  Discharge  from  confinement. —  A  lunatic  who  recovers  his  san- 
ity should  be  released  from  custody,  and  for  that  pvirpose  may  peti- 
tion to  be  inspected,  though  the  question  of  recovery  is  not  to  be  tried 
by  inspection  only,  but  by  examining  witnesses  upon  the  question  of 
the  probable  continuance  of  insanity. -^^  And  the  general  rule  seems 
to  be  that  the  question  as  to  whether  or  not  continued  restraint  would 
be  beneficial  is  one  for  a  jury,  to  be  determined  upon  proper  evidence 


the  commitment  and  detention  of  an  in- 
sane person  without  a  hearing.  Re  Le 
Donne,  173  Mass.  550,  54  N.  E.  244. 

'Re  Wellman,  3  Kan.  App.  100,  45  Pac. 
72G;  State  ex  rel.  Blaisdell  v.  Billings, 
55  Minn.  467,  43  Am.  St.  Rep.  524,  57 
N.  W.  206,  794;  Re  Rust,  177  Pa.  340, 
.35  Atl.  623.  And  see  Re  Doyle,  16  R.  I. 
537,  5  L.  R.  A.  359,  27  Am.  St.  Rep.  759, 
18  Atl.  159. 

It  would  appear  that  notice  can  be  dis- 
pensed with  only  when  to  give  it  would 
be  improper  and  unsafe.  Re  Bleicitt, 
131  N.  Y.  542,  30  N.  E.  587;  Re  Van- 
auken,  10  N.  J.  Eq.  186. 

And  then  only  by  express  order  of  the 
court.  Re  Vanauken,  10  N.  J.  Eq.  ISO; 
People  ex  rel.  Sullivan  v.  Wendel,  33 
Misc.  496,  68  N.  Y.  Supp.  948.  And  see 
Re  Egan,  36  App.  Div.  47,  55  N.  Y. 
Supp.  105. 

The  contrary  rule,  however,  that 
notice  may  be  dispensed  with,  was  laid 
down  in  Re  Doicdell,  169  Mass.  387,  Gl 
Am.  St.  Rep.  290,  47  N.  E.  1033.  And 
the  same  seems  to  have  been  held  in  Re 
Walker,  57  App.  Div.  1,  67  N.  Y.  Supp. 
647. 

And  proceedings  for  the  confinement 
of  the  insane,  though  without  a  jury,  are 
not  in  conflict  with  a  constitutional 
guaranty  against  deprivation  of  personal 
liberty  without  trial  by  jury,  such  pro- 
visions applying  to  criminal  prosecu- 
tions onlv.  Black  Hawk  County  v. 
Sprinqer,  58  Iowa,  417.  10  N.  W.  791. 

^"Com.  v.  Spink,  137  Pa.  255,  20  Atl. 
680. 

Commitment  to  the  hospital  for  the 
insane  is  a  very  different  thing  from  an 
inquisition  of  lunacy,  since  in  the  latter 


proceeding  the  status  of  the  party  i8 
fixed  as  to  all  the  world,  while  the  stat- 
utory inquiry  with  reference  to  confine- 
ment in  an  asylum  is  restricted  to  that 
one  specific  purpose.  Goodwin  v.  State, 
96  Ind.  550. 

But  one  whose  mind  is  so  affected  by 
disease  as  to  render  it  necessary  to  re- 
strain him  in  a  lunatic  asylum  for  his 
own  good  is  a  lunatic  within  the  mean- 
ing of  8  &  9  Vict.  chap.  100,  §  44,  pro- 
hibiting the  receiving  of  lunatics  into 
houses  not  duly  licensed  or  registered. 
Reg.  V.  Bishop,  14  Cox  C.  C.  404,  49  L. 
J.  Mag.  Cas.  N.  S.  45,  L.  R.  5  Q.  B.  Div. 
259,  42  L.  T.  N.  S.  240,  28  Week.  Rep. 
475,  44  J.  P.  330. 

^'^Com.  ex  rel.  Draper  v.  Kirkhride,  3 
Brewst.   (Pa.)  393. 

The  question  of  unlawful  restraint  of 
the  liberty  of  a  citizen  in  an  insane 
asylum  is  a  judicial  one,  to  be  de- 
termined by  the  courts,  and  not  by  an 
individual  or  physician.  Re  Buchanan. 
129  Cal.  330,  50'  L.  R.  A.  378,  61  Pac. 
1120. 

''Ash's  Case,  Frcem.  Ch.  259;  People 
ex  rel.  Fullerton  v.  Gilbert,  115  111.  59, 
3  N.  E.  744.  And  see  Re  Lee  (N.  J. 
Eq.)    55  Atl.   107. 

A  statute  authorizing  the  restoration 
of  a  person  adjudged  insane  or  incom- 
petent applies  only  to  persons  adjudged 
insane  or  incompetent  and  for  whom 
guardians  had  been  appointed.  It  does 
not  apply  to  a  person  who  had  been  com- 
mitted to  an  insane  asylum  because  his 
liberty  would  endanger  health,  person, 
or  property,  but  for  whom  no  guardian 
had  been  appointed.  Aldrich  v.  Alameda 
County,  120  Cal.  140,  52  Pac.  148. 


172 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§160 


submitted  to  tlieir  consideration.^^  And  a  person  confined  upon  an 
allegation  of  lunacy  may  be  discharged  on  habeas  corpus,  when  it  ap- 
pears that  there  are  no  indications  of  danger  to  himself  or  to  others 
or  to  his  estate.^*  But  a  person  restrained  is  not  entitled  to  discharge, 
where  he  is  imbecile  and  unable  to  care  for  himself,^ ^  or  because  he 
had  lucid  intervals. ^°  And  a  dangerous  limatic  should  not  be  lib- 
erated upon  the  mere  ground  of  the  informality  of  the  certificates 
upon  which  he  was  confined.''^  Sanity  is  presumed,  however,  on  an 
application  for  a  discharge  from  an  asylum,  and  the  evidence  should 
preponderate  to  overcome  the  presumption.-*^  And  discharge  is 
prima  facie  evidence  of  restoration  to  sanity.^ ^ 

161.  In  the  case  of  habitual  drunkards. — Medical    men    employed 
by  an  habitual  drunkard  or  his  friends,  in  his  behalf,  are  justified  in 


"Tie  Dey,  9  N.  J.  Eq.  181. 

In  Com.  ex  rel.  Draper  v.  Kirkbride, 
3  Brewst.  (Pa.)  393,  however,  it  was 
held  that  the  question  whether  or  not  re- 
straint would,  be  beneficial  to  a  person 
alleged  to  be  insane  is  one  for  the  court. 

"Com.  V.  Kirkbride,  7  Phila.  8 ;  People 
ex  rel.  Fullerton  v.  Gilbert,  115  111.  59, 
3  N.  E.  744. 

To  warrant  the  discharge  of  a  person 
from  restraint  who  had  been  acquitted 
of  homicide  on  the  ground  of  insanity, 
and  confined  in  an  asylum,  the  evidence 
must  show  not  only  the  restoration  of 
sanity,  but  also  that  it  was  safe  for  him 
to  be  at  large.  Com.  ex  rel.  Bickel  v. 
Bennet,  15  W.  N.  C.  515. 

In  California  the  power  to  discharge 
a  person  alleged  to  be  insane  and  re- 
ceived in  the  state  insane  asylum,  except 
upon  habeas  corpus,  is  vested  exclusively 
in  the  officers  of  the  asylum,  and  in- 
cludes tlic  power  to  determine  whether 
or  not  he  had  recovered,  and  to  dis- 
charge persons  improperly  committed; 
and  the  effect  of  such  a  discharge,  where 
no  guardian  had  been  appointed,  is  to 
restore  the  discharged  person  to  legal 
capacity.  Kelloqq  v.  Cochran,  87  Cal. 
192,  12^L.  R.  A.'i04,  25  Pac.  G77. 

^'^Com.  ex  rel.  Haskell  v.  Kirkbride,  3 
Brewst.   (Pa.)    586. 

The  fact  that  a  married  woman  con- 
sulted counsel  with  reference  to  a  di- 
vorce previous  to  her  commitment  to  an 
insane  asylum  by  her  husband,  and  after- 
wards brought  an  action  therefor,  does 
not  entitle  her  to  a  discharge  on  habeas 
corpus,  where  it  appears  that  the  asylum 
was  well  managed,  and  that  she  was  sub- 
ject to  no  unnecessary  or  unusual  re- 
straint or  improper  treatment,  and  her 


remaining  there  would  tend  to  promote 
her  recovery.  Denny  v.  Tyler,  3  Allen, 
225. 

'"Caffey  v.  State,  78  Miss.  645,  29  So. 
396. 

''Re  Shuttleworth,  11  Jur.  41,  2  New 
Sess.  Cas.  470,  9  Q.  B.  651,  16  L.  J. 
Mag.  Cas.  N.  S.  18.  And  see  Re  Latta, 
43  Kan.  533,  23  Pac.  655. 

'^Com.  ex  rel.  Helmbold  v.  Kirkbride, 
11  Phila.  427. 

The  rule  that  a  doubt  on  a  criminal 
accusation  should  be  resolved  in  favor 
of  the  accused  applies  in  favor  of  sanity 
in  a  proceeding  by  habeas  corpus  for 
discharge  of  an  alleged  lunatic  from  an 
asylum.     Ibid. 

But  the  fact  that  a  lawj'cr  who  had 
been  confined  in  an  asylum  conducted  his 
own  case  on  habeas  corpus  for  release 
with  composure  and  skill  is  not  suffi- 
cient to  warrant  such  release  as  against 
evidence  that  he  was  afflicted  with 
paresis,  attended  with  mental  delusions, 
and  which  is  characterized  by  a  tend- 
ency to  commit  acts  of  violence  and  ag- 
gression, leaving  the  patient  to  appear 
nearly  well  at  times,  but  liable  soon  to 
lapse  into  his  former  condition.  Com. 
e.v  rel.  Norton  v.  Chapin,  19  Phila.  551. 

And  the  court,  on  an  inquisition  of 
insanity,  will  not  reject  as  erroneous 
the  uncontradicted  opinions  of  unpreju- 
diced experts  of  high  standing  that  in- 
sanity existed,  simply  because  of  its  in- 
ability to  detect  the  existence  of  mental 
disorder.  Re  Bherman,  17  R.  I.  356,  22 
Atl.  276. 

'"Ilaynes  v.  Swann,  6  Heisk.  560;  Clay 
v.  Hammond,  199  111.  370,  93  Am.  St. 
Hop.  146,  65  N.  E.  352. 


§   161]  RESTRAINT.  173 

taking  such  measures  as  are  reasonably  necessary,  either  to  cure  or 
restrain  him,  when  suffering  from  delirium  tremens,  so  long  as  the 
fit  lasts  or  is  likely  to  return ;  and  when  no  more  restraint  was  used 
than  was  necessary  as  a  part  of  the  medical  treatment,  they  are  not 
liable  therefor.^*^  And  a  person  may  be  restrained  from  doing  busi- 
ness while  suffering  from  delirium  tremens.^^ 

""Symm  v.  Fraser,  3  Fost.  &  F.  859;        "Scott  v.  Wakem^  i  Fost.  &  F.  328. 
Scott  V.  Wakem,  3  Fost.  &  F.  32S. 


CHAPTER  VIIL 

INSANITY  AS  A  DEFENSE  TO  A  CHARGE  OF  CRBIE. 

I.  General  eules. 

162.  Criminal  responsibility  generally. 

163.  What  constitutes  insanity  generally. 

164.  Theory  that  insanity  is  a  question  exclusively  of  fact. 
16.5.  Objections  to  this  view. 

166.  Term  "mental  disease"  includes  every  phase  of  disorder. 

167.  Definition  of  insanity  must  come  from  court,  not  experts. 

168.  Must  be  legal,  not  medical,  insanity. 

169.  Jury  not  qualified  to  decide  question  of  law. 

170.  Question,  therefore,  rests  with  the  judges. 

171.  Relative  functions  of  court  and  jury. 
U.  Special  exceptions. 

172.  Enumeration  of  exceptions. 

III.  Idiocy  and  general  mania. 

173.  What  deprivation  sufficient. 

174.  Tests  of  earlier  times. 

175.  Test  of  right  or  wrong  as  to  the  particular  aot. 

176.  Test  of  knowledge  of  nature  of  act. 

177.  Right  and  wrong  test  generally  satisfactory. 

178.  Time  when  tests  are  applied. 

IV.  Partial  insanity  ob  MONOMANiai. 

179.  Definitions. 

180.  Criminal  responsibility. 

181.  Question  for  jury. 

182.  Delusions  defined. 

183.  Effect  on  responsibility  generally. 

184.  Delusions  must  be  objective. 

185.  Distinction  between  objective  and  subjective  delusions. 

186.  Where  reason  can  dispel  subjective  delusions,  responsibility  existo. 

187.  Delusion  must  be  such  as  to  excuse  if  true. 

188.  Effect  on  degree  of  crime. 
V.  Irresistible  impulse. 

189.  Definition. 

190.  Insane  uncontrollable  impulse  recognized  in  many  states* 

191.  Limit  to  irresponsibility. 

192.  Contrary  rule  in  North  Carolina  and  other  states, 

193.  Test  of  responsibility  under  the  contrary  rule. 

194.  Passion  as  a  mitigating  element 
VL  Moral  insanity. 

195.  Definitions. 

196.  English   rule. 

174 


S  162]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  17» 

197.  So  in  the  United  States  generally. 

198.  The  contrary  rule. 

199.  Rule  applied  with  caution. 
VTI.  KLErroMANiA. 

200.  Definition  and  nature. 
VIII.  Erotomania. 

201.  Definition  and  nature. 

IX.  Incapacity  of  female  as  affecting  rape. 

202.  Eftect  of,  generally. 

203.  Tests  of  capacity. 

X.  Insanity  at  or  after  the  trial. 

204.  Efl'ects  generally. 

205.  Methods  of  raising  the  question. 

206.  Tests. 

207.  Determination  as  to  the  submission  of  the  issWk 

208.  Disposition  of  the  issue 

209.  Effect  of  determination. 

210.  Insanity  after  the  verdict. 

211.  Insanity  after  judgment. 

212.  Appeals  or  reviews. 

213.  Effect  of  recovery. 
Xi.  Proof  required  to  establish. 

214.  General   rules. 

215.  Previous  and  subsequent  conditions. 

216.  Nature  of  crime. 

217.  Motive. 

218.  Acts  and  conduct. 

219.  Personal  characteristics. 

220.  Causes  of  insanity. 

221.  Hereditary  insanity. 

I.    GeNERAI.  KUXiES. 

162,  Criminal  responsibility  generally. —  The  rule  is  stated  gener- 
ally that  a  person  who  commits  a  crime,  acting  under  the  impulse  of 
mental  disease,  is  not  criminally  responsible  therefor;^  and  that  a 
person  of  insane  mind  is  not  subject  to  punishment  for  his  criminal 
acts  f  insanity  being  deemed  an  excuse  whenever  it  is  the  efficient 
cause  of  a  criminal  act,^  though  brought  on  by  the  vices  of  the  party 

'Hite  v.   Sims,  94   Ind.   333;   Sage  v.  88;    Walker    v.   People,    88    N.   Y.   86; 

State,  91   Ind.   141;   Cluck  v.  State,  40  Clark  v.  State,  8  Tex.  App.  350;  Smith 

Ind.  263;  Goodwin  V.  »Sf^afe,  96  Ind.  550;  v.    State,   22   Tex,   App.    317,   3    S.    W. 

Warner  v.  State,  114  Ind.  137,  16  N.  E.  684. 

189;  Abbott  v.  Com.  107  Ky.  624,  55  S.  Tlie  law  of  self-defense  is  applicable 

W.  196;  Lilly  v.  People,  148  111.  407,  36  .alike  to  the  sane  and  the  insane.     State 

N.  E.  95;  State  v.  Jones,  50  N.  H.  369,  v.  Wade,  161  Mo.  441,  61  S.  W.  800. 

9  Am.  Rep.  242;  Giebel  v.  State,  28  Tex.  "State    v.    Gardiner,    Wright     (Ohio) 

App.  151,  12  S.  W.  591;  Smith  v.  State,  392.     State  v.  Miller,  7  Ohio  N.  P.  458. 

19    Tex.   App.   95;    State    v.   Felter,   25  ''Lilly  v.  People,  148  111.  467,  36  N.  E. 

Iowa,  67;  State  v.  Mewherter,  46  Iowa,  95;  State  v.  Jones.  50  N.  H.  369,  9  Am. 


176 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


(§   162 


himself.*  Mental  disorders,  however,  cannot  be  regarded  as  evidence 
of  insanity  which  will  confer  legal  irresponsibility  for  crime,  unless 
they  are  caused  by,  or  result  from,  disease  or  lesion  of  the  brain.'' 
And  the  criminal  act  must  have  resulted  from  unsoundness  of  the 
mind  f  and  it  must  have  been  so  excessive  as  to  overwhelm  reason, 
conscience,  and  judgment "^ 

163.  What  constitutes  insanity  generally. —  The  unsoundness  of 
mind  which  will  excuse  from  criminal  responsibility  must  be  the  re- 
sult of  mental  disease  as  distinguished  from  weakness  or  passion.* 
And  mere  weakness  of  mind  is  not  insanity  which  will  excuse  crime.^ 
Nor  will  bad  education  or  bad  habits  excuse  it;^^  or  the  fact  that 
the  pei'son  is  of  a  low  order  of  intellect.^  ^      Neither  is  crime  excused 


Rep.  342;  State  v.  Miller,  7  Ohio  N.  P. 
458. 

'Cluck  V.  State,  40  Ind.  263;  State  v. 
Erb,  74  Mo.  199.  And  see  also  chapter 
IX.,  Intoxication  as  a  Defense  to 
Charge  of  Crime. 

^Gunier  v.  State,  83  Ala.  96,  3  So. 
GOO;  Parsons  v.  State,  81  Ala.  577,  60 
Am.  Rep.  193,  2  So.  854. 

'^United  States  v.  Faulkner,  35  Fed. 
730;  State  v.  Geddis,  42  Iowa,  268; 
State  V.  Stickley,  41  Iowa,  232;  State  v. 
Hockett,  70  Iowa,  442,  30  N.  VV.  742; 
Conway  v.  State,  118  Ind.  482,  21  N.  E. 
235. 

Criminal  acts  from  malice,  and  not 
from  insanity,  are  punishable  though 
the  mind  of  the  person  committing  them 
was  so  affected  as  to  avoid  his  acts  in 
a  civil  case,  as  those  of  a  lunatic.  King 
T.  Tuth,  1  Wheeler  C.  C.  52.  note. 

^State  V.  Murray  11  Or.  413,  5  Pac. 
55;  Spann  v.  State,  47  Ga.  553;  Graham 
V.  State,  102  Ga.  650,  29  S.  E.  584;  Com. 
V.  Werhnfi,  164  Pa.  559,  30  Atl.  400; 
Com.  V.  Wireback,  190  Pa.  138,  42  Atl. 
542. 

And  an  instruction  in  a  criminal  pros- 
ecution that  the  law  recognizes  but  two 
classes  of  persons, — sane  and  insane, — 
and  that  if  the  accused  was  insane  in 
any  degree,,  from  any  cause,  at  the  time 
of  the  commiftsion  of  the  offense,  he  is 
entitled  to  acquittal,  is  erroneous,  as 
calculated  to  mislead.  Copenhaver  v. 
State,  100  Ind.  540.  07  N.  E.  453. 

^People  V.  Durfee,  02  Mich.  487,  29  N. 
W.  109;  Welch  V.  Ware,  32  Mich.  77. 

The  depression  following  physical  ill- 
ness, such  as  takes  place  ordinarily  with 
men  possessing  fair  average  mental  pow- 
ers, cannot  be  regarded  as  insanity 
which  will  excuse  crime.  Goodwin  v. 
State,  96   Ind.  550. 


And  the  fact  that  a  person  was  af- 
fected with  mental  disease  which  im- 
paired his  will  and  rendered  him  like- 
ly at  any  time  to  commit  a  crime  is  not 
alone  sufficient  to  constitute  legal  in- 
sanity. People  V.  Barthleman,  120  Gal. 
7,   52   Pac.    112. 

'•People  V.  Hurley,  8  Cal.  390;  Con- 
icay  V.  State,  118  Ind.  482,  21  N.  E. 
285;  Wartena  v.  State,  105  Ind.  445, 
•5  S.  W.  20;  Studstill  v.  State,  7  Ga. 
2;  Fitzpatrich  v.  Com.  81  Ky.  357; 
Neiocomb  v.  State.  37  Miss.  385;  State 
V.  Palmer,  IGl  Mo.  152,  61  S.  W.  651; 
State  V.  Alexander,  30  S.  C.  74,  14  Am. 
St.  Rep.  879,  8  S.  E.  440;  Anderson  v. 
State,  25  Neb.  550,  41  N.  W.  357;  ^ew- 
ling  V.  Com.  98  Pa.  323;  Nelson  v. 
State,  43  Tex.  Crim.  Rep.  553,  67  S. 
W.    320. 

Unless  it  was  so  great  as  to  render 
the  party  unconscious  that  his  act  was 
wrong,  or  unable  to  choose  between  the 
right  and  wrong.  State  v.  Palmer,  161 
Mo.   152,  61   S.   VV.  651. 

And  proof  that  a  person  accused  of 
crime  is  of  weak  mind  is  inadmissible 
in  a  prosecution  therefor,  where  it  is 
admitted  that  he  was  neither  insane,  nor 
an  idiot,  nor  a  lunatic.  Studstill  v. 
State,  7  Ga.  2;  State  v.  Shoultz,  25  Mo. 
128;  Patterson  v.  People,  46  Barb.  625; 
Jacobs  V.  Com.  121  Pa.  586,  6  Am.  St. 
Rep.  802,  15  Atl.  465. 

^"United-  States  v.  Cornell,  2  Mason, 
91,  Fed.  Cas.  No.  14.868.  And  see  Peo- 
ple V.  Goldsworthv,  130  Cal.  600,  62  Pac. 
1074. 

''Porcell  V.  State,  37  Tex.  348;  Fitz- 
patrick  v.  Com.  81   Ky.  357. 

So,  the  fact  that  a  man  is  deaf  and 
dumb  does  not  render  him  irresponsible 
for  the  connnission  of  criminal  actii. 
Reg.  V.  Whitfield,  3  Car.  &  K.  121. 


1G3J 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


177 


because  committed  under  the  influence  of  fear  and  excitement,*^  or 
jealousy. ^^  And  mere  frenzy,  or  ungovernable  passion,  however  fu- 
rious, is  not  insanity  within  the  meaning  of  the  criminal  law.^^  And 
the  rule  is  the  same  though  it  temporarily  dethrones  reason,  or  for 
the  time  being  controls  the  will,  where  the  inability  to  control  it  arises 
from  passion,  and  not  from  insanity.^ ^  Where  the  conduct  of  a  per- 
son is  influenced  by  anger,  malice,  love  of  gain,  or  a  heart  bent  on 
mischief,  as  distinguished  from  insanity  produced  by  the  visitation  of 
God,  he  is  responsible  for  his  acts.^^  Neither  is  mere  mental  deprav- 
ity insanity  in  a  legal  sense  ;^'^  nor  is  eccentricity,  oddity,  or  hypo- 
chondria.-'^ Insanity  which  will  excuse  crime  must  be,  not  the  mere 
impulse  of  passion,  or  idle,  frantic  humor,  but  an  absolute  disposses- 
sion of  the  free  natural  agencies  of  the  mind;^^  though  it  need  not 
\ye  furious,  or  manifested  alike  on  all  subjects.^" 

164,  Theory  that  insanity  is  a  question  exclusively  of  fact. — A  pre- 
liminary question  meets  us  as  we  enter  on  the  discussion  of  criminal 
responsibility.  It  is,  whether  the  definition  of  "insanity"  is  for  the 
court  or  for  the  jury.  And  the  rule  has  been  laid  down  that  whether 
a  person  accused  of  crime  had  a  mental  disease,  and  whether  the  crime 
was  the  product  of  such  disease,  are  questions  of  fact  for  the  jury; 


"People  V.  Hurley,  8  Cal.  390;  Willis 
V.  People,  32  N.  Y.  715;  People  v.  Di- 
t'i?ie,    1   Edm.   Sel.   Cas.   596. 

''Asz7nan  v.  State,  123  Ind.  347,  8 
L.  R.  A.  33,  24  N.  E.  123;  Guctig  v. 
State,  66  Ind.  94,  32  Am.  Rep.  99.  And 
see  People  v.  Foy,  138  N.  Y.  664,  34 
N.  E.  396. 

^*Bolling  v.  State,  54  Ark.  588,  16  S. 
W.  658;  Aszman  v.  State,  123  Ind.  347, 
8  L.  R.  A.  33,  24  N.  E.  123;  Goodwill  v. 
State,  96  Ind.  550;  Sanders  v.  State, 
94  Ind.  147;  Guetig  v.  State,  66  Ind.  94, 
32  Am.  Rep.  99;  Fitzpatriclc  v.  Com. 
81  Ky.  357;  People  v.  Finley,  38  Mich. 
482;  State  v.  Brooks,  23  Mont.  146,  57 
Pac.  1038;  People  v.  Foy,  138  N.  Y.  664, 
34  N.  E.  396 ;  Willis  v.  People,  32  N.  Y. 
715;  Cole's  Trial,  7  Abb.  Pr.  N.  S.  321; 
Lynch  v.  Com.  77  Pa.  205;  United 
States  V.  Cornell,  2  Mason,  91,  Fed.  Cas. 
No.  14,868:  People  v.  Divine,  1  Edm. 
Sel.  Cas.  596. 

^'-Williams  v.  State,  50  Ark.  517,  9 
S.  W.  5;  Bollinq  v.  State,  54  Ark.  588, 
16  S.  W.  658:  Smith  v.  State,  55  Ark. 
259,  18  S.  W.  237;  State  v.  Stickley,  41 
Iowa,  232 ;  State  v.  Feltcr,  25  Iowa,  67  ; 
Welch  V.  Ware,  32  Mich. '77:  People  v, 
Mortimer,  48  Mich.  37,  11  N.  W.  776; 
People  V.  Finley,  38  Mich.  482. 
Vol-.  I.  Med.  .Juk. — 12. 


But  insanity  produced  by  wrath  or 
jealousy  would  operate  as  an  excuse  for 
crime  to  the  same  extent  as  any  other 
kind  of  insanity.  People  v.  Foy,  138  N. 
Y.   664,   34   N.  E.   396. 

'"Com..  V.  Farkin,  2  Clark  (Pa.)  208; 
'Nerling   v.   Com.   98   Pa.   323. 

^'Goodtoin  v.  State,  90  Ind.  550 ;  Com. 
V.  Van  Horn,  188  Pa.  143,  41  Atl.  469. 

^^Haioe  V.  State,  11  Neb.  537,  38  Am. 
Rep.  375,  10  N.  W.  452-:  State  v.  Ship- 
pey,  10  Minn.  223,  88  Am.  Dec.  70,  Gil. 
178;  Sindram  v.  People,  1  N.  Y^.  Crini. 
Rep.  448:  Com.  v.  Cleary,  148  Pa.  26, 
23  Atl.  1110;  Com.,  v.  Farkin,  2  Clark 
(Pa.)  208;  Com.  v.  Meredith,  17  Phila 
90;  Johnson  v.  State,  100  Tenn.  254,  4£. 
S.  W.  436;  United  States  v.  Young,  2b 
Fed.  710;  Queen  v.  Vauhan.  1  Cox.  C 
C.    80. 

'^People  V.  Camel,  2  Edm.  Sel.  Cas 
200 ;  Com.  v.  Mosler,  4  Pa.  264 ;  Com.  v 
Smith,  15  Pliila.  Leg.  Int.  33,  6  Am.  L, 
Reg.  257 ;  Com.  v.  Shurlock,  14  Phila 
Leg.  Int.  33;  Hoover  v.  State  (Ind.)  68 
N.  E.  591. 

■"United  States  v.  Faulkner,  35  Fed 
730. 


178'  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   164 

that  insanity  is  mental  disease, — a  disease  of  the  mind;  that  an  act 
produced  by  mental  disease  is  not  crime ;  that  if  he  had  a  mental  dis- 
ease which  irresistibly  impelled  him  to  commit  the  crime, — if  the 
crime  was  the  product  of  mental  disease  in  him, — he  is  not  guilty; 
and  that  whether  he  had  an  insane  impulse  to  commit  it,  and  whether 
he  could  resist  it,  are  questions  of  fact;^^  and  that  the  court  cannot 
undertake  to  say  what  are  the  invariable  or  infallible  tests  as  to  in- 
sanity which  will  relieve  from  criminal  responsibility;"^  and  that 
whether  or  not  a  person  accused  of  crime  had  a  mental  disease  is  as 
much  a  question  of  fact  as  whether  or  not  he  had  a  bodily  disease ;  and 
it  is  also  a  question  of  fact  for  the  jury  whether  or  not  the  criminal 
act  was  the  product  of  the  mental  disease  f'^  the  only  element  of  law 
entering  into  the  question  of  the  existence  of  insanity  as  a  defense 
being  tliat  no  man  shall  be  held  accountable  criminally  for  an  act 
which  is  the  offspring  of  mental  disease.^* 

165.  Objections  to  this  view. — If  the  rule  be  that  "mental  disease" 
is  exclusively  a  question  of  fact  for  a  jury,  and  if  it  be  also  exclusively 
a  question  of  fact  for  the  jury  to  determine  whether  the  act  com- 
plained of  was  the  product  of  mental  disease,  then  any  further  ex- 
amination of  the  question  as  a  matter  of  law  is  unnecessary.  All  that 
is  required  is  to  use  the  words  in  question  in  a  charge  to  the  jury, 
and  the  matter,  so  far  as  concerns  the  court,  is  closed.  It  is  now  sub- 
mitted, however,  that,  able  and  learned  as  are  the  judges  who  have 
maintained  this  view,  it  cannot  be  sustained  on  reasons  either  psy- 
chological or  judicial.  That  it  cannot  be  sustained  on  authority, 
these  learned  judges  themselves  concede. 

166.  Term  "mental  disease"  includes  every  phase  of  disorder. — The 
proposition  before  us,  then,  is,  that  the  entire  question  of  responsi- 
bility is  to  be  left  to  the  jury,  with  tlie  instruction  that  if  the  act 
was  the  product  of  "mental  disease,"  they  are  to  acquit.  But  what  is 
"mental  disease?"  And  here  wc  encounter  the  first  obstacle  to  this 
method  of  solving  this  vexed  and  yet  most  important  question.  "Men- 
tal disease,"  in  fact  is  a  term  so  indeterminate  and  vague,  that  to 
leave  the  question  to  the  jury  with  the  instructions  here  criticised  is 
to  leave  it  to  them  without  any  instructions  at  all.  Mental,  like  phys- 
ical disease,  ranges  from  slight  indisposition  or  disorder,  on  the  one 

"^Etate  V.  Vikc,  49  N.  H.  30!),  6  Am.  ^-Parsons  v.  Btate,  81  Ala.  577,  60  Am. 

Rep.  533;  Htaie  v.  Jone^a,  50  N.  H.  309,  Rep.  193,  2  So.  854. 

9   Am.   Rep.   242.     And   see   Stevens   v.  "^'Siate  v.  Jones,  50  N.  H.  369,  9  Am. 

State,  31  Ind.  485,  33  Am.  Rep.  175.  Rep.  242. 


I   166]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  179 

side,  to  the  comatose  state  inunediatelj  preceding  dissolution,  on  the 
<jther. 

167.  Definition  of  insanity  must  come  from  court,  not  experts. — It 
is  argued  that  this  is  a  question  to  be  determined  by  experts,  who 
alone  can  define  scientifically  "what  insanity  is.  But  it  is  sufficient 
at  this  point  to  state  (1)  that  the  question  in  criminal  issues  is  not 
insanity,  but  irresponsibility,  which  it  is  eminently  important  should 
be  limited  by  positive  definition  by  the  highest  judicial  authority 
the  state  can  constitute  ;^^  and  (2)  that  experts  do  not  form  such  an 
authority,  (a)  because  their  sense,  as  a  body,  cannot  be  obtained  by 
any  process  known  to  our  courts;  (&)  because  there  is  no  independent 
court  of  experts,  which,  on  notice  to  both  sides,  and  after  argument, 
if  necessary,  can,  when  the  experts  called  in  a  particular  case  conflict, 
give  a  judicial  opinion  upon  the  issue ;  and  (c)  because,  in  many  cases 
of  criminal  defense,  only  those  eccentric  and  exceptional  experts  ard 
selected  who  believe  in  some  wild  tlieory  which  may  help  out  the  de- 
fendant's case.^*^ 

168.  Must  be  legal,  not  medical,  insanity.— The  weight  of  authority 
bears  out  these  assertions.  It  is  not  medical,  but  legal,  insanity  which 
is  required  to  relieve  from  criminal  responsibility  f  though  the  law 
of  insanity  can  only  be  properly  dealt  with  from  an  harmonious  treat- 
ment of  the  two  sciences  of  law  and  of  medicine.^^  The  mere  fact 
that  a  person  is  insane  does  not,  per  se,  relieve  him  from  criminal  re- 
sponsibility.-^ A  slight  departure  from  a  well-balanced  mind  can- 
not be  recognized  as  insanity  in  the  administration  of  criminal  law, 
though  it  might  be  pronounced  insanity  in  medical  science.^''  One 
may  be  criminally  responsible  where  he  is  sufiiciently  under  the  guid- 
ance of  reason  to  be  legally  answerable  for  his  acts,  though  he  is  suf- 
fering from  mental  derangement,^^  and  though  he  may  be  incapable 
of  weighing  the  reasons  for  and  against  the  act.^^     But  in  order  to 

-Unfra,  §  168.  v.  Smith,  49  Conn.  376;  State  v.  Tyler, 

™Sce  i7ifra.  cliapter  xs.,  sub.  ni.  7  Ohio  N.  P.  443;   Leache  v.  State,  22 

-''Leaehe  v.   State,  22  Tex.  App.   279,  Tex.  App.  279,  58  Am.  Rep.  638,  3  S.  W. 

.58  Am.  Rep.  638,  3  S.  W.  539 ;  State  v.  539. 

Tyler,  7  Ohio  N.  P.  443:  People  v.  Het-        ^'State  v.  Murray,  11  Or.  413,  5  Pac. 

tick,    126  Cal.  425.   58  Pac.   91S;   State  55;  Clark's  Case,  1  N.  Y.  City  Hall  Rcc, 

V.   Kalb,   7    Ohio   N.   P.   547.     And   see  176;   State  v.  Pagels,  92  Mo.  300,  4  S. 

Stale  V.   Hockett,  70   Iowa,  442,   30  N.  W.  931 ;  Hornish  v.  People,  142  III.  620 

W.  742.  18  L.  R.  A.  237,  32  N.  E.  677;  State  v. 

'^GvAteau's  Case,   10  Fed.   161.  Bundy,  24  S.  C.  439,  58  Am.  Rep.  262; 

^People    V.    O'Connell,    62    How.    Pr.  Goodwin  v.  State,  96  Ind.  550;  Slate  v. 

436;  People  V.  Montgomery.  13  Abb.  Pr.  Maier,   36   W.   Va.    757,    15    S.    E.    991; 

N.  S.  207;  Burgo  v.^ State,  26  Neb.  G39,  Hadfield's  Case,  27  How.  St.  Tr.  1282. 

42  N.  W.  701.  ''Stale  v.  Swift,  57  Conn.  496,  18  Ail. 

*^Taylor  v.   Com.   109  Pa.   262;   Stale  664. 


180  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   16& 

be  criminally  responsible  one  must  have  intelligence  and  capacity  to 
have  a  criminal  intent  and  purpose  f'^  the  question  to  be  determined 
being  whether,  at  the  time  of  the  act,  he  had  mental  capacity  to  enter- 
tain a  criminal  intent,  and  whether,  in  point  of  fact,  he  did  entertain 

it.-^* 

169.  Jury  not  qualified  to  decide  question  of  law. — Eejecting,  there- 
fore, as  impracticable  and  unphilosophical,  the  suggestion  to  devolve 
on  experts  the  determination  of  what  ''mental  disease"  is,  and  what 
are  its  results,  we  fall  back  upon  the  question  in  its  original,  and 
what,  indeed,  must  in  this  view  be  its  final,  state,  and  ask  whether 
a  jury  is  a  body  fit  to  lay  down  settled  rules  on  this  momentous  sub- 
ject. And  in  answering  this,  we  must  remember  what  the  issue 
really  is.  It  is  simply  "responsible"  or  "irresponsible," — an  issue  of 
all  others  the  most  vital.  Is  a  jury  competent,  when  the  matter  is 
so  left  to  it,  to  establish  definite  rules  which  will  place  the  doctrine 
of  responsibility  on  grounds  which  are  just  and  safe?  We  submit 
that  it  is  not  for  the  following  reasons:  (1)  It  does  not  form  a  con- 
tinuous body,  prepared  for  its  office,  as  are  our  courts  of  justice,  by 
prior  study.  (2)  The  reasons  of  its  decisions  are  not  given,  so  that 
these  decisions  can  form  the  basis  of  future  decisions.  Each  decision 
stands  by  itself,  not  controlled  by  those  which  preceded  it,  and  not 
controlling  those  which  succeed.  (8)  There  is  no  "supreme"  jury, 
by  whom  the  decisions  of  "inferior"  juries  can  be  corrected  and  sym- 
metrized. Hence,  instead  of  obtaining  in  this  way  a  definite  and 
consistent  body  of  law,  which,  whatever  may  be  its  merits,  Avill,  at 
least,  be  a  rule  of  action,  w^e  will  have  a  series  of  disjointed  and  con- 
flicting edicts,  from  which  no  rule  of  action  can  be  deduced.  It  is 
system,  uniformity,  and  consistency  that  penal  law,  in  this  respect, 
eminently  needs.  What  is  necessary  is  not  so  much  that  the  question 
should  be  decided  in  any  particular  way,  but  that  there  should  be 
some  decision,  and  that  this  decision  should  be  expressly  and  posi- 
tively announced,  and  be  made  a  precedent  for  future  c^ses.  But 
this  is  what  a  jury  cannot  do. 

170.  Question,  therefore,  rests  with  the  judges. —  The  definition  of 
penal  responsibility,  therefore,  is  a  high  prerogative  which  judges, 
educated  for  the  office  as  they  are,  and  appointed  by  the  state  as  the 
guardians  at  once  of  the  sovereignty  of  the  law  and  the  liberty  of  th^ 

**Com.  V.  Rogers,  7  Met.  500.  41  Am.  ''*\ei:linp  v.  Com.  98  Pa.  323;  State  v. 

Doc.   458;    King   v.    State,   1)  Tex.    App.  Sioift,     57     Conn.     496,     18     Atl.     664; 

515.      And    see'   Anderson    v.    Stale,    43  Thomas    v.    State,    40    Tex.    60;    BurJc- 

'•<mn.  514,  21  Am.  Rep.  069.  hard  v.  State,  18  Tex.    App.  599. 


§  170J  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  181 

citizen,  cannot  surrender  or  divide.^'  The  state  has  the  right  to  call 
on  them  to  establish  a  consistent  system  Avhich  the  community  may 
take  for  its  guidance.  Every  man  may  be  exposed  to  danger  from 
others,  and  tlierefore  every  man  has  a  right  to  know  whether  he  must 
protect  himself  beforehand  by  appealing  for  a  commission  of  lunacy 
against  his  assailant,  or  must  rely  for  redress  on  the  ordinary  com- 
mon-law process  of  indictment.  Even  persons  charged  \\dth  crime 
have  a  right  to  be  supplied  with  accurate  information  of  the  law  by 
which  their  defense  can  be  shaped.  And,  above  all,  society  at  large 
has  a  right  to  expect  that  the  law  which  regulates  the  relations  ol 
reason  to  crime  should  be  mapped  out  with  precision  by  learned  ju- 
rists, dedicated  by  solemn  sanctions  to  continuous  judicial  service, 
whose  decisions  on  trial  can  be  reviewed  on  appeal,  and  who,  if  in- 
capable or  corrupt,  can  be  removed. 

171.  Relative  functions  of  court  and  jury. —  In  accordance  with 
these  rights  the  preponderance  of  modern  authority  would  seem  to  es- 
tablish the  rule  that  the  question  as  to  how  much  intellect,  under- 
standing, judgment,  and  comprehension  a  man  must  have  to  make 
him  amenable  to  the  law  with  respect  to  a  criminal  act  is  one  of  law, 
for  the  court.^^  And  the  sanity  of  a  person  who  pleads  guilty  is  an 
issue  for  the  court,  and  is  required  to  be  showoi  before  he  can  be  con- 
victed, and  evidence  of  such  sanity  should  be  introduced  at  the  time 
of  the  plea.^'  But  the  question  of  the  existence  of  such  insanity  as 
will  excuse  crime  where  the  commission  of  the  criminal  act  is  estab- 
lished is  one  of  fact  for  the  jury,^*  under  proper  instructions,^^  to 

''RcQ.  V.  Richards,  1  Fost.  &  F.  87.  State,  34  Tex.  Crim.  Rep.  533,  31  S.  W. 

'^People  V.   Waltz,   50   How.   Pr.  204;  373. 

People    V.   Holmes,    111    Mich.   364,    69  And  an   instruction   in  a  prosecution 

N.  W.  501.  for    homicide,   that   if   the   accused   was 

^Wiirton  V.  State,  33  Tex.  Crim.  Rep.  insane,  the  verdict  sliould  be  not  guilty, 

138,  25   S.  W.   782.  but   if   sane,    it   should   be   guilty,    and 

^yamison  v.   People,   145   111.   357,   34  that  it  is  for  the  jury  to  determine  the 

N.  E.  486;    Hornish  v.  People,   142   111.  degree  of  guilt,  is  erroneous  as  a  usurpa- 

620,    18   L.   R.   A.   237,   32   N.    E.   677;  tion  of  the  province  of  the  jury;  which 

Plake   V.    State,    121    Ind.   433,    16    Am.  is,  to  decide  whether  the  act  was  crim- 

St.    Rep.   408,   23    S.   W.    273 ;    State   v.  inal  even  though  he  was  insane  at  tne 

Geier,    111    Iowa.    706,    83   N.   W.    718;  time.     People  v.  Webster,  59  Huo,  398, 

State  V.  Klinfier,  43  Mo.   127;   State  v.  13  N.  Y.  Supp.  414. 

Holme,  54  Mo.   153;   State  v.  Pike,  49  ^'People  v.   Pine,  2   Barb.   566;   State 

N.   H.  399,  6  Am.   Rep.  533;   People   v.  v.  Geier,  111  Iowa,  706,  S3  N.  W.  718. 

Pine,    2    Barb.    566;    State   v.    tStark,    1  An  instruction  as  to  what  constitutes 

Strobh.  L.  479;    Clark  v.  State,  8  Tex.  insanity    should    not   be    argumentative, 

App.  350;  Beasley  v.  State,  50  Ala.  149,  or  such   as  would   lead  the  jury  to  be- 

20  Am.  Rep.  292;  Bowlers  Case,  1  Col-  lieve   that  the   defense   of   insanity   was 

linson  on  Lunacy,  673.  not  worthy  of  consideration.     People  v. 

The  submission  of  the  issue  of  sanity  Holmes,   111  Mich.  364,  69  N.  VV.  501; 

or   insanity   to   the   jury   in   a   criminal  Aszman  v.  State,   123  Ind.  347,  SLR. 

prosecution    is    not    error,    where    there  A.  33,  24  N.  E.   123. 
is  evidence  on  the  question.      Crctvs  v. 


182 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§171 


be  submitted  to  and  determined  bj  it  like  any  otlier  fact  in  the  case.** 
And  it  is  always  left  to  tJie  juiy  to  determine  whether  the  mental  con- 
dition of  the  accused  was  such  that  he  was  incapable  of  a  specific 
intent  to  take  life.*^  Likewise,  the  w^eight  and  sufficiency  of  evi- 
dence to  establish  the  defense  of  insanity  are  questions  exclusively 
for  the  jni-y;'*^  and  the  verdict  or  finding  will  not  be  disturbed  where 
the  evidence  as  to  insanity  was  conflicting.*^  And  it  is  not  improper 
for  the  court  to  tell  the  jury  that  the  defense  of  insanity  should  be 
examined  with  caution.** 

II.   Special  exceptions. 

172.  Enumeration  of  exceptions. —  There  is,  however,  a  second  pre- 
liminary difiiculty  that  remains  to  be  noticed  before  proceeding  to  an 
examination  of  the  great  question  of  criminal  responsibility.  The 
first  has  just  been  disposed  of.  The  second,  which  is  coeval  with  the 
existence  of  this  branch  of  the  law,  arises  from  tlie  opposite  extreme, 
— namely,  from  tlie  desire  to  force  into  an  inflexible  and  positive  ju- 
dicial code,  special  opinions  delivered  by  judges  when  particular  fact?- 
requiring  such  opinions  were  under  examination. 

Thus,  for  instance,  when  a  defendant,  in  whom  there  is  no  pre- 
tense of  mania  or  homicidal  insanity,  claims  to  be  exempt  from  pun 
ishment  on  the  ground  of  incapacity  to  distinguish  right  from  wrong, 
the  court  very  properly  tells  the  jury  that  the  question  for  them  to 


*^State  V.  Bolme,  54  Mo.  153. 

The  question  of  insanity,  when  raised 
in  a  criminal  prosecution,  is  to  be  passed 
upon  by  the  jury,  wlietlier  the  accused 
has  introduced  evidence  on  tlie  subject 
or  not;  and  they  must  consider  not  only 
the  specific  evidence  as  to  insanity,  but 
also  all  circumstances  developed  by  any 
of  the  evidence  in  the  case  bearing  upon 
it.     McDouqal  v.  mate.  88  Ind.  24. 

"Unilcd  'states  v.  Khifj,  34  Fed.  302; 
Dcjarnette  v.  Com.  75  Va.  8G7. 

'-Brown  v.  Com.  14  liush,  398;  Sharp 
V.  ,S7a/o   (Ind.)   68  N.  E.  ;?8G. 

It  is  the  duty  of  jurors  in  a  criminal 
prosecution  to  carefully  consider  and 
wcijrli  the  evidence  upon  the  subject  of 
insanity,  and  give  it  the  weight  and 
credit  which,  in  their  judgment  and  con- 
■icieiice.  they  deem  it  entitled  to  r<>ceive. 
Ooodicin  v.  Stale,  00  Ind.  550:  Stale  v. 
Seott,  49  La.  .Aim.  253.  30  L.  R.  A.  721. 
•il    So.    271. 

"\Vi7/iV/H).<!  V.  State.  50  Ark.  511,  9  S. 
W.  5:  Jnmifion  v.  People.  145  111.  357, 
34  N.  E.  480:  Sharp  v.  Stale   (Ind.)    08 


N.  E.  286:  Boren  v.  State,  32  Tex.  Crim. 
Rep.  037,  25  S.  W.  775;  People  ex  rel. 
Clough  V.  Levy,  71  Cal.  618,  12  Pac. 
791;  Elder  v.  State,  100  Ga.  83,  26  S.  E. 
80;  State  v.  Dreher,  137  Mo.  11,  38  S. 
W.  507. 

A  verdict,  in  a  criminal  prosecution, 
of  the  sanity  or  insanity  of  the  accu.sed, 
will  not  be  set  aside  unless  the  court 
is  clearly  satisfied  that  it  was  erroneous 
and  imjust.  Uornish  v.  People,  142  111. 
020.  IS  L.  R.  A.  237,  32  N.  E.  677. 

''People  V.  Kloss,  115  Cal.  567,  47  Pac. 
459;  People  v.  McCarthy.  115  Cal.  255, 
46  Pac.  1073;  People  v.  Bumbcrger,  45 
Cal.  650;  People  v.  Pico.  62  Cal.  50; 
Savder.^  v.  Stale.  94  Ind.  147 ;  People  v. 
DedrafJ,  1  Wheeler  C.  C.  203.  But  see 
People  V.  Met  lick,  126  Cal.  425,  58  Pac. 
918. 

The  defense  of  insanity  is  a  legal  one, 
and  should  not  l)c  disparaged  to  the  jury 
or  placed  under  the  l;an  of  disapproval 
bv  the  court.  Stale  v.  Barry,  11  N.  D. 
42S.    92   N.    W.   809. 


§  172]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  183 

(letermine  is,  whether  or  no  he  labors  under  such  particular  incapac- 
ity. The  error  has  been  to  seize  such  an  expression  as  this  as  an  ar- 
bitrary elementary  dogma,  and  to  insist  on  its  application  to  all  other 
cases.  Or,  take  the  converse,  and  suppose  the  defense  is  merely 
homicidal  insanit}'.  In  such  a  case  it  would  be  very  proper  to  tell 
the  jury  that,  unless  they  believe  the  Lomicidal  impulse  to  have  been 
uncontrollable,  they  must  convict.  And  yet  nothing  would  be  more 
unjust  tlian  to  make  this  proposition,  true  in  itself,  a  general  rule  to 
bear  on  such  cases  as  idiocy.  It  is  proposed  to  avoid  this  difficulty 
by  treating  this  question  practically,  in  the  only  way  in  which  it  can 
arise  in  courts^  and  to  consider  briefly,  not  what  is  the  general  limit 
of  moral  responsibility  in  the  abstract,  but  in  what  cases  such  respoiA- 
sibility  ceases  to  exist.^^     These  will  now  be  discussed. 

III.   Idiocy  and  general  imania. 

173.  What  deprivation  sufficient. —  The  question  as  to  what  mental 
disease  will  effect  immunity  from  liability  for  criminal  acts  being 
one  of  law,  for  the  courts,  it  remains  to  inquire  what  rules  of  law 
have  been  established  on  the  subject.  The  earlier  cases  leaned  to  the 
position  that  the  deprivation  must  have  been  total,  or  at  least  gen- 
eral, but  more  liberal  views  have  gradually  obtained,  and  the  doctrine 
has  become  prevalent  that,  as  to  idiocy  and  general  mania,  the  ques- 
tion depends  upon  the  ability  of  the  perpetrator  to  discern  the  char- 
acter and  criminality  of  the  act  itself. 

174.  Tests  of  earlier  times.—  The  rule  was  laid  down  in  early  times 
that  to  be  exempt  from  criminal  responsibility  one  must  be  at  the 
time  so  deprived  of  his  understanding  and  memory  as  not  to  know  what 
he  was  doing  more  than  an  infant  or  wild  beast.'**'  But  this  rule  has 
become  obsolete  even  with  reference  to  idiocy  or  imbecility;  the  rule 
of  the  capacity  of  a  fourteen-year-old  child  having  been  expresslv 
repudiated.*"     And  it  has  been  stated  that  the  true  test  of  the  pres- 

"The    difficulty    in    this    respect    has  "Rodgers  v.  State   (Tex.  Crim.  App.) 

been    increased    by    the    looseness    with  28   S.  W.  685. 

which   leiral   adjudications   are   cited  by  Tn  the  above  case  it  was  held  that  the 

oven    some    of    the    more    eminent    text-  fact  that  a  person  charijed  with   homi- 

writers.     In   fact,   while  the   exigencies  cide  was  of  dull  intellect,  and  possessed 

of  counsel   and   the  duty  of  judges  re-  about  the  intelligence  of  the  average  boy 

quire  a   constant  recourse  to  the   text-  of   thirteen    or    fourteen    years    of   age, 

books    on    this    particular    science,     in  though  he  was  a  mature  man,  does  not 

making  up  such  text-books  the  author-  show    imbecility   Avhieh    will    affect    his 

ized    law    reports    have    not    been    suffi-  criminal  responsibility. 

ciently  relied  upon.  In  State   v.   Richards,   39   Conn,   591, 

^'Arnold's  Case,  16  How.  St.  Tr,  764,  however,  the  court  favored  the  rule  that 

Harg.  St.  Tr.  322.  imbeciles    ought    not    to   be    held    crim- 


184 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  174 


ence  or  absence  of  insanity  is  tlie  presence  or  absence  of  a  delusion,^* 
— the  absence  of  delusion  being  a  characteristic  of  a  sound  mind.^* 
But  the  contrary  doctrine,  that  the  presence  or  absence  of  delusion 
cannot  be  said  to  be  the  only  legal  test  as  a  rule  of  law,  has  been 
adopted  in  civil  cases,^*'  and  would  seem  to  be  in  better  accord  with 
the  more  modem  tests.  Delusion,  however,  though  not  a  test,  is  evi- 
dence of  insanity.^^  So,  some  of  the  cases,  modern  as  well  as  an- 
cient, have  adopted  the  rule  that  the  test  of  criminal  responsibility 
is  the  mental  ability  to  discriminate  between  abstract  right  and 
wrong.^-  Within  this  rule  ci'iminal  responsibility  exists  where  there 
is  sufficient  mental  capacity  to  know  right  from  wrong.^^     But  one 


inally  accountable  unless  they  have  ca- 
pacity equal  to  that  of  ordinary  chil- 
dren *  of  fourteen  years  of  age,  with 
the  qualification  that  the  comparison 
should  be  restricted  to  the  matter  of 
appreciating  right  and  wrong  and  the 
consequences  of  the  act,  and  that  the 
child  taken  as  a  standard  should  be  one 
in  humble  life,  with  only  ordinary  train- 
ing; but  the  court  finally  submitted 
the  whole  matter  to  a  jury,  requiring  it 
to  say  whether  the  defendant  had  such 
knowledge  of  right  and  wrong,  and  such 
appreciation  of  the  consequences  and 
etiects  of  his  acts,  as  to  be  a  proper 
wubject  for  punishment. 

'"Dew  V.  Clark,  3  Addanis  Eccl.  Rep. 
79;  Hadfield's  Case,  27  How.  St.  Tr. 
1282;    Macklin's   Case,  3   Couper,  257. 

"C'o)».  V.  Meredith,  17  Phila.  90. 

So,  in  Boren  v.  State,  32  Tex.  Crim. 
Rep.  G37,  25  S.  W.  775,  it  was  held 
that  the  rejection  of  a  special  instruc- 
tion with  reference  to  an  insane  delu- 
sion in  a  prosecution  for  homicide  was 
not  error,  where  tlie  court  instructed 
fully  on  the  subject  of  insanity,  since 
delusion  is  insanity. 

And  in  Wilcox  v.  State,  94  Tenn.  107 
28  S.  W.  312,  it  was  held  that  refusal 
to  define  an  insane  delusion  is  iiot  er- 
ror, where  the  charge  was  full  upon  the 
subject  of  insanity,  and  especially  tliat 
phase  of  it  claimed  to  be  a  delusion. 

'^Benson  v.  Beazley,  34  Tex.  191 ;  Man 
hattan   L.   Ins.   Co.    v.   Broughton,    109 
U.  S.  121,  27  L.  ed.  878,  3  Sup.  Ct.  Rep. 
99. 

"'Com.  V.  Meredith,  14  W.  N.  C.  188. 

"^'Bensleij  v.  State,  50  Ala.  149.  20  Am. 
Rep.  292;  Brinkley  v.  State,  58  Ga.  296; 
Hpann  v.  State,  47  Ga.  553 ;  Cunning- 
ham  V.  State,  50  Miss.  269.  31  .\m.  Rep. 
360;  State  v.  Redemeier,  71  Mo.  173,  38 


Am.  Rep.  462;  Burgo  v.  State,  26  Neb. 
639,  42  N.  W.  701;  Haice  v.  State,  11 
Neb.  537,  38  Am.  Rep.  375,  10  N.  W. 
452 ;  ^Valker  v.  People,  88  N.  Y.  86,  Af- 
firming 1  N.  Y.  Crim.  Rep.  7;  Moett  v. 
People,  85  N.  Y.  373;  Wagner  v.  Peo- 
ple, 2  Keves,  684;  Com.  v.  Parkin,  2 
Clark  (Pa.)  208;  Giebel  v.  State,  28 
Tex.  App.  151,  12  S.  W.  591;  Kinloch's 
Case,  25  How.  St.  Tr.  891,  997;  Mar- 
tin's Case,  Shelford  on  Lunatics,  467; 
Peg.  V.  Davies,  1  Post.  &  F.  69 ;  Reg.  v. 
Higginson,  1  Car.  &  K.  129;  Parker's 
Case,  1  Collinson  on  Lunacy,  477. 

Within  this  rule  an  instruction,  in  a 
prosecution  for  homicide,  to  convict  if 
the  accused  had  capacity  to  know  that 
he  was  violating  the  law,  whatever  may 
have  been  his  moral  conception  of  the 
act,  is  erroneous  d^  authorizing  the  con- 
viction of  one  who  might  not  have  ca- 
pacity to  distinguish  between  right  and 
wrong.  Kearney  v.  State,  68  Miss.  233, 
8   So.  292. 

And  an  instruction,  in  such  a  pros- 
ecution that  if  the  killing  was  done 
with  malice  it  was  murder,  though  the 
accused  may  have  labored  under  partial 
insanity,  is  erroneous,  since  there  can 
be  no  such  thing  as  malice  without  men- 
tal accountability;  and  this  cannot  co- 
exist with  incapacity  to  distinguish 
right  from  wrong.  Grissom  v.  State, 
(12  Miss.  167. 

'K'oniray  v.  State,  118  Ind.  482,  21 
X.  E.  285;  Hornish  v.  People,  142  III. 
620,  18  L.  R.  A.  237,  32  N.  E.  677; 
People  v.  Waltz,  50  How.  Pr.  204; 
Clark's  Case,  1  N.  Y.  Citv  Hall  Rec. 
176,  1  Wheeler  C.  C.  218,  note;  Nevling 
V.  Com.  98  Pa.  323;  Stuart  v.  State,  1 
IJaxt.  178. 


§   174]  INSANITY  AS  DEFENSE  TO  CHAKGE  OF  CRIME.  185 

who  has  not  such  capacity  is  not  a  proper  subject  of  punishment  fo«* 
criminal  acts.^"*  This  test,  too,  however,  though  at  one  time  well 
supported,  has  been  generally,  if  not  nniversally,  superseded  by  other 
tests.^^ 

175.  Test  of  right  or  wrong  as  to  the  particular  act. — A  large 
majority  of  modern  cases,  however,  regard  the  test  of  capacity  to  dis- 
tinguish between  right  and  wrong  as  c(ncrete,  instead  of  abstract, 
and  as  having  reference  to  the  particulxr  act  in  question ;  the  test 
question  being  whether  the  accused  was  capable  of  distinguishing  be- 
tween right  and  wrong  with  respect  to  the  act  which  he  committed. ^"^ 
Within  this  rule  one  who  is  not  capable  of  distinguishing  right  from 
■wrong  in  regard  to  the  act  charged  is  not  criminally  accountable  there- 
for.^'^  And  he  is  accountable  if  he  has  such  capacity.^^  But  insan- 
ity Avhich  will  excuse  must  amount  to  a  derangement  so  great  as  to 
obliterate  tlie  sense  of  right  and  wrong  as  to  the  particular  act  done 

'^'United  States  v.  Shults,  6  McLean,  41  Tex.  Crim.  Rep.  4G7,  5G  S.  W.  351; 
122,  Fed.  Cas.  No.  16,28G;  Anderson  v.  Pcoj^le  v.  Calton,  5  Utah,  451,  16  Pac. 
State,  42  Ga.  9;  Hays  v.  Com.  17  Ky.  902;  Vance  v.  Corn.  2  Va.  Cas.  132; 
L.  Rep.  1147,  33  S.  W.  1104;  Willis  v.  Eckert  v.  State,  114  Wis.  160,  89  N.  W. 
People,  32  N.  Y.  715;  Com.  v.  Winne-  826;  Youtsey  v.  United  States,  38  C.  C. 
more,   1  Brewst.    (Pa.)    356.  A.  562,  97   Fed.   937;    United  States  v. 

''•■•See  infra,  §   175.  Shults,   6   McLean,    121,   Fed.   Cas.   No. 

^■*  Among  the  many  cases  announcing  10,286;  Reg.  v.  Layton,  4  Oox  C.  C- 
or  applying  this  rule  are:    Lidew.  State,    149. 

133  Ala.  43,  31  So.  953;  Green  \.  State,  "Parsons  v.  State,  81  Ala.  577,  60 
64  Ark.  523,  43  S.  W.  973;  People  v.  Am.  Rep.  193,  2  So.  854;  State  v.  Kao- 
Barthleman,  120  Cal.  7,  52  Pac.  112;  anaugh  (Del.)  53  Atl.  335;  State  v. 
State  V.  Richards,  39  Conn.  591;  State  Thomas,  Houst.  Crim.  Rep.  (Del.)  511; 
V.  Danhy,  Houst.  Crim.  Rep.  (Del.)  Furst  v.  State,  31  Neb.  403,  47  N.  W. 
166;  Choice  v.  State,  31  Ga.  424;  Tay-  1116;  State  v.  Spencer,  21  N.  J.  L.  196; 
lor  V.  State,  105  Ga.  746,  31  S.  E.  764;  Com.  v.  Sayres,  12  Phila.  553;  Com.  v. 
State  V.  Moiirry,  37  Kan.  369,  15  Pac.  Moore,  2  Pittsb.  502;  Com.  v.  Gear- 
282;  Com.  v.  Rogers,  7  Met.  500,  41  Am.  hardt,  205  Pa.  387.  54  Atl.  1029;  A'eu;- 
Dec.  458;  Abbott  v.  Com.  107  Ky.  624,  co77ib  v.  State,  37  Miss.  385. 
55  S.  W.  196;  State  v.  Knight,  95  Me.  It  is  sufficient  if,  by  reason  of  mental 
467,  55  L.  R.  A.  373,  50  Atl.  276;  State  disease,  the  perpetrator  of  a  criminal 
V.  Redemeier,  71  Mo.  173,  36  Am.  Rep.  act  could  not  perceive  that  it  was 
462;  State  v.  Brooks,  23  Mont.  146,  57  wrong;  he  need  not  have  been  totally 
Pac.  1038;  Knights  v.  State,  58  Neb.  unconscious  of  its  character  and  conse- 
225,  76  Am.  St.  Rep.  78,  78  N.  W.  508;  quences.  State  v.  Kelley,  74  Vt.  278, 
State  V.  Martin  (N.  J.)  3  Crim.  L.  Mag.    52  Atl.  434. 

44;  Freeman  v.  People,  4  Denio,  9,  47  ^^State  v.  Reidell,  9  Houst.  (Del.)  470, 
Am.  Dec.  216;  People  v.  Krist,  168  N.  14  Atl.  550;  Humphreys  v.  State,  45 
Y.  19,  60  N.  E.  1057:  State  v.  Spiveij,  Ga.  190;  Roberts  v.  State,  3  Ga.  310- 
132  N.  C.  989.  43  S.  E.  475;  Blaclcburn  Choice  v.  State,  31  Ga.  424;  Com.  v. 
V.  State,  23  Ohio  St.  146;  Maas  v.  Ter-  Rogers,  7  Met.  500,  41  Am.  Dec.  458; 
ritory,  10  Okla.  714,  53  L.  R.  A.  814,  Anderson  v.  State,  25  Neb.  550,  41  N 
63  Pac.  960;  Com.  v.  Mosler,  4  Pa.  264;  W.  357;  Hart  v.  State,  14  Neb.  572,  16 
Com,.  V.  Lutz,  10  Kulp,  234;  Slate  v.  N.  W.  905;  State  v.  Lewis,  20  Nev.  333, 
Mcintosh,  39  S.  C.  97.  17  S.  E.  446;  22  Pac.  241;  Willis  v.  People,  32  N.  Y. 
Johnson  v.  State,  100  Tenn.  254,  45  S.  715,  Affirming  5  Park.  Crim.  Rep.  621; 
W.  436;  Evers  v.  Stale,  31  Tex.  Crim.  People  v.  Burgess,  153  N.  Y.  561,  47  N 
Rep.  318,  18  L.  R.  A.  421,  37  Am.  St.  E.  889;  State  v.  Haywood,  61  N.  C 
Rep.  811,  20  S.  W.  744;  Cannon  V.  S< a «e,    (Phill.   L.)    376;    State   v.   Murray     11 


186 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


173 


at  tlie  time  of  its  performance/''^  or  as  to  ren<iler  the  party  uncoiv- 
scious  that  in  doing  the  particular  act,  he  was  committing  a  crime,"" 
or  unable  to  apply  such  knowledge  and  be  controlled  by  it.*^^  It  has 
been  held  that  the  ability  to  distinguish  between  moral  good  and  evil, 
as  distinguished  from  legal  good  and  evil,  is  the  test."^  But  the  rule 
adopted  by  a  great  majority  of  the  modern  cases  in  which  the  ques- 
tion has  been  adverted  to  would  seem  to  be  that  there  must  have  been 
an  absence  of  knowledge  that  an  act  is  ^\Tong  either  in  a  moral  or 
legal  sense,  in  order  to  relieve  from  criminal  responsibilty."^ 

176.  Test  of  knowledge  of  nature  of  act. —  Some  of  the  cases  have 
mtde  capacity  to  understand  the  nature,  character,  and  consequences 
of  the  alleged  criminal  act  a  test  of  criminal  responsibility  therefor^ 
holding  that,  to  be  effectual  as  a  defense,  insanity  must  be  such  as  to 
render  the  accused  unconscious  of  such  nature,  character,  and  conse- 
quences;^^ and  that  one  would  be  criminally  responsible  thereunder 
if  he  had  sufficient  mind  to  be  conscious  of  what  he  was  doing."^   But 


Or.  413,  5  Pac.  55;  State  v.  Zorn,  22  Or. 
591,  30  Pac.  317;  State  v.  Kalb,  2  Ohio 
Legal  News,  364;  Stuart  v.  State,  1 
Baxt.  178;  Warreti  v.  State,  9  Tex.  App. 

619,  35  Am.  Rep.  745;  State  v.  Maier, 
:^6  W.  Va.  757,  15  S.  E.  991;  M'Nagh- 
ten's  Case,  10  Clark  &  F.  200,  8  Scott 
N.  R.  595,  1  Car.  &  K.  130,  note. 

"McAllister  v.  State,  17  Ala.  434,  52 
Am.  Dec.  180;  Marceau  v.  Travelers' 
Im.  Co.  101  CaL  338,  35  Pac.  856,  36 
Pa<.    813;    Hornish   v.    People.    142    lU. 

620,  18  L.  R.  A.  237,  32  N.  E.  677;  State 
V.  Wright,  134  Mo.  404,  35  S.  W.  1145; 
State  V.  Pagels,  92  Mo.  300,  4  S.  W. 
931;  State  v.  Erb,  74  Mo.  199;  People 
V.  Montgomery,  13  Abb.  Pr.  N.  S.  207; 
State  V.  Alexander,  30  S.  C.  74,  14  Am. 
St.  Rep.  879.  8  S.  E.  440;  Clark  v.  State, 
8  Tex.  App.  350;  Smith  v.  State,  22  Tex. 
App.  310,  3  S.  W.  684;  Gicbel  v.  State, 
28  Te.x.  App.  151,  12  S.  W.  591;  Rex  v. 
Offord,  5  Car.  &  P.  168;  Bellingham's 
Case,  1  Collinson  on  Limacy,  636;  Queen 
V.  Vaughan,  1  Cox  C.  C.  80. 

^'McAllister  v.  State,  17  Ala.  434,  52 
Am.  Dec.  180. 

It  would,  perhaps,  be  going  too  far 
to  say  that  a  per.son  accused  of  crime 
would  be  responsible  in  every  case  where 
he  had  a  glimmering  of  loiowledge  of 
what  was  right  and  wrong.  Reg.  v.  Lay- 
ton,  4  Cox  C.  C.   149. 

"Macfarlaiid'a  Trial,  8  Abb.  Pr.  N.  S. 
69. 

"■Jiinloch's  Case,  25  How.  St.  Tr.  891, 
997. 


"^See  McAllister  v.  State,  17  Ala.  434, 

52  Am.  Dec.  ISO ;  People  v.  Pico,  62  Cal. 
50;  State  v.  Moiory,  37  Kan.  369,  15 
Pac.  282:  Choice  v.  State,  31  Ga.  424;. 
Com.  V.  Rogers.  7  Met.  500,  41  Am.  Dec. 
458;  State  v.  Leicis,  20  Nev.  333,  22  Pac. 
241:  Willis  v.  People,  Z2  N.  Y.  715,  Af- 
firming 5  Park.  Crim.  Rep.  621;  Mociit 
V.  People,  85  N.  Y.  373;  Macfarland's 
Trial,  8  Abb.  Pr.  N.  S.  69 ;  Blackburn  v. 
State,  23  Ohio  St.  146;  Clark  v.  State, 
12  Ohio,  483,  40  Am.  Dec.  481;  Com. 
V.  Sayres,  12  Phila.  553;  State  v.  Alex- 
ander, 30  S.  C.  74,  14  Am.  St.  Rep.  879, 
8  S.  E.  440;  State  v.  Mcintosh,  39  S.  C. 
79,  17  S.  E.  446:  Bellingham's  Case,  1 
Collinson  on  Lunacy,  636 ;  Reg.  v.  Toicri- 
leit,  3  Fost.  &  F.  839. 

'"^State  V.  Gut,  13  Minn.  343,  Gil.  315: 
Humphreys  v.  State,  45  Ga.  190;  Fisher 
V.  People,  23  111.  283;  Hoover  v.  State 
(Ind.)    68  N.  E.  591;   Russell  v.  State, 

53  Miss.  367:  O'Brien  v.  People,  36  N. 
Y.  270;  People  v.  Pine.  2  Barb.  566; 
Cole's  Trial,  7  Abb.  Pr.  N.  S.  321;  State 
V.  Brandon,  53  N.  C.  (8  Jones  L.)  463; 
Revoir  v.  State,  82  Wis.  295,  52  N.  W. 
84;  Bellinghanvs  Case,  1  Collinson  on 
Lunacy,  636. 

'^Br'oirn  v.  Com.  78  Pa.  122;  Com.  v. 
Werlinq.  164  Pa.  559.  30  Atl.  406;  State 
V.  Sivift,  57  Conn.  496,  18  Atl.  664;  Reg. 
V.  Tou-nlcy.  3  Fost.  &  F.  839;  Co7n.  V. 
Jones.  1  Leigh.  612. 

Within  this  rule,  in  order  to  be  re- 
sponsible, a  person  accused  of  crime 
mu.'^t  have  suflicient  power  of  memory  to 


8  17UJ 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME 


187 


it  has  more  frequently  been  regarded  as  uecestiarj  that  the  accused 
should  not  only  be  incapable  of  knowing  the  nature  and  character  of 
the  act,  but  also  that  he  should  be  without  capacity  to  distinguish  be- 
tween right  and  wrong  witli  reference  to  it;  the  question  being 
whether  he  had  sufficient  use  of  his  reason  to  understand  the  nature 
and  character  of  the  act  and  to  know  that  it  was  wrong  for  him  to 
commit  it.*'^  As  thus  modified  the  rule  is  practically  the  same  as  the 
prevailing  one  above  set  forth;"'  and  under  it  one  who  is  laboring 
under  mental  disease  to  such  an  extent  that  he  does  not  know  what  he 
is  doing,  or  tliat  what  he  is  doing  is  wrong,  is  not  criminally  respon- 
sible.'^'^ But  he  is  criminally  responsible  for  his  acts  if  he  has  rea- 
son and  capacity  sufficient  to  enable  him  to  distinguish  between  riglu 
and  wrong,  and  understand  the  nature  of  his  acts  and  his  relation  to 
the  party  injured,"^  and  sufficient  mental  power  to  apply  that  knowl- 


recollect  the  relation  in  wliicli  he  stands 
to  others,  and  in  which  others  stand  to 
him,  and  to  know  that  the  act  he  is 
doing  is  contrary  to  the  dictates  of  jus- 
tice and  right,  and  injurious  to  others. 
Com.  V.  Rogers,  7  Met.  500,  41  Am.  Dec. 
4.58 ;  United  States  v.  Faulkner,  35  Fed. 
730. 

And  one  who  sets  fire  to  the  house 
of  another  while  in  siich  a  state  of 
mind  that  he  is  not  conscious  that  the 
effect  of  it  would  be  to  injure  any  one 
is  not  criminally  responsible  therefor. 
Reg.  V.  Davies,  1  Fost.  &  F.  69. 

Nor  can  one  be  convicted  of  larceny 
whore  the  case  depends  upon  his  sanity, 
unless  the  jury  are  satisfied  that  he  had 
sufiicient  mind  to  comprehend  all  the 
t'ssential  ingredients  of  the  offense;  and 
the  mere  recognition  that  the  property 
stolen  belonged  to  another  would  not 
be  sufficient.  People  v.  Cummins,  47 
Mich.  334,   11  N.  W.    1S4,   186. 

One  who  acts  upon  the  persuasion  of 
another,  and  is  without  capacity  to  re- 
sist such  persuasion,  cannot  be  guilty 
of  burglary  and  larceny.  Hays  v.  Com. 
17  Ky.  L.Rep.  1147.  .33  S.  W.  1104. 

"'Guitcau's  Case,  10  Fed.  161;  People 
V.  Pico.  G2  Cal.  50;  State  v.  O'^'eil.  51 
Kan.  051,  24  L.  R.  A.  555,  33  Pac.  287; 
State  V.  Redemeier.  71  Mo.  173,  36  Am. 
Rep.  462:  Mackin  v.  State,  59  N.  J.  L. 
495,  36  Atl.  1040:  Freeman  v.  People, 
4  Denio,  9,  47  Am.  Dec.  216:  Walker  v. 
People,  26  H\|h.  67:  People  v.  Bnrheri. 
47  N.  Y.  Supp.  168:  State  v.  Potts,  100 
N.  C.  457,  6  S.  E.  657;  Reg.  v.  Utyton, 
4  Cox  C.  C.   149:   Reg.  v.  Doodi/,  6  Cox 


C.  C.  463;  Com.  v.  Piatt,  11  Phila.  421 
Davis  V.   United  States,  165  U.   S.  373, 
41  L.  od.  7«0,  17  Sup.  Ct.  Rep.  360. 

In  Knights  v.  State,  58  Neb.  225,  7(i 
Am.  St.  Rep.  78,  78  N.  W.  508,  how 
eyer,  it  was  hold  to  be  judicially  er 
roneous  to  charj/e  the  jury  that  want  ol 
capacity  on  tlie  part  of  a  person  ac- 
cused of  crime,  to  understand  the  na- 
ture of  the  act  in  question  at  the  timi 
of  its  commission,  is  necessary  to  ren 
der    him    irresponsible. 

"Supra,  §  175. 

^Guiteaiis  Case,  10  Fed.  161;  State  v 
Zorn,  22  Or.  591,  30  Pac.  317;  Com.  v. 
Bezek.  168  Pa.  603,  32  Atl.  109;  Rex  v 
Arnold,  16  How.  St.  Tr.  695. 

'^'State  V.  West,  Houst.  Crim.  Rep. 
(Del.)  371;  State  v.  O'Neil.  51  Kan 
651,  24  L.  R.  A.  555,  33  Pac.  287;  Fitz- 
patrick  v.  Com.  81  Ky.  357;  Spencer  v. 
State,  69  Md.  28,  13  Atl.  809;  State  v. 
Out,  13  Minn.  343,  Gil.  315;  State  v. 
Shippeg,  10  Minn.  223,  88  Am.  Dec.  70, 
Gil.  178;  State  v.  Redemeier,  8  Mo.  App. 
1;  State  v.  Haywood,  61  N.  C.  fPhill. 
L.)  376;  Loeffner  v.  State,  10  Ohio  St. 
599;  Nevling  v.  Com.  98  Pa.  323;  Com. 
V.  Parkin,  2  Clark  (Pa.)  208:  State  v. 
Bundij,  24  S.  C.  439,  58  Am.  Rep.  262: 
Stuart  y.  State,  I  Baxt.  178:  Lcache  v. 
State,  22  Tex.  App.  279,  58  Am.  Rep. 
638,  3  S.  W.  539:  M'Naghien's  Case,  10 
Clark  &  F.  200,  8  Scott  N.  R.  595,  1 
Car.  &  K.  130,  note;  Reg.  v.  Oxford,  9 
Car.  &  P.  525 ;  Reg.  v.  Townley,  3  Fost. 
&  F.  8.3.9;  Bellingham's  Case,  I  Collin- 
son  on  Lunacy,  636;  Rex  v.  Offord,  5 
Car.  &   P.   169. 


188  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         IM76 

edge  to  his  o^m  acts.'^'^  Many  well-considered  cases  look  upon  tiie 
question  of  knowledge  of  right  and  ^^Tong,  and  that  of  capacity  to 
know  the  nature  of  the  act,  as  alternative ;  holding  the  test  of  crim- 
inal responsibility  to  be  whetlier  the  accused,  at  the  time  of  commit- 
ting the  act  in  question,  was  laboring  under  such  incapacity  as  not 
to  know  the  nature  and  quality  of  the  act  he  was  doing;  or,  if  he  did 
know,  that  he  did  not  know  he  was  doing  wrong."^ 

177.  Right  and  wrong-  test  generally  satisfactory. —  Whatever  may 
be  the  theory  of  responsibility  we  adopt,  there  is  much  to  commend 
the  "right  and  ^vrong"  test  to  our  acceptance.  There  are  three  theo- 
ries on  which  punishment  is  based :  1st,  that  of  retribution ;  2d, 
that  of  prevention ;  and  8d,  that  of  example.  ^Vhichever  of  these 
views  we  take,  it  seems  proper  to  naake  a  consciousness  of  right  and 
wrong  as  to  a  particular  act  a  condition  of  responsibility  for  that  act. 
If  we  take  the  theory  of  retribution,  we  cannot,  in  justice,  impose 
punishment  where  there  is  no  guilt.  Punitur  quia  peccatum  est  is 
the  basis  of  that  theory ;  there  must  be  sin  to  sustain  punishment,  and 
sin  involves  a  sense  of  wrong.  On  the  retributive  theory,  therefore, 
we  are  justified  in  holding  all  persons,  conscious  of  the  wrongfulness 
of  a  particular  act  which  they  commit,  responsible  for  that  act.  And 
on  the  prevention  and  example  theories,  the  argument  for  punishment 
of  persons  who,  however  disturbed  may  be  their  minds,  are  conscious 
of  the  difference  between  right  and  wrong,  as  to  the  particular  act,  is 
still  stronger.  It  is  conceded  by  those  having  charge  of  lunatics 
that  they  are  tlie  subjects  of  discipline.  In  fact,  tlie  police  system 
which   prevails   in   all  lunatic   asylums   assumes   this,   even   should 

^Statev.  Gut,  UUinn.  M3,  Gi\.  S15;  of    the    fifteen    judges    to   the    question 

Slate  V.  Shippei/,  10  Minn.  223,  88  Am.  propounded   to   them   by  the   House   of 

Dec.  70,  Gil.  178:  State  v.  West,  Houst.  Lords  in  June,  1843.     "The  jury,"  they 

Crim.  Rep.   (Del.)   371.  said,  "ought  to  be  told  in  all  eases  that 

^^United  States  v.  Young,  25  Fed.  710:  every  man  is  to  be  presumed  to  be  sane 
People  V.  Caff  man,  24  Cal.  230;  People  and  to  possess  a  sutlicicnt  degree  of  rea- 
V.  Walter,  1  Idaho,  380;  State  v.  Larc-  son  to  be  respoiisil)le  for  his  crimes, 
rence,  .57  Me.  .574;  State  v.  Klinger,  43  until  the  contrary  be  proved  to  their 
Mo.  127;  Anderson  v.  State,  25  Neb.  satisfaction;  and  tiiat  to  establish  a 
550,  41  N.  W.  357;  Slate  v.  Martin  (N.  defense  on  the  ground  of  insanity,  it 
■J.)  3  Crim.  L.  Mag.  44;  Freeman  v.  Pco-  must  be  clearly  proved  that  at  tlie  time 
pic,  4  Denio,  9,  47  Am.  Dec.  216;  Flan-  of  the  eomniittiiig  of  the  act,  the  party 
nigau  v.  People,  52  N.  Y.  407,  11  Am.  accused  was  laboring  under  such  a  de- 
Rep.  731;  People  v.  Kleim,  1  Edm.  Sel.  feet  of  reason,  from  disease  of  the  mind, 
Cas.  13;  Com.  v.  McCaulley,  IG  Phila.  as  not  to  know  the  nature  and  quality 
502;  Wehh  v.  State,  5  Tex.  App.  590:  of  the  act  he  was  doing,  or  if  he  did 
Clark  V.  State,  8  Tex.  App.  350;  Smith  know  it,  that  he  did  not  know  he  was 
V.  Stale,  19  Tex.  App.  444.  And  see  Ih-  doing  wluit  was  wrong."  ItrXaughten't 
voir  V.  State,  82  Wis.  295,  52  N,  W.  84.  Case,   1  Cn--.  &  K.    ]:].{.  tk.Ic,  8  Scott  N. 

The  English  law  in  this  relation  took  R.  .595,  10  Clark  &  F.  200. 
definite  and   final   shape  in   the  answer 


i   177]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  189 

we  past  aside  the  abundant  general  testimony  from  experts  that  luna- 
tics are,  as  a  rule,  oj^en  to  the  influence  of  fear  of  punishment.  If  so, 
do  they  differ,  except  in  degree,  from  men  who  are  the  slaves  of  pas- 
sion, or  the  victims  of  demoralizing  education  ?  Mitigation  of  guilt, 
indeed,  and  diminished  responsibilty,  may  be  claimed  for  them  on 
account  of  their  infirmity;  but,  as  penal  law  can  control  their  out- 
bursts, the  interests  of  society  require  that  over  them  penal  law  should 
<iontinue  to  assort  its  control.'^" 

178.  Time  when  tests  are  applied. —  Tests  as  to  the  existence  of  in- 
sanity as  a  defense  in  a  criminal  prosecution  are  to  be  applied  with 
reference  to  the  exact  time  of  the  commission  of  the  offense.^^  It 
is  proper,  however,  in  a  prosecution  for  killing  with  poison,  to  sub- 
mit to  the  jury  the  question  of  the  sanity  or  insanity  of  the  accused 
at  the  time  when  the  poison  was  purchased  as  w^ell  as  at  the  time  when 
it  was  administered."^ 

IV.  Partial  insanity  or  monomania. 

179.  Definitions. — Partial  insanity  is  mental  unsoundness,  always 
existing,  though  but  occasionally  manifested.'^^  And  monomania  is 
a  derangement  of  the  mental  faculties,  confined  to  some  particular 
idea  or  object  of  desire  or  aversion,'^^ — a  perversion  of  understanding 
in  regard  to  a  single  object  or  a  small  number  of  objects.'^'^     Tempo-^ 

^    "See   Wharton,   Grim.   Law,    10th   ed.  A    person    may   be    insane    upon    one 

§  1,  et  scq.  subject  and  yet  be  sane  upon  all  others. 

"See  State  v.  Coleman,  27   La.  Ann.  Cutler  v.  Zollinger,   117   Mo.  92,  22  S. 

691;    State   v.    Bays,   22    La.    Ann.    39;  VV.  895. 

People    V.    Clendennin,    91    Gal.    35,    27  And  presence  of  power  of  consecutive 

Pac.  418;   State  v.  Pratt,  Houst.  Crim.  and  rational  thought  does  not  disprove 

Rep.   (Del.)   249;  Clark  v.  State,  8  Tex.  the  existence  of  insanity.    Com.  v.  Mere- 

App.  350;  Smith  v.  State,  22  Tex.  App.  dith,    17    Phila.    90;    Bennett    v.    State 

317,  3  S.  W.  684.  (Wis.)  4  Grim.  L.  Mag.  378. 

''Hjaros  v.  Com.  84  Pa.  200.  "''Re  Gannon,   2  Misc.   329,   21   N.   Y. 

"Black,     Law    Diet,     citing     Dew    v.  Supp.  960. 

Clark,  3  Addams  Eccl.  Rep.  79.  Under  Indiana  statutes  as  to  mental 

The  use  of  the  word  delusion  in  an  unsoundness  as  a  defense  in  a  criminal 
instruction  in  a  criminal  action  in  which  prosecution,  it  cannot  be  said  that  a 
insanity  was  pleaded  as  a  defense,  when  man  is  partially  insane,  and  not  wholly 
partial  insanity  was  meant,  the  word  so,  and  partial  insanity  is  not  a  de- 
delusion  having  no  proper  application  fense;  the  mental  capacity  of  the  ac- 
to  the  facts,  will  not  be  deemed  to  have  cused,  whether  weak  or  strong,  not  af- 
misled  the  jury,  where  the  evidence  and  fecting  the  question  of  punishment,  un- 
the  connection  in  which  the  words  were  less  he  was  insane  within  the  meaning 
used  make  the  meaning  clear.  People  of  the  law.  Warner  v.  State.  114  Ind. 
V.  Schmitt,  106  Gal.  48,  39  Pac.  204.  137,  16  N.  E.  189 ;  Walker  v.  Stale,  102 

■•"Owings'  Case,   1  Bland  Ch.  370,   17  Ind.  502,  1  N.  E.  856. 
Am.  Dec.  311. 


190  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  179 

rary  insanity  consists  of  occasional  fits  of  madness.'^^     And  recur- 
rent insanity  is  insanity  returning  from  time  to  time.'^^ 

180,  Criminal  responsibility. —  Partial  insanity  does  not  confer 
criminal  irresponsibility  where  the  party  was  not  instigated  by  his 
madness  to  perpetrate  the  criminal  act.^''  Where  it  is  relied  upon 
as  a  defense  the  crime  charged  must  have  been  the  product  of  the 
insane  condition,  and  connected  with  it  as  effect  with  cause;  and  not 
the  result  of  sane  reasoning  or  natural  motives,  of  which  the  party  was 
capable,  notwithstanding  his  disorder.^^  Partial  insanity  is  an  ex- 
cuse for  crime  only  when  it  deprives  the  party  of  his  reason 
in  regard  to  the  criminal  act  in  question;^-  the  test  of  responsibility 
being  like  that  in  other  cases, — whether  the  accused  had  sufficient 
capacity  at  the  time  of  committing  the  act  to  distinguish  between 
right  and  wrong  with  reference  to  it.^^  And  partial  insanity  will 
not  excuse  crime  unless  the  accused  did  not  have  such  knowledge,^^ 

^Reg.  V.  Richards,  1  Fost.  &  F.  87.  criminal    responsibility    on    the    ground 

^^Smith  V.  State,  22  Tex.  App.  316,  3  of   partial    insanity,    the   accused   must 

S.  W.  684.  not   have   had    will    power    sufficient   to 

^"Bovard  v.  State,  30  Miss.  600;  State  restrain   the   impulse   to   commit   crime 

V.  Pagels,  92  Mo.  300,  4  S.  W.  931;  Com.  ^Thich  mav  arise  from  a  diseased  mind 

V    Werling,   164   Pa.   559,  30  Atl.  406 ;  Dejarnette  v.  Com.  75  Va.  867  :  Com.  v. 

Com.  V.  Cressinger,  193  Pa.  326,  44  Atl.  Winnemore,  1  Brewst.  (Pa.)  356. 
433;  State  v.  Harrison,  36  W.  Va.  729,        ^^State   v.    Pratt,    Houst.    Crim.    Rep. 

18  L.  R.  A.  224,  15  S.  E.  982.  (Del.)    249;   People  v.  Hurtado,  63  Ca,l. 

And  where  a  person  accused  of  crime  288 ;  State  v.  Nixon,  32  Kan.  205,  4  Pac. 

is  not  shown  to  have  been  insane  gen-  159 ;    Grissom   v.    State,    62    ^liss.    167 ; 

erally,  evidence  as  to  unsoundness  upon  Giebel  v.  State,  28  Tex.  App.  151,  12  S. 

any   subject   except   that   which    is   un-  W.    591;    Riley    v.    State    (Tex.    Crim. 

der  investigation  is  incompetent.     Com.  App.)   44  S.  W.  498:  State  v.  Harrison, 

V.  McCaulley,  16  Phila.  502.  36  W.  Va.  729,  18  L.  R.  A.  224,   15  S 

But  temporary  insanity  as  a  defense  E.  982;    United  States  v.  Ridgeway,  31 

to  crime  is  as  ifully  recognized  by  law  Fed.   144 ;   Kinloch's  Case,  25  How.  St. 

as    is    permanent    insanity.      People    v.  Tr.  891,  997. 
Ford,  138  Cal.  140,  70  Pac.  1075.  '^Statc  v.  Lawrence,  57  Me.  574;  State 

"Ouiteau's  Case,    10    Fed.     161;    Ste-  v.  Hating,  21  Mo.  464;  Bovard  v.  State, 

veils  V.  State,  31  Ind.  485,  99  Am.  Dec.  30  Miss.  600;   People  v.  Taylor,  138  N. 

634;   Parso7is  v.  State,  81  Ala.  577,  60  Y.  398,  34  N.  E.  275;  Com.  v.  Sayres,  12 

Am.  Rep.  193,  2  So.  854.  Phila.    553;    Com.    v.    Frceth,    5    Clark 

'-State  V.   Danby,   Houst.   Grim.   Rep.  (Pa.)    455;    Dejarnette  v.  Com.  75  Va. 

(Del.)   175;  State  v.  Pratt,  Houst.  Crim.  807;  State  v.  Harrison,  36  W.  Va.  729, 

Rep.   (Del.)    249;   Freeman  v.  People,  4  18  L.  R.  A.  224,   15  S.  E.  982;   United 

Denio,  9,  47  Am.  Dec.  216;  State  v.  Mil-  States  v.  Holmes,  1  ClifT.  98,  Fed.  Cas. 

ler,  7  Ohio  N.  P.  458,  5  Ohio  S.  &  C.  P.  No.   15,382. 

Dec.  703;  Com.  v.  McCaulley,  16  Phila.        Where    the   partial    insanity   gees   to 

502.  the    extent   of   breaking   down   the   dis- 

Partial    insanity    which    will    excuse  tinction  between  the  knowledge  of  right 

crime  must  control  the  will  and  make  and  of  wrong,  as  to  the  particular  act, 

the  commission  of  the  act  a  duty  of  over-  it   is    immaterial    whetlier    the   sufferer 

ruling  necessity  to  the  person  commit-  was  insane  as  to  the  other  matters  or 

ting   it.      Com.   v.    Mosler,   4    Pa.    264;  not.      Grissom  v    State,  62   Miss.    167; 

Com.  V.  Freeth,  5  Clark   (Pa.)   455.  Ford  v.   State,   73   Miss.   734,   35  L.  R. 

And  it  lias  been  held  that  to  escape  A.  117,  19  So.  665. 


§  180]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  191 

or  did  not  know  the  nature  or  quality  of  the  criminal  act,^^  or  did 
not  have  power  sutKcient  to  apply  such  knowledge  to  his  own  case.^" 
JSTor  is  temporary  recurrent  insanity  a  defense  in  a  criminal  prose- 
cution where  the  person  committing  tlie  crime  was  not  afflicted  with 
the  malady  at  the  time.^^  Where  partial  insanity  is  interposed  as 
a  defense  to  a  criminal  act,  it  must  be  proved  that  the  act  was  com- 
mitted during  an  attack  of  the  disease  to  justify  an  acquittal,  and 
the  act  itself  is  not  evidence  of  such  an  attack.^* 

181.  Question  for  jury. —  The  rule  that  the  question  as  to  how 
much  intellect  one  must  have  to  make  him  amenable  to  the  criminal 
law  is  one  for  the  court,  and  that  the  existence  of  insanity  which  will 
excuse  crime  is  a  question  of  fact,  for  the  jury,  applies  to  temporary 
or  periodical  insanity.^^  And  it  is  a  question  for  the  jury  whether 
the  accused  in  a  criminal  prosecution  labored  under  the  influence  of 
a  delusion  which  rendered  his  mind  insensible  to  the  nature  of  his 
act.^°  All  symptoms  of  delusion  or  mental  disease  are  pur-ely  mat- 
ters of  fact,  for  the  jury.®^  And  so  are  questions  as  to  the  existence 
and  effect  on  the  mind  of  insanity,  which  subverts  the  freedom  of 
the  will  and  destroys  tlie  power  of  the  victim  to  choose  between  right 
and  wTong,  though  he  may  be  able  to  perceive  the  difference  between 
them.^^  So,  where  insanity  is  alleged  as  a  defense  in  a  prosecution 
for  homicide,  the  question  as  to  whether  the  accused  -was  guilty  of 
murder  in  the  first  or  second  degree  should  be  submitted  to  the  jury, 
as  well  as  the  question  whether  or  not  he  was  insane. ^^ 

182.  Delusions  defined. — An  insane  delusion,  within  the  meaning 
of  criminal  law,  is  an  unreasonable  and  incorrigible  belief  in  the 

^^State  V.  Lawrence,  57  Me.  574;  Peo-  of  distinguishing  good  from  evil.   Clark's 

pie  V.  Taylor,  138  N.  Y.  398,  34  N.  E.  Case,  1  N.  Y.  City  Hall  Rec.  176. 

275;    Co?n.    v.    Sayres,    12    Phila.    553;  ^'Cunningham  v.  State,  56  Miss.  269, 

Com..  V.  Freeth,  5  Clark  (Pa.)   455;  De-  31   Am.   Rep.   360-    Keg.   v.   Richards,    1 

jarnette  v.   Com.   75  Va.   867;   State  v.  Fost.  &  F.  87. 

Harrison,  36  W.  Va.   729,    18  L.  R.  A.  ^"Boioler's    Case,    1    Collinson    on    Lii- 

224,    15    S.    E.    982;    United    States    v.  nacy,  673;  Griihh  v.  State,  117  Ind.  277, 

Holmes,   1  Cliff.  98,   Fed.  Cas.  No.   15,-  20  N.  E.  257,  725. 

382.  And  whether  or  not  a  criminal  act  was 

^'■Com.  V.  Sayrcs,  12  Phila.  553;  Com.  done  by  a  person  subject  to  temporary 

V.  Freeth,  5  C\a.rk  (Pa.)  455;  Dejarnette  or    recurrent    insanity,    during   a    fit    of 

V.   Com.   75   Va.   867;    United   Slates   v.  madness,  is  a  question  for  the  jury.   Reg. 

Holmes,   1   Cliff.   98,   Fed.   Cas.  No.    15,  v.  Richards,  1  Fost.  &  F.  87. 

382.  ^'State  v.  Hmidley,  46  Mo.  414. 

"Bellingham's    Case,    1    Collinson    on  ^-Parsons  v.  State,  81  Ala.  577,  60  Am. 

Lunacy,   636.  Rep-   1^3,  2  So.  854;   State  v.  Jones,  50 

"''People  V.  Pine,  2  Barb.  566.  N.  H.  369,  9  Am.  Rep.  242. 

Where  a   crime  was   committed   by   a  ^■'People  v.  Walter,  1  Idaho,  386.    And 

person  generally  insane,  during  a  lucid  see  People  v.  Webster,  59  Hun,  398,  13 

interval,    he    is    responsible    therefor    if  N.  Y.  Supp.  414. 
lie  was  capable,  at  that  particular  time. 


192  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  182 

existence  of  facts  which  are  either  impossible  absolutely,  or  impossi- 
ble under  the  circumstances  of  the  case;^^  a  fixed  belief  which  is  con- 
trary to  universal  experience  and  knowTi  natural  laws;^^  a  belief  in 
the  existence  of  facts  in  which  no  rational  person  would  believe.^^  A 
belief  founded  upon  reason  and  reflection,  however,  is  not  an  insane 
delusion,  however  absurd  it  may  be.^^ 

183.  Effect  on  responsibility  generally. —  One  who  is  led  to  the 
commission  of  a  criminal  act  by  an  insane  delusion  controlling  his 
will  and  judgment  is  not  criminally  responsible  therefor.^^  But  de- 
lusion is  not  a  legal  test  of  insanity  as  an  excuse  for  a  criminal  act, 
where  the  act  is  in  no  way  connected  with  the  delusion  or  produced 
by  it^®  And  the  fact  that  a  person  has  an  insane  delusion  upon  one 
subject  does  not  affect  his  responsibility  for  a  crime  with  reference 
to  other  matters,  not  connected  with  the  particular  delusion,  where 
he  is  capable  of  distinguishing  between  right  and  wrong  as  to  the 
particular  act.^°*^  It  may  be  stated  generally,  therefore,  tliat  the  test 
of  criminal  responsibility  best  supported,  both  by  reason  and  author- 
ity, is  the  capacity  to  distinguish  between  right  and  wrong  at  the 
time  of  the  commission  of  the  criminal  act  in  question,  with  respect 
to  such  act,  and  the  absence  of  insane  delusion  with  reference  to  that 
subject.-^  The  question  is.  Did  he  do  the  act  under  a  delusion,  be- 
lieving it  to  be  other  than  it  was  ?  ^  And  the  delusion,  to  be  a  de- 
fense, must  have  been  total,  not  merely  partial.^ 

"^State  V.  Lewis,  20  Nev.  333.  22  Pac.  196;  Com.  v.  Hosier,  4  Pa.  264;  Wilcox 

241;  Guiteau's  Case,  10  Fed.  161.  v.  State,  94  Tenn.   106,  28  S.  W.   312; 

^'•Co7n.  V.  Meredith,  14  W.  N.  C.  188.  Merritt  v.  State,  39  Tex.  dim.  Rep.  70, 

A  belief  on  the  part  of  a  person  ac-  45  S.  W.  21;  United  States  v.  Ridgeway, 

cused  of   crime   that   he   had   not   slept  31  Fed.  144. 

for  eight  years  is  an  insane  delusion  on  ^Casey  v.  People,  31  Hun,   158;   Peo- 

that   subject.      United   States   v.    King,  pie   v.   Pine,   2    Barb.    566;    Parsons   v. 

34  Fed.  302.  State,  81  Ala.  577,  60  Am.  Rep.   193,  2 

''"Com.  V.  Meredith,  17  Phila.  90.  So.  854;   State  v.  'Mewherter,  46  Iowa 

"Gititeau's   Case,    10   Fed.    161.     And  88;   Fonts  v.  State,  4  G.  Greene,  500 

see  Cannon  v.  State,  41  Tex.  Crim.  Rep.  State  v.  Murray,  11  Or.  413,  5  Pac.  55 

467,    56    S.    W.    351.  Wilcox  v.  State,  94  Tenn.  106,  28  S.  W. 

'^Steveics    V.    State,    31    Ind.    486,    99  312;   Belling  ham's  Case,  1  Collinson  on 

Am.  Dec.  634;   State  v.  Miller,  7  Ohio  Lunacy,  636. 

N.  P.  458,  5  Ohio  S.  &  C.  P.  Dec.  703;  The   existence   of   an   insane   delusion 

Reg.  V.  Tovonley,  3  Fost.  &  F.  839.  is  important  only  in  a  criminal  prosecu- 

^State  V.  Jones,  50  N.  H.  369,  9  Am.  tion  as  it  throws  light  upon  the  ques- 

Rep.  242;  Roberts  v.  State,  3  Ga.  310;  tion    of   knowledge   or    capacity   of   the 

State  V.  Lawrence,  57  Me.  574 ;  Bovard  party  to  know  right  from  wrong.     Gui- 

V.  State,  30  Miss.  600;  State  v.  Simms,  fcaii's  Case,  10  Fed.  161. 

71   Mo.   538;    State  v.   Huting,  21   Mo.  -Reg.  v.  Toionley,  3  Fost.  &  F.  839. 

474;  Uaioe  v.  State,  11  Neb.  537,  38  Am.  The   existence  of   an   insane   delusion 

Rep.  375,  10  N.  W.  452.  is  no  defense  unless  it  renders  the  per- 

"*/?fat€    V.   Windsor,  5    Harr.    (Del.)  son    incapable    of   knowing   what   he   is 

512;   State  v.   Gut,   13  Minn.   343,   Gil.  doing,    or    forming    a    criminal    intent. 

315;    State   v.    Lawrence,    57    Me.    574;  Hall  v.  Com.  22  W.  N.  C.  25. 

People  V.  Ferraro,  161  N.  Y.  365,  55  N.  Humphreys  v.  State,  45  Ga.  190.     . 

BL   931;    Sindram   v.   People,   88   N.   Y.  A  common  feature  of  delusions  is  a 


§   184]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  195 

184.  Delusions  must  be  objective. —  Delusions,  to  constitute  a  de- 
fense, must  be  objective  as  distinguished  from  subjective.  They 
must  be  delusions  of  the  senses,  or  such  as  relate  to  facts  or  objects ; 
not  mere  ^\^•ong  notions  or  impressions ;  and  the  aberration  in  such 
case  must  be  mental,  not  moral,  so  as  to  affect  the  intellect  of  the  in- 
dividual. It  is  not  enough  that  they  show  a  diseased  or  a  depraved 
state  of  mind,  or  an  aberration  of  the  moral  feelings,  the  sense  of 
right  and  wrong  continuing  to  exist,  although  it  may  be  in  a  perverted 
condition.  To  enable  them  to  be  set  up  as  a  defense  to  an  indict- 
ment for  a  crime,  they  must  go  to  such  crime  objectively;  i.  e.,  they 
must  involve  an  honest  mistake  as  to  the  object  at  which  the  crime 
is  directed.*  Of  this  class  are  delusions  of  danger;  and  one  is  not 
criminally  responsible  for  a  homicide,  where  it  was  committed  under 
the  delusion  that  the  person  killed  was  about  to  do  him  a  serious  per- 
sonal injury,  and  that  he  was  acting  in  self-defense.^ 

185.  Distinction  between  objective  and  subjective  delusions. — We 
have  already  noticed  the  distinction  between  objective  delusions  (i. 
e.,  visual  or  other  sensual  mistakes)  and  subjective  delusions  (i. 
e.,  delusions  as  to  matters  of  personal  duty).  As  to  the  first,  we  have 
seen  that  it  is  a  defense  if  a  person  non-negligently  does  an  act  which, 
if  his  senses  had  not  been  mistaken,  would  not  have  been  an  infrac- 
tion of  the  law.  With  regard  to  subjective  delusions,  we  must  take 
another  test.     Such  delusions  are  no  defense  unless  insane. 

186.  Where  reason  can  dispel  subjective  delusions,  responsibility 
exists. —  If  there  be  reason  enough  to  dispel  the  delusion ;  if  the 
defendant  obstinately  refuses,  under  such  circumstances,  to  listen 
to  arguments  by  which  the  delusion  could  be  dispelled ;  if,  on  the  con- 
trary, he  cherishes  such  delusion,  and  makes  it  the  pretext  of  wrongs 

belief  on  the  part  of  the  party  that  and  as  to  the  Justifiableness  of  his  acts, 
he  is  sane,  and  his  assertion  that  he  though  mistaken  and  sincere,  does  not 
is  so  is  not  conclusive  evidence  ai^ainst  constitute  a  delusion  which  will  excuse 
him  in  a  criminal  prosecution.  State  v.  the  criminal  act.  Com.  v.  WirebacJc. 
Reidell,  9  Houst.  (Del.)  470,  14  Atl.  190  Pa.  138.  70  Am.  St.  Rep.  625,  42 
5.50.  Atl.  542. 

*Reg.  V.  Burtov,  3  Fost.  &  F.  772;  Rcij.  But  a  delusion  upon  the  part  ol  one 
V.  Townley,  3  Fost.  &  F.  839 ;  State  v.  person  tliat  another  was  a  robber,  who 
Pike,  49  N.  H.  399,  6  Am.  Rep.  533;  had  entered  his  house,  under  which  he 
Willis  V.  People,  5  Park.  Crim.  Rep.  02 1.    killed  the  supposed  robber,  is  objective. 

The  commission  of  a  homicide  for  the  and  a  good  defense.  Levett's  Case,  Cro. 
purpose  of  being  hanged  shows  a  morbid    Car.  538. 

state  of  mind  only,  and  not  an  insane  '^People  v.  Pine,  2  Barb.  566;  People 
delusion  which  will  relieve  from  crim-  v.  Taylor,  138  N.  Y.  398,  34  N.  E.  275; 
inal  responsibility  for  the  act.  Reg.  v.  Rcq.  v.  Pate,  cited  in  Ray  on  Med.  Jur. 
Burton,  3  Fost.  &  F.  772.  §  309;   Com.  v.  Rogers,  7  Met.  500,  41 

And    an    individual    belief    upon    the    Am.  Dec.  458;  Merritt  v.  State,  39  Tex. 
part  of  a  person  as  to  right  and  wrong    Crim.  Rep.  70,  45  S.  W.  21. 
Vou  I.  Med,  .Jur  —13. 


194  AIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  18C 

to  otliers, — then  he  is  responsible  for  such  wrongs.  The  test,  therefore, 
to  which  we  are  led  is,  Was  the  delusion  pleaded  as  a  defense  the 
delusion  of  an  insane  person  ?  If  not,  he  has  reason  enough  to  dispel 
or  correct  it ;  and  his  refusal  to  do  so  does  not  invest  him  with  irre- 
sponsibility. Thus,  the  Mormon  prophets  claim,  it  is  said,  a  direct 
revelation,  permitting  them  to  practise  polygamy.  Would  they  be 
permitted  to  plead  their  delusion  in  this  respect  as  a  bar  to  an  indictr 
meut  ?  Certainly  not.  And  the  reason  is  that  they  are  shrewd, 
sane  men,  and  must,  therefore,  be  held  responsible  for  their  delu- 
sions.^ It  is  allowable,  therefore,  for  the  prosecution,  when  an  in- 
sane "delusion"  is  set  up  for  a  defense,  to  offer  evidence  to  show  that 
the  "delusion"  was  sane, — in  other  words,  was  an  opinion  which  ordi- 
nary processes  of  reasoning  might  have  produced.'^ 

187.  Delusion  must  be  such  as  to  excuse  if  true. — Xor  will  every  de- 
lusion, though  relating  to  the  particular  subject  of  the  criminal  act, 
and  though  objective,  relieve  from  criminal  responsibility ;  the  party 
laboring  under  a  particular  delusion  must  be  considered  in  the  same 
situation  with  relation  to  criminal  responsibility  as  if  the  facts  with 
respect  to  which  the  delusion  existed  were  real.^  And  criminal  re- 
sponsibility is  relieved  only  when  the  facts,  or  the  state  of  facts,  be- 
lieved in  under  the  influence  of  the  delusion,  would,  if  actually  exist- 
ing, have  justified  the  act,  and  rendered  it  excusable.^  One  is  crim- 
inally responsible  for  an  act  committed  while  laboring  under  the  de- 
lusion that  he  was  redressing  or  avenging  some  injury,  or  grievance, 
or  producing  or  obtaining  some  profit  or  public  benefit,  or  that  an- 
other was  exercising  a  malign  influence  over  him.^'^     But  one  who 

•Wharton,  Grim.  Law,  8th  ed.  §§  84,  Fouts  v.  State,  4  G.  Greene,  500;  Com. 

850.     1682,     1715,     citing     Reynolds     v.  v.  Ropers,  7  Met.  500,  41  Am.  Doc.  458: 

United  States,  98  U.  S.   145,  25  L.  ed.  Cunningham  v.  State,  56  Miss.  269,  31 

244.  Am.    Rep.   360;    Thurman   v.    State,    32 

The  act  must  be  an  insane  act,  and  Neb.  224,  49  N.  W.  338;  People  v.  Tap- 
not  merely  the  act  of  an  insane  person,  lor,  138  N.  Y.  398,  34  N.  E.  275;  Com. 
.  Freeman  v.  People,  4  Denio,  27,  47  Am.  v.  Freeth,  5  Clark    (Pa.)    455;   Com.  v. 
Dec.  216.  Winnemore,  1   Brewst.    (Pa.)    356;   Mer- 

And   an   instruction   with   relation  to  ritt  v.  State,  39  Tex.  Grim.  Rep.  70,  45 

delusions  as  an  excuse  for  crime  should  S.  W.  21 ;  Reg.  v.  Pate,  cited  in  Ray  on 

distincruish  between  those  which  are  and  Med.   Jur.    §    309.      See   also    Wesley   v. 

are    not    insanity    proper.       Gunter    v.  State,  37  Miss.  327,  75  Am,  Dec.  62. 
State,  83  Ala.  90,  3  So.  600.  But    an    instruction    that    a   delusion 

^Gom.  ex    rel.   Uaskell    v.   Uaskcll,  2  will   not  absolve  one  from  guilt  unless 

Brewst.    (Pa.)    491.  the  facts,  if  real,  would  excuse  the  act, 

'State    V.    Meichcrter,    46    Iowa,    88;  though  technically  correct,  is  incomplete, 

M'Naghten's  Case,  10  Clark  &  F.  200.  8  when  it  fails  to  tell  the  jury  what  facts 

Scott  N.  R.  595,  1  Car.  &  K.  130,  note,  would  excuse.     Boiling  v.  State,  54  Ark. 

'Bdsicell  V.  State,  63  Ala.  307.  35  Am.  .IBS,   16  S.  VV.  658. 
Rep.   20;    Smith  v.   State,   55  Ark.  259,         ^'■flumphrcys    v.    State,    45    Ga.    190; 

18  S.  W.  237;  People  \.  Tluhert,  119  Cal.  TJill  v.  State.  64  Ga.  463;   M'Naghten's' 

216,  63  Am.  St.  Rep.  72,  51  Pac.  329;  Case,  10  Clark  &  F.  200,  2  Scott  N;  R. 


§  187J 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


195 


commits  a  criminal  act  under  the  delusion  that  God  had  commanded 
him  to  do  it  i.s  not  criminally  responsihle  therefor. ^^ 

188.  Effect  on  degree  of  crime. —  As  a  general  rule  there  is  not 
deemed  to  be  any  condition  intermediate  between  sanity  and  insan- 
ity Avhich  will  mitigate  crime  without  excusing  it.-^  And  a  convic- 
tion of  a  lower  degree  of  crime  cannot  be  had  on  the  theory  that  the 
defendant's  mind  was  unsound  to  a  degree  rendering  him  incapable 
of  deliberation,  where  he  knew  the  nature  of  the  act.^^  But  evidence 
of  insanity  is  admissible  to  show  the  absence  of  any  deliberative 
or  premeditative  design.*^  And  it  has  been  held  that  one  who 
killed  another  when  his  mind  was  so  far  impaired  as  to  render  him 
incapable  of  a  deliberate  and  premeditated  murder,  but  who  was  not 
totally  irresponsible  by  reason  of  his  insanity,  should  be  convicted  of 
murder  in  the  second  degree  only,^^     But  where  a  person  committing 


595,  1  Car.  &  K.  130,  note;  Reg.  v.  Pate, 
cited  in  Ray  on  Med.  Jur.  §  309. 

So,  a  person  who  kills  another  is  not 
relieved  from  responsibility  by  a  de- 
lusion that  the  latter  was  trying  to 
marry  his  mother  against  her  will,  since 
that,  if  true,  would  r:!)t  warrant  the 
killing.  Boiling  v.  State,  54  Ark.  588, 
16  S.  W.  658. 

And  an  insane  delusion  entertained  hy 
a  convict  that  another  convict  was  act- 
ing as  a  spy  with  intent  to  betray  his 
plans  of  escape  from  the  prison,  does  not 
affect  the  consequences  of  his  act  in 
killing  him.  People  v.  Taylor,  138  N. 
Y.  398,  34  N.  E.  275. 

^^Giiiteau's  Case,  10  Fed.  161;  Com. 
V.  Rogers,  7  Met.  500,  41  Am.  Dec.  458. 

But  a  belief  in  spirits  upon  the  part 
of  a  person  accused  of  crime,  that  spirits 
whispered  to  him  and  bade  him  do  the 
criminal  act,  of  itself  furnishes  no  de- 
fense, though  it  may  be  evidence  for  the 
jury,  upon  which  to  base  its  judgment 
with  regard  to  his  understanding  and 
comprehension.  People  v.  Waltz,  50 
How.  Pr.  204. 

^''Sage  v.  State,  91  Ind.  141 ;  United 
Stales  V.  Lee,  4  Mackey,  489,  54  Am. 
Rep.  203;  State  v.  Kotovskg,  11  Mo. 
App.  584 ;  Sindram  v.  People,  1  N.  Y. 
Crim.  Rep.  448. 

^^State  V.  Kotovsky,  11  Mo.  App.  58'.'; 
State  V.  Holloimy,  156  Mo.  222.  56  S. 
W.  734;  Com.  v.  Wirehack,  190  Pa.  i38, 
70  Am.  St.  Rep.  025,  42  Atl.  542;  'Com. 
V.  Hollinger,  190  Pa.  155.  42  Atl.  548; 
Corn.  V.  Earner,  199  Pa.  335,  49  Atl.  60; 
Cornell  v.  State,  104  Wis.  527,  80  N.  W. 
745. 

Insanity  is  either  a  complete  defense 


in  a  criminal  prosecution,  or  no  defense, 
and  cannot  reduce  homicide  from  murder 
to  manslaughter.  Morton  v.  United 
States,  15  App.  D.  C.  310. 

And  where  a  person  charged  with 
murder  was  incapable  of  knowing  that 
the  act  was  wrong,  a  partial  defect  of 
understanding,  which  might  cause  him 
more  readily  to  give  way  to  passion  than 
an  ordinarily  reasonable  man,  cannot  be. 
considered  for  the  purpose  of  reducing 
the  offense  to  manslaughter;  the  provo- 
cation to  accomplish  that  result  must 
have  been  s'ueh,  at  least,  as  to  stir  the 
resentment  of  a  reasonable  man.  People 
V.  JJtirtado,  63  Cal.  288. 

^* Sindram  v.  People,  1  N.  Y.  Crim. 
Rep.  448;  Sage  v.  State,  91  Ind.  141; 
Hcmplon  v.  State,  111  Wis.  127,  86  N. 
W.  596;  Youtscij  V.  United  States,  38  C. 
C.  A.  502,  97  Fed.  937. 

'\'ivderson  v.  State,  43  Conn.  514,  21 
Am.  Rep.  669;  Cottell  v.  State,  12  Ohio 
C.  C.  467,  5  Ohio  Dec.  472;  Green  v. 
Com.  83  Pa.  75;  Jones  v.  Com.  75  Pa. 
403;  Pistorius  v.  Com.  84  Pa.  158;  Wil- 
lis V.  Com..  32  Gratt.  928.  Contra,  Com. 
V.  HoUinger,  190  Pa.  155.  42  Atl.  548; 
Corn.  V.  Darner,  199  Pa.  335,  49  Atl.  60; 
Jarvis  v.  State,  70  Ark.  613,  Appx.,  67 
S.   W.  76. 

Evidence  of  excitement  and  abnormal 
'sensitiveness  resulting  from  sunstroke 
and  a  fall,  and  other  accidents,  though 
not  sufficient  to  establish  irresponsibil- 
ity, is  sufficient  to  reduce  the  crime  from 
murder  in  the  first  degree  to  murder  in 
tlie  second  degree.  People  v.  Conroy,  33 
llun,  119. 

And  an  instruction  in  a  prosecution 
for  homicide,  that  if  the  defendant  was 


196  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  18S 

a  murder  was  conscious  of  what  lie  was  doing,  and  capable  of  distin- 
guishing between  right  and  wrong,  and  premeditated  the  commission 
of  the  act,  he  is  guilty  of  murder  in  the  first  degree,  though  he  was 
deranged.^ '^ 

V.  Ieresistible  impulse. 

189.  Definition. —  An  irresistible  impulse,  in  the  law  of  insanity, 
is  an  irresistible  inclination  to  kill  or  commit  some  other  offense,  con- 
sisting of  some  unseen  pressure  on  the  mind,  drawing  it  to  conse- 
quences which  it  sees  but  cannot  avoid,  holding  it  under  coercion,  so 
that,  while  it  clearly  perceives  the  results,  it  is  incapable  of  resist- 
ing.^'^ "Irresistible  impulse"  is  not  convertible  with  passionate  pro- 
pensity, no  matter  how  strong,  in  persons  not  insane.  ^^  In  other 
words,  the  "irresistible  impulse"  of  the  lunatic,  which  confers  irre- 
sponsibiliiy,  is  essentially  distinct  from  the  passion,  however  violent, 
of  the  sane,  which  does  not  confer  irresponsibility.  As  this  distinc- 
tion is  of  great  importance,  we  will  now  notice  the  reason  on  which 
it  rests. ^^ 

not  insane  at  the  time  of  the  shooting,  \vit.h    malice    he    is    guilty    of    murder, 

he  ought  to  be  found  guilty,  as  charged  though  he  may  have  labored  under  par- 

in  the  indictment,  is  not  subject  to  the  tial    insanity,   is   erroneous,   since  there 

objoction  that  it  precludes  the  jury  from  can  be  no  such  thing  as  malice  without 

fiiidin*'   a   lesser   degree   of  the   offense,  mental  accountability,  and    this    cannot 

the  shooting  being  admitted.     People  v.  coexist    with    incapacity   to   distinguish 

Hobsnn,  ITCal.  424.  riglit  from  wrong.     Grissom  v.  State,  62 

.     ^"Ncvling  v.  Com.  98  Pa.  323.  Miss.  167. 

But   an    instruction   in   a   prosecution  "Dcjai'nette    v.    Com..     75    Va.     867 ; 

for  iiomicide  that  if  the  accused  was  in-  Flanagan  v.   People,   52   N.  Y.   467,    11 

sane  at  the   time   of  the  act,   the  jury  Am.  Rep.  731. 

must  declare  him  not  guilty,  without  re-  "  The  impulse  must  be  an  insane  one, 

gard  to  the  degree  of  the  insanity,  is  too  as     distinguished     from     passion.     Mc- 

broad,  and  cannot  be  sustained.     People  Cartij  v.  Com.  24  Ky.  L.  Ilep.  1427,  71 

V.  Best,  39  Cal.  690.  S.  W.  650. 

And  an  instruction  with  reference  to  ""'Irresistible     impulses"     are     recog 

murder  in  the  second  degree  is  not  re-  nized  by  all   philosophers,   profane  and 

versible  error   where  the   homicide   was  sacred.     Ovid,  in  a  well-known  passage 

murder  in  the  first  degree  if  the  accused  thus  speaks:  — 

was  sane,  as  such  an  instruction  would  j.^,,  ^,.5^,,;^  invitam  nova  vis,  alindque  cupido, 

be    clearly    beneficial    to    the    defendant.  Mens  Hliud  suadet;  video  melioraproboque. 

Boren  v.  State,  32  Tex.  Grim.  Rep.  637,  Detcriora  se(iuor. 

25  S.  W.  775.  And  so  St.  Paul:      "The  good  that  1 

An   instruction   in   a   prosecution   for  would   I   do  not;   but  the  evil   which   1 

homicide,  however,  that  if  the  accused  would  not,  that  I  do.    .    .    I  see  another 

was  not  in  a  frame  of  mind  to  deliberate  law   in   my   members,   warring    against 

and  premeditate,  the  killing  would  not  the  law  of  my   mind,  and   bringing  mo 

be  murder,  is  objectionable  as  vague  and  into  captivity  to  the  law  of  sin   which 

ambiguous,  and   not  showing  the  meas-  is     in    my    nieml)«rs."      No    doubt    the 

)ire  of    criminal    responsibility.     Dejar  impulse,    viewed    thus    as    an     isolated 

nette  v.  Com.  75  Va.  807.  force,    is    irresistible    in    producing   the 

And   an    instruction   in   a   prosecution  sin.      But,    on    the   other    hand,    reason. 

for  homicide  that  if  the  accused  acted  in  its  right  sense,  is  irresistible  in  sup 


H  190] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


197 


190.  Insane  uncontrollable  impulse  recognized  in  many  states. — In 

Illinois,  it  is  declared  that  a  safe  and  reasonable  test  would  be,  that, 
whenever  it  should  appear  from  the  evidence  that,  at  the  time  of  do- 
ing the  act  charged  the  prisoner  was  not  of  sound  mind,  but  affected 
with  insanity,  and  such  affection  was  tlie  efficient  cause  of  tlie  act, 
and  that  he  would  not  have  done  the  act  but  for  that  affection,  he 
should  be  acquitted.  But  this  unsoundness  of  mind,  or  affection  of 
insanity,  must  be  of  such  a  degree  as  to  create  an  uncontrollable  im- 
pulse to  do  the  act  charged  by  overriding  tlie  reason  and  judgment, 
and  obliterating  the  sense  of  right  and  wrong  as  to  the  particular  act 
done,  and  depriving  the  accused  of  the  powder  of  choosing  between 
them.^'^  And  in  Pennsylvania  it  was  held  that  "the  true  test  in  all 
these  cases  lies  in  the  word  'power.'  Has  the  defendant  in  a  crim- 
inal case  the  power  to  distinguish  right  and  wrong,  and  the  power 
to  adhere  to  the  right  and  to  avoid  the  \ATong?"^^  And  in  Indiana 
a  similar  view  is  accepted.^^  Likewise,  in  Ohio,  insane  irresistible 
impulse  is  regarded  as  a  defense,^^  and  such  is  the  view  in  Minne- 


pressinj;:  the  impulse.  Reason  may  oper- 
ate either  through  love  or  fear;  and 
hence  it  is  incumbent  on  all  systems  of 
ethics  to  cherish  these  motives.  No 
doubt  it  is  a  law  of  our  nature  that  the 
will  follows  the  strongest  motive.  But 
the  irresistibility  of  the  inferior  motive, 
when  unrestrained,  is  the  crowning 
reason  for  promulgating  and  enforcing 
superior  motives^  as  modes  of  restrain- 
ing. 

Griesinger  doubts  whether  impulses 
are  irresistible  even  among  the  insane. 
"Whether,  and  to  what  extent,  certain 
directions  of  the  will  and  impulses  in 
the  insane,  particularly  such  as  lead  to 
criminal  acts,  are  irresistible,  is  a  ques- 
tion which  can  scarcely  ever  be  an- 
swered with  certainty.  Few  of  the  acts 
of  the  insane  have  the  character  of 
forced,  purely  automatic  movements; 
in  mania  also,  according  to  the  testi- 
mony of  individuals  who  have  recovered, 
many  of  the  wild  desires  could  often  be 
restrained;  the  criminal  deeds  of  the 
insane  are  not  generally  instinctive. 
The  loss  of  freewill  (or,  if  we  choose, 
irresponsibility),  therefore,  seldom  de- 
pends on  the  fact  of  inability  to  have 
abstained  from  the  act  committed,  or 
that  the  normal  conditions  of  volition 
have  been  completely  suspended.  The 
causes  of  this  loss  of  freewill  chiefly 
depend  on  quite  a  different  cause, — they 
depend    on    violent    excitation    of    tho 


emotions,  or  on  incoherence,  <hi  false 
reasoning  proceeding  from  delirious 
conceptions,  hallucinations,  etc."  Grie- 
singer, Mental  Pathology,  Sydenham's 
ed.'(1867)  §  47. 

'"See  Fisher  v.  People,  23  111.  283; 
Hopps  v.  People,  31  111.  394,  83  Am.  Dec. 
231;  Dunn  v.  People,  109  111.  635;  Dacey 
V.  People,  116  111.  555,  6  N.  E.  165. 

"Com.  ex  rel.  Haskell  v.  Haskell,  2 
Brcwst.   (Pa.)   491. 

This  must  now  be  regarded  as  the  set- 
tled rule  in  Pennsylvania.  See  Ortwein 
V.  Com.  76  Pa.  414,  18  Am.  Rep.  420: 
Coyle  V.  Com.  100  Pa.  573,  49  Am.  Rep. 
397 ;  Com.  v.  Freth,  3  Phila.  105 ;  Brow7i 
V.  Com.  78  Pa.  122;  Sayres  v.  Com.  88 
Pa.  291. 

-Stevens  v.  State,  31  Ind.  485,  99  Am. 
Dec.  634;  Sawyer  v.  State,  35  Ind.  80; 
Gruhb  v.  State,  117  Ind.  277,  20  N.  E. 
257,  725;  Walker  v.  State,  102  Ind. 
502,  1  N.  E.  856;  Bradley  v.  State,  31 
Ind.  492. 

Within  this  rule  an  instruction  in  a 
criminal  prosecution  in  which  insanity 
is  interposed  as  a  defense,  limiting  the 
inquiry  to  the  condition  ef  the  cogitative 
faculties,  or  power  to  comprehend  by  the 
understanding,  is  held  to  be  erroneous, 
since  mental  disease  may  also  involve 
the  will.     Bradley  v.  State,  31  Ind.  492. 

"-'Blackburn  v.  State,  23  Ohio  St.  146; 
Farrer  v.  State,  2  Ohio  St.  54;  State  v. 


198 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   190 


sota,"^  and  in  Kentuckj.^^  In  Iowa  similar  views  were  expressed  to 
tbe  effect  that  the  capacity  to  distinguish  right  and  m-ong  is  not,  in 
all  cases,  a  safe  test  of  criminal  responsibility,  and  that,  if  a  person 
commit  a  homicide  knowing  it  to  be  wrong,  but  driven  to  it  by  an 
uncontrollable  and  irresistible  impulse,  arising,  not  from  natural  pas- 
sion, but  from  an  insane  condition  of  the  mind,  he  is  not  criminally 
responsible.-'^  To  the  same  effect  is  a  decision  of  the  Supreme  Court 
of  the  United  States.^'^  And  tliis  is  also  the  nile  in  New  Hamp- 
shire,'^^ in  Delaware,-''  in  Connecticut,^'^  in  Tcxas,^^  in  Alabama,^^ 
and  in  other  states.^-"'  An  exception  to  the  general  rule  of  criminal 
responsil)ility  exists  under  that  doctrine,  where  one  has  sufficient  rea- 
son to  distinguish  between  right  and  wrong  as  to  the  particular  act 
to  be  committed,  but,  in  consequence  of  some  delusion,  the  will  is 
overmastered,  and  there  is  no  criminal  intent.^* 

191.  Limit  to  irresponsibility. —  Even  under  this  rule,  however,  ir- 
resistible impulse  is  not  a  defense  in  a  criminal  prosecution,  unless 
it  exists  to  such  an  extent  as  to  subjugate  the  intellect,  control  the 
will,  and  render  it  impossible  for  the  person  to  do  otherwise  than 
yield.**^  The  test  in  such  case  is  whether  the  accused  had  sufficient 
reason  to  know  right  from  wrong,  and  whether  or  not  he  had  sufficient 


Tyler,  7  Oliio  N.  P.  443,  5  Ohio  S.  &  C. 
P.  Dec.  588;  State  v.  Kalb,  7  Ohio  N.  P. 
547,  5  Ohio  S.  &  C.  P.  Dec.  738. 

"State  V.  Gut,  13  Minn.  341,  Gil.  315. 

^Smith  V.  Com.  1  Duv.  224;  Graham 
V.  Com.  IG  B.  Mon.  587;  Kriel  v.  Com.  5 
Bush,  362;  Scott  v.  Com.  4  Met.  (Ky.) 
227,  83  Am.  Dec.  4G1 ;  Abbott  v.  Com. 
107  Kv.  024,  55  S.  W.  190,  23  Ky.  L. 
Rep.  220.  02  S.  W.  715. 

=°.S'/a/e  V.  Fetter,  25  Iowa,  07;  Fouts 
V.  Stale,  4  G.  Greene,  500. 

•'Mutual  L.  Ins.  Co.  v.  Terry,  15  Wall. 
580,  21  L.  ed.  230.  See  also  Davis  v. 
United  States,  105  U.  S.  373.  41  L.  ed. 
750,  17  Sup.  Ct.  Rep.  360:  United  States 
V.  Heicson,  7  Law  Rep.  361,  Fed.  Gas. 
No.  15.300;  GnUeaxCs  Case,  10  Fed.  161. 

"^State  V.  Pike,  49  N.  H.  399,  6  Am. 
Rep.  533;  State  v.  Jones,  50  N.  II.  369, 
9  Am.  Rep.  252;  State  v.  Bartlett,  43 
N.  H.  224,  80  Am.  Dec.  154. 

"State  V.  Windsor,  5  Harr.  (Del.) 
512;  State  v.  Broun,  Iloust.  Crim.  Rep. 
(Del.)  539;  State  v.  Cole,  2  Penn. 
(Del.)  344,  45  Atl.  391. 

'^State  V.  Johnson,  40  Conn.  136. 

""'King  v.  State,  9  Tex.  App.  515.  And 
.'^ee  Warren  v.  State.  9  Tex.  App.  G19, 
3.">  .\m.  Rep.  745. 

^'■I'nrsrr.iH  V.  State,  81  Ala.  577,  60  Am. 


Rep.  193,  2  So.  854;  hide  v.  State,  133 
Ala.  43,  31  So.  953. 

"'See  Peoide  v.  Finley,  38  Mich.  482; 
State  V.  Peel,  23  Mont.  358.  75  Am.  St. 
Rep.  529,  59  Pac.  169;  Butler  v.  State, 
102  Wis.  304.  78  N.  W.  590;  Lowe  v. 
State  (Wis.)   96  N.  W.  417. 

-'Taylor  v.  State,  105  Ga.  746,  31  S. 
E.  764;  Flanagan  v.  State,  103  Ga.  019, 
30  S.  E.  550;  Roberts  v.  State,  3  Ga. 
310;  hide  v.  Slate,  133  Ala.  43,  31  So. 
953;  State  v.  Cole,  2  Penn.  (Del.)  344, 
45  Atl.  391. 

There  are  two  constituent  elements 
of  lepal  responsibility  for  crime:  First, 
capacity  of  intellectual  discrimination; 
second,  freedom  of  the  will.  Parsons  v. 
State,  81  Ala.  577,  GO  Am.  Rep.  193,  2 
So.  854;  Farrer  v.  State,  2  Ohio  St.  54. 

And  to  be  criminaUy  responsible  one 
must  have  reason  c«iraigh  to  be  able  to 
judjje  of  the  nature  and  consequences  of 
the  act  committed,  and  he  must  not  have 
been  overcome  by  an  irresistible  impulse 
arising  from  disease.  Stale  v.  Johnson, 
40  Conn.  136;  State  v.  West,  Houst. 
Crim.  Rep.  (Del.)  371:  Comcuy  v. 
Stale,  118  Ind.  482,  21  N.  E.  285. 

*' Stale  V.  M'indsor,  5  Harr.  (Del.) 
512;  Hopps  V.  People,  31  111.  385,  S3  Am. 
Dec.  231:  Dunn  v.  People,  109  111.  635; 


191] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


loa 


power  to  r-ontrol  and  govern  his  nctions,  and  to  resist  his  niorhid  in- 
clination to  perpetrate  the  otfense.'***  An  act  is  punishable  though 
committed  hy  one  under  an  irresistible  impulse,  where  his  mental 
faculties  were  in  a  sound,  normal  condition, ^^  And  one  who,  with 
no  mental  disorder,  commits  a  criminal  act  from  overmastering  anger, 
jealousy,  or  revenge,  is  responsible  therefor.^^  The  question  whether 
tlie  insane  impulse  was  irresistible  is  one  of  fact,  for  the  jury.^* 


Dacey  v.  People,  116  III.  555,  6  N.  E. 
165 ;  Lilly  v.  People,  148  111.  467,  36  N. 
E.  95;  Meyer  v.  People,  156  111.  126,  40 
N.  E.  490;  Fisher  v.  People,  23  111.  283; 
Grubb  V.  State,  117  Ind.  277,  20  N.  E. 
257,  725;  Goodwin  v.  State,  96  Ind. 
550:  Conicay  v.  State,  118  Ind.  482, 
21  N.  E.  285;  State  v.  Menherter,  46 
Iowa,  88;  State  v.  Felter,  25  Iowa,  67; 
Fonts  V.  State,  4  G.  Greene,  500;  Scott 
V.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec. 
461;  State  v.  Jones,  50  N.  H.  369,  9 
Am.  Rep.  242;  Taylor  v.  Com.  109  Pa. 
262;  Hall  v.  Com.  22  W.  N.  C.  25;  Wil- 
cox V.  State,  94  Tenn.  106,  28  S.  W. 
312;  Leache  v.  State,  22  Tex.  App.  279, 
58  Am.  Rep.  638,  3  S.  W.  539;  King  v. 
State,  9  Tex.  App.  515;  Com.  v.  Jones, 
1  Leigh,  612. 

In  Edmondson's  Case,  Times,  Jan. 
17th,  1872,  which  was  a  poisoning  case, 
the  charge  was  to  the  effect  that  if  the 
defendant  did  not  know  right  from 
wrong  at  the  time  she  committed  the 
crime,  she  must  be  acquitted;  and  she 
must  be  acquitted  if  she  was  under  a 
delusion  whicli  made  the  poisoning  seem 
right  to  her ;  but  that  if  not,  she  should 
be  convicted ;  and  her  guilt  was  deter- 
mined as  against  tlve  theory  that  she 
was  under  the  dominion  of  an  irresisti- 
ble impulse  to  poison,  on  the  ground 
that  she  poisoned  when  she  could  do 
it  with  impunity,  but  controlled  her- 
self when  she  could  not. 

^"Parsons  v.  State,  81  Ala.  577,  60  Am. 
Rep.  195,  2  So.  854;  hide  v.  State.  133 
Ala.  43,  31  So.  953;  Williams  v.  State, 
50  Ark.  517,  9  S.  W.  5 ;  State  v.  Rei- 
dell,  9  Houst.  (Del.)  470,  14  Atl.  550; 
State  V.  Windsor,  5  Harr.  (Del.)  515; 
State  V.  Brown,  Houst.  Crim.  Rep. 
(Del.)  539;  State  v.  West,  Houst.  Crim. 
Rep.  (Del.)  371;  Hornish  v.  People,  142 
111.  620,  18  L.  R.  A.  237,  32  N.  E.  677; 
Plake  V.  State,  121  Ind.  433,  16  Am.  St. 
Rep.  408,  23  N.  E.  273;  Walker  v.  State. 
102  Ind.  502,  1  N.  E.  856;  Conumif  v. 
State,  118  Ind.  482,  21  N.  E.  285;  Far- 
ris  V.  Can.  8  Ky.  L.  Rep.  417,  1  S. 
W.   729;    Montgomery  v.   Com.   88   Ky. 


500,  11  S.  W.  475;  Shannahan  v.  Com. 
8  Bush,  464,  8  Am.  Rep.  465;  Kriel  v. 
Com.  5  Bush,  363 ;  Graham  v.  Com.  16 
B.  Mon.  587;  Smith  v.  Com.  1  Duv.  224; 
Baldioin  v.  State,  12  Mo.  233;  State  v. 
Hundley,  46  Mo.  414;  Bur  go  v.  State, 
26  Neb.  639,  42  N.  W.  701;  State  v. 
Hansen,  25  Or.  391,  35  Pac.  976,  36  Pac. 
296;  Clark  v.  State,  12  Ohio,  483,  40 
Am.  Dec.  481;  Blackburn  v.  State,  23 
Ohio  St.  146;  State  v.  Kalb,  2  Ohio 
Legal  News,  364;  Com.  ex  rel.  Haskell 
V.  Haskell,  2  Brewst.  (Pa.)  491;  Com. 
V.  Winnemore,  1  Brewst.  (Pa.)  356; 
Hall  V.  Com.  22  VV.  N.  C.  25;  Com.  v. 
Piatt,   11  Phila.  421. 

As  to  the  Missouri  rule,  see  later 
Missouri   cases,  infra. 

The  power  to  deliberate,  premeditate, 
and  design,  in  the  absence  of  the  power 
to  determine  upon  the  true  nature  and 
character  of  the  act  designed,  its  effect 
upon  the  subject,  and  the  true  respon- 
sibility therefor,  and  power  to  control 
the  impulses  of  the  mind  and  prevent 
the  execution  of  the  thought  possessing 
it,  is  not  a  true  test  of  criminal  respon- 
sibility. Bennett  v.  State,  57  Wis.  69, 
46  Am.  Rep.  26,  14  N.  VV.  912;  Kearney 
V.  People,  11  Colo.  258,  17  Pac.  782. 

""'Boswell  V.  State,  63  Ala.  307,  35 
Am.  Rep.  20;  Parsons  v.  Stale,  81  Ala. 
577,  60  Am.  Rep.  193,  2  So.  854;  State 
V.  Mewherter,  46  Iowa,  88 ;  Leache  v. 
State,  22  Tex.  App.  279,  58  Am.  Rep. 
638,   3   S.   W.   539. 

A  person,  though  laboring  under  par- 
tial insanity,  who  understands  the  na- 
ture and  consequences  of  his  acts,  and 
has  mental  power  enough  to  apply  his 
knowledge  to  his  own  case,  and  a  will 
sufficient  to  restrain  the  impulse  to 
commit  crime  that  might  arise  from  a 
diseased  mind,  is  responsible  for  such 
act.     Dejarnette  v.  Coj/j.  75  Va.  867. 

^^Bolling  v.  State,  54  Ark.  588,  16  S. 
W.  658;  Smith  v.  State,  55  Ark.  259, 
18  S.  W.  237;  Williams  v.  State,  50  Ark. 
517,  9  S.  W.  5;  Plake  v.  State,  121  Ind, 
433,  16  Am.  St.  Rep.  408,  23  N.  E.  273 ; 
Goodwin  v.  State,  96  Ind.  550;  Sanders 


200  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§   192 

192.  Contrary  rule  in  North  Carolina  and  other  states. — In  North 

Carolina,  on  tlie  other  hand,  it  has  been  ruled  that  no  impulse,  how- 
ever irresistible,  is  a  defense,  when  there  is  a  knowledge  of  the  diller- 
ence,  as  to  the  j^articular  act,  l^tween  right  and  w^rong.^^  And  there 
is  no  question  tiiat  the  position  that  an  irresistible  impulse  can  be  a 
defense  is  inconsistent  wdth  the  rule  laid  dowTi  in  the  great  body  of 
cases  which  sustain  the  "right  and  wrong"  test  as  an  exclusive  stand- 
ard. And  many  of  the  other  states  and  jurisdictions  have  also 
adopted  the  North  Carolina  rule,  that  irresistible  impulse  alone  is  no 
excuse  for  crime,  when  the  person  is  able  to  distinguish  between  right 
and  wrong.'*^ 

V.  state,  94  Tnd.   147;   Guetig  v.  State,        *°State  v.  Brandon,  53  N.  C.   (8  Jones 

66   Ind.   94,   32  Am.   Rep.   99;    State  v.  L.)    463. 

Felter,  25   Iowa.  67 ;   State  v.  Mewher-        "^People  v.  Hoin,  62  Cal.  120,  45  Am. 

ter,  46  Iowa,  88;   State  v.  Stickley,  41  Rep.  641;  People  v.  Ward,  105  Cal.  335, 

Iowa,  232:   Fitzpatrick  v.  Com.  81  Ky.  38   Pac.   945;   People  v.   Clendennin,  91 

357;  People  v.  Durfee,  62  Mich.  487,  29  Cal.  35,  27  Pac.  418;   Marceati  v.  Trav- 

N.  W.   109;   People  v.  Finley,  38  Mich,  elers'  Ins.  Co.  101  Cal.  338,  35  Pac.  856, 

482;   People  v.   Mortimer,  48  Mich.  37,  36  Pac.  813;  People  v.  Hubert,  119  Cal. 

11  N.  W.  776;  Com.  v.  Freeth,  5  Clark.  216,  63  Am.  St.  Rep.  72,  51  Pac.  329; 

(Pa.)  455;  Brown  v.  Com.  78  Pa.  122;  Green  v.  State,  64  Ark.  523,  43  S.  W. 

Sayres  v.   Com.   88   Pa.   291.     And   see  973;    State   v.    Nixon,   32   Kan.    205,   4 

Blume  V.  State,  154  Ind.  343,  56  N.  E.  Pac.  159;  State  v.  Mowry,  37  Kan.  369, 

771,  15   Pac.   282;    State  v.   Yarborough,  39 

But  an  instruction  in  a  criminal  prose-  Kan.  581,  18  Pac.  474;  State  v.  Knight, 

cution,  giving  the  right  and  wrong  test  95   Me.   467,   55   L.   R.   A.   373,   50  Atl. 

of    criminal    responsibility,    is    not    er-  276;    Spencer  v.   State,   69   Md.   28,    13 

roneous   where    it   docs   not    forbid   the  Atl.    809:    State   v.    KotovsJcy,    74    Mo. 

jury  to  consider  the  question  whether  the  247  ;  State  v.  Pagels,  92  Mo.  300,  4  S.  W. 

accused  was  capable  of  self-control  and  931;  State  v.  Williamson,  106  Mo.  162. 

choosing  the  right  instead  of  the  wrong.  17  S.  W.  172;   State  v.  Soper,  148  Mo. 

Farrer  v.  State,  2  Ohio  St.  54.  217,  49  S.  W.  1007;  State  v.  Dimn  (Mo.) 

"State  V.  Jones,  50  N.  H.  369,  9  Am.  77  S.  W.  848;  State  v.  Erb,  74  Mo.  199; 

Rep.  242;  Grubb  v.  State,  117  Ind.  277,  Graves  v.  State,  45  N.  J.  L.  347,  46  Am. 

20  N.  E.  257,  725;  People  v.  Egnor,  175  Rep.  778;   Mackin  v.  State,  59  N.  J.  L. 

N.  Y.  419,  67  N.  E.  906.  495,  36  Atl.  1040;  State  v.  Brandon,  53 

But  refusal  to  instruct  in  a  criminal  N.  C.   (8  Jones  L.)   463;  State  v.  Potts, 

prosecution    as   to   irresistible    impulse,  100  N.  C.  457,  6  S.  E.  657;   People  v. 

or  as   to  moral   insanity,   is  not  error,  Coleman,  1  N.  Y.  Crim.  Rep.  1;  People 

where  the  tendency  of  the  evidence  is  to  v.  Waltz,  50  How.  Pr.  204;  Flanagan  v. 

support  a  wholly  different  theory,  and  People,  52  N.  Y.  467,  11  Am.  Rep.  731; 

there  is  no  evidence  tending  to  show  in-  People  v.  Mills,  98  N.  Y.  176;  Walker  v. 

capacity  to  act  upon  the  knowledge  that  People,  88  N.  Y.  81;  People  v.  Carpen 

the  deed  was  wrong.     United  States  v.  ter,  102  N.  Y.  238,  6  N.  E.  584;  People 

Guiteau,    1   Mackey,   498,   47   Am.   Rep.  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207; 

247.  State  v.  Alexander,  30  S.  C.  74,  14  Am. 

And  an  instruction  in  a  criminal  pros-  St.  Rep.   879,   8   S.   E.  440;    Cannon  v. 

ocution  should  not  be  so  framed  as  to  State,  41  Tex.  Crim.  Rep.  407,  56  S.  W. 

create   the   impression    that   irresistible  351;     Burst    v.    State,    40    Tex.   Crim.- 

impulse  or  moral  insanity  was  the  solo  Rep.  378,  40  S.  W.  635,  50  S.  W.  719; 

object  of  inquiry,  where  the  tendency  of  United   States   v.    Young,   25   Fed.   710; 

the  evidence  was  to  show  latent  heredi-  United  States  v.  Faulkner,  35  Fed.  730: 

tary  insanity,  developed  into  active  ex-  United   States    v.    Holmes,    1    Cliff.    98. 

istcnce  bv  a  shock.     Dejarnette  v.  Com.  Fed.  Cas.  No.  15,382;  Reg.    v.    Haynes, 

75  Va.  867.  1   Fost.   &   F.   666;    Reg.   v.   Burton,   3 


5  193] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


201 


193.  Test  of  responsibility  under  the  contrary  rule. — The  test  of 
responsibility  when  irresistible  impulse  is  not  recognized  is  the  usual 
one, — whether  the  accused  could  distinguish  between  right  and  wrong, 
and  knew  what  he  was  doing,  and  that  it  was  wrong. "^^  But  even 
under  this  rule  where  there  is  an  uncontrollable  impulse  to  do  a 
criminal  act,  so  great  as  to  deprive  the  person  of  the  a'bility  to  dis- 
tinguish right  from  wrong  in  regard  to  that  act,  the  person  is  irre- 
sponsible.^^ 

194.  Passion  as  a  mitigating  element. — It  should  be  remembered, 
however,  that  while  "irresistible  impulse,"  the  mind  being  sane,  is 
no  defense  to  crime,  yet  violent  passion  is  to  be  taken  into  account  as 
a  mitigating  element,  and  that  the  peculiar  temperament  of  the  of- 
fender is  to  be  guaged  for  the  purpose  of  estimating  whether  the 
provocation,  was  such  as  to  create  hot  blood,  and  whether  there  was 
adequate  cooling  time.  A  sane  person  may,  from  epilepsy,  or  from 
prior  insanity,  or  from  nervous  or  physical  derangements,  or  from 
hereditary  taint,  be  peculiarly  susceptible  to  excitement;  and,  as  the 
law  treats  assaults  committed  in  hot  blood  as  of  a  lower  grade  than 
those  committed  deliberately,  this  excitability  may  properly  be  consid- 


Fost.  &  F.  772 ;  Reg.  v.  Barton,  3  Cox  C. 
C.  275;  Reg.  v.  Stokes,  3  Car.  &  K. 
185;  Reg.  v.  Pate,  cited  in  1  Bennett  & 
H.  Lead.  Cas.  96. 

Under  this  rule  a  request  to  charge 
that  if  some  controlling  disease  was  in 
truth  the  acting  power  within  the  pris- 
oner, which  he  could  not  resist,  or  if 
he  had  not  sufficient  reason  to  control 
the  passions  which  prompted  the  crimi- 
nal act,  he  was  not  responsible,  is  prop- 
erly refused.  Anderson  v.  State,  42  Ga. 
!);  State  v.  Coleman,  27  La.  Ann.  691; 
Flanagan  v.  People,  52  N.  Y.  467,  11 
Am.  Rep.  731 ;  People  v.  Carpenter,  102 
N.  Y.  238,  6  N.  E.  584. 

Responsibility  depends  upon  the  pos- 
session of  the  will,  and  not  the  power 
over  it,  and  an  instruction  based  on 
ability  to  distinguish  between  right  and 
wrong  as  to  the  particular  act  com- 
mitted properly  expresses  the  law. 
Choice  V.  State,  31  Ga.  424. 

*^State  V.  Bundg,  24  S.  C.  439,  58  Am. 
Rep.  263;  United  States  v.  Faulkner,  35 
Fed.  730;  United  States  v.  Young,  25 
Fed.  710;  Green  v.  State,  64  Ark.  523, 
43  S.  W.  973;  State  v.  Scott,  41  Minn. 
365,  43  N.  W.  62;  Com.  v.  Rogers,  7 
Met.  500,  41  Am.  Dec.  458;  Cunning- 
ham V.  State,  56  Miss.  269,  21  Am.  Rep. 
360;   State  v.  O'Neil,  51  Kan.   051,  24 


L.  R.  A.  555,  33  Pac.  287;  Wilcox  v. 
State,  94  Tenn.  106,  28  S.  W.  312; 
State  V.  Harrison,  36  W.  Va.  729,  18  L. 
R.  A.  224,  15  S.  E.  982. 

*^Wright  v.  People,  4  Neb.  407;  Eart 
V.  State,  14  Neb.  572,  16  N.  W.  905; 
Burgo  v.  State,  26  Neb.  639,  42  N.  W. 
701 ;  People  v.  Spragive,  2  Park.  Crim. 
Rep.  43;  People  v.  Kleim,  1  Edm.  Sel. 
Cas.  13;  People  v.  Divine,  1  Edm.  Sel. 
Cas.  594;  Macfarland's  Trial,  8  Abb. 
Pr.  N.  S.  57;  Com.  v.  Rogers,  7  Met. 
500,  41  Am.  Dec.  458;  Cunningham  v. 
State,  56  Miss.  269,  31  Am.  Rep.  360; 
Bovard  v.  State,,  30  Miss.  600. 

In  People  v.  Kleim,  1  Edm.  Sel.  Cas. 
13,  the  court  charged  the  jury  that  if 
some  controlling  disease  was  in  truth 
the  acting  power  within  the  prisoner, 
which  he  could  not  resist,  or  if  he  had 
not  sufficient  use  of  his  reason  to  con- 
trol the  passions  which  prompted  the 
criminal  act,  he  was  not  responsible; 
but  that  it  must  not  be  a  mere  impulse 
of  passion  or  an  idle,  frantic  humor  or 
unaccountable  mode  of  action,  but  an 
absolute  dispossession  of  the  free  and 
natural  agency  of  the  human  mind,  and 
that  the  moral  as  well  as  the  intellect- 
ual faculties  might  be  so  disordered  by 
disease  as  to  deprive  the  mind  of  its  con- 
trolling power. 


202  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  194 

ered  in  determining  whether  the  blood  at  the  time  was  hot.  That,  psy- 
chologically, this  varies  wnth  temperament,  is  well  known.  The  ordi- 
nary signs  of  passion  (acceleration  of  arterial  pulse,  congestive  flush- 
ings, increased  activity  of  secretions  and  excretions)  are  different 
with  different  patients.  Hence,  epileptic,  nervous,  and  cerebral  dis- 
eases, and  hereditary  tendency,  may  be  put  in  evidence  to  lower  the 
grade  of  the  offense,  though  they  do  not  amount  to  insanity.  In  so 
doing,  we  but  follow  the  authorities  which  declare  that  dnmkenness, 
though  no  defense  to  crime,  may  be  used  to  show  that  an  assault  was 
not  deliberate. 

VI.     MOKAL  INSAITITY. 

195.  Definitions. — Moral  insanity  in  law  is  defined  to  be  a  morbid 
state  of  the  affections  and  passions,  or  unsettling  of  the  moral  system, 
the  mental  faculties  remaining  normal  and  sound  ;^^  an  irresistible 
impulse  to  commit  a  criminal  act  coexisting  with  mental  sanity.^^  At 
the  outset  it  must  be  remembered  that  "moral  insanity,"  as  above  de- 
fined, is  to  be  distinguished  from  insane  irresistible  impulse,  from 
transitory  mania,  and  from  occult  insanity,  with  each  of  which  it  is 
sometimes  confounded. 

196.  English  rule. —  In  England  the  doctrine  of  moral  insanity,  so 
far  as  it  involves  the  idea  of  irresponsibility  based  exclusively  on 
moral,  as  disting-uished  from  mental,  derangement,  is  rejected  by  the 
courts.^** 

197.  So  in  the  United  States  generally.—  In  the  United  States  tliere 
is  almost  equal  judicial  unanimity  in  refusing  recognition  to  this 
theory,  and  in  declaring  that  no  amount  of  derangement  of  morals  is  a 
defense  unless  accompanied  with  mental  insanity.  To  this  effect  are 
decisions  in  Massachusetts,^'^  in  Maine,'*^  in  Connecticut,^^  in  New 

**Beasley  v.  State,  50  Ala.  149,  20  Am.  13th,    1872,  which  was  the  case  of  tlie 

Rep.   292.  killing  by  a  clerfryman   of  his  wife,   in 

*^Bosicell  V.  State,  03  Ala.  307,  35  Am.  which  it  was  claimed  that  he  had  been 

Rep.  20;  State  v.  Potts,  100  N.  C.  457,  laslied  into  fury  by  provocations  which 

6  S.  E.  057.  made  liis  rage  unendurable,  the  theory 

*'Reg.   V.    Oxford,    9    Car.    &    P.    525 ;  of  moral  insanity  was  rejected,  and  the 

Reg.  V.  Goode,  7  Ad.  &  El.  536;  Reg.  v.  test  adopted  that  he  was  responsible  if 

Barton,  3  Cox  C.  C.  275 :   Reg.  v.  Hig-  he  knew  what  he  was  doing. 
ginson,  1  Car.  &  K.  129;  Reg.  v.  Lai/ton,        *''Com.  v.  Roqers.  7  IVlet.  500,  41  Am. 

4  Cox  C.  C.  149;  Reg.  v.  Burton,  3  Fost.  Dec.  458:   Com",  v.  Heath,  11  Gtay,  303. 

&  F.  772;  Reg.  v.  Uaynes,  1  Fost.  &  F.  See    United   States   v.    Holmes,    1    Cliff. 

OfiO;   Reg.  v.  Stokes,  3  Car.  &  K.   185;  98,  Fed.  Cas.  No.  15,382;  United  States 

Reg.    V.    Pate,    cited    in    Bennett   &    II.  v.  Shults,  6  McLean,  121,  Fed.  Cas.  No. 

Lead.  Cas.  96;  Reg.  v.  Toivnley,  3  Fost.  10,286. 

&   F.  839;   Reg.  v.  Leigh,  4  Fost.  &  F.        *'State  v.  Lavyrence,  57  Me.  574. 
915.  ^''Staie    v.    Richards,    39    Conn.    59.1. 

So,    in    Watson's    Case,    Times,    Jan. 


«  197] 


IN  WAN  IT  Y  AS  DEFENSE  TO  CILUIUE  OE  CRIME. 


203 


York,^*^  in  New  Jersej,^^  in  Delaware,^^  in  Virginia,^^  in  North 
Carolina,^*  in  Georgia/^  in  Ohio,^"  in  Calif ornia/''^  and  in  other  jur- 
isdictions where  the  question  has  been  mooted. ^^  In  Pennsylvania, 
it  is  true,  there  is  an  apparent  departure  from  this  current  of  author- 
ity by  the  acceptance  by  Judge  Lewis,  in  an  early  case,  of  "moral 
insanity"  as  a  doctrine  that  could  be,  under  certain  circumstances, 
sanctioned  by  the  courts.  But  a  scrutiny  of  this  case  will  show  that 
he  did  not  mean  by  "moral  insanity"  moral  without  mental  lunacy, 
but  insanity  in  its  general  sense,  manifesting  itself  in  irresistible  im- 
pulse.^^  Mere  moral  obliquity  of  the  propensities  will  not  protect 
a  person  from  punishment  for  a  criminal  act,^"  nor  Avill  a  mere  per- 
version of  the  affections  f^  criminal  responsibility  depending  not 
upon  the  power  to  refrain  from  doing  what  is  known  to  be  wrong, 
but  whether  thd  accused,  at  the  time  of  committing  the  act,  knew  its 
character  and  nature,  and  that  it  was  a  wrongful  one.*^" 


But  see  Anderson  v.  State,  43  Conn. 
514,  21   Am.  Rep.  669. 

^Freeman  v.  People,  4  Denio,  9,  47 
Am.  Dec.  216;  Shorter  v.  People,  2  N. 
Y.  193,  51  Am.  Dec.  286;  Macfarland's 
Case,  8  Abb.  Pr.  N.  S.  57 ;  Flanagan  v. 
People,  52  N.  Y.  467,  11  Am.  Rep.  731; 
Walker  v.  People,  88  N.  Y.  86;  People 
V.  Montgomery,  13  Abb.  Pr.  N.  S.  207; 
Casey  v.  People,  31  Hun,  158,  2  N.  Y. 
Crim.  Rep.  187;  People  v.  Waltz,  50 
How.  Pr.  204 ;  People  v.  Carpenter,  102 
N.  Y.  238,  6  N.  E.  584. 

'•'■  State  V.  Spencer,  21  N.  J.  L.  196; 
Graves  v.  State,  45  N.  J.  L.  347,  46  Am. 
Rep.  778. 

'•"State  V.  Windsor,  5  Harr.  (Del.) 
512. 

'^Wance  v.  Com.  2  Va.  Cas.  132. 

^State  V.  Brandon,  53  N.  C.  (8  Jones 
L.)  463;  State  v.  Potts,  100  N.  C.  457, 
6  S.  E.  657. 

^'"Clwice  V.  State,  31  Ga.  424;  Evans 
V.  Arnold,  52  Ga.  169;  Fogarty  v.  State, 
80  Ga.  450,  5  S.  E.  782;  Anderson  v. 
State,  42  Ga.  9;  Loyd  v.  State,  45  Ga. 
57. 

^'State  V.  Gar-diner,  Wright  (Ohio) 
392.  See  United  States  v.  Shults,  6 
McLean,  121,  Fed.  Cas.  No.  16,286;  Far- 
rer  v.  State,  2  Ohio  St.  54. 

'•'People  V.  Coffman,  24  Cal.  230;  Peo- 
ple V.  McDonell,  47  Cal.  134;  People  v. 
Kcrnaghan,  72  Cal.  609,  14  Pac.  566; 
People  V.  Hubert,  119  Cal.  216,  63  Am. 
St.  Rep.  72,  51  Pac.  329;  People  v. 
Owefis,  123  Cal.  482,  56  Pac.  251;  Peo- 
ple V.  Barthleman,   120  Cal.  7,  52  Pac. 


112;  People  V.  Methever,  132  Cal.  326, 
64  Pac.  481. 

^^  The  courts,  in  varied  terms,  imito 
substantially  in  declaring,  as  the  prop- 
osition is  stated  by  a  very  able  jurist, 
Judge  Thurman  (Farrer  v.  State,  2 
Ohio  St.  54),  that  "there  is  no  author- 
ity for  holding  that  mere  moral  in- 
sanity, as  it  is  sometimes  called,  exon- 
erates from  responsibility." 

And  see  State  v.  Coleman,  27  La.  Ann. 
691;  Spencer  v.  State,  69  Md.  28,  13 
Atl.  809 ;  Cunningham  v.  State,  56  Miss. 
269,  31  Am.  Rep.  360;  State  v.  Miller, 
111  Mo.  542,  20  S.  W.  243;  State  v. 
Yarhorough,  39  Kan.  581,  18  Pac.  474; 
Boswell  V.  State,  63  Ala.  307,  35  Am. 
Rep.  20;  Cawley  v.  State,  133  Ala.  128, 
32  So.  227;  Beasley  v.  State,  50  Ala. 
149,  20  Am.  Rep.  292;  hide  v.  State, 
133  Ala.  43,  31  So.  953;  Davis  v.  State 
(Fla.)  32  So.  822;  Schwartz  v.  State 
(Neb.)  91  N.  W.  190;  Harrison  v.  State 
(Tex.  Crim.  App.)  09  S.  W.  500;  Green 
V.  State,  64  Ark.  523,  43  S.  W.  973. 

^^  The  same  may  be  said  of  the  refer- 
ence to  moral  insanity  in  Com.  v.  Mos- 
ler.  4  Pa.  264. 

""Taylor  v.  Com.   109  Pa.  262. 

"'Goodicin  v.   State,  96  Ind.   550. 

If,  from  evil  association  and  indul- 
gence in  vice,  a  person's  conscience  ceases 
to  control  or  influence  his  actions,  but 
he  is  otherwise  capable  of  committing 
crime,  he  is  criminally  responsible. 
Green  v.  State,  64  Ark.  523,  43  S.  VV. 
973. 

'^State  V.  Bundy,  24  S.  C.  439,  58  Am. 


204  LIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  KEJ.A'liONS.         L§   l^S 

198.  The  contrary  rule. —  The  rule  was  adopted  by  a  divided  court 
in  an  early  Kentucky  case  tliat  mentally  man  is  a  dualism,  consisting 
of  an  intellectual  and  a  moral  nature ;  and  that  the  existence  of  such  a 
type  of  moral,  contradistinguished  from  intellectual,  insanity,  as 
homicidal  mania,  or  morbid  and  uncontrollable  appetite  for  man- 
killing  ;  and  pyromania,  or  the  like  passion  for  house  burning ;  klepto- 
mania, or  an  iiTCsistible  inclination  to  steal, — may  operate  as  an  ex 
cuse  for  the  criminal  act.^^  So,  the  existence  of  moral  insanity  was 
recognized  in  St.  Louis  Mut.  L.  Ins.  Co.  v.  Grooves,  6  Bush,  26S,  which 
was  an  insurance  case  where  the  question  was  whether  an  insane 
suicide  avoided  the  policy;  and  a  Comiecticut  case,  though  denying 
the  purpose  of  recognizing  this  form  of  insanity  as  an  excuse  for 
crime,  did  recognize  it  to  the  extent  of  holding  that,  when  satisfied  of 
its  existence,  a  court  should  consider  it  in  determining  the  degree  of 
the  crime,  and  give  it  such  weight  as  it  is  fairly  entitled  to  under  the 
circumstances.®*  And  though  apparently  confounded  with  irresis- 
tible impulse,  the  existence  of  moral  insanity  and  the  fact  that  it 
might  operate  as  an  excuse  for  a  criminal  act  in  a  proper  case  have 
also  been  recognized  in  Pennsylvania.®^ 

199.  Rule  applied  with  caution. —  Even  when  admitted  to  exist, 
moral  insanity,  not  being  of  common  occurrence,  cannot  be  tested  by 
the  general  rules  applicable  to  common  and  usual  forms  of  insanity, 
and  evidence  of  its  existence  is  to  be  received  with  great  caution.®® 
And  the  utmost  care  should  be  taken  by  the  court  in  presenting  to  the 
jury  the  legal  principles  relating  to  it.®^  The  doctrine  of  moral  in- 
sanity as  a  ground  for  relief  from  criminal  responsibility  is  regarded 
as  dangerous,  and  can  be  recognized  only  in  the  clearest  cases,  and  the 
disturbance  ought  to  be  shown  to  have  been  habitual  to  be  effectual.®^ 
And  moral  insanity  ought  never  to  be  admitted  as  a  defense  in  a 
criminal  prosecution  unless  it  appears  that  tlie  propensity  existed 

Rep.  2G3;   Green  v.  State,  64  Ark.  523,  had  manifested  itself  in  former  acts  of 

43  S.  W.  973;  Hehicartz  v.  State  (Neb.)  a   similar   character   is   misleadinsr   and 

91  N.  \V.  190;   Cole's  Trial,  7  Abb.  Pr.  erroneous.      Scott  v.  Com.  4  Met.  \Ky.) 

N.   S.  321:    United  Stales  v.   Faulkner,  227,  83  Am.  Dec.  461. 

35  Fed.  730;  Reg.  v.  Barton,  3  Cox  C.  '■*Andersen  v.  State,  43  Conn.  514,  21 

C.  275.  Am.   Rep.  669. 

"Smith  V.  Com.  1  Duv.  224.  «=  See  Com.  v.  Mosler,  4  Pa.  264,  and 

This   doctrine   is   also   acted  upon   in  other  Pennsylvania  cases  cited  below. 

Kriel   v.    Com.   5    Bush,   362;    Clark   v.  ""Com.  v.  Mosler,  4  Pa.  264. 

Trail,   1  Met.    (Ky.)    35.  ""Scott  v.  Com.  4  Met.   (Ky.)   227,  83 

Under  this  rule  an   instruction   in  a  Am.  Dec.  461. 

criminal     prosecution     that     tlie     jury  "^Coylc  v.   Com.   100  Pa.  573,  45  Am, 

ought  not  to  acquit  upon  the  ground  of  Rep.  397;  Com.  v.  Mosler,  4  Pa.  264, 
moral     insanity     unless    such    insanity 


(  199]'  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  206 

Tvdth  such  violence  as  to  subject  the  intellect,  control  the  will,  and  ren- 
der it  impossible  for  the  party  to  do  othenvise  than  yield.*^^ 

VII.  Kleptomania. 

200.  Definition  and  nature. — Kleptomania  is  that  species  of  mania 
consisting  of  an  irresistible  propensity  to  steal.'^*'  When  this  species 
of  insanity  is  clearly  established  it  renders  the  person  subject  to  it 
irresponsible  for  the  theft."^^  But  it  makes  no  difference  as  to  the 
o-iiilt  of  the  person  committing  the  theft  what  kind  of  an  impulse  con- 
trolled him,  or  how  strong  it  was,  or  what  produced  it,  where  it  does 
not  appear  to  have  been  a  case  of  kleptomania,  and  that  he  was  actu- 
ally insane.^^ 

VIII.  Erotomania. 

201.  Definition  and  nature. —  Erotomania  is  a  morbid  sexual  pro- 
pensity ;  when  interposed  as  a  defense  in  a  criminal  prosecution  it  is 
governed  by  the  rules  applicable  to  general  or  partial  insanity,  though 
it  excuses  crime  only  Mdien  it  deprives  the  party  of  reason  with  regard 
to  the  act  in  question.'^^ 

IX.  Incapacity  of  female  as  affecting  rape. 

202.  Effect  of,  generally. —  Sexual  intercourse  with  a  woman  who 
is  so  destitute  of  mind  as  to  be  incapable  of  giving  consent  is  rape, 
though  she  does  not  resist.^*    And  where  the  man  does  not  suppose  he 

'^''Scott  V.  Com.  4  Met.   (Ky.)   227,  83  ney  v.  mate,  10  Tex.  App.  520,  38  Am. 

Am.    Dec.    461;    Com.    v.    Werling,    164  Rep.    646. 

Pa.   559,   30  Atl.   406;    Tmjlor  v.   Com.  '-Henslie  v.  State,  3  Heisk.  202. 

109   Pa.   262;    Orticein  v.   Com.   70   Pa.  A  conviction  for  larceny  will  not  be 

414,  18  Am.  Rep.  420;  Com.  v.  Mosler,  set  aside  as  against  the  weight  of  evi- 

4  Pa.  264.  dence    where    the    defense    was    klepto- 

Where  the  real  motive  of  a  crime  was  mania,  except  in  an  extreme  case.     Com. 

that  the  person  committing  it  conceived  v.  FritcJi,  9  Pa.  Co.  Ct.   164. 

himself  to  have  been  ill-used,  and  did  it  ''■^State  v.  Si7yims,  71  Mo.  538. 

either   from    jealousy   of   one   who   was  Evidence    that    a    person    accused    of 

preferred  before  him,  or  from  a  desire  homicide  was  afflicted  with  erotomania 

for  revenge,  it  cannot  be  excused,  since  is    not    admissible    in    the    prosecution 

these  are  the  very  passions  which   the  therefor,    since   there    is    no    connection 

law   requires   men   to   control.      Reg.   v.  between  that  species  of  mania  and  that 

Toxonley,  3  Fost.  &  F.  839.  which  leads  to  hojnicide.      Ihxd. 

'"Black,  Law  Diet.  '•'State  v.  Atherton,  50  Iowa,   189,  32 

^Harris  v.  State,   18  Tex.  App.  287.  Am.  Rep.   134;   State  v.  Tarr,  28  Iowa, 

An   instruction,   in   a   prosecution   for  397 ;  State  v.  Enright,  90  Iowa,  520,  58 

larceny  in  which  the  defense  is  klepto-  N.  W.  901;  State  v.  Trusty    (Iowa)    97 

mania,  on  the  general  subject  of  insan-  N.  W.  989;  State  v.  Croxo,  1  Ohio  Dec. 

ity,  is  defective  where  it  fails  to  define  Reprint,  586;  McQuirIc  v.  State,  84  Ala. 

tlie   peculiar   symptoms   of  kleptomania  435,   5   Am.    St.   Rep.    381,   4    So.    775; 

as  related  to  the  general  subject.      Loo-  Reg.  v.  Fletcher,  Bell  C.  C.  63,  8  Cox  C. 


206  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  202 

has  the  consent  of  the  woman,  the  force  required  and  Uiat  whicli  is 
involved  in  the  carnal  act,  are  snfficientJ'^  But  if  the  will  is  active, 
though  perverted,  the  act  is  not  rape,  in  the  absence  of  force  or  un- 
willingnessJ^  When  consent  is  given  from  a  mere  animal  passion  or 
instinct,  it  is  not  rape,""  and  the  burden  of  proof  of  insanity  at  the 
time  of  the  act,  and  that  carnal  knowledge  was  obtained  by  force  and 
without  consent,  rests  with  the  prosecution  f^  and  there  must  be 
some  evidence  that  the  woman  was  incapable  of  assenting  or  dis- 
senting/'^ Under  statutes  defining  rape  to  be  sexual  intercourse  with 
a  As-oman  against  her  will,  by  force,  threats,  or  fraud,  however,  the 
rule  is  that  there  can  be  no  rape  in  the  absence  of  force,  threats,  or 
fraud,  whatever  may  have  been  tlie  mental  capacity  of  the  woman  f^ 

C.    131,   28   L.   J.   Mag.   Cas.   N.    S.   85,  Evidence  of  connection  and  imbecility 

5   Jur.   N.   S.    179,   7   Week.   Rep.   204;  on  the  part  of  the  woman  are  alone  in- 

Queen  v.  Ryan,  2  Cox  C.  C.   115;   Rex  sufficient    to    establish    rape.       Reg.    v. 

V.  Chafer,  13  Shaw's  J.  P.  766;  McNa-  Fletcher,    10   Cox   C.    C.    248,    35   L.   J. 

mura's  Case,  Arkley,  521.  Mag.  Cas.  N.  S.   172,  L.  R.   1  C.  C.  39, 

Mental   weakness   of   the   prosecuting  12  Jur.  N.  S.  505,   14  L.  T.  N.  S.  573, 

witness  in  a  rape  case  may  be  showTi  as  14  Week.  Rep.  774. 

bearing   upon   the   question   of   consent,  And  a  conviction  cannot  be  sustained 

though  not  alleged.      State  v.   McDon-  for  rape  of  a  woman  of  imbecile  mind, 

ough,  104  Iowa,  6,  73  N.  W.  357.  on  the  ground  that  she  had  not  capacity 

'''"State  V.    Tarr,   28   Iowa,   397 ;    Reg.  to  consent  to  sexual  intercourse,  in  the 

V.  Barrait,  12  Cox  C.  C.  498,  43  L.  J.  absence   of   evidence   as   to   her   general 

Mag.   Cas.   N.   S.   7,   L.   R.   2   C.   C.   81,  character  for  chastity   and    decency,    or 

29  L.  T.  N.  S.  409,  22  Week.  Rep.  136.  anything   else    to    raise   a   presumption 

'"'Crossioell  v.  People,  13  Mich.  427,  that  she  did  not  consent.  Keg.  v.  Con- 
Si  Am.  Dec.  774.  nolly,  26  U.  C.  Q.  B.  317. 

""Reg.  V.  Connolly,  26  U.  C.  Q.  B.  317;  Evidence  of  habits  of  decency  on  the 

Reg.  v.  Fletcher,  8  Cox  C.  C.  131,  Bell  part   of   a   woman,   though   of   imbecile 

C.  C.  63,  28  L.  J.  Mag.  Cas.  N.  S.   85,  mind,    however,    raises    a    presumption 

5   Jur.   N.   S.    179,   7   W^eek.   Rep.   204;  that   she   would   not   have   consented   if 

Lee  V.  State,  43  Tex.   Crim.   Rep.   285,  competent   to  dissent,   and   that   sexual 

64  S.  W.   1047.  intercourse  with  her  was  rape.      Queen 

''Baldwin  v.  State,  15  Tex.  App.  275.  v.  Ryan,  2  Cox  C.  C.  115. 

In  State  v.  Tarr,  28  Iowa,  397,  how-  But  the  introduction  of  the  prose- 
ever,  it  was  held  that  intercourse  might  cutrix  as  a  witness  for  the  state  in  a 
be  rape  where  it  appeared  that  the  prosecution  for  rape,  in  which  it  was 
woman  was  of  imbecile  mind,  and  there  claimed  that  she  was  so  mentally  dis- 
was  nothing  to  indicate  that  she  desired  eased  as  not  to  have  power  to  oppose 
it  or  consented  to  it.  the  act,  is  an  indorsement  of  her  com- 

And   in    State   v.    Enright,    90    Iowa,  petency;  being  in  effect  a  statement  to 

520,  58  N.  W.  901,  it  was  held  that  a  the  jury  that  she  was  sane  at  the  time 

conviction  for  rape  on  the  ground  that  of  the  events  concerning  which  she  was 

the  woman  was  incapable  of  consenting  called    upon    to    testify.       Thompson   v. 

to    sexual    intercourse    will    not   be    re-  State,  33  Tex.  Crim.  Rep.  472,  26  S.  W. 

versed  where  there  was  evidence  of  im-  987. 

becility,   though  the  evidence  was   con-  ^"Baldicin  v.  State,  15  Tex.  App.  275; 

flicting.  Rodriguiz  v.  State,  20  Tex.  App.    542; 

'''Reg.  V.  Connolly,  2G  v.  C.  Q.B.  SU;  Crosswell  v.   People,    13   Mich.  427,   87 

Reg.  v.  Fletcher,   10  Cox  C.  C.  248,  35  Am.   Dec.  774;    Bloodworth  v.   State,  6 

L.  J.  Mag.  Cas.  N.  S.  172,  L.  R.  1  C.  C.  Baxt.  621,   32  Am.  Rep.   540. 
.39.   12  Jur.  N.   S.  .50.5,    14   L.  T.  N.   S. 

573,  14  Week.  Rep.  774.  .-            • 


§  202]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  207 

t.liough  under  that  rule,  her  mental  capacity  is  a  proper  consideration 
in  estimating  the  sufficiency  of  her  resistance.^^ 

203.  Tests  of  capacity. —  The  test  of  mental  capacity  of  a  woman 
to  consent  to  sexual  intercourse,  so  that  the  sexual  act  would  not  be 
rape,  is  whether  she  was  capable  or  incapable  of  exercising  judgment 
in  the  matter,^^  and  very  slight  proof  of  force  is  necessary  when  the 
woman  lacked  the  intelligence  to  comprehend  the  nature  and  conse- 
quences of  the  act,  and  to  distinguish  morally  and  legally  between 
right  and  wrong.^'^  But  the  mere  fact  that  a  woman  is  weak-minded 
does  not  disable  her  from  giving  consent  to  tlie  act.^'*  One  with  less 
intelligence  than  is  required  to  make  a  contract  may  consent  to  sexual 
intercourse,  so  that  the  act  would  not  be  rape  on  the  part  of  the 
man.^^  And  connection  with  a  woman  in  a  state  of  dementia,  and 
not  idiotic,  but  approaching  it,  having  a  predisposition  to  be  "svith 
men,  and  a  morbid  desire  for  sexual  intercourse,  is  not  rape,  in  the 
absence  of  circumstances  of  either  force  or  fraud.^^ 

X.    Insanity  at  or  after  the  trial. 

204.  Effects  generally. —  The  rule  as  generally  stated  is  that  no  per- 
son in  a  state  of  insanity  will  be  tried,  sentenced,  or  executed  for  an 
alleged  criminal  act.**^     Inquiry  into  the  guilt  of  a  person  accused  of 

f^Baldwin  v.  State,  15  Tex.  App.  275.  rape,  where  it  does  not  appear  that  she 

*-Reg.  V.  Barratt,    12   Cox  C.  C.  498,  was  under  the  influence  of  a  fit  at  the 

43  L.  J.  Mag.  Cas.  N.  S.  7,  L.  R.  2  C.  C.  time.      Baldwin  v.  State,   15  Tex.  App. 

81,  29  L.  T.  N.  S.  409,  22  Week.  Rep.  275. 

136;   Reg.  v.  Fletcher.  8  Cox  C.  C.  131,  ^"Crosstoell  v.  People,  13  Mich.  427,  87 

Bell  C.  C.  63,  28  L.  J.  Mag.  Cas.  N.  S.  Am.   Dec.   774. 

85,  5  Jur.  N.  S.  179,  7  Week.  Rep.  204;  "Freeman  v.   People,   4   Denio,   9,   47 

Reg.  V.   Connolly,  26  U.   C.  Q.   B.   317.  Am.   Dec.   216;    State  v.   Reed,   41    La. 

And  see  Reg.  v.  Pressy,   10  Cox  C.   C.  Ann.  581,  7  So.  132;   Taffe  v.  State,  23 

635,  17  L.  T.  N.  S.  295,  16  Week.  Rep.  Ark.  34;   State  v.  Peacock,  50  N.  J.  L. 

142;    State   v.    Enright,    90    Iowa,    520,  34,   11  Atl.  270;   United  States  v.  La7i- 

58  N.  W.  901.  caster,  7  Biss.  440,  Fed.  Cas.  No.  15,555; 

Intercourse  with   a   woman  who  was  Kinlocli's  Case,   18  How.  St.  Tr.  395. 

capable  of  exercising  her  will  sufficient-  If  permanent  insanity  develops  after 

ly  to  control  her  personal  actions  is  not  the  commission   of   a   criminal   act,   the 

rape.      State  v.  Tarr,  28  Iowa,  397.  state    cannot    convict    except    during    a 

^^Stephen  v.  State,  11  Ga.  225.  lucid  interval.      State  v.  Wade,  161  Mo. 

^McQuirlc    v.    State,    84    Ala.    435,    5  441,  61  S.  W.  800. 

Am.   St.  Rep.  381,  4  So.   775;   State  v.  The    reason    why    an    insane    person 

Tarr,  28  Iowa,  397.  should   not  be  tried   is  that   he  is   dis- 

If    there    was     a     reasonable     doubt  abled  by  the  act  of  God  to  make  a  just 

whether  force  was  used,  the  jury  should  defense  if  he  has  one.     Freeman  v.  Peo- 

acquit,  though  the  woman  was  of  weak  pie,  4  Denio,  9,  47  Am.  Dec.  216. 

mind.      McQuirk  v.  State,  84  Ala.  435,  And  where  a  person  appears  to  be  in- 

5  Am.  St.  Rep.  381,  4  So.  775.  sane   dviring   his   trial,   but   not   at   the 

'^McQuirk    v.    State,    84    Ala.    435,    5  time  of  the  commission  of  the  crime  for 

Am.   St.   Rep.   381,   4   So.   775.  which  he  is  being  tried,  the  jury  may  so 

Intercourse,   without   resistance,   with  find  in  their  verdict,  and  the  court  will 

a  woman  subject  to  epileptic  fits,  is  not  delay  judgment,  or  execution,  if  issued. 


208 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  204 


crime  must  be  postponed,  where  he  is  insane,  until  such  time  as  h: 
shall  be  able  to  properly  model  his  defense,^^     And  the  judge  is  au 
thorized  to  engraft  ujDon  a  criminal  proceeding  in  his  court  not  yc 
closed,  a  proceeding  for  determination  as  to  present  sanity  or  insanity 
of  the  person  on  trial.^^     This  was  the  rule  at  common  law.'-*^     And 
the  statutes  of  the  different  states  upon  the  subject  are  generally  in  af 
firmance  of  the  common-law  power  of  the  court,'*^  and  not  in  deroga- 
tion of  constitutional  provisions  securing  to  the  accused  a  fair  and  ini 
partial  trial.^^     When  a  person  accused  of  crime  is  called  upon  tf» 
plead,  if  there  are  circui-istances  that  suggest  that  he  is  not  in  posses- 
sion of  his  reason,  there  should  be  an  inquiry  made  touching  his  sanity 
at  that  time,  as  to  whether  he  is  in  a  condition  of  mind  to  state  the 
grounds  of  his  defense.'^^     And  if  it  is  found  that  he  fails  to  plead,  oi- 


will  be  stayed.  Com.  v.  Taylor,  16 
Phila.  439. 

^Frith's  Case,  22  How.  St.  Tr.  307; 
Htate  V.  Reed,  41  La.  Ann.  581,  7  So. 
132. 

Nor  should  one  be  tried  or  convicted 
for  felony  where  he  was  so  intoxicated 
that  he  had  not  reason  enough  to  apprc- 
'-•iate  his  peril  or  act  advisedly  and  was 
not  able  to  understand  the  facts  of  his 
case  and  could  not  communicate  with 
his  counsel  with  intelligence.  Taffe  v. 
State,  23  Ark.  34. 

■  But  the  grand  jury  has  no  authority 
to  ignore  a  bill  for  murder  on  the 
ground  of  insanity,  though  it  appears 
from  the  testimony  that  he  was  insane ; 
it  is  their  duty  to  find  a  bill  in  such 
case  if  they  believed  the  acts  done 
would  have  been  murder  if  done  by  a 
sane  person.  Reg.  v.  Hodges,  8  Car.  & 
P.  195. 

^'State  ex  rel.  Chandler,  45  La.  Ann. 
696,  12  So.  884;  People  v.  McElvaine, 
125  N.  Y.  596,  26  N.  E.  929. 

"^Rex  V.  Dysoji,  7  Car.  &  P.  305,  note ; 
Reg.  V.  Berry,  34  L.  T.  N.  S.  598,  L.  R. 
1  Q.  B.  Div.  447,  45  L.  J.  Mag.  Cas. 
N.  S.  123,  13  Cox  C.  C.  189. 

"Freeman  v.  People,  4  Denio,  9,  47 
Am.  Dec.  216;  State  v.  O'Grady,  5  Ohio 
S.  &  C.  P.  Dec.  654;  State  v.  Harrison, 
36  W.  Va.  729,  18  L.  R.  A.  224,  15  S.  E. 
982;  French  v.  State,  93  Wis.  325,  67 
N.  W.  706.  And  see  State  v.  Peterson, 
24  Mont.  81,  60  Pac.  809. 

A  person  charged  with  felony  who  is 
at  liberty  on  bail  to  answer  is  not  in 
confinement  within  the  meaning  of  a 
statute  authorizing  an  inquiry  as  to 
the    sanity    of    persons    in    confinement 


under  indictment,  with  a  view  to  their 
removal  to  the  insane  asylum.  Ex  parl< 
Trice,  53  Ala.  546. 

And  a  statute  providing  that  if  a  de- 
fendant appears  at  any  stage  of  the 
trial  of  a  criminal  prosecution,  and  a 
reasonable  doubt  arises  as  to  his  sanity, 
further  proceedings  must  be  suspended 
and  a  trial  had  upon  that  question, 
refers  to  any  stage  of  the  trial  on  the 
indictment,  and  does  not  empower  the 
commissioners  of  insanity  to  open  the 
jail  door  and  take  out  the  defendant 
after  the  jurisdiction  of  the  district 
court  has  attached  by  issue  of  an  in- 
dictment and  service  of  a  warrant,  anti 
dispose  of  him  as  they  may  think  best; 
after  jurisdiction  attaches  the  district 
court  has  control  of  it,  not  only  for  tlic 
purpose  of  criminal  investigation,  but 
for  all  matters  incident  thereto.  Stone 
V.  Conrad,  105  Iowa,  21,  74  N.  W.  910. 

'-French  v.  State,  93  Wis.  325,  67 
N.  W.  706. 

A  construction  of  the  statutes  of  a 
state  on  the  subject  of  trial  of  insane 
persons  accused  of  crime  by  state  courts 
of  last  resort  will  be  followed  by  the 
Federal  court.  Nobles  v.  Georgia,  168 
U.  S.  398,  42  L.  ed.  515,  18  Sup.  Ct. 
Rep.  87. 

"■'Frith's  Case,  22  How.  St.  Tr.  311: 
State  V.  Reed,  41  La.  Ann.  581,  7  So. 
132. 

Where  a  bill  has  been  found  against 
an  insane  person  for  murder,  and  he  has 
been  removed  to  a  lunatic  asylum,  the 
court  will,  nevertheless,  require  that  he 
be  brought  up  and  that  his  alleged  in- 
sanity be  inquired  into  by  a  jury, 
though    the    governor    of    the    asylum 


§  204]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  20« 

is  unable  to  plead,  by  the  act  of  God,  the  court  will  not  proceed  to  try 
him.^^  And  where  the  defendant,  from  insanity,  is  incapable  of 
pleading,  the  court  will  disregard  his  plea  of  guilty,  or  any  confessions 
of  guilt  he  may  offer.  And  even  his  protestations  of  "sanity"  will  be 
disregarded,  if  there  be  adequate  proof  that  he  is  insane.^^  The  de- 
fense of  insanity  may  be  taken  by  his  counsel  against  his  will,  though 
he  may  be  personally  allowed  to  call  witnesses  to  disprove  it.^®  In- 
quiry as  to  present  sanity  of  a  person  accused  of  crime,  however,  is 
based  upon  public  propriety  and  decency,  rather  than  upon  any  abso- 
lute right  of  the  person. ^^ 

205.  Methods  of  raising  the  question.— The  question  of  insanity 
after  the  commission  of  an  offense  is  usually  raised  when  tlie  accused 
is  brought  up  to  plead  f^  but  it  may  be  raised  during  the  course  of  the 
proceeding  whenever  a  doubt  arises  as  to  the  sanity  of  the  accused,  it 
being  the  duty  of  the  court  in  such  case  to  suspend  further  proceed- 
ings, at  whatever  stage  the  doubt  arises.^^     By  statutes  existing  in 

makes  affidavit  that  he  is  in  a  helpless    interposed  it.      People  v.  Scott,  59  Cal. 

state   of   insanity;    unless   it   be   shown    341. 

that    it    would    be    dangerous    to    bring        ^'^Rcg.    v.    Pearce,    9    Car.   &    P.    G67 ; 

him  into  court,  in  which  case  the  wit-   State  v.  Patten,  10  La.  Ann.  299,  63  Am. 

nesses    will    be    bound    over    to    appear   Dec.  594.     And  see  Com.  v.  Hathavxiy, 

when  called  upon.       Queen  v.   Dwerry-    13  Mass.  299. 

house,  2  Cox  C.  C.  446.  A  person  accused  of  crime  who  shows 

But  the  fact  that  a  defendant  in  a  strong  symptoms  of  insanity  in  court 
criminal  prosecution  was  insane  when  during  the  taking  of  an  inquest  to  try 
required,  by  the  condition  of  his  bail  whether  he  is  insane  or  not  need  not  be 
bond,  to  plead  to  an  indictment,  and  asked  whether  he  wishes  to  cross-ex- 
had  been  taken  out  of  the  state  and  con-  amine  the  witness  or  to  offer  any  re- 
fined in  an  insane  asylum  of  another  marks  or  evidence.  Queen  v.  Ooode,  7 
state,  to  be  treated  for  insanity,  is  no   Ad.  &  El.  536. 

defense  to  his  sureties  in  an  action  on        ""Can-  v.  State,  98  Ga.   89,   27   S.   E. 
the  bond.      Adler  v.  State,  35  Ark.  517,    148;  Spann  v.  State,  47  Ga.  549. 
37  Am.  Rep.  48.  "^Jones  v.  State,  13  Ala.  153;  State  v. 

^^Com..  V.  Braleif,  1  Mass.  103;  Reg.  Harris,  53  N.  C.  (8  Jones  L.)  136,  78 
V.  Pritchard,  7  Car.  &  P.  303.  Am.  Dec.  272. 

But  where  a  person,  on  being  called  ^"People  v.  Ah  Ying,  42  Cal.  18;  Peo- 
upon  to  plead  under  indictment,  re-  pie  v.  Farrell,  31  Cal.  576;  State  v. 
mains  mute,  the  court  cannot  hear  evi-  Reed,  41  La. -Ann.  581,  7  So.  132;  Un- 
dence  to  prove  that  he  does  so  through  deruood  v.  People,  32  Mich.  1,  20  Am. 
malice,  and  then  enter  a  plea  of  not  Rep.  633;  Reg  v.  Berry,  34  L.  T.  N.  S. 
guilty;  a  jury  must  be  impaneled  to  598,  45  L.  J.  Mag.  Cos.  N.  S.  123.  L.  R. 
try  the  question  of  malice,  and  it  is  1  Q.  B.  Div.  447,  13  Cox  C.  C.  189. 
upon  their  finding  that  the  court  is  The  \4ords  "after  conviction"  in  Geor- 
authorized  to  enter  the  plea.  Queen  v.  gia  Code  1882,  §  4666a,  providing  for 
Israel,  2  Cox  C.  C.  263.  determination  of  the  question  of  insan- 

"^Rcg.  V.  Pearce,  9  Car.  &  P.  667.  ity,  are  not  limited  to  persons  who  have 

A  person  accused  of  crime  wlio  lias  also  been  sentenced  by  force  of  the  pre- 
pleaded  guilty  to  the  charge  on  arraign-  ceding  section,  w-hich  provides  for  an  in- 
ment  should  be  permitted  to  withdraw  vestigation  after  a  convict  has  been 
that  plea  where  tliere  is  evidence  sufli-  sentenced.  Nobles  v.  Georgia,  168  U.  S. 
cient  to  rai^e  a  doubt  respecting  the  398,  42  L.  ed.  515,  18  Sup.  Ct.  Rep.  87. 
condition  of  his  mind  at  the  time  lie  But  evidence  that  a  person  accused  of 
Vov.  I.  Med.  Jui!.— 14. 


219  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  [§  205 

England  and  in  some  of  the  United  States,  it  is  competent  for  the  de- 
fendant's counsel  to  formally  jDlead  insanity  as  a  special  preliminar;y 
defense,  in  which  case  an  inquest  is  taken  to  determine  the  issue, — 
''sane  or  insane."^ ^°  And  generally  the  question  may  be  raised  by 
counsel  for  the  accused;^  or  by  suggestion  of  the  prosecuting  at- 
torney ;-  or  by  suggestion  from  anyone  f  or  the  court  may  suspend  pro- 
ceedings M'hen  the  doubt  arises,  of  its  own  motion.^  Counsel  for  the 
accused  cannot  waive  an  inquiry  as  to  his  client's  sanity  where  doubt 
exists.^  And  if  the  party  is  incompetent  to  conduct  his  own  defense 
he  is  also  incompetent  to  waive  his  rights.^  It  has  been  held,  how- 
ever, that  present  insanity  at  the  time  of  the  trial  must  be  specially 
pleaded,  and  cannot  be  established  like  insanity  at  the  time  of  the  com- 
mission of  the  act,  under  a  plea  of  not  guilty,^  though  it  has  been  as- 
serted to  be  the  better  rule  that  the  objection  requires  no  formal  plead- 
ing, but  may  be  stated  orally.^ 

206.  Tests. —  The  test  of  present  insanity  which  will  prevent  a  trial 
in  a  criminal  action  is  whether  the  person  is  mentally  competent  to 
make  a  rational  defense."     And  the  question  is  whether  the  accused 

crime  is  insane  should  be  introduced  at  "°  See   Queen  v.   Goode,   7   Ad.   &  El. 

the  time  of  the  plea  bearing  upon  that  .536;  Queen  v.  Dicerryhouse,  2  Cox  C.  C 

issue,  where  it  was  then  known  to  coun-  446. 

sel,  and  in  such  case  a  new  trial  will  ^Reg.  v.   Son  they,  4   Fost.  &  F.  864; 

not  be  granted  on  the  ground  of  insan-  Reg.  v.  Turton,  6  Cox  C.  C.  385;   State 

ity,  under  a  statute  providing  that  san-  v.  Peacock,  50  N.  J.  L.  34,  11  Atl.  270. 

itj'   must   be    shown    before    conviction.  'State  ex  rel.   Chandler,  45  La.  Ann. 

Burt07i  V.  State,  33  Tex.  Grim.  Rep.  138,  696,  12  So.  884. 

25  S.  W.  782.  %State  v.  Harris,  53  N.  C.  (8  Jones  L.) 

And  the  plea  or  suggestion  that  a  per-  136,    78    Am.    Dec.    272;    Guagando    v. 

son  is  now  insane  cannot  be  made  in  a  State,  41  Tex.  626. 

criminal  prosecution  under  the  Pennsyi-  *People  v.  Ah  Ying,  42  Cal.  18;  State 

vania  statute  providing  that  if,  upon  the  v.  Peacock,  50  N.  J.  L.  34,  11  Atl.  270; 

trial,   the   accused   shall   appear   to   the  State  v.  Reed,  41   La.  Ann.   581,  7   So. 

jury   to   be   a   tunatic,   the   court    shall  132;  King  v.  Mercier,  1  Leach  C.  L.  183. 

order    him    into    strict    custody,    where  '^People  v.  Ah  Ying,  42  Cal.  18. 

such  plea  was  presented  after  a  plea  of  'State  v.  Patten,  10  La.  Ann.  299,  63 

not  guilty  had  been  entered,  and  the  jury  Am.  Dec.  594. 

had  been  sworn  on  the  merits,  and  the  But  a  waiver  of  objection  to  the  or- 

prisoner   placed   in   jeopardy.      Com.   v.  ganization  of  the  grand  jury  or  to  regu- 

Tai/Ior,  16  Phila.  439.  larity  of  the  reception  of  the  indictment, 

The   New   York   statute  contemplates  by  failure  to  present  it  to  the  trial  court 

two  cases  in  which  a  commission  may  by  motion  or  plea  in  abatement,  is  not 

be   appointed:     First,   after    a   plea   on  affected  by  the  unsoundness  of  mind  of 

the   merits,   and   before   trial,   to  deter-  the   defendant.      Rinkard  v.   State,    157 

mine  the  mental  condition  of  the  accused  Ind.  534,  62  N.  E.  14. 

at  the  time   of  the   commission   of  the  ''Danforth  v.  State,  75  Ga.  614,  58  Am. 

crime;  and,  second,  when  a  person  who  Rep.   480;    Long  v.   State,   38   Ga.  491; 

is  in  confinement  unrler  an  indictment,  Green  v.  State,  88  Tenn.  614,  14  S.  W. 

whether   before  or  after  conviction,  ap-  430. 

pears    to    be    insane,    to   determine    his  ''State  v.  Reed,  41  La.  Ann.  581,  7  So. 

mental  condition  at  the  time  of  the  ex-  132. 

aniination.    People  v.  McElvainc,  125  N.  ^Freeman  v.  People,  4  Denio,  9,  47  Am. 

y.  596,  26  N.  E.  929.  Dec.  216;  People  v.  Rhinelander,  2  N^  Y. 


§  20G] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


211 


was  sane  enough  to  present  to  counsel  the  facts  which  ought  to  be 
atated  and  presented  to  the  jury  upon  his  triaL^"  The  knowledge  of 
ri^^i  t  and  wrong  as  a  test  of  insanity  does  not  apply  to  a  collateral  pro- 
ceeding to  ascertain  the  mental  capacity  of  the  person  about  to  be  put 
on  trial  for  a  criminal  act.^^  A  person  arraigned  for  cvime,  how- 
ever, who  is  capable  of  understanding  the  nature  and  object  of  the 
proceeding  against  him,  and  who  comprehends  his  own  condition  in 
reference  to  it,  and  can  conduct  his  defense  in  a  rational  manner,  is 
to  be  deemed  sane  for  the  purpose  of  being  tried,  although  on  some 
other  subjects  his  mind  may  be  unsound.^^     A  person  deaf  and  dumb 


Crim.  Rep.  335;  State  v.  Peacock,  50 
N.  J.  L.  34,  11  Atl.  270;  Guarjando  v. 
State,  41  Tex.  G2G;  Eumplireijs  v.  Slate 
(Tex.  Grim.  Rep.)  39  S.  VV.  079; 
United  States  v.  Lancaster,  7  Biss.  440, 
Fed..  Gas.  No.  15,555,  Rex  v.  Pritchard, 
7  Car.  &  P.  303;  Rex  v.  Dyson,  7  Car.  & 
P.  305,  note;  Reg.  v.  Berry,  34  L.  T.  N. 
S.  598,  L.  R.  1  Q.  B.  Div.  447,  45  L.  J. 
Mag.  Gas.  N.  S.  123,  13  Cox  C.  G.  189. 

A  conviction  against  a  person  accused 
of  crime,  though  found  guilty  on  the 
evidence,  cannot  be  sustained,  where  he 
was  not  capable  of  understanding,  and 
had  not  in  fact  understood,  the  nature  of 
the  proceedings  against  him.  Reg.  v. 
Berry,  34  L.  T.  N.  S.  598,  L.  R.  1  Q.  B. 
Div.  447,  45  L.  J.  Mag.  Cas.  N.  S.  123, 
13  Cox  G.  G.  189. 

Neither  the  atrocity  of  the  ofTense 
committed  nor  the  supposed  effect  of 
the  verdict  in  a  preliminary  examination 
as  to  the  sanity  ol  a  person  accused  of 
crime,  either  on  the  prisoner  or  on  the 
community,  should  be  permitted  to  in- 
fluence the  jury  in  determining  the 
question  of  present  insanity.  People  v. 
Lake,  2  Park.  Crim.  Rep.  215. 

'"State  v.  O'Grady,  3  Ohio  Legal  News, 
137,  5  Ohio  S.  &  C.  P.  Dec.  654;  Frith's 
Case,  22  How.  St.  Tr.  311;  State  v. 
Helm,  69  Ark.  167,  61  S.  W.  915;  Taffe 
•v.  State,  23  Ark.  34. 

But  a  new  trial  will  not  be  granted  on 
the  ground  of  insanity  during  the 
progress  of  a  trial,  in  the  absence  of 
evidence  of  such  insanity,  where  proper 
consultation  with  counsel  was  had. 
Com.  V.  Winnemore,  1  Brewst.  (Pa.) 
359. 

And  evidence  of  mere  incapacity  to 
understand  and  comprehend  all  his  legal 
rights,  and  to  make  known,  in  the  most 
distinct  and  intelligent  manner,  to  his 
counsel  all  the  facts  material  to  his  de- 
fense,  is   not    sufficient    to    warrant   a 


reasonable  doubt  as  to  his  sanity,  upon 
which  an  inquiry  into  the  mental  condi- 
tion of  a  person  accused  of  crime  must 
be  instituted,  under  Iowa  Rev.  1860,  § 
5019.     State  v.  Amcld,  12  Iowa,  479. 

^'Freeman  v.  People,  4  Dcnio,  9,  47 
Am.  Dec.  216. 

'^-Freeman  v.  People,  4  Denio,  9,  47 
Am.  Dec.  216;  Re  Buchanan,  129  Cal. 
330,  50  L.  R.  A.  378,  61  Pac.  WZO. 

The  only  reason  why  an  insane  person 
should  not  be  tried  for  an  alleged  crime 
is  that  he  is  disabled  by  the  act  of  God 
to  make  a  just  defense  if  he  had  one. 
Re  BucJianan,  129  Cal.  330,  50  L.  R.  A. 
378,  61  Pac.  1120. 

And  it  is  not  enough  that  he  was  so  in- 
firm as  to  render  him  incapable  of  man- 
aging his  own  affairs.  People  v.  Kleim, 
1  Edm.  Sel.  Cas.  13. 

And,  in  a  prosecution  for  forgery,  an 
instruction  in  a  proceeding  to  determine 
whether  defendant  was  insane  after  con- 
viction, that  if  so  afflicted  with  mental 
disease  that  when  informed  of  the 
nature  of  the  indictment,  his  plea  and 
the  verdict,  and  of  the  consequences,  he 
would  not  intelligently  comprehend  such 
matters,  he  might  be  found  insane,  is  in- 
correct, as  requiring  more  intelligence 
than  necessary.  State  v.  Helm,  69  Ark. 
167,  61  S.  W.  915. 

So,  one  whose  memorj^  is  unimpaired, 
and  whose  reasoning  faculties  are  about 
the  average,  whose  insanity  is  of  a  char- 
acter which  does  not  manifest  itself  in 
any  apparent  weakness  of  intellect  or 
failure  of  memory,  but  consists  of  a 
chronic  and  latent  disease  of  the  brain, 
which,  under  the  excitement  of  intoxi- 
cating drink,  to  which  he  is  predisposed, 
will  lead  him  to  the  commission  of  crim- 
inal acts,  is  not  so  insane  as  to  be  un- 
able to  make  a  defense  in  a  criminal 
prosecution.  Re  Buchanan,  129  Gal.  330, 
50  L.  R.  A.  378,  61  Pac.  1120. 


212 


MENTAL  UNSOUNDNESS  IN  ITS  LEi5AL  RELATIONS.         I§  206 


from  nativity  may  be  arraigned  and  tried  for  an  offense,  if  intelligent 
questions  can  be  conveyed  to  liim  by  signs  or  symbols.^* 

207.  Determination  as  to  the  submission  of  the  issue. — Where  a  per- 
son accused  of  crime  pleads  present  insanity,  and  the  court  entertains 
a  doubt  as  to  present  sanity,  it  is  its  duty  to  award  an  inquest  for 
trial  of  that  fact,  before  any  other  proceedings  are  had.^^  But  it  is 
only  in  case  of  doubt  as  to  such  sanity  that  a  preliminary  inquiry  is  to 
be  ordered.^ ^  And  the  doubt  must  be  a  reasonable  one. ^'^  The  court 
is  not  bound  to  stop,  or  justified  in  arresting,  the  progi-ess  of  the  trial 
on  the  mere  suggestion  of  insanity,  in  the  absence  of  subtantial  evi- 
dence as  to  its  existence  in  a  degTee  unfitting  the  accused  from  con- 
ducting his  cause.^^     And  in  determining  whether  a  reasonable  doubt 


^*King  v.  Jones,  1  Leach  C.  L.  139. 

But  proof  that  a  person  accused  of 
crime  was  deaf  and  dumb,  and  that  she 
had  been  instructed  in  the  dumb  alpha- 
bet, but  that  she  was  not  so  far  ad- 
vanced as  to  put  words  together,  and 
was  then  incapable  of  understanding  the 
effect  of  the  proceeding  against  her  and 
making  her  defense,  warrants  a  finding 
of  insanity  on  a  preliminary  proceeding 
as  to  present  sanity.  Rex  v.  Dyson,  7 
Car.  &.  P.  305,  note. 

"Webber  v.  Com.  119  Pa.  223,  4  Am. 
St.  Rep.  G34,  13  Atl.  427;  Gruber  v. 
State,  3  W.  Va.  699;  Jones  v.  State,  13 
Ala.  153;  Ley's  Case,  1  Lewin  C.  C. 
239;  Bonds  v.  State,  Mart.  &  Y.  143.  17 
Am.  Dec.  795;  Sears  v.  State,  112  Ga. 
382,  37  S.  E.  443;  Lee  v.  State  (Ga.) 
43  S.  E.  994. 

In  Ohio  the  duty  is  mandatory  on  the 
production  of  the  prescribed  certificates. 
State  V.  Roselot  (Ohio)  68  N.  E.  825, 
Affirming  23  Ohio  C.  C.  370. 

A  refusal  to  submit  the  question  of 
present  sanity  on  a  plea  submitted  by 
affidavits  filed  before  the  trial  is  not 
cured  by  trying  the  issue  after  the  trial 
and  conviction.  Guagando  v.  State,  41 
Tex.  626. 

"-Webber  v.  Com.  119  Pa.  223,  4  Am. 
St.  Rep.  634,  13  Atl.  427  ;  People  v.  Het- 
tirk.  126  Cal.  425,  58  Pac.  918.  And  see 
People  V.  Knott,  122  Cal.  410,  55  Pac. 
154. 

Where  the  court  has  no  doubt  of 
sanity,  and  no  request  is  made  to  have 
that  issue  submiltod,  it  docs  its  whole 
duty  by  admitting  evidence  of  insanity 
before  and  after  the  commission  of  the 
offense,  and  bearing  upon  the  question 
of  sanity  at  that  time,  though  there  was 
evidence  of  insanity  at  the  time  of  the 


trial.  And  the  admission  of  such  evi- 
dence does  not  indicate  that  the  court 
had  a  doubt  as  to  his  sanity  which 
would  require  the  submission  of  the 
question  of  sanity  to  the  jury  as  an  issue 
separate  and  distinct  from  that  of  guilt 
or  innocence.  People  v.  Lee  Fook,  85 
Cal.  300,   24  Pac.   654. 

""State  V.  Harrison,  36  W.  Va.  720,  18 
L.  R.  A.  224,  15  S.  E.  982.  And  see 
People  v.  robin  (N.  Y.)   68  N.  E.  359. 

A  plea  of  insanity  in  bar  when  a  per- 
son accused  of  homicide  is  called  for 
sentence,  uncorroborated  by  affidavit, 
must  be  disregarded  where  there  is  noth 
ing  in  it  to  raise  a  doubt  in  the  mind 
of  the  court  as  to  the  prisoner's  sanity. 
Com.  V.  Buccieri,  153  Pa.  535,  26  Atl. 
228, 

"State  V.  Peacock,  50  N.  J.  L.  34,  11 
Atl.  270;  People  v.  McFAvainc,  125  N.  Y 
596,  26  N.  E.  929. 

Neither  the  assertion  of  a  person  ac- 
cused of  crime,  nor  that  of  his  counsel 
that  he  is  insane,  nor  the  production  of 
affidavits,  nor  the  entry  of  a  plea  of 
present  insanity  upon  the  record,  can, 
of  itself  alone,  suffice  to  produce  the 
state  of  doubt  whicli  is  a  necessary  pre- 
requisite to  an  order  of  inquiry.  Web* 
her  V.  Com.  119  Pa.  223,  4  Am.  St.  Rep. 
634,  13  Atl.  427. 

And  evidence  that  a  person  accused  of 
crime  had  been  confined  in  .a  lunatic 
asylum,  at  which  time  he  was  in  a  state 
of  maniacal  irascibility,  and  that  he  was 
addicted  to  theft,  and  denied  being  in- 
>;nne,  and  that  his  conduct  while  in  jail 
was  different  from  that  of  others,  does 
not  show  insanity  which  will  render  him 
incompetent  to  defend  himself.  Reg.  v. 
Robertson,    1   Swinton,   15. 


5  207] 


CfSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


213 


exists  as  to  sanity,  the  court  is  not  limited  to  the  case  made  by  the 
prisoner,  but  may,  in  its  discretion,  investigate  the  matter  tiioroughly 
and  take  into  consideration  all  the  circumstances.^®  And  it  may  in- 
spect the  person  and  consider  his  actions,  and  read  affidavits  and  make 
inquiries  toucliing  such  condition.^^  The  question  as  to  the  existence 
of  a  doubt  as  to  the  present  sanity  of  a  person  accused  of  crime  is  one 
for  the  court  itself,^^  resting  within  its  sound  discretion,^^  though  an 
abuse  of  the  discretion  is  not  irremediable,^^  a  total  refusal  to  enter- 
tain the  objection,  or  to  hear  evidence  thereon,  being  error  which  will 
sustain  a  reversal. ^^  And  the  absolute  right  of  a  person  accused  of 
crime  to  have  the  question  of  his  sanity  tried  by  a  jury  is  not  affected 
by  the  refusal  of  the  court  to  order  a  preliminary  inquiry.^^ 


^^State  V.  Arnold,  12  Iowa,  479. 

"/S^aie  V.  Harrison,  30  W.  Va.  729,  iS 
L.  R.  A.  224,  15  S.  E.  982;  People  v.  Mc- 
Elvaine,  125  N.  Y.  596,  26  N.  E.  929: 
Webber  v.  Com.  119  Pa.  223,  4  Am.  St. 
Rep.  G34,  13  Atl.  427. 

A  jury,  in  a  proceeding  to  determine 
present  sanity  or  insanity  of  a  person 
accused  of  crime,  may  form  their  own 
judgment  of  the  present  state  of  his 
mind  from  his  demeanor  during  the  in- 
quest, though  no  evidence  was  given. 
Queen  v.  Goode,  7  Ad.  &  EI.  530. 

'"Webber  v.  Com.  119  Pa.  223,  4  Am. 
St.  Rep.  634,  13  Atl-  427;  State  v. 
Klinger,  40  Mo.  224. 

And  the  jurisdiction  given  by  Ala- 
bama Rev.  Code,  §  1000,  to  the  circuit 
judge  in  certain  cases  to  order  au  in- 
quiry as  to  the  sanity  of  prisoners  hi 
confinement  under  indictment  vests  in 
the  judge,  not  in  the  court.  Ex  parte 
Trice,  53  Ala.  546. 

But  the  court  cannot  find  a  person  ac- 
cused of  crime  to  be  insane,  as  that  i.i 
a  matter  of  fact,  for  the  jury.  Webber 
V.  Com.  119  Pa.  223,  4  Am.  St.  Rep.  634, 
13  Atl.  427. 

'■^Spann  v.  Slate,  47  Ga.  549 ;  Jones  v. 
State,  13  Ala.  153;  State  v.  Harrison, 
36  W.  Vh.  729,  18  L.  R.  A.  224,  15  S.  E. 
982;  Williams  v.  State  (Fla.)  34  So. 
279;  State  v.  Peterson,  24  Mont.  81,  00 
Pac.  809.  And  see  People  v.  Tobin 
(N.  Y.)  68  N.  E.  359;  People  v.  Mc- 
Elvaine,  125  N.  Y.  590,  26  N.  E.  929. 

So,  where  a  trial  has  been  postponed 
because  of  the  insanity  of  the  defendant, 
it  is  within  the  discretion  of  the  court 
whether  or  not  another  preliminary  in- 
vestigation upon  the  question  of  insanity 
should  be  had,  and,  if  allowed,  to  what 
extent,   and   in   what  manner  it  should 


be   conducted.     Flanagan  v.   State.    103 
Ga.  619,  30  S.  E.  550. 

And  refusal  to  permit  a  plea  of  not 
guilty  to  be  withdrawn  in  order  to  de- 
termine the  question  of  the  present  in- 
sanity of  the  accused,  where,  eight  days 
after  the  plea,  a  jury  was  called,  and  the 
prisoner  exercised  his  right  of  cliallenge 
and  permitted  them  to  be  sworn,  is  not 
error,  where  the  judge  told  the  jury  that 
if  they  should  find  the  prisoner  to  be  in- 
sane during  the  trial,  but  not  at  the 
commission  of  the  crime,  they  should  say 
so  in  their  verdict,  and  then  the  court 
would  either  delay  judgment  or  stay  ex- 
ecution.    Taylor  v.  Com.  109  Pa.  202. 

--State  V.  Harrison,  30  W.  Va.  729,  18 
L.  R.  A.  224,  15  S.  E.  982;  Sears  v. 
State,  112  Ga.  382,  37  S.  E.  443;  Lee  v. 
State   (Ga.)    43  S.  E.  994. 

-'State  V.  Reed,  41  La.  Ann.  581,  7 
So.  132;  Guagando  v.  State,  41  Tex.  026. 

But  the  decision  of  a  trial  court  on 
the  question  of  the  propriety  of  impanel- 
ing a  jury  to  inquire  as  to  the  sanity  of 
a  person  accused  of  crime  preliminary  to 
his  trial  for  the  crimin»Tl  act  will  not  be 
reversed  on  appeal  unless  it  manifestly 
appears  that  the  decision  was  wrong  or 
that  the  discretion  of  the  court  was 
abused.  State  v.  Harrison,  36  W.  Va. 
729,  18  L.  R.  A.  224,  15  S.  E.  982. 

And  it  will  not  be  found  on  appeal 
that  a  judge  abused  his  discretion  in  a 
criminal  prosecution  in  refusing  a  pre 
liminary  inquest  as  to  the  present  sanity 
of  the  accused,  where  his  act  was  justi- 
fied, both  by  the  verdict  and  his  o^v^l 
freedom  from  doubt  after  hearing  all 
the  testimony.  Webber  v.  Com.  119  Pa^ 
223,  4  Am.  St.  Rep.  634,  13  Atl.  427. 

-'Wchber  v.  Com.  119  Pa.  223,  4  Am. 
St.  Rep.  634,   13  Ati.  427. 


214 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  208 


208.  Disposition  of  the  issue. —  The  method  of  settling  a  prelim- 
inary question  as  to  the  present  sanity  or  insanity  of  a  person 
charged  with  crime,  when  it  is  not  the  suhject  of  statutory  regulation, 
is  within  the  discretion  of  the  trial  conrt.^^  And  the  rule  is  the  same 
where  the  statute  merely  provides  that  an  insane  person  shall  not 
be  tried.^^  And  the  court  may  proceed  by  inspection,^ "^  or  it  may 
act  by  the  aid  of  a  quasi  commission  in  the  nature  of  one  de  lunatico 
inquirer) do. ^^  But  the  general  and  the  better  practice  is  to  submit 
the  issue  to  a  jury  impaneled  for  that  purpose.^^  And  the  court  may 
proceed  to  the  trial  of  the  issue  with  the  jury  impaneled  for  the  trial 
of  the  indictment  as  well  as  with  a  special  jury,^^  the  defendant  not 
having  the  legal  right  to  have  a  separate,  independent,  and  prelim- 
inary trial  of  that  question  by  a  jury  specially  impaneled  for  that 
purpose.^^     But  such  a  proceeding  is  not  a  trial  of  an  offense  wdthin 


''■state  V.  Peacock,  50  N.  J.  L.  34,  11 
Atl.  270;  State  v.  Reed,  41  La.  Ann.  581, 
7  So.  132;  State  ex  rel.  Chandler,  45  La. 
Ann.   696,   12   So.   884. 

'■^People  V.  Kleim,  1  Edm.  Sel.  Cas.  15; 
Freeman  v.  People,  4  Denio,  9,  47  Am. 
Dec.  216. 

■"State  V.  Harrison,  36  W.  Va.  729,  18 
L.  R.  A.  224,  15  S.  E.  982;  Bonds  v. 
State,  Mart.  &  Y.  143,  17  Am.  Dec.  795. 

But  the  defendant  is  not  entitled  to 
retire  to  the  jury  room  with  the  jury  for 
such  inspection  as  they  mav  see  fit  to 
make.    Lee  v.  State  (Ga.)   45  S.  E.  628. 

An  agreement,  entered  into  between 
the  coimsel  in  a  criminal  prosecution,  in 
which  the  accused  had  entered  the  plea 
of  guilty,  that  the  evidence  of  the  sheriff 
alone  should  be  used  under  that  plea,  is 
not  violated  by  the  court  in  asking  cer- 
tain questions  of  the  defendant  in  rela- 
tion to  his  plea,  where  they  are  in  con- 
formity to  a  statutory  requirement  that 
a  pica  of  guilty  shall  not  be  received  un- 
less it  plainly  appears  that  the  accused 
is  sane  and  is  uninllueuced  by  any  con- 
sideration of  fear  or  any  persuasion  or 
delusive  hope  of  jiardon.  Burton  v. 
State,  33  Tex.  Crim.  Rep.  138,  25  S.  W. 
782. 

'^People  V.  Kleim,  1  Edm.  Sel.  Cas.  13. 

"State  V.  Reed,  41  La.  Ann.  581,  7 
So.  132;  People  v.  Kleim,  1  Edm.  Sel. 
Cas.  13:  State  v.  flai-ris,  53  N.  C.  (8 
•Tones  L.)  136,  78  Am.  Dec.  272;  Slate 
V.  riarrison,  36  W.  Va.  729,  18  L.  R.  A. 
224,  15  S.  E.  982;  fJniber  v.  Slate,  3  \V. 
V'a.  699;  State  v.  O'dradi/,  3  Ohio  Legal 
News,  137;  D'/son  Case,  1  Lewin  C.  C. 
64. 

Where  insanitv  at  the  time  of  the  net 


in  question  is  relied  upon,  the  issue 
should  be  tried  by  the  jury  impaneled  to 
pass  upon  the  question  of  guilt  or  in- 
nocence. State  V.  Peterson,  24  Mont.  81, 
60  Pac.  809. 

^'>^Yel}'bcr  v.  Com.  119  Pa.  223,  4  Am. 
St.  Rep.  634,  13  Atl.  427;  State  v.  Reed. 
41  La.  Ann.  581,  7  So.  132;  State  v. 
Peacock,  50  N.  J.  L.  34,  11  Atl.  270. 
And  see  People  v.  Farrell,  31  Cal.  576 ; 
Ley's  Case,  1  Lewin  C.  C.  239. 

The  court  in  a  criminal  prosecution 
may,  when  a  plea  of  .present  insanity  is 
interposed  during  the  progress  of  a 
trial,  permit  the  trial  to  proceed,  and 
submit  the  question  of  present  insanity 
with  that  of  guilt  or  innocence,  to  the 
jury.  State  v.  Reed,  41  La.  Ann.  581, 
7  So.  132. 

But  in  such  case  the  verdict  should  be 
unanimous.  United  States  v.  German^ 
115  Fed.  987. 

And  insanity  at  the  time  of  trial  can- 
not be  shown  on  the  trial  of  the  general 
issue  of  guilty  or  not  guiltj',  for  the 
purpose  of  procuring  the  confinement  of 
the  accused  in  a  hospital  until  recovery. 
Firhy  v.  SI  cite,  3  Baxt.  358. 

And  an  inquiiy  by  a  jury  of  the 
panel  as  to  the  sanity  or  insanity  of  a 
person  accused  of  crime,  after  the  re- 
port of  a  medic.il  conmiission  appointed 
by  the  court  to  examine  into  the  mental 
condition,  is  not  an  atteinjjt  to  deprive 
him  of  his  liberty  without  due  process 
of  law,  in-  violation  of  constitutional 
richt.  Strle  ex  rel.  Chandler,  45  La. 
Ann.  696,  12  So.  884. 

-'Wchher  v.  Com.  111/  Pa.  223,  4  Am. 
St.  l?ep.  634,  13  Atl.  427. 

Jn   Wisconsin   and   West  Virginia  an- 


208] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


215 


the  meaning  of  the  statute  securing  peremptory  challenges  on  such 
trial.^^  It  devolves  upon  the  accused  to  make  out  affirmatively  that  he 
is  insane.^^  And  the  jury  have  nothing  to  do  with  the  condition  of  the 
accused  at  the  time  of  the  commission  of  the  offense  or  at  any  other 
time,  except  so  far  as  it  may  aid  in  determining  his  present  condi- 
tion.^'* And  where  the  issue  is  presented  with  the  general  issue,  if 
the  jury  find  the  defendant  insane,  it  should  return  such  verdict  by 
itself  without  passing  on  the  general  issue ;  though  if  it  found  him 
sane,  it  might  pass  npon  both  verdicts  together.'^^ 

209.  Effect  of  determination. — When  an  accused  person  is  found 
to  be  sane  upon  a  preliminary  examination  as  to  present  sanity  or 
insanity,  the  court  will  proceed  to  try  him  on  the  indintjiient,^^  pro- 


other  jury  is  required  to  try  the  issue 
of  present  insanity.  Gruber  v.  State,  3 
W.  Va.  699;  State  v.  Harrison,  30  W. 
Va.  729,  18  L.  R.  A.  224,  15  S.  E.  982; 
French  v.  State,  85  Wis.  400,  21  L.  R.  A. 
402,  39  Am.  St.  Rep.  855,  55  N.  W.  560. 

And  in  Georgia  the  practice  is,  where 
insanity  at  the  time  of  the  trial  is  set 
up  in  a  criminal  prosecution,  to  file  a 
special  plea  to  that  effect,  and  try  such 
plea  by  a  special  jury.  Fogarty  v. 
State,  80  Ga.  450,  5  S.  E.  782. 

And  the  Georgia  statutes  make  no 
provision  for  the  mode  of  trial,  and  it  is 
the  duty  of  the  sheriff,  with  the  concur- 
rence of  the  inferior  court,  to  summon  a 
jury  of  twelve  men  to  inquire  into  such 
insanity,  and,  if  it  appear  by  the  inqui- 
sition that  the  prisoner  is  insane,  the 
sheriff  must  suspend  the  execution  and 
report  the  inquisition  and  suspension  to 
the  judajes.  Spann  v.  State,  47  Ga.  549: 
Nohles\.  Georgia,  108  U.  S.  398,  42  L. 
ed.  515,  18  Sup.  Ct.  Rep.  87. 

^^Freeman  v.  People,  4  Denio,  9,  47 
Am.  Dec.  216. 

But  challenges  for  cause  are  allowed 
on  the  trial  of  a  preliminary  proceeding 
for  the  determination  of  the  question  of 
present  insanity.  And  the  question  for 
the  determination  of  triers  of  such  chal- 
lenges is  whether  the  juror  is  or  is  not 
indifferent  between  the  parties  to  the 
controversy.     Ihid, 

So,  testimony  of  a  foreign  witness 
cannot  be  taken  on  commission  to  be 
read  in  a  criminal  prosecution,  not  upon 
the  trial  of  the  indictment,  but  before 
commissioners  appointed  to  examine  anil 
report  as  to  the  sanity  of  tlie  accused.. 
People  V.  Haight,  3  N.  Y.  Crim.  Rep. 
00. 

"'S-ate  V.  O'Gradij,  3  Ohio  Legal  News. 
137;  People  v.  Kleim,  1  Edm.  Sel.  Cas. 


13;  Reg.  v.  Turton,  6  Cox  C.  C.  385.  But 
see  Reg.  v.  Davies,  3  Car.  &  K.  328,  6 
Cox  C.  C.  326. 

^^State  V.  O'Gradij,  3  Ohio  Legal  News, 
137;  State  v.  Arnold,  12  Iowa,  479; 
Walker  v.  State,  46  Neb.  25,  64  N.  W. 
357. 

But  where  there  is  evidence  of  present 
insanity  alleged  to  have  supervened  after 
conviction,  and  proof  that  since  convic- 
tion the  accused  presented  by  his  appear- 
ance and  conduct  evidence  of  insanity, 
an  inquiry  may  be  made  into  his  past 
life  to  see  if  he  had  been  insane  or  in  a 
pi'evious  condition  of  insanity  tending 
to  explain  and  illustrate  his  present  con- 
dition.    Spann  v.  State,  47  Ga.  549. 

"'Slate  v.  Reed,  41  La.  Ann.  581,  7  So. 
132. 

But  it  is  not  proper  to  instruct  the 
jury  in  a  criminal  prosecution  to  acquit 
if  the  accused  is  insane  at  the  time  of 
the  trial,  where  no  issue  as  to  present 
insanity  was  submitted  to  them.  People 
V.  Lee  Fook,  85  Cal.  300,  24  Pac.  654. 

And  refusal  to  charge  the  jury  in  a 
criminal  prosecution  that  they  might 
find  a  verdict  either  for  or  against  a 
special  plea  of  insanity,  and  an  instruc- 
tion that  they  might  iind  the  defendant 
guilty  under  the  evidence,  is  not  error, 
where  the  defendant  filed  a  special  plea 
of  insanity,  but  did  not  insist  that  it 
should  be  first  tried,  but  went  to  trial 
on  the  general  issue,  relying  upon  his 
insanity  to  show  absence  of  guilt.  An- 
derson V.  State,  42  Ga.  9. 

Under  the  Ohio  statute  the  verdict  on 
an  inquiry  as  to  present  insanity  of  a 
jierson  accused  of  crime  need  not  be 
unanimous,  the  majority  of  three 
fourths  onlv  being  required.  State  v. 
O'Gradij,  3  Ohio  Legal  News.  137. 

^''People  V.  Lake,  2  Park.  Crim.  Rep. 


216 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  209 


ceeding  in  the  usual  manner.^^  And  where  a  person  called  upon  to 
plead  stands  mute  and  it  is  determined  by  a  jury  that  he  was  mute 
from  malice,  the  plea  of  not  guilty  will  be  entered.^^  And  the  trial 
of  the  question  of  giiilt  or  innocence  will  not  be  postponed  because 
of  an  appeal  on  the  issue  of  insanity.^^  But  a  finding  upon  a  pre- 
liminary issue  that  the  accused  was  then  sane  cannot  be  taken  into 
consideration  upon  the  question  of  insanity  set  up  as  a  defense  to 
the  prosecution,"^"  though  the  jury  in  a  subsequent  proceeding  should 
uot  again  try  questions  settled  by  former  verdicts."*^     And  where  the 


•215;    State    v.    O'Grady,    3    Ohio    Legal 
Xews,   137;   Griiber  v.  State,  3  W.  Va. 

A  trial  of  the  question  of  present  san- 
ity is  not  a  trial  of  an  indictment,  but 
is' preliminary  to  such  trial,  and  the  ob- 
ject is  simply  to  determine  whether  the 
person  charged  with  an  offense  and  al- 
leged to  be  insane,  should  be  required  to 
plead  and  proceed  to  the  trial  of  the 
main  issue  of  guilty  or  not  guilty.  Free- 
man V.  People,  4  Denio,  9,  47  Am.  Dec. 
216. 

""Reg.  V.  Whitfield,  3  Car.  &  K.  121. 

But  the  issue  of  insanity  cannot  be 
again  tried  upon  the  trial  of  the  prin- 
cipal issue,  after  trial  on  a  special  issue, 
where  the  statute  provides  that  in  such 
event  the  court  shall  proceed  to  try 
upon  the  main  issue.  French  v.  State, 
93  Wis.  325,  G7  N.  W.  70G. 

And  all  evidence  of  the  present  insan- 
ity of  the  accused  in  a  criminal  prosecu- 
tion not  intended  to  prove  insanity  at 
the  time  of  the  commission  of  the  of- 
fense should  be  excluded  on  the  trial  of 
the  issue  as  to  guilt  or  innocence,  where 
the  question  as  to  sanity  at  the  time  of 
the  trial  has  been  submitted  to  a  jury, 
and  he  has  been  found  to  be  sane. 
Shultz  V.  State,  13  Tex.  401. 

But  refusal  to  permit  evidence  to  be 
given  on  the  trial  of  an  indictment  that 
the  person  was  insane  at  the  time,  after 
the  finding  of  a  verdict  upon  a  prelim- 
inary issue  to  ascertain  his  mental  ca- 
pacity, in  which  he  was  found  to  be  sane, 
and  the  exclusion  of  the  opinions  of 
medical  witnesses  formed  from  observa- 
tion of  the  witness  after  that  time,  as 
to  his  sanity,  are  erroneous.  Freeman 
V.  People,  4  Denio,  9,  47  Am.  Dec.  210. 

*'Ren.  V.  Schleter.  10  Cox  C.  C.  409; 
Reg.  V.  Whitfield,  3  Car.  &  K.  121. 

A  verdict  finding  a  person  accused  of 
crime,  mute  by  tlie  visitation  of  God, 
however,  is  not  an  absolute  bar  to  her 
iK-ing  tried  upon  the  indictment,  and  she 


may  be  arraigned  and  sentenced;  but 
great  diligence  and  circumspection  ought 
to  be  exercised,  and  if  all  means  of  con- 
veying intelligence  to  her  mind  respect- 
ing the  nature  of  the  arraignment  should 
prove  ineffectual,  the  plea  of  not  guilty 
should  be  entered  for  her,  and  it  would 
then  become  the  duty  of  the  court  to  in- 
quire concerning  all  those  points  of 
which  the  prisoner  might  take  advan 
tage,  and  examine  the  proceedings  with 
a  critical  eye,  and  render  her  every  pos- 
sible service  consistent  with  the  rules: 
of  law.    King  v.  Steel,  1  Leach  C.  L.  451. 

A  deaf  and  dumb  person  charged  with 
crime  may  be  detained  to  be  instructed, 
if  the  jury  find  that  she  is  too  ignorant 
to  be  put  on  trial.  Dyson's  Case,  1 
Lewin  C.  C.  64. 

^'People  V.  Moice,   15  Cal.  329. 

*"Frccman  v.  People,  4  Denio,  9,  47 
Am.  Dec.  216.  Contra,  State  v.  Cham- 
ponx   (Wash.)    74  Pac.  557. 

But  a  motion  in  a  criminal  prosecu- 
tion for  a  new  trial  on  the  ground  that 
the  defendant  was  insane  at  the  time  of 
the  allegetl  commission  of  the  crime,  and 
at  the  time  of  his  trial,  which  was  over- 
ruled, does  not  operate  as  an  estoppel  or 
bar  to  a  proceeding  afterwards  insti- 
tuted on  behalf  of  the  convict  for  a  trial 
before  a  jury  on  the  question  of  his  in- 
sanity after  trial.  Scars  v.  State,  112 
Ga.  382,  37  S.  E.  443. 

And  a  severance  of  the  cases  of  two 
defendants  jointly  indicted  is  effecte:] 
where  one  of  them  is  adjudged  insane  on 
a  separate  trial  of  that  issue,  and  or- 
dered confined  in  an  insane  hospital, 
and  hit?  trial  postponed  until  his  recov- 
ery, and  the  other  is  subsequently  ar- 
raigned and  tried  alone.  Marler  v. 
State,  67  Ala.  55,  42  Am.  Rep.  95. 

"Lee  V.  State  (Ga.)  45  S.  E.  028; 
Uempion  V.  State,  111  Wis.  127,  86  N. 
W.  596.  And  see  People  v.  Hettick,  126 
Cal.  425,  58  Pac.  918. 


209] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


217 


jury  disagi-ees  on  the  trial  of  a  special  plea  of  insanity,  the  trial  that 
follows  is  to  be  conducted  in  the  usual  manner,  and  the  general  ver- 
dict will  conclude  the  special  plea  of  insanity.'*^  A  finding  that  the 
accused  was  insane  at  the  time  the  offense  was  committed  upon  the 
trial  of  a  special  plea  of  insanity,  however,  is  a  good  defense  in  bar 
of  a  further  prosecution  for  the  crime.'*^  And  in  such  case  he  is  to 
be  kept  in  close  confinement  until  he  is  restored  to  reason,  for  the 
protection  of  society  ;'*^  and  the  result  should  be  certified  to  the  proper 
court  having  jurisdiction,  where  it  would  be  made  the  foundation  of 
an  order  to  commit  him  to  an  asylum.^^     A  finding  of  insanity  after 


"French  v.  State,  93  Wis.  325,  67  N. 
W.  706. 

*-'Gruber  v.  State,  3  W.  Va.  699;  Peo- 
ple V.  Farrell,  31  C\l.  576;  Kinloch's 
Case,  18  How.  St.  Tr.  395.  See  also 
State  V.  O'Grady,  5  Ohio  S.  &  C.  P.  Dec. 
654. 

A  person  accused  of  crime  found  in- 
sane at  the  time  of  trial  cannot  be  kept 
in  an  asylum  until  his  recovery,  and 
then  a,2;nin  tried,  where  the  evidence  a:? 
to  his  insanity  related  to  the  time  of  the 
criminal  act  charged,  and  not  to  the  tima 
of  the  trial.    Firhy  v.  State,  3  Baxt.  35S. 

But  an  inquiry  by  a  commission  of 
medical  experts  as  to  the  mental  condi- 
tion of  the  person  accused  of  crime,  ap- 
pointed at  the  suggestion  of  the  assist- 
ant district  attorney,  and  a  report  there- 
on which  forms  a  part  of  the  record  of 
the  case,  do  not  estop  the  state  from 
entering  into  any  further  investigation 
as  to  his  mental  condition,  the  report 
not  being  conclusive.  State  ex  rel. 
Chandler,  45  La.  Ann.  696,  12  So.  884. 

*^People  V.  Lake,  2  Park.  Grim.  Rep. 
215;  Hill  V.  State,  64  Ga.  453;  Re  Bu- 
chanan, 129  Cal.  330,  50  L.  R.  A.  278, 
61  Pae.  1120. 

But  a  refusal  to  instruct  the  jury  in 
a  criminal  prosecution  that  if  the  ac- 
cused is  proved  to  be  non  compos  mentis 
the  court  is  authorized  to  send  him  to 
an  asylum  is  not  error  where  they  are 
fullv  instructed  as  to  the  law  of  insan- 
itv."  State  v.  Robinson,  27  S.  C.  615,  4 
S.*^  E.  570. 

The  imprisonment  in  a  penitentiary 
of  a  person  afflicted  with  epilepsy  who 
had  violated  the  penal  laws  of  the  state 
is  not,  in  view  of  his  affliction,  uncon- 
stitutional, as  cruel  and  unusual  pun- 
ishment. Foaarty  v.  State,  80  Ga.  450, 
&  S.  E.  782.  ' 


In  Englnnd  a  finding  of  insanity  of 
the  accused  in  a  proceeding  to  ascertain 
whether  he  was  sane  or  insane  warrants 
the  issue  of  an  order  that  he  be  detained 
in  custody  during  Her  ]Majesty's  pleas- 
ure. Req.  V.  Davies,  6  Cox  C.  C.  326,  .3 
Car.  &  K.  328 ;  Rex  v.  Pritchard,  7  Car. 
&  P.  303;  Rex  v.  Little,  Russ.  &  R.  C.  C. 
430;  Turner's  Case,  cited  in  Shelford,  on 
Limatics,  469. 

Where  the  jury  in  a  criminal  prosecu- 
tion are  of  the  <)pinion  that  the  person 
did  not  in  fact  do  all  that  the  law  deems 
essential  to  constitute  the  offense 
charged,  they  must  find  him  not  guilty 
generally,  and  the  court  has  no  power  to 
order  his  detention  although  the  jury 
should  be  clearly  of  the  opinion  that  he 
was  in  fact  insane.  Reg.  v.  Oxford,  9 
Car.  &  P.  525. 

*'-'State  Y.  O'Grady,  3  Ohio  Legal  News, 
137;  Re  Buchanan,  129  Cal.  330,  50  L. 
R.  A.  378,  61  Pac.  1120.  And  see  Ex 
parte  Trice,  53  Ala.  540 ;  Com.  v.  Hath- 
av.aif,  13  Mass.  299;  Webber  v.  Com.  119 
Pa.  223,  4  Am.  St.  Rep.  634,  13  \tl.  427. 

In  West  Virginia,  when  a  person  ac- 
cused of  crime  is  found  to  be  insane  at 
the  time  of  trial,  the  jury  may  then  pro- 
ceed to  inquire  as  to  his  sanity  at  the 
time  of  the  commission  of  the  criminal 
act.     Gruber  v.  State,  3  W.  Va.  699. 

And  the  fact  that  it  appeared  to  the 
court,  in  a  criminal  prosecution,  that 
there  was  a  question  as  to  the  sanity  of 
the  accused  at  the  time  of  the  commis- 
sion of  the  offense,  does  not  create  a 
manifest  necessity  for  the  discharge  of 
the  jury  within  the  meaning  of  a  statute 
authorizing  it,  in  case  of  manifest  neces- 
sity; and  in  case  of  such  discharge  the 
accused  cannot  be  tried  again  by  another 
jury,  but  is  entitled  to  be  released.  Ibid. 


218  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  200 

the  act,  liOAvever,  does  not  prevent  a  subsequent  trial  and  conviction 
after  recovery.^'' 

210.  Insanity  after  the  verdict. — Sentence  should  be  stayed  in  a 
criminal  prosecution,  where  the  accused,  after  the  verdicit  and  be- 
fore sentence,  becomes  insane.^^  And  where  doubt  arises  as  to  sanity 
in  such  a  case  the  court  has  power  to  cause  an  investigation  to  be 
made.^^  The  question  in  an  inquisition  of  insanity  after  a  verdict  of 
guilty  is  whether  the  defendant  was  capable  of  comprehending  the 
dangerous  position  in  which  he  is  placed,  and  of  taking  intelligent 
measures  to  meet  it.^^  And  the  burden  of  proof  rests  with  the  de- 
fendant to  satisfy  the  jury  that  he  is  in  fact  insane  f^  though  if  the 
proof,  when  all  taken  together,  leaves  a  reasonable  doubt  as  to  his 
sanity,  he  should  have  the  benefit  of  such  doubt.^^  The  plea  of  in- 
sanity as  a  bar  to  a  sentence,  however,  is  a  plea  to  the  humanity  of 
the  court  to  postpone  punishment  until  a  recovery  takes  place.^"  And 
if  satisfied  of  its  falsity,  the  judge  may  pronounce  sentence  without 
impaneling  a  jury  to  ascertain  the  fact.^^  The  mode  of  trial  rests 
in  the  discretion  of  the  court  f^  and  no  absolute  right  to  trial  by  jury 

'"Chase  v.  Slate,  41  Tex.  Crim.  Rep.  raigned,    where,    upon    the    case    being 

560.  55  S.  W.  833.  again  called  for  trial,  he  requested  per- 

Where  a  court  has  jurisdiction  of  a  mission  to   enter  a   plea  of  not  guilty, 

criminal  case,  its  jurisdiction  to  try  such  ftliaii:  v.  State,  32  Tex.  Crim.  Rep.  155. 

case  cannot  be  taken  away  by  proceed-  22  S.  W.  588. 

ings  in  another  court  for  the  purpose  of  ^''United  States  v.  Lancaster,  7   Biss. 

having  the  question  determined  whether  440.  Fed.  Cas.  No.  15,555. 

the  defendant  was  sane  or  insane.    State  ^"United  States  v.  Lancaster,  7   Biss. 

V.  aottld,  40  Kan.  258,  19  Pac.  739.  440,   Fed.   Cas.   No.   15,555. 

And   athdavits   in   a   criminal    action,  A  new  trial  will  not  be  granted  in  a 

tending  to  show  that  at  the  preliminary  criminal    prosecution   on   the   ground   of 

examination    the   defendant    was     in     a  the  insanity  of  the  accused  during  the 

state   of  great  nervous   excitement   and  progress  of  the  trial   preventing  proper 

mental    derangement    and    oblivious    to  consultation    with    counsel,    in    the    ab- 

what   occurred,    and   others   tending   to  senee  of  evidence  of  such  insanity.    Com. 

show  that  he  was  merely  simulating  or  v.  Winncmore,  1  Brewst.   (Pa.)   356. 

putting  on  an  appearance  of  mental  de-  '•'^United  Stales  v.   Lancaster,  7   Bisd. 

rangemcnt,   do  not  raise  a   question   of  440,  Fed.  Cas.  No.  15,555. 

jurisdiction,    and    where    such    examina-  ^-Laros  v.  Com.  84  Pa.  200. 

tion  and  the  commitment  and  infornia-  ''^'People  v.  Pico,  02  Cal.  50;  Bonds  v. 

tion  based  thereon  are  regular  on  their  Slate,  Mart.  &  Y.  143,  17  Am.  Dec.  795. 

face,  the  court  has  full  jurisdiction  to  It  is  not  incumbent  upon  a  judge  in 

try  the  case.    People  v.  Baicden,  90  Cal.  a  criminal  case  at  or  after  a  judgment 

195,  27  Pac.  204.  therein  to  allow  or  order  a  judicial  in- 

"State  V.  Brinyea,  5  Ala.  241;   State  vestigation   concerning   llie  mental   con- 

V.  Vann,  84  N.  C.  722.  dition  of  one  against  whom  the  lawful 

*^State  ex  rel.  Chandler,  45  La.  Ann.  verdict  of  guilty  has  been  rendered  in 

696,  12  So.  884.     And  see  State  v.  Helm,  a   capital   case,   and  a   refusal   to   do   so 

G9  Ark.  107,  61  S.  W.  915.  is  not  a  denial   of  due  process  of  law. 

One  convicted  of  murder,  on  arraign-  Bauf/hn  v.  State,  100  Ga.  554,  38  L.  R. 

ment  and  plea  of  guilty,  whose  insanity  A.  577,  28  S.  E.  68. 

at  the  time  of  the  plea  was  subsequently  "Laros  v.  Com.  84  Pa.  200. 

made  one  of  the  grovmds  for  a  motion  The  submission  of  the  issue  to  a  jury 

for  a  new  trial,  may  properly  be  rear-  is   a   proper    mode   of   ascertaining   the 


$  210] 


INSANITY  AS  DEFENSE  TO  CUARGE  OF  CRIME. 


219 


exists.^^  Nor  will  a  jury  be  impaneled  to  determine  tlie  sanity  of  one 
convicted  of  crime,  where  tlie  question  of  sanity  was  directly  put  in 
issue  at  the  trial.^*^  And  where  the  question  of  insanity  has  been 
passed  upon  by  the  jury,  no  motion  to  stay  sentence  may  be  enter- 
tained.^'^ 

211.  Insanity  after  judgment. —  The  general  rule  is  that  a  person, 
though  adjudged  to  punishment,  cannot  be  punished  for  a  public 
offense  while  insane.^**  And  the  court  or  judge  has  power,  after  the 
expiration  of  the  term,  to  issue  a  wTit  for  the  reversal  of  a  judgment 
of  conviction  in  a  criminal  case,  where  it  appears  that  the  defendant 
was  insane  at  the  time  of  the  trial,  and  that  it  was  not  then  known.^^ 
And  where  no  plea  of  present  insanity  was  introduced,  and  there  was 
nothing  to  create  suspicion  of  such  insanity  in  the  court  below,  the 
appellate  court  may,  on  its  own  motion,  inquire  into  the  present 
mental  state  of  the  accused,  and  make  proper  recommendations  in 
the  premises.^*^  But  before  the  verdict  of  a  jury  and  judgment  and 
sentence  of  the  court  can  be  nullified  in  a  proceeding  as  to  present 
sanity  or  insanity,  it  should  be  found  that  the  prisoner  is  actually 
insane,  so  as  to  be  wholly  unconscious  of  his  situation.^^     And  there 


truth  of  an  allegation  that  an  accused 
person  had  become  insane  after  the  ver- 
dict against  him.  State  v.  Vann,  84 
N.  C.  722. 

The  provisions  of  the  Georgia  Code 
relating  to  inquisitions  of  lunacy  are 
suiliciently  comprehensive  to  cover  all 
cases  where  the  alleged  insanity  of  a 
person  accused  of  crime  begins  at  any 
time  after  rendition  of  a  verdict  of 
guilty.  Banfjhn  v.  State,  100  Ga.  554, 
:58  L.  R.  A.  577,  28  S.  E.  68. 

'••^Laros  v.  Com.  84  Pa.  200:  Nobles  v. 
Georgia,  168  U.  S.  398,  42  L.  ed.  515, 
18  Sup.  Ct.  Rep.  87. 

A  denial  of  a  jury  trial  on  an  issue 
of  insanity  after  verdict  is  not  a  denial 
of  due  process  of  law.  Bauylin  v.  State, 
100  Ga.  554,  38  L.  R.  A.  577,  28  S.  E. 
68,  Affirmed  in  168  U.  S.  398,  42  L.  ed. 
515,  18  Sup.  Ct.  Rep.  87. 

^^Com.  V.  Baranski,  36  Pittsb.  L.  J. 
363,  9  Pa.  Co.  Ct.  264;  Stover  v.  Com. 
92  Va.  780,  22  S.  E.  874. 

So,  alleged  newly  discovered  evidence 
to  the  effect  that  tlie  accused  was  of 
insane  mind  at  the  time  of  the  motion, 
and  not  capable  of  committing  the 
crime  charged,  is  not  a  sufficient  ground 
for  a  new  trial  upon  an  extraordinary 
motion,  wiiere  the  statutes  afforded  an- 
other legal  method  of  ascertaining  that 


fact.  Graham  v.  State,  102  Ga.  650,  29 
S.  E.  582. 

"State  V.  Brinyea,  5  Ala.  241;  State 
V.  Vann,  84  N.  C.  722. 

"■^People  V.  Schmitt,  106  Cal.  48,  39 
Pac.  204. 

^^Adler  v.  State,  35  Ark.  517,  37  Am. 
Rep.  48. 

This  is  so,  though  a  motion  for  a  new 
trial  on  the  ground  of  insanity  had  been 
overruled.  Sears  v.  State,  112  Ga.  382, 
37  S.  E.  443;  Lee  v.  State  (Ga.)  43  S. 
E.  994. 

"'Green  v.  State,  88  Tenn.  614,  14  S. 
W.  430. 

In  People  v.  Schmitt,  106  Cal.  48,  39 
Pac.  204,  however,  it  was  held  tliat  an 
appellate  court  cannot  act  in  a  criminal 
case  upon  the  evidence  furnished  by  the 
present  mental  condition  of  the  accused, 
wlio  has  become  insane,  and  upon  that 
ground  reverse  a  judgment  against  him 
which  is  otherwise  legal,  though  there  is 
nothing  to  prevent  liis  being  put  into 
the  state  insane  asylum. 

"'Ex  parte  Schneider,  21  D.  C.  433; 
Lee  V.  State  (Ga.)  45  S.  E.  628;  Com.. 
v.  Hai/s,  195  Pa.  270,  45  Atl.  728. 

He  must  be  in  such  a  situation  as  not 
to  comprehend  v/liy  he  is  being  pun- 
ished.    Lee  V.  State  (Ga.)   45  S.  E.  628. 

A  judgment  of  conviction  in  a  crini 


220 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  211 


is  no  absolute  right  to  trial  by  jury;^^  and  a  trial  on  the  question  of 
insanity  after  the  verdict  and  sentence  rests  in  the  discretion  of  the 
judge."^  If  there  is  nothing  to  raise  a  doubt  in  the  mind  of  the 
court  as  to  the  sanity  of  the  accused,  it  is  not  only  the  right,  but  the 
duty,  of  the  court  to  disregard  the  plea.*'^  In  Pennsylvania,  how- 
ever, the  governor  is  the  sole  judge  of  the  circumstances  which  may 
influence  him  to  exercise  clemency  or  enforce  an  execution  for  homi- 
cide, and  the  court  cannot,  after  the  conviction  and  sentence,  control 
his  action  by  the  appointment  of  a  commission  or  otherwise.*"^  And 
in  Georgia  by  a  recent  act  it  rests  with  the  governor  to  take  such 
steps  for  the  examination  and  care  of  convicted  criminals  alleged  tc 
be  insane  as  he  may  see  fit.^^ 

212.  Appeals  or  reviews. —  As  a  general  rule  no  appeal  from  the 
determination  in  a  proceeding  to  ascertain  as  to  present  sanity  or  in- 


inal  prosecution  will  not  be  reversed  on 
appeal  because  of  a  refusal  to  grant  a 
preliminary  inquest  as  to  the  present 
sanity  of  the  accused  merely  that  the 
prisoner  may  be  then  arraigned  to  plead 
insanity,  where  the  question  as  to  his 
sanity  at  the  time  of  the  commission  of 
the  act  and  at  the  time  of  the  trial  were 
determined  against  him.  Webber  v. 
Com.  119  Pa.  223,  4  Am.  St.  Rep.  634,  13 
Atl.  427. 

^■Nobles  V.  Georgia,  168  U.  S.  398,  42 
L.  ed.  515,  18  Sup.  Ct.  Rep.  87. 

'"Nobles  V.  Georgia,  1G8  U.  S.  398,  42 
L.  ed.  515,  18  Sup.  Ct.  Rep.  87;  Humph- 
reys V.  Stats  (Tex.  Crim.  App.)  39  S. 
W.  679.  And  see  Com.  v.  Wirehack, 
192  Pa.  150,  44  Atl.  1102. 

''*Com.  V.  Buccieri,  153  Pa.  539,  26 
Atl.  228 ;  Com.  v.  Hays,  195  Pa.  270,  45 
Atl.  728:  People  v.  McElvaine,  125  N. 
Y.  596,  26  N.  E.  929;  Bonds  v.  State, 
Mart.  &  Y,  143,  17  Am.  Dec.  795. 

A  refusal  to  permit  a  rearraignment 
of  the  accused  in  a  criminal  prosecution 
at  the  commencement  of  a  new  trial  is 
not  error  where  he  had  been  indicted  for 
murder,  and  on  arraignment  had  pleaded 
to  the  indictment,  and  been  tried  and 
convicted,  and  upon  appeal  the  judg- 
ment had  been  reversed  and  a  new  trial 
ordered.  People  v.  McElvaine,  125  N. 
Y.  596,  26  N.  E.  929. 

And  sentence  will  not  be  stayed  in  a 
oriminal  prosecution  on  the  ground  of 
the  insanity  of  the  accused  wlicre  tliere 
is  notiiing  to  show  that  any  cliange  in 
Ills  condition  had  taken  place  since  tlio 
trial,  as  to  stay  it  for  the  j>ur]>ose  of 
an  in<|uisition  would  be  in  ell'ect  to  ar 


rest  judgment  for  a  reason  which  had 
been  already  unsuccessfully  urged  in  de 
fense  of  the  criminal  charge.  State  v. 
Brinyea,  5  Ala.  242. 

"'^BaranosJd's  Case,  9  Pa.  Co.  Ct.  264. 

Pennsylvania  act  May  14,  1874,  Pub. 
Laws  160,  providing  for  the  disposition 
and  custody  of  insane  persons  charged 
with  and  acquitted  or  convicted  of  crime, 
has  no  application  to  the  case  of  a  per- 
son convicted  of  murder  in  the  first  de- 
gree who  is  remitted  to  the  control  of 
the  governor  after  sentence  of  death  has 
been  pronounced  upon  him,  either  for 
execution  of  the  sentence  or  pardon  in 
the  manner  prescribed  by  law.  Er 
parte  Briggs,  14  W.  N.  C.  341;  Ex  parte 
Wilson,  19  W.  N.  C.  37;  Baranoski's 
Case,  9  Pa.  Co.  Ct.  264. 

And  the  supreme  court  in  Pennsyl 
vania  will  not  appoint  a  commission  to 
determine  as  to  the  sanity  of  a  person 
accused  of  murder  in  the  first  degree 
upon  the  allidavits  of  physicians  as  to 
their  belief  tliat  lie  was  insane  and  in 
an  unfit  mental  condition  to  undergo 
capital  punishment,  where  the  governor 
had  previovisly  declined  to  interfere. 
E:v  parte  McOlnnis,  14  W.  N.  C.  221. 

And  Pennsylvania  act  May  8,  1883, 
Pub.  Laws  21,  §  29,  relative  to  the  su- 
pervision and  control  of  hospitals  and 
homes  for  the  insane,  has  no  applica- 
tion to  a  person  convicted  of  murder  in 
the  fir.st  degree  and  remitted  to  tlie  con- 
trol of  the  governor  after  sentence, 
cither  for  execution  of  the  sentence  or 
pardon  ii  the  maiuier  prescribed  by  law. 
Haranoski's  Case,  9  Pa.  Co.  Ct.  264. 

'"■■Lee  V.  Slate  (Ga.)  45  S.  E.  628.  . 


5  212] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


221 


sanity  of  a  person  accused  of  crime  has  been  provided  for;  and,  in 
tlie  absence  of  such  prov^ision,  the  determination  is  conclusive,  and 
no  appeal,  writ  of  error,  certiorari,  or  other  review  can  be  main- 
tained.^' In  some  of  the  states,  however,  it  would  seem  that  an 
appeal  may  be  taken. *"'^ 

213.  Effect  of  recovery. —  One  who  commits  a  crime  and  becomes 
insane  is  amenable  therefor  upon  restoration  to  sanity,  upon  the 
same  footing  as  other  persons  committing  criminal  acts.''^  The  post- 
ponement of/  the  trial  of  such  a  person  does  not  discharge  him  from 
future  trial  when  his  disability  shall  have  been  removed.'^"  And  in 
such  case,  though  the  accused  had  been  sent  to  an  asylum,  he  may  be 
required  to  plead  and  be  put  upon  trial  upon  his  apparent  restora- 
tion to  sanity,  without  making  a  formal  inquiry  as  to  his  later  condi- 
tion.''^ Discharge  from  an  asylum,  however,  should  not  be  had 
merely  because  of  lucid  intervais.^^ 


*  See  Carr  v.  State,  98  Ga.  89,  27  S. 
E.  148;  Freeman  v.  People,  4  Denio,  9, 
47  Am.  Dec.  216;  State  v.  Va?m,  84  N. 
C.  722;  Inskeep  v.  State,  36  Ohio  St, 
145;  Inskeep  v.  State,  35  Ohio  St.  482; 
Darnell  v.  State,  24  Tex.  App.  6,  5  S.  W. 
.522. 

The  intention  of  Texas  Code  of  Crim- 
inal Proe.  title  12,  chap.  1,  providing 
that  when,  upon  the  trial  of  an  issue  of 
insanity,  it  is  found  that  tlie  defendant 
is  sane,  a  judgment  of  conviction  should 
be  enforced  as  if  no  inquiry  had  been 
made,  is  that  such  judgment  of  the  trial 
court  should  be  conclusive  of  that  is- 
sue. Darnell  v.  State,  24  Tex.  App.  6, 
5  S.  W.  522. 

In  Spann  v.  State,  47  Ga.  549,  the 
question  whether  certiorari  will  lie  to 
review  a  determination  upon  an  inquisi- 
tion as  to  the  sanity  of  a  party  accused 
of  crime  under  the  Georgia  statute  was 
discussed  but  not  decided ;  but  it  was 
strongly  intimated  tliat  it  would  not  lie, 
the  court  saying  that  it  would  be  a  per- 
version of  terms  to  call  an  inquisition 
of  this  kind  the  act  of  the  court,  and 
that  the  whole  proceeding  is  rather  an 
inquiry  based  on  public  propriety  and 
decency  than  a  matter  of  right. 

"See  People  v.  Moice,  15  Cal.  329; 
State  V.  Wade,  161  Mo.  441,  61  S.  W. 
800;  Re  Maas,  10  Okla.  302,  61  Pac. 
1057;  Maas  v.  Territory,  10  Okla.  714, 
53  L.  R.  A.  814,  63  Pac.  960. 

As  to  the  Michigan  practice,  see  Re 
Maguire,  114  Mich.  80,  72  N.  W.  15; 
Re  Underwood,  30  Mich.  502. 

Refusal  to  grant  an    application    to 


pass  upon  the  question  of  the  present  in- 
sanity of  a  person  accused  of  crime 
cannot  be  taken  advantage  of  on  appeal, 
though  appeal  is  permitted,  unless  pre- 
served in  a  bill  of  exceptions.  State  v. 
Wade,  161  Mo.  441,  61  S.  \V.  800. 

'''State  V.  Prdchctt,  100  N.  C.  667,  11 
S.  E.  357.     And  see  Brock  v.  State,  22 
Ohio  C.  C.  364 ;  Firly  v.  State,  3  Baxt. , 
358.  I 

■"Kinloch's  Case,  18  How.  St.  Tr.  395; 
Jones  V.  State,  13  Ala.  153. 

But  where  a  person  was  once  found 
insane  at  the  time  of  his  proposed  trial 
for  a  criminal  offense,  and  is  called  for 
trial  a  second  time,  the  court  must  pro- 
ceed as  before  and  try  the  question  of  in- 
sanity anew  if  there  is  then  doubt  as  to 
his  sanity,  and  so  on  as  often  as  the 
occasion  may  require.  People  v.  Farrell, 
31  Cal.  576. 

'^State  V.  Pritchett,  106  N.  C.  667,  11 
S.  E.  357;  People  v.  Farrell,  31  Cal.  576. 

The  fact  that  the  authorities  of  an  in- 
sane asylum  in  which  an  insane  person 
had  been  confined  had  not  certified  that 
he  had  recovered  does  not  prevent  his  be- 
ing required  to  plead  and  be  put  on  trial 
for  a  criminal  act  committed  before  he 
became  insane,  upon  his  apparent  restor- 
ation. State  V.  Pritchett,  106  N.  0. 
667,  11  S.  E.  357. 

But  a  judgment  of  a  circuit  court  on 
an  inquiry  as  to  the  sanity  of  a  pris- 
oner in  confinement  under  indictment, 
under  the  provisions  of  a  statute  provid- 
ing therefor,  is  invalid  and  a  nullity  un- 
less notice  is  given  to  the  person  affected 
by  the  proceedings,  and  the  record  re- 


222 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.        {§  214 


XL  Pkoof  required  to  establish. 

214.  General  rules. —  Positive  and  direct  testimony  is  not  required 

to  establish  insanity  as  a  defense. '^^  Nor  is  proof  of  specific  acts  of 
derangement."'*  And  one  may  be  acquitted  on  the  ground  of  insanity 
though  he  objected  to  that  defense  and  asserted  that  he  was  not  in- 
sane, and  called  witnesses  to  establish  his  sanity,  where  the  whole 
evidence  justifies  a  finding  of  insnnity.''^^  The  defendant's  own  testi- 
mony, however,  that  he  did  not  know  his  act  was  wrong  or  criminal, 
is  not  sufficient  to  establish  idiocy  or  lunacy;"^  especially  where  he 
testifies  to  a  state  of  facBs  inconsistent  with  such  conclusion, '^'^  It  is 
the  province  of  the  jury  to  weigh  and  consider  evidence  of  insanity 
in  all  its  bearings.^^ 

215.  Previous  and  subsequent  conditions. —  Evidence,  in  a  crimi- 
nal prosecution,  tending  to  prove  that  the  accused  was  insane  at  some 
period  either  before  or  after  the  commission  of  the  criminal  act,  is 
to  be  considered  and  weighed  in  connection  with  the  acts  of  the  party 
tending  to  establish  the  fact  of  insanity. '^^    But  proof  of  independent 


cites  the  existence  of  every  fact  upon 
which  jurisdiction  is  based.  Ex  parte 
Trice,  53  Ala.  .546. 

And  a  statute  providing  for  the  con- 
finement in  the  insane  asylum  of  tl%e 
state  prison  of  persons  acquitted  of  mur- 
der or  other  high  crime  on  the  ground 
of  insanity,  until  discharged  by  the  gov- 
ernor on  receipt  of  the  certificate  of  the 
circuit  judge  and  the  medical  superin- 
tendent of  the  state  insane  asylum,  upon 
an  examination  made  by  him,  that  the 
person  is  no  longer  insane, — leaving  the 
inoptictors  free  to  act  or  not  as  they  see 
fit,  and  making  no  provision  by  which 
any  of  them  could  be  compelled  to  act, 
— leaves  the  liberty  of  the  person  con- 
fined to  depend  upon  the  uncontrolled 
pleasure  of  the  inspectors,  and  is  un- 
constitutional in  failing  to  furnish 
means  for  the  enforcement  of  the  remedy 
provided,  and  is  in  violation  of  the  safe- 
guards against  restraints  of  personal 
liberty  without  due  process  of  law.  Un- 
derwood V.  People,  32  Mich.  1,  20  Am. 
Rep.  633. 

'-Caffey  v.  State,  78  Miss.  645,  29  So. 
396. 

'"'State  V.  Wright,  134  ]\Io.  404,  35  S. 
W.  1145;  State  v.  Simms,  68  Mo.  305. 

And  a  conviction  will  not  be  set  aside 
on  appeal  because  the  evidence  of  insan- 
ity was  affirmative  while  that  of  sanity 
was  negative.  lUnkard  v.  Slate,  157 
Ind.  534,  62  N.  E.  14. 


''*People  V.  Tripler,  1  Wheeler  C.  C. 
48. 

'-Reg.  V.  Pearce,  9  Car.  &  P.  667 ; 
State  V.  Reidell,  9  JBoust.  (Del.)  470,  14 
Atl.  550. 

''"State  V.  Kluseman,  53  Minn.  540,  55 
N.  W.  741;  Perry  v.  State,  87  Ala.  30, 
6  So.  425;  Knight  v.  Young,  2  Ves.  &  B. 
184. 

■'■'Perry  v.  State,  87  Ala.  30,  6  So.  425 ; 
Knight  v.  Yonng,  2  Ves.  &  B.  184. 

''^People  V.  Burgess,  153  N.  Y.  501,  47 
N.  E.  889. 

'^Murphy  v.  Com.  92  Ky.  485,  18  S.  W. 
163;  Montgomery  v.  Com\  88  Ky.  509,  11 
S.  W.  475;  People  v.  March,  6  CaJ.  543; 
People  V.  Clendennin,  91  Cal.  35,  27  Pac. 
418;  Flanagan  v.  State,  103  Ga.  G19,  30 
S.  E.  550;  Armstrong  v.  State,  3C  Fla. 
170,  17  L.  R.  A.  484,  11  So.  618.  And 
see  Lanqdon  v.  People,  133  111.  382,  24 
N.  E.  874. 

The  opinions  of  medical  men  who  had 
seen  the  defendant  in  a  criminal  action 
subsequent  to  the  commission  of  the  of- 
fense, that  his  insanity  was  chronic,  and, 
therefore,  that  lie  was  insane  at  the  time 
of  the  act,  justify  the  submission  of  the 
case  to  the  jury,  though  all  the  circum- 
stances show  premeditation,  prepara- 
tion, and  design,  and  a  conscious  viola- 
tion of  the  law.  Reg.  v.  Southey,  4 
Fost.  &  F.  804. 

And  the  fact  that  an  instruction  in  a 
criminal  prosecution  refers  to  the  meiftal 


§  215J  INSANITY  AS  DEFENSE  TO  CHARGE  *0F  CRIME.  223 

acts  or.  circumstances  subsequent  to  the  commission  of  tlie  crime  is 
not  alone  sufficient  to  establish  insanity  at  the  time  of  its  commis- 
sion.^" And  a  reversal  on  the  ground  of  the  exclusion  of  evidence  of 
subsequent  acts  is  not  warranted,  unless  it  appears  that  they  had 
some  special  significance  indicating  mental  disease.^^  And  a  new 
trial  will  not  be  ordered  on  the  ground  that  the  verdict  was  against 
evidence,  where  there  was  little,  if  any,  testimony  tending  to  show 
insanity  up  to  the  time  of  the  offense,  upon  evidence  as  to  the  cor>duct 
of  the  accused  after  confinement,  it  appearing  by  the  testimony  of 
intimate  acquaintances  that  he  was  a  person  of  ordinary  intelli- 
gence.^^ jS[or  can  the  court  act  upon  evidence  furnished  by  present 
condition  of  the  defendant  on  an  appeal  from  a  judgment  of  convic- 
tion, and  upon  that  ground  reverse  a  judgment  otherwise  legal,  where 
his  insanity  had  increased  and  developed  since  the  trial.^^  So,  sanity 
shortly  before  and  shortly  after  the  act  in  question  is  strong  evidence 
of  sanity  at  the  time  it  was  committed,  which  can  only  be  rebutted 
by  showing  frenzy  or  madness  at  the  very  time  of  the  act,  with  ref- 
erence to  it.*^ 

216.  Nature  of  crime. —  The  atrocious  or  terrible  nature  of  a  crim- 
inal act  is  not  evidence  of  the  insanity  of  the  perpetrator.*^  jSTor  is 
the  fact  that  the  act  was  committed  with  barbarity,^^  or  that  the  act 
was  of  an  unnatural  character.*^     Kor  is  the  enormity  of  the  criuK; 

condition  of  the  defendant  at  the  date        ^^People  v.   Schmitt,    106   Cal.   48,   39 

named  in  the  indictment  as  that  of  the  Pac.  204. 

commission  of  the  crime,  when  all  the  But  evidence  may  be  introduced  in  ;i 

evidence    was   directed    to    another    and  criminal  prosecution  to  show  the  mental 

later  date,  furnishes  no  ground  for  re-  condition  of  the  accused  before  and  after 

versal   as  tending  to  mislead  the  jury,  a  proceeding  by  a  proper  board  or  officer 

Colee  V.  State,  7.5  Ind.  513.  for  an  order  finding  the  accused  insane 

^"Murphy  v.   Com.  92  Ky.  485,   18   S.  and  to  be  a  fit  subject  for  treatment  in 

VV.  163.  an   insane  hospital.     Goodwin  v.  State, 

The  insanity  of  a  person  accused  of  90  Ind.  550. 

crime   cannot   be   proved  by   subsequent  ^*Com.  v.   Wirehack,    190  Pa.   138,   70 

conversations  with  him,  and  evidence  of  Am.  St.  Rep.  625,  43  Atl.  542. 

the  test  applied  during  the  interval  to  So,  a  minute  recollection  on  the  part 

ascertain   his   sanity   cannot    be    given,  of  a  person  accused  of  crime  of  all  th(? 

Choice  V.  State,  31  Ga.  424.  circumstances  and  details  of  the  act  a 

^^State  V.  Lewis,  20  Nev.  333,  22  Pac.  long  time  afterwards  is  strong  evidence 

241.  of    his    sanity   at   that   time.     Pienovi's 

^-Phelps  V.  Com.  17  Ky.  L.  Rep.  706,  Case,  3  N.  Y.  City  Hall  Rec.   123;  Fcr- 

32  S.  W.  470.  rer's  Case,  19  How.  St.  Tr.  947. 

So,  an  affidavit  for  continuance  on  the  ^'^Laros  v.  Com.  84  Pa.  200;  State  v. 

ground  of  absent  witnesses  to  prove  the  Coleman,  20  S.  C.  441. 

insanity  of  tlie  accused  should  be  clear  ''''•State   v.   Stark,    1    Strobh.    L.    479; 

as  to  liis  conduct  for  a  considerable  time  United  States  v.  Lee,  4  Mackey,  489,  54 

before  the  crime,  up  to  a  recent  period,  Am.   Rep.   293. 

so  as  to  negative  the  idea  that  he  was  ^^Ball's  Case,  2  N.  Y.  City  Hall  Roc 

then      of       sound      mind.     BcUhniham's  85;  Laros  v.  Com.  84  Pa.  200. 

Case,   cited   in    I    Collinson   on   Lunacy,  So,   insanitj'  cannot  be   inferred  in   a 

636.  prosecution   for  crime  merely  from  the 


224 


AIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  216 


proof  of  insanity.^*  The  enormity  of  the  crime,  however,  may  be 
considered  with  other  evidence  in  determining  whether  or  not  the 
accused  was  sane.*^  And  while  the  act  cannot  be  regarded  as  proof 
in  itself  of  insanity,  it  is  proper  to  examine  it  with  all  its  attendant 
circumstances  to  determine  whether  it  is  most  consistent  with  real 
or  feigned  insanity.**^ 

217.  Motive. — The  mere  fact  that  no  motive  for  a  crime  appears 
is  not,  in  itself,  sufficient  to  establish  insanity  of  the  perpetrator.^^ 
And  a  conviction  will  not  be  disturbed  on  appeal  where  the  mind  of 
the  accused  does  not  appear  to  have  been  so  diseased  that  he  did  not 
know  right  from  wrong,  and  the  consequences  of  his  act,  though 
there  was  little  or  no  provocation.^^  But  the  presence  or  absence  of  a 
motive  is  a  proper  subject  for  consideration  upon  the  question 
whether  or  not  the  accused  was  sane.^^ 

218.  Acts  and  conduct. —  The  fact  that  a  person  is  unable  to  dis- 
criminate between  right  and  wrong,  so  as  to  be  criminally  irresponsi- 
ble, is  best  ascertained,  not  by  any  medical  theory,  but  by  the  acts 
and  conduct  of  the  individual  himself.^'*     And  they  are  usually  of 


oddness  of  the  deed  or  the  daring  man- 
ner in  which  it  was  committed.  Com. 
V.  Farlcin,  2  Clark    (Pa.)    208. 

^Com.  V.  Bvccieri,  153  Pa.  535,  2G  Atl. 
228;  Com.  v.  Hosier,  4  Pa.  264;  Single- 
ton V.  mate,  71  Miss.  782,  42  Am.  St. 
Rep.  488,  16  So.  295. 

And  refusal  to  instruct  as  to  sanity 
or  insanity  in  a  criminal  prosecution  is 
not  error,  wliere  tliere  is  nothing  to  sug- 
gest insanity  except  the  enormity  of  the 
crime.  Singleton  v.  State,  71  Miss,  782, 
42  Am.  St.  Rep.  488,  16  So.  205. 

^"Com.  V.  Buccieri,  153  Pa.  535,  26 'Atl. 
228. 

*°People  V.  Lake,  2  Park.  Crim.  Rep. 
215;  Beasley  v.  State,  50  Ala.  149,  20 
Am.  Rep.  292.  And  see  Binyon  v. 
United  States  (Ind.  Terr.)  76  S.  W.  265. 

"^Com..  V.  Hosier,  4  Pa.  264 ;  Carter  v. 
State,  12  Tex.  500,  62  Am.  Dec.  539: 
Reg.  V.  Dixson,  11  Cox  C.  C.  341. 

"^State  V.  Schaefer,  116  Mo.  96,  22  S. 
W.  447. 

Nor  will  a  conviction  be  set  aside  on 
the  ground  of  the  insanity  of  the  ac- 
cused, where  the  (lucstion  of  sanity  or 
insanity  was  fully  submitted,  and  mo- 
tives for  the  deed  were  clearly  shown. 
Shaw  V.  State,  32  Tex.  Crim.  Rep.  155, 
22  S.  W.  588. 

'"Com.  T.  Buccieri,  153  Pa.  535,  26  Atl. 
228;  People  v.  Barber,  115  N.  Y.  475,  22 
N.  E.  182;  Keffer  v.  State  (VVyo.)  73 
Pac.  556. 


The  commission  of  a  homicide  without 
motive,  which  is  unnatural  and  extra- 
ordinary, is,  of  itself,  sufficient  evidence 
of  insanity  to  aiithorize  the  admission 
of  testimony  to  show  the  insanity  of  the 
parents  of  the  defendant.  Murphy  v. 
Com.  92  Ky.  485,  18  S.  W.  163. 

So,  a  jury  in  a  criminal  prosecution 
in  which  insanity  is  relied  upon  should 
determine  wliether  the  accused  com- 
mitted the  act  under,  or  in  the  absence 
of,  such  motive  as  would  naturally  in- 
fluence the  mind  of  a  depraved  man  to 
acts  of  violence:  and  if  it  appears  that 
he  acted  under  the  influence  of  anger, 
jealousy,  or  hate,  that  fact  adds  great 
strongtli  to  proof  of  his  sanity;  and  if 
actual  insanity  is  not  made  out  the  jury 
may  infer  revenge  or  passion  rather  than 
insanity.  People  v.  Messersmith,  61 
Cal.  246. 

But  an  instruction  in  a  criminal 
prosecution  that  tlie  jury  is  not  war- 
ranted in  inferring  insanity  from  the 
commission  of  a  crime  or  from  its  enor- 
mity or  from  any  apparent  absence  of 
motive,  since  the  law  presumes  that  it 
was  prompted  by  malice,  is  erroneous 
as  violating  a  statute  prohibiting  in- 
structions upon  the  weight  of  evidence. 
Kearney  v.  State,  68  Miss.  233,  8  So. 
292. 

"^United  States  v.  Shults,  6  Mcl^ean, 
i2I,  Fed.  Gas.  No.  16,286. 


I  218]  INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.  225 

more  value  than  the  opinions  of  witnesses,  however  learned  or  expe- 
rienced they  may  be."^  Acts,  declarations,  and  conduct  evidencing 
an  aberration  of  mind  may  be  sufficient  to  establish  irresponsibility.'"' 
And  any  change  in  one's  acts  and  conduct,  and  its  extent  and  cause, 
and  all  other  such  circumstances  exhibited  at  or  about  the  date  of  the 
crime  and  previous  thereto,  are  to  be  considered,  and  are  entitled  to 
more  or  less  weiglit,  according  to  their  nature  and  their  proximity 
to  tlie  act  in  question.^^  And  a  man's  general  habits  constitute  bet- 
ter evidence  than  particular  acts.^^  The  concealment  of  a  criminal 
act,  and  an  endeavor  to  escape,  and  a  judicious  use  of  the  fruits 
thereof,  all  tend  to  show  a  knowledge  of  the  nature  of  the  offense 
and  the  ability  to  discriminate  between  right  and  wrong.^^  And  evi- 
dence of  preparation  for  the  crime,  and  its  commission  pursuant  to 
such  preparation,  shows  criminal  responsibility.-^ ^'^  Likewise,  the 
conduct  of  the  family  of  a  person  committing  crime  may  be  consid- 
ered on  the  question  of  his  sanity,  and  evidence  that  he  had  previ- 
ously been  totally  deranged,  and  that  they  had  treated  him  as  an 

'^State  V.  Thomas,  Houst.  Grim.  Rep.  the  purpose  of  showing  that  his  theory 
(Del.)   511.  was    not    so    impracticable    as    to    indi- 

The  fact  that  a  person  accused  of  cate  mental  insanity.  People  v.  Golds 
homicide  could  not  sleep  nights,  and  worth}/,  130  Cal.  600,  62  Pac.  1074. 
went  instinctively  where  he  could  lean  ^^Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 
against  a  bag  of  oats  instead  of  lying  Evidence  that  the  mind  of  a  person 
down  to  sleep,  is  strong  evidence  of  in-  accused  of  crime  had  undergone  a 
sanity,  where  he  did  not  know  that  this  marked  change,  and  that  he  had  become 
was  a  symptom,  and  was  not  apparent-  irritable  and  unsocial  and  absent-mind- 
ly feigning  insanity.  People  v.  Lake,  2  ed  and  listless  and  forgetful,  and  that 
Park.  Crim.  Rep.  215.  he  believed  himself  crazy,  and  that  he 

And  proof  of  the  killing  by  a  nurse  killed  his  friend  and  employer  without 
girl  of  her  employer's  children  of  whom  apparent  reason,  making  no  effort  to 
she  had  been  very  fond,  and  that  she  escape,  is  sufficient  to  establish  his  in- 
was  weak-minded  and  showed  no  fear,  sanity  and  irresponsibility.  Massen- 
angor,  shame,  or  grief,  or  consciousness  gale  v.  State,  24  Tex.  App.  181,  5  S.  W. 
that  she  had  done  wrong,  but  seemed  to    650,  6  S.  W.  35. 

be  studying  about  something,  sufficient-  "^Snook  v.  Watts,  11  Beav.  105,  12 
ly  establishes  her  insanity.  Farrer  v.  Jur.  444.  And  see  State  v.  Dreher,  137 
State,  2  Ohio  St.  54.  Mo.  11,  38  S.  W.  567. 

^State  V.  Brinyea,  5  Ala.  241.  "^United  States  v.  Shults,  6  McLean, 

But   proof  that   a   person   accused   of    121,  Fed.  Cas.  No.  16,286.     And  see  Lcc 
crime,  while  sitting  alone,  just  previous   v.  State,  116  Ga.  563,  42  S.  E.  759. 
to  its  commission,  rolled  his  eyes  as  if        '^""State  v.  O'Neil,  51  Kan.  651,  24  L. 
he  were  having  some  words  with  some-   R.  A.  555,  33  Pac.  287.     And  see  Lee  v. 
body,  does  not  sustain  the    defense    of   State,  116  Ga.  563,  42  S.  E.  759. 
insanity.    Ferris  v.  People,  35  N.  Y.  125.        Evidence  that  a  man,  upon  learning 

And  where,  in  a  criminal  prosecution,  of  a  provocation,  moved  about  uneasily, 
it  was  proven,  to  establish  insanity,  behaved  in  an  unusual  manner,  ate  littk* 
that  the  defendant  consulted  a  boiler-  dinner,  and  waited  in  ambush  and  shot 
maker  as  to  the  feasibility  of  making  a  and  killed  the  defendant,  does  not  fur 
boiler  so  light  by  the  use  of  aluminum  nish  the  slightest  proof  of  insanity 
that  he  could  carry  it  upon  his  back  Lacy  v.  State,  30  Tex.  App.  119,  16  S. 
on  his  prospecting  tours,  evidence  may  \V.  761. 
be  given  by  an  expert  in  rebuttal  for 
Vol.  I.  Med.  Jur. — 15. 


226 


MENTAL  UNSOUNDNESS  IN   ITS  LEGAL  RELATIONS.         [§  218 


insane  person,  is  of  considerable  weight  on  tlie  question  of  his  in- 
sanity. ■*  An  attempt  to  commit  suicide,  however,  is  not  of  itself  evi- 
dence of  insanity,  but  is  to  be  considered  together  with  the  other 
acts  and  circumstances  bearing  on  the  question." 

219.  Personal  characteristics. —  The  disposition  and  temperament 
of  the  defendant  in  a  criminal  prosecution,  and  any  change  therein, 
and  the  extent  and  cause  of  such  change,  are  entitled  to  consideration 
on  the  question  of  his  sanity,  and  are  of  more  or  less  weight,  accord- 
ing to  their  nature.*  Mere  eccentricity,  however,  does  not  show  in- 
sanity which  will  operate  as  an  excuse  for  crime,^  though  it  has  some 
bearing  on  the  question.^  And  an  irritable  temper  and  excitable  dis- 
position do  not  show  insanity  which  will  confer  irresponsibility.^ 
ISTor  do  suspicions  of  danger  and  apparent  melanclioly  and  peculiar 
deportment  generally.'^     And  a  mere  hallucination  is  not  of  itself 


^Ehiloch's  Case,  25  How.  St.  Tr.  891, 
997. 

"Coijle  V.  Com.  100  Pa.  573,  45  Am. 
Rep.  397;  Com.  v.  Ltitz,  10  Kulp,  234; 
People  V.  Oicens,  123  Cal.  482,  56  Pac. 
251. 

'Cole's  Trial,  7  Abb.  Pr.  N.  S.  321; 
PcHigrew  v.  State,  12  Tex.  App.  225. 

Tlie  possession  of  spasmodic  abnor- 
mal muscular  strength  or  unnatural 
physical  power  and  great  wakefulness 
and  a  deranged  system  and  great  rest- 
lessness and  an  abnormal  bulging  about 
the  eyes,  with  a  dryness  about  them,  and 
a  peculiar,  vacuous  expression,  are  all 
evidences  of  insanity.  U7iited  States  v. 
Ridgeicaij,  31  Fed.  144. 

*ijnited  States  v.  Yojing,  25  Fed.  710; 
Com.  V.  Meredith,  17  Phila.  90;  Com.  v. 
Cleary,  148  Pac.  26,  23  Atl.  1110. 

Nor  will  evidence  of  a  great  amount 
of  senseless  extravagance  and  absurd 
eccentricity  of  conduct,  coupled  with 
habits  of  excessive  intemperance,  caus- 
ing fits  and  delirium  tremens,  upon  the 
part  of  a  person  accused  of  crime,  sup- 
port a  defense  of  insanity,  where  he 
was  not  laboring  under  the  effect  of 
such  a  fit  at  the  time  of  the  act,  and 
there  were  circumstances  showing  de- 
liberation and  an  understanding  of  the 
nature  of  the  act.  Reg.  v.  Leigh,  4  Fost. 
&  F.  915. 

And  a  defense  of  insanity  is  not  es- 
tablished in  a  criminal  prosecution  by 
evidence  that  the  defendant  had  writ- 
ten a  letter  in  blood,  and  had  strange 
religious  notions,  and  had  a  wheel  stud- 
ded with  nails  upon  which  he  prayed, 
and  believed  that  he  had  discovered 
perpetual  motion,  and  behaved  in  an  ec- 


centric manner,  and  caused  a  commo- 
tion in  church,  and  was  jealous  of  his 
wife,  and  believed  tliat  his  life  was 
threatened  by  her.  Reg.  v.  M'Leod,  2 
Swinton,  88. 

'-Bonghton  v.  Knight,  L.  R.  3  Prob.  & 
Div.  64,  42  L.  J.  P'lob.  N.  S.  25,  28  L. 
T.  N.  S.  502. 

''Siiihram  v.  People,  1  N.  Y.  Grim. 
Rep.  448;  Willis  v.  People,  32  N.  Y.  715: 
Com.  V.  Clearij,  148  Pa.  20,  23  Atl. 
1110.  And  see  Blume  v.  State,  154  Ind. 
343,  5G  N.  E.  771:  Hoover  v.  State 
(Ind.)    68  N.  E.  591. 

Evidence,  in  a  prosecution  for  homi- 
cide, that  the  defendant  was  subject  to 
a  peculiar  mental  infirmity  whereby,  if 
unexpectedly  touclied  behind,  or  in  ease 
of  a  sudden  cluck  from  behind,  he  would 
become  excited,  lose  control  of  his  rea- 
son, and  leap  forward  and  strike  the 
person  nearest  him,  furnishes  no  defense, 
where  at  the  time  of  the  killing,  he  had 
not  been  thus  excited.  Thomas  v.  State, 
71  Miss.  345.  15  So.  237. 

■State  V.  Shippcy,  10  Minn.  223,  88 
Am.  Dec.  70,  Gil.  178. 

An  insane  delusion  upon  the  part  of 
a  person  that  those  about  him  were 
seeking  to  injure  him,  which  will  render 
him  irresponsible  for  a  homicide,  is  not 
established  by  evidence  that  after  the 
killing  he  warned  people  not  to  come 
near  him,  and  said  he  had  to  defend 
himself,  and  that,  upon  being  arrested, 
he  put  his  hand  to  his  hip  and  said 
something  about  his  revolver,  and 
wanted  to  get  a  butcher  knife,  and  said 
he  was  afraid  of  being  mobbed.  People 
V.  Slack.  90  Mich.  448,  51  N.  W.  533. 


§  219] 


INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


evidence  of  insanity,  though  the  inability  to  correct  it  might  be.^ 
And  proof  that  the  accused  in  a  criminal  prosecution  was  illiterate, 
ignorant,  and  passionate,  does  not  justify  an  instruction  as  to  insan- 
ity and  the  adn^ission  of  evidence  of  weak-mindedness.^  Nor  does  the 
fact  that  a  person  was  deaf  and  dumb  from  infancy  raise  a  presump- 
tion of  idiocy.^"  And  the  fact  that  a  person  was  a  fit  subject  for 
treatment  in  an  insane  hospital,  though  evidence,  is  not  conclusive 
of  criminal  irresponsibility.^^ 

220.  Causes  of  insanity. —  The  mere  fact  that  a  cause  existed 
which  might  produce  insanity  is  not  sufficient  to  establish  criminal 
irresponsibility,^^  though  it  is  sufficient  to  go  to  the  jury  with  a  defi- 
nition of  insanity  in  its  legal  sense. ^"^  And  evidence  that  the  accused 
was  an  epileptic,  and  that  the  tendency  of  that  disease  is  to  weaken 
the  intellect,  and  sometimes  produce  total  insanity,  is  not  sufficient 
to  establish  irresponsibility,  where  it  failed  to  show  that  it  had  im- 
paired his  intellect  to  any  serious  extent.^ ^     But  an  instruction  that 


^Com.  V.  Meredith,  17  Phila.  90. 

Nor  are  isolated  instances,  scattered 
through  several  years,  of  insane  acts 
which  might  have  resulted  from  the  ex- 
cessive use  of  liquor,  sufficient  to  estab- 
lish insanity  in  a  criminal  prosecution, 
as  aguinst  evidence  of  competency  to 
transact  business,  and  that  the  person 
was  treated  by  his  friends  and  associates 
as  a  sane  man.  Hoard  v.  State,  15  Lea, 
318. 

"Fitzpatrick  v.  Com.  81  Ky.  357. 

^"State  V.  Howard,  118  Mo.  127.  24  S. 
W.  41. 

"Pfltieger  v.  State,  46  Neb.  493,  64 
N.  W.  1094:  Goodwin  v.  State,  96  Ind. 
550:  Meyer  v.  People,  150  111.  126,  40 
N.  E.  490. 

And  this  is  so  though  accompanied 
by  the  opinions  of  witnesses  that  he  is 
still  insane.  Meyer  v.  People,  156  111. 
126,  40  N.  E.  490. 

^'Sawyer  v.  State,  35  Ind.  80;  State  v. 
Graviotte,  22  La.  Ann.  587;  McAllister 
V.  Territory,  1  Wash.  Terr.  300;  Taylor 
V.  United  States,  7  App.  D.  C.  27. 

Insanity  or  permanent  mental  disease 
as  a  defense  to  a  charge  of  crime  is  not 
shown  by  evidence  of  habitual  drunken- 
ness contracted  years  before,  and  that 
the  accused  had  delirium  tremens,  and 
wos  dull  and  nervous,  and  did  not  seem 
to  be  himself.  State  v.  Riley,  100  Mo. 
493,  13  S.  W.  1063. 

And  proof  of  great  excitement  and  en- 
feeblement  of  mind  of  a   husband  who 


killed  his  wife,  caused  by  her  association 
with  people  of  bad  character,  does  not 
warrant  his  acquittal,  where  he  was 
capable  of  transacting  business,  and  con- 
versed rationally,  and  characterized  her 
conduct  and  appreciated  the  danger  to 
which  his  child  would  be  exposed  if 
brought  up  among  her  associates.  Peo- 
ple V.  Montgomery,  13  Abb.  Pr.  N.  S. 
207. 

And  testimony  of  a  person  charged 
with  killing  his  wife  and  her  paramour, 
that,  just  prior  to  the  killing,  his  mind 
suddenly  left  him  and  became  a  blank, 
is  not  sufficient  to  show  that  he  was  in- 
capable of  forming  an  intent  to  murder, 
where  he  remembered  all  that  took  place 
at  the  interview  in  wliich  the  killing  oc- 
curred, and  had  known  their  improper 
relations  for  some  time.  People  v. 
Osmond,  138  N.  Y.  80,  33  N.  E.  739. 

^Uleg.  V.  Law,  2  Fost.  &  F.  836. 

But  proof  of  an  existing  cause  of  an 
insane  paroxysm  should  not  be  consid- 
ered in  a  criminal  prosecution  unless  the 
jury  finds  that  there  was  latent  insan- 
ity or  a  tendency  to  insane  paroxysm.^ 
which  might  be  converted  into  actuality 
by  the  supposed  cause.  Taylor  v.  United 
States,  7  App.  D.  C.  27. 

"Co??i.  V.  Buccieri.  153  Pa.  535,  20  Atl. 
228;  State  v.  Hayes,  16  Mo.  App.  560; 
People  V.  Burgess,  153  N.  Y.  561,  47  N. 
E.  889;  Lovegrove  v.  State,  31  Tex. 
Crim.  Rep.  491,  21  S.  W.  191. 

The  court,  in  a  criminal  prosecution. 


228 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  22f 


the  fact  that  the  accused  had  been  subject  to  epilepsy,  and  that  epi 
lepsj  is  a  disease  which  tends  to  produce  insanity,  is  not  sufficient  t( 
raise  a  reasonable  doubt  of  his  sanity,  is  erroneous  as  tending  to  mis 
lead,  and  to  interfere  with  the  province  of,  the  jury,  to  weigh  th(< 
evidence.^ ^  And  a  defense  in  a  prosecution  for  crime  may  be  madr 
out  upon  evidence  that  the  accused  was  suffering  from  an  attack  of 
epilepsy  at  the  time  which  rendered  him  unconscious  and  capable 
of  acting  only  automatically,  without  any  design  or  purj^ose  of  com- 
mitting the  act.^^ 

221.  Hereditary  insanity. —  Proof  of  hereditary  insanity  or  of  a 
taint  of  insanity  in  the  ancestors  or  family  of  a  man  is  not  sufficient 
to  relieve  him  from  criminal  responsibility,  in  the  absence  of  actual 
insanity  in  himself.^ ^  But  where  there  is  evidence  directly  teriding 
to  prove  insanity  on  the  part  of  the  accused,  proof  of  hereditary  in 
sanity  is  admissible  in  corroboration  thereof,^ ^  and  as  an  additiona' 
link  in  the  chain  of  circumstances.*^     It  is  a  mere  circumstance 


will  not  assume  as  a  fact  that  persons 
afflicted  with  epilepsy  are  easily  excited 
to  passion  and  revenge,  and  that  they 
are  afflicted  with  a  morbid  irritability 
which  must  impair  moral  responsibility, 
■which  is,  of  itself,  sufficient  to  negati"'e 
deliberation  and  premeditation,  or  that 
the  testimony  showing  epilepsy  is  not 
contradicted,  and  instruct  that  this,  of 
itself,  should  be  sufficient  to  raise  a 
doubt  as  to  criminal  responsibility, 
where  it  is  contended  that  the  accused 
had  not  had  attacks  for  a  long  time,  and 
that,  from  their  li;dit  character,  they 
had  little,  if  any,  eftect  on  his  mind. 
Com.  V,  Buccieri,  153  Pa.  535,  26  Atl. 
22S. 

And  evidence  of  the  occurrence  of  an 
epileptic  fit  after  the  trial  in  a  crim- 
inal prosecution  in  which  there  was  tes- 
timony that  the  accused  had  fits  in  his 
infancy  and  a  few  later  in  life  a.:d  one 
a  week  previous  to  the  criminal  act  is 
merely  cumulative,  and  not  a  ground  for 
a  new  trial.  People  v.  Montgomery,  13 
Abb.  Pr.  N.  S.  207. 

"^Gvetiq  v.  State,  63  Ind.  278. 
^"People  V.   Barheri,   47    N.   Y.    Supp. 
168. 

"Cole's  Trial,  7  Abb.  Pr.  N.  S.  321; 
People  V.  Pine,  2  Barb.  500;  Bradley  v. 
State,  31  Ind.  492;  State  v.  Gunniny- 
ham,  72  N.  C.  409;  State  v.  Kalb,  2 
Ohio  Legal  News,  364;  Ouiteau's  Case, 
10  Fed.  161. 

But  an  instruction  in  a  criminal  pros- 
ecution that  the  fact  that   some  or  all 


of  the  defendant's  ancestors  had  been  in- 
sane does  not  of  itself  prove  him  insane, 
and  that  he  cannot  be  excused  in  the 
absence  of  direct  and  preponderating  evi- 
dence of  insanity  is  objectionable  as  re- 
quiring direct  proof.  State  v.  Simms, 
G8  Mo.  305. 

And  an  instruction  in  such  a  prosecu- 
tion that  evidence  of  insanity  of  the 
father  and  aunt  of  the  accused  cannot 
be  considered  unless  the  jury  entertainsi 
a  reasonable  doubt  of  his  own  sanity  is 
objectionable,  since  such  a  doubt  woulc> 
entitle  him  to  an  acquittal  without  sue! 
evidence.  Jones  v.  People,  23  Colo.  276 
47  Pac.  275. 

Newly  discovered  evidence  of  the  in 
sanity  of  a  sister  of  a  person  accusetf 
of  crime  is  cumulative,  where  evidenc*!' 
of  the  insanity  of  his  father  an<* 
brother  had  been  given,  and  is  not,  there- 
fore, a  ground  for  a  new  trial.  People 
V.  Quimhri  (Mich.)  10  Det.  L.  N.  618, 
96  N.  W.  1061. 

^^State  V.  Cunningham,  72  N.  C.  469 ; 
Com.  V.  Luts:,  10  Kulp,  234;  Ouiteau's 
Case,  10  Fed.  161;  Reg.  v.  Vyse,  3  Fost. 
&  F.  247. 

"/S7a/e  V.  Cunningham,  72  N.  C.  469. 

And  evidence  of  insanity  in  the  family 
of  a  person  -accused  of  crime,  and  testi- 
mony of  his  I'amily  physician  and  per- 
sons who  had  long  known  him  tending 
to  show  insanity,  preponderate  ovev 
opinions  of  persons  not  sufficiently  quali 
tied,  and  not  substantiated  by  reasons, 
that  he  was  sane,  and  warrant  an  ^o- 


8  221]              INSANITY  AS  DEFENSE  TO  CHARGE  OF  CRIME.                   229 

however,  and  before  any  inference  can  be  drawn  from  it  the  fact  of 

insanity  of  the  ancestors  must  be  clearly  established.^*^ 

quittal.     McLeod  v.  State,  31  Tox.  Crim.  '"People  v.  Pine,  2  Barb.  566. 

Rep.  331,  20  S.  W.  749.  Evidence  of  the  temporary  insanity  oi 

And   evidence   of   a   mania   upon    the  the   grandmother    of   the   accused   in   a 

part  of  a  man  for  stealing  ladies'  shoes,  criminal  prosecution,  and  of  his  having 

without  any  apparent  object,  and  that  had   fits   while   teething,   is   too   remote 

the  insanity  was  hereditary,  and  that  he  and  unreliable  to  show  insanity  on  hia 

had  received  an  injury  to  his  head,  jus-  part  which  will  affect  criminal  responsi- 

tifies    an    acquittal    on    a    prosecution  bility.     State  v.  Eockett,  70  Iowa,  442, 

against  him  for  robbing  a  lady  of  her  30  N.  W.  742. 
shoe.     People  v.  Sprague,  2  Park.  Crim. 
Rep.  48. 


CHAPTEE  IX. 

INTOXICATION  AS  A  DEFENSE  TO  CHARGE  OF  CRIME. 

I.  Insanity  troduced  by  intoxication. 

222.  Permanent  insanity  from  drunkenness. 

223.  Degree  of  insanity  from  drunkenness  which  will  excuse. 

224.  Nature  of  delirium  tremens;  an  insane  condition. 

225.  Responsibility   in   delirium  tremens. 

226.  Effect  of  particular  susceptibility  to  insanity  from  drink. 
II.  Present  intoxication. 

227.  Mere  drunkenness  does  not  avoid  responsibility. 

228.  This  view  necessary  to  public  safety. 

229.  Right  to  show  to  indicate  noncommission. 

230.  Right  to  show  on  question  of  intent  generally. 

231.  Intent  in  larceny,  burglary,  robbery,  etc. 

232.  Intent  in  homicide  cases, 

233.  Degree  of  intoxication  necessary  to  affect  intent. 

234.  Deliberation  and  premeditation  in  homicide  cases. 

235.  Degree  of  intoxication  necessary  to  affect  deliberation. 

236.  Provocation. 

237.  Self-defense. 

238.  Intent  in  assault  cases. 

239.  Intent  in  assault  to  rape. 

240.  Intent  in  attempt  to  commit  suicide. 

241.  Texas  statute  as  to  intoxication. 

242.  Drinking  for  the  purpose  of  crime. 

243.  Involuntary  intoxication. 

III.  Intoxication  of  the  person  injured. 

244.  Effect  of  generally. 

IV.  Effect  of  addiction  to  tiie  use  of  drugs. 

245.  General  rules. 

I.  Insanity  prodttced  by  intoxication. 

222.  Permanent  insanity  from  drunkenness. —  The  fact  that  it  was 
caused  by  intoxication  or  habitual  drunkenness  does  not  prevent  per- 
manent insanity  from  relieving  from  criminal  responsibility  in  a 
proper  case.^     Settled  insanity  which  becomes  fixed  and  established 

'State  V.  Rob'inson,  20  W.  Va.  713,  43  369,  31  Atl.  1052;   State  v.  Kavanaugh 

Am.  Rep.  799;  Beasley  v.  State,  50  Ala.  (Del.)    53   Atl.   335;    Bradley  v.   State, 

]4^,  20  Am.  Rep.  2i)2;  Cavaness  V.  State,  31    Ind.   492;    Fisher  v.   State,   64   Ind. 

43  Ark.  331;  I'cojde  v.  Findley,  132  Cal.  435;  Bailey  v.  State,  26  Ind.  422;   Hill 

301,  iH  Pac.  472;  Beck  v.  State,  76  Ga.  v.   State,  42   Neb.   503,   60   N.   W.   916; 

4.".2:  Stole  v.  Uarrifjan,  9  Houst.   (Del.)  0'f!rndv  v.  State.  36  Neb.  .320,  54  N.  W. 

ii-'lO 


5  222J         INTOXICATION  AS  DEi^ENSE  TO  CHARGE  OF  CRIME.  231 

as  a  diseased,  condition  of  the  mind,  produced  by  habitual  intoxica- 
tion, aifects  criminal  responsibility  in  the  same  way  as  insanity  pro- 
duced by  any  other  cause.^  Crime  committed  by  a  person  while 
intoxicated,  to  be  punishable,  must  be  the  immediate  result  of  intox- 
ication while  it  lasts,  as  distinguished  from  insanity  remotely  oc- 
casioned by  previous  bad  habits.^  And  it  is  not  necessary  that  the 
defendant  in  a  criminal  prosecution  who  interposes  insanity  induced 
by  excessive  drinking  as  a  defense  should  have  been  actually  drunk 
at  the  time.^  And  one  who  was  insane  when  sober  is  not  rendered 
criminally  responsible  by  the  fact  that  he  was  intoxicated  when  he 
committed  a  criminal  act.^  The  question  as  to  whether  a  person 
committing  a  crime  was  suffering  from  temporary  insanity  produced 
immediately  by  intoxication,  or  from  fixed  insanity,  is  for  the  jury, 
and  its  determination  will  not  be  disturbed  unless  clearly  contrary 
to  evidence.^ 

556;  Com.  V.  Baker,  11  Phila.  631 ;  Corn-  crime;   though  some  of    the    old    books 

well  V.  State,  Mart.  &  Y.  147;   Ward  v.  called  it  an  excuse.     Lyle  v.  State,    31 

State,  19    Tex.    App.    664;    Bosivell    v.  Tex.  Crim.  Rep.  103,  19  S.  W.  903. 

Com.  20  Gratt.    860;    United   States    v.  ^State  v.  Hundley,  46  Mo.  414;  Unilcd 

Drew,  5  Mason,  28,  Fed.  Cas.  No.  14,993;  States  v.  Drew,  5  Mason,  28,  Fed.  Cas. 

United  States  v.  Clarke,  2  Cranch  C.  C.  No.  14,993. 

158,    Fed.    Cas.    No.    14,811;    Burroio's  ^Territory  v.  Davis     (Ariz.)     10    Pac. 

Case,  1  Lewin  C.  C.  75;    Rennie's    Case,  359. 

1  Lewin  C.  C.  76.       And  see    People   v.  ^Choice  v.  State,  31  Ga.  424;  Bailey  v. 

Ferris,  55  Cal.  588;  Garner  v.  State,  28  State,  26  Ind.  422. 

Fla.   113,  29  Am.   St.  Rep.  262,    9    So.  HIpstone   v.    People,      109     111.     169; 

835;  State  v.  Coleman,  27  La.  Ann.  691 ;  State  v.  Pike,  49  N.  H.  399,  6  Am.  Rep. 

Com..  V.  Crozier,  1  Brewst.   (Pa.)   349.  533. 

The  rule  that  insanity  may  be  inter-  And  an  instruction  as  to  the  effect  of 

posed  as  a  defense  in  a  prosecution  for  insanity   on   criminal    responsibility    is 

a  criminal  act  rests  upon  the  principle  improper,   when  the  evidence    indicated 

that  the   law  will   not    punish    an    act  not  ordinary  insanity,  but  irresponsible 

committed  by  an  irrational    cr    insane  drunkenness.       State    v.    Desmond,    109 

person,  whether  his  condition  was  super-  Iowa,  72,  80  N.  W.  214. 

induced    by    drunkenness    or    proceeded  And  one  who  sets  up    insanity    from 

from    some     other    cause.     Fonville    v.  alcoholism  as  a  defense  in  a  prosecution 

State,  91  Ala.  39,  8  So.  688.  for  horait;ide  is  entitled  to  have  all  the 

-State  V.  Martin,  4  N.  J.  L.  J.  252,  3  facts  and  circumstances  bearing  upon 
Crim.  L.  Mag.  44;  Fonville  v.  State,  91  the  condition  of  his  mind  fairly  sub- 
Ala.  39,  8  So.  688;  People  v.  Travers,  mitted  to  the  jury,  who  must  determine 
88  Cal.  233,  26  Pac.  88;  State  v.  Riley,  as  to  his  responsibilitv.  Territory  v. 
100  Mo.  493,.  13  S.  W.  1063;  Bill  \.  Davis  (Ariz.  Super. 'Ct.)  6  Luwsou 
State,    42    Neb.     509,    00    N.    W.    916;  Crim.  Def.  636. 

People  V.  Rogers,  18  N.  Y.  9,    72    Am.  And  a  general  charge  on  the  question 

Dec.  484;    NevUng  v.  Co?/i.  98  Pa.    323:  of  insanity,  mentioning  only  the  theory 

Com.  y.  Piatt,   11    Phila.    421;     United  of    delirium    tremens,     is     not     proper 

States  V.  Forbes,  Crabbe,  558,  Fed.  Cas.  where     there     was    testimony    to    show 

No.  15,129.       And  see  the  State  v.  Dilla-  hereditary  insanity,  permanent  insanity, 

hunt,  3  Harr.    (Del.)    551.  produced  by  long  and  continued  use  of 

At  common  law    permanent    insanity  alcoholic     spirits,    and    as    to    delirium 

produced  by  the  use  of  liquor  was  not  an  tremens     and     temporary     insanity     or 

excuse  for  crime,  but  was  a,  complete  do-  frenzy  caused  by  an  overdose    of    mor- 

fense,  making  out   that    there    was   no  pliine  administered  as  a  medicine;  equal 


232  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  222 

223.  Degree  of  insanity  from  drunkenness  which  will  excuse. — 
The  test  as  to  insanity  as  a  defense  in  a  criminal  prosecution,  that 
the  mind  must  have  been  in  such  a  condition  at  the  time  of  the  act 
that  the  person  committing  it  did  not  know  the  consequences  thereof, 
and  did  not  know  right  from  wrong  with  reference  to  it,  applies  to 
the  defense  of  insanity  from  drunkenness.''^  It  must  amount  to  a  dep- 
rivation of  reason  and  judgment,  and  make  the  accused  totally  in- 
capable of  forming  a  deliberate  and  premeditated  design,  or  of  enter- 
taining a  rational  thought  or  motive.®  It  must  be  settled  insanity, 
and  not  merely  a  temporary  condition,  produced  by  the  use  of  intox- 
icating liquors,^  and  must  have  resulted  in  a  fixed  mental  disease  or 
one  of  some  material  duration. ^^ 

224.  Nature  of  delirium  tremens;  an  insane  condition. — Delirium 

prominence    should    be    given    to    each    is  immateriaJ.      Nevling  v.  Com.  98  Pa. 

theory  of  defense.      State  v.  Rippy,  104   323. 

N.  C.  752,  10  S.  E.  259.  "I'cople  v.  Travers,    88    Cal.    233,    26 

So,  the  existence  of  such  a  disease  as  Pac.  88;  State  v.  McGonigal,  5  Harr. 
dipsomania  is  a  question  of  science  and  (Del.)  510;  Gunter  v.  State,  83  Ala.  96, 
fact,  and  not  of  law,  and  is  one  for  the    3  So.  600. 

decision  of  the  jury;  and  the  question  A  person  committing  a  crime  while 
whether  a  homicide  was  the  product  of  drunk,  who  was  peaceable  and  orderly 
such  disease  is  also  a  question  of  fact  and  rational  while  sober,  but  quarrel- 
for  the  jury.  State  v.  Pike,  49  N.  H.  some  while  drinking,  is  not  insane  in 
399,  6  Am.  Rep.  533.  the  sense  that  will   excuse  crime.     Mc- 

''Casat  V.  State,  40  Ark.  511 ;  Cavaness  Carty  v.  Com.  14  Ky.  L.  Rep.  285,  20  S. 
V.  State,  43  Ark.  331;  Beck  v.  State,  76    W.  229. 

Ga.  452 ;  Fisher  v.  State,  64  Ind.  435 ;  And  refusal  to  instruct  as  to  insanity 
State  V.  O'Neil,  51  Kan.  651,  24  L.  R.  induced  by  intoxication  is  not  error  in 
A.  555,  33  Pac.  287 ;  State  v.  Riley,  100  a  criminal  prosecution,  where  the  en- 
Mo.  493,  13  S.  W.  1063;  State  v.  Erb,  tire  proof  shows  that  the  accused  was 
74  Mo.  199;  Evers  v.  State,  31  Tex.  sober  enough  to  fully  comprehend  the 
Crim.  Rep.  318,  18  L.  R.  A.  421,  37  Am.  nature  of  his  act,  and  that  the  act  was 
St.  Rep.  811,  20  S.  W.  74-^ :  Burrow's  not  due  to  a  sudden  outburst  of  passion 
Cose,  1  Lewin  C.  C.  75;  Rennie's  Case,  or  excitement.  Carpenter  v.  Com.  92 
1  Lewin  C.  C.  76.  And  see  State  v.  Ky.  452,  18  S.  W.  9. 
Harrigan,  9  Houst.  (Del.)  369,  31  Atl.  "'"JMnergan  v.  People,  50  Barb.  266. 
1052;  Stale  v.  McGonigal,  5  Harr.  Mental  unsoundness  brought  on  by 
(Del.)  510;  State  v.  O'Neil,  51  Kan.  excessive  drinking,  remaining  after  the 
651,  24  L.  R.  A.  555,  33  Pac.  287 ;  intoxication  has  subsided,  and  existing 
O'Brien  v.  People,  48  Barb.  274;  Ward  to  such  an  extent  as  to  cause  a  loss  of 
V.  State,  19  Tex.  App.  664;  United  the  government  of  reason,  may  be  inter- 
States  V.  Clarke,  2  Cranch  C.  C.  158,  posed  as  a  palliation  or  excuse  for  crime. 
Fed.  Cas.  No.  14,811;  United  States  v.  Beasley  v.  State,  50  Ala.  149,  20  Am. 
McGlue,  1  Curt.  C.  C.  1,  Fed.  Cas.  No.    Rep.  292. 

15,679;  Ross  v.  State,  62  Ala.  224;  Reg.  But  isolated  instances  scattered 
V.  Davis,  14  Cox  C.  C.  563.  through  several  years,  tending  to  show 

"Stale  V.  Harrigan,  9  Houst.  (Del.)  insanity  which  might  be  attributed  to 
369,  31  Atl.  1052;  Bailey  v.  State,  26  excessive  use  of  liquor,  and  acts  which 
Ind.  422.  are   not  necessarily   signs    of    insanity, 

Absence  of  self-governing  power  in  are  not  sudicient  to  establish  it  as 
the  mind  of  a  person  committing  a  against  evidence  of  competency  to  trans- 
crime  is  a  defense,  whether  it  was  act  business,  and  that  the  accused  was 
caiisod  by  insanity  or  intoxication,  but  treated  by  his  associates  as  sane, 
when  the  act  resulted  from  wickedness  Hoard  v.  State,  15  Lea,  318. 
or  depravity,  the  absence  of  such  power 


S  224]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME.  233 

tremens  "may  be  the  immediate  effect  of  an  excess,  or 
series  of  excesses,  in  tliose  who  are  not  habitually  intem- 
perate, as  well  as  in  those  who  are;  but  it  most  com- 
monly occurs  in  habitual  drinkers,  after  a  few  days'  total  absti- 
nence from  spirituous  liquors.  It  is  also  very  liable  to  occur  in  this 
latter  class  when  laboring  under  other  diseases,  or  severe  external 
injuries  that  give  rise  to  any  degree  of  constitutional  disturbance. 
The  approach  of  the  disease  is  generally  indicated  by  a  slight  tremor 
and  faltering  of  the  hands  and  lower  extremities,  a  tremulousness  of 
the  voice,  a  cf^rtain  restlessness  and  sense  of  anxiety  which  the  patient 
knows  not  how  to  describe  or  account  for,  disturbed  sleep,  and  im- 
paired appetite.  These  symptoms  having  continued  two  or  three 
days,  at  the  end  of  which  time  they  have  obviously  increased  in  sever- 
ity, the  patient  ceases  to  sleep  altogether,  and  soon  becomes  delirious. 
At  first  the  delirium  is  not  constant,  the  mind  wandering  during  the 
night,  but,  during  the  day,  when  its  attention' is  fixed,  capable  of 
rational  discourse.  It  is  not  long,  however,  before  it  becomes  con- 
stant, and  constitutes  the  most  prominent  feature  of  the  disease.  Oc- 
casionally the  delirium  occurs  at  an  earlier  period  of  the  disease,  and 
may  even  be  the  first  symptom  of  any  disorder.  This  state  of  watch- 
fulness and  delirium  continues  three  or  four  days,  when,  if  the  pa- 
tient recover,  it  is  succeeded  by  sleep,  which  at  first  appears  in  un- 
easy and  irregular  naps,  and  lastly  in  long,  sound,  and  refreshing 
slumbers.  When  sleep  does  not  supervene  about  this  period,  the 
disease  is  fatal ;  and  whether  subjected  to  medical  treatment  or  left 
to  itself,  neither  its  symptoms  nor  duration  are  materially  modified. 
The  character  of  the  delirium  in  this  disease  is  peculiar,  bearing  a 
stronger  resemblance  than  any  other  form  of  mental  derangement 
to  dreaming.  It  would  seem  as  if  the  dreams  which  disturb  and 
harass  the  mind  during  the  imperfect  sleep  that  precedes  the  ex- 
plosion of  the  disease  continue  to  occupy  it  when  awake,  being  then 
viewed  as  realities,  instead  of  dreams.  The  patient  imagines  him- 
self, for  instance,  to  be  in  some  peculiar  situation,  or  engaged  in  cer- 
tain occupations,  according  to  each  individual's  habits  and  profes- 
sion; and  his  discourse  and  conduct  are  conformed  to  this  delusion, 
with  this  striking  peculiarity,  however,  that  he  is  thwarted  at  every 
step,  and  is  constantly  meeting  with  obstacles  that  defy  his  utmost 
efforts  to  remove.  Almost  invariably  the  patient  manifests,  more  or 
less,  feelings  of  suspicion  and  fear,  laboring  under  continual  appre- 
hension of  being  made  the  victim  of  sinister  designs  and  practices. 
He  imagines  that  certain  people  have  conspired  to  rob  or  murder  him, 


•_':U  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  224 

and  insists  that  he  can  hear  them  in  an  adjoining  apartment  arrang- 
ing their  plans  and  preparing  to  rush  into  his  room;  or  that  he  is 
in  a  strange  place,  where  he  is  forcibly  detained,  and  prevented  from 
ffoins:  to  his  o^ati  home.  One  of  the  most  common  hallucinations  is  to 
be  constantly  seeing  devils,  snakes,  vermin,  and  all  manner  of  un- 
clean things  around  him  and  about  him,  and  filling  every  nook  and 
corner  of  his  apartment.  The  extreme  terror  which  these  delusions 
often  inspire  produces  in  the  countenance  an  unutterable  expression 
of  anguish,  and,  in  the  hope  of  escaping  from  his  fancied  tormentors, 
the  wretched  patient  endeavors  to  cut  his  throat  or  jump  from  the 
window.  Under  the  influence  of  these  terrible  apprehensions  he 
sometimes  murders  his  wife  or  attendant,  whom  his  disordered  imag- 
ination identifies  with  his  enemies,  though  he  is  generally  tractable, 
and  not  inclined  to  be  mischievous.  After  perpetrating  an  act  of  this 
kind,  he  generally  gives  some  illusive  reason  for  his  conduct,  rejoices 
in  his  success,  and  expresses  his  regTet  at  not  having  done  it  be- 
fore." 11 

225.  Responsibility  in  delirium  tremens. — Delirium  tremens  which 
deprives  one  of  the  capacity  to  know  what  he  is  doing,  or  know  right 
from  wrong,  operates  to  relieve  him  from  criminal  responsibility  to 
the  same  extent  as  any  other  insanity, ^^  although  the  diseased  condi" 
tion  was  temporary/^   and  though  he  was  not  intoxicated  at  the 

"  Ray,  Med.  Jur.  438.  ed  States  v.  Forbes,  Crabbe,  558,   Fed. 

See  also  an  interesting  case  of  Ohio-  Cas.  No.   15,129;    United  States  v.  Mc- 

mania  in  8  Am.  Journal    of    Insanity',  Glue,    1    Curt.    C.   C.    1,    Fed.   Cas.   No. 

3.  15,679;  Reg.  v.  Davis,  14  Cox  C.  C.  563; 

"State  V.  Davis,  9  Houst.   (Del.)   407,  Rex  v.  Thomas,  7  Carr,  &  P.  817;  Rex 

33    Atl.    55;    State    v.    Hurley,    Houst.  v.   Mealdn,   7   Car.   &   P.   297;    Rennie's 

Crim.  Rep.    (Del.)    28;    State  v.   Dilla-  Case,   1  Lewin  C.  C.  76. 

hunt,  3  Harr.   (Del.)   551;  State  v.  Me-  The  word  "insanity"   embraces   every 

Gonigal,  5   Harr.    (Del.)    510;   State  v.  species   of   mental     unsoundness,    what- 

Kavanaugh  (Del.)  53  Atl.  335;  State  v.  ever  may  be  its  source  or  cause,  includ- 

Hand,  1  Marv.    (Del.)    545,  41  Atl.  192;  ing  not  only  that  derangement  produced 

People  V.  Felloios,  122  Cal.  233,  54  Pac.  by   disease   of   the   brain,   but   also   the 

830;    People    v.    Ferris,    55    Cal.    588;  condition    of    subverted    reason    which 

State  V.  O'Neil,  51  Kan.  651,  24  L.  R.  may  be  produced  by  intoxication.     Gun- 

A.  555,  33  Pac.  287;  O'Brien  v.  People,  ter  v.  State,  83  Ala.  96,  3  So.  600. 

36  N.  Y.  270,  Affirming  48  Barb.  274;  And  the  jury  in  a  criminal  prosccu- 

People  V.   O'Connell,  62  How.  Pr.  436;  tion  should  be  instructed  as  to  the  law 

State  V.  Polls,   100  N.  C.  457,  6  S.  E.  applicable     to    delirium    tremens    in    a 

657;    Maconnchcy  v.   State,  5   Oliio   St.  clear    and    pointed    manner    where    the 

77;  Coin.  v.  Green,  1  Ashm.   (Pa.)   289;  evidence  raises  the  issue  as  to  whether 

Stuart  V.  State,  1  Baxt.  178;   Carter  v.  the    accused    was,    at   the   time    of    the 

.S'<a<e,  12  Tex.  500,  62  Am.  Dec.  539;  /:,'>•-  criminal    act,    in    a    drunken   frenzy   or 

win    v.    State,    10    Tex.    App.    700;    De  laboring  under   that  disease.     Erioin  v. 

Alerts  V.  Slate,  34  Tex.  Crim.  Rep.  508,  State,  10  Tex.  App.  700. 

31  S.  W.  391;  Territory  v.  Davis  (Ariz.)  ^^State  v.  Potts,    100  N.  C.  457,  6  S. 

10  Pac.  359;    United  States  v.  Drew,  5  E.  657. 
Uasoa,  28,  Fed.  Cas.  No.   14.993;   Unit- 


§  225]         INTOXICATION  AS  DEFENSE  TO  CHAROE  OF  CRIME.  235 

time.^^  And  an  instruction  in  a  criminal  prosociition  is  erroneous 
when  it  confuses  insanity  and  intoxication;^^  tliougli  failure  of  the 
court  to  define  or  charge  as  to  mania  a  potu,  or  delirium  tremens,  in 
a  criminal  prosecution  in  which  they  are  alleged  as  a  defense,  is  not 
error,  where  the  jury  was  charged  correctly  as  to  the  degree  of  un- 
soundness which  would  relieve  from  criminal  responsibility.^^  But 
when  delirium  tremens  is  set  up  as  a  defense,  the  prisoner  must  show 
that  he  was  under  a  delirium  at  the  time  the  act  was  perpetrated, 
there  being  no  presumption  of  its  existence  from  the  antecedent  fits 
from  which  he  has  recovered. -'^ 

226.  Effect  of  particular  susceptibility  to  insanity  from  drink. — 
The  criminal  responsibility  of  one  who  commits  a  criminal  act  while 
intoxicated  is  not  affected  by  the  fact  that,  by  reason  of  a  former 
injury  or  of  constitutional  infirmity,  he  was  more  likely  to  be  mad- 
dened by  liquor  than  other  men.^^  But  one  having  a  dormant  ten- 
dency toward  insanity,  who  became  voluntarily  intoxicated,  and 
thereby  suffered  an  extravagant  degree  of  mental  derangement,  dur- 
ing which  he  committed  a  crime,  when  he  had  no  reason  to  believe 
that  such  effects  were  likely  to  follow,  should  not  be  held  responsible 
where  the  act  resulted  from  such  tendency,  and  not  from  drunken- 
ness or  previously  formed  intentions,^ '^  though  the  rule  would  loe 
different  if  he  had  good  reason  to  believe  that  his  intoxication  would 
produce  mental  derangement.  ^° 

-"Z)e  Alberts  v.  State,  34  Tex.  Crim.  tremens,  that  the  jury  might  judge 
Rep.  508,  31  S.  W.  391.  from  his  physical  appearance  and  man- 
^^People  V.  Kloss,  115  Cal.  567,  47  ner  whether  he  could  have  been  insane 
Pac.  459.  at  the  time  of  taking  the  oath  in  ques- 
^'^Stuart  V.  State,  1  Baxc.  178;  Spence  tion,  six  months  previous,  is  error,  in 
V.  State,  15  Lea,  539;  People  v.  Mills,  the  absence  of  proof  that  the  disorder 
98  N.  Y.  176.  leaves  an  infallible  mark  of  its  exist- 
But  where  the  testimony  in  a  crim-  ence.  Bowden  v.  People,  12  Hun,  85. 
inal  prosecution  tended  to  show  heredi-  And  a  great  amount  of  senseless  ex- 
tary  insanity,  permanent  insanity  pro-  travagance  and  absurd  eccentricity, 
duced  by  long-continued  use  of  liquor,  coupled  with  habits  of  intemperance, 
delirivim  tremens,  and  temporary  insan-  causing  fits  and  delirium  tremens,  are 
ity  caused  by  an  overdose  of  morphine,  not  sufficient  to  support  the  defense  of 
— a  general  instruction  only  mentioning  insanity  in  a  criminal  prosecution, 
the  theory  of  delirium  tremens  is  ob-  where  there  were  circumstances  tend- 
jectionable  as  tending  to  confine  the  de-  ing  to  show  deliberation,  and  it  does 
liberations  of  the  jury  to  that  particu-  not  appear  that  the  accused  was  then 
lar  phase  of  the  defense,  though  it  was  laboring  under  the  effects  of  such  a  fit. 
sufficiently  comprehensive  to  embrace  Reg.  v.  Leigh,  4  Fost.  &  F.  915. 
every  other  view.  Stale  v.  Rippy,  104  ^^Ghoice  v.  State,  31  Ga.  424;  State 
N.  C.  752.  10  S.  E.  250.  v.  Wilson,  104  N.  C.  868,  10  S.  E.  315. 
"/Sfafe  V. /SetoeH,  48  N.  C.{3  JonesL.)  '''Roberts  v.  People,  19  Mich.  401; 
250.  As  to  general  presumption  arising  Bliinm  v.  Com.  7  Bush,  320;  Reg.  v. 
from  prior  insanity,  see  §  308.  Mountain,   Leed's   Assizes,   April,    1888, 

An    instruction   in   a   prosecution    for  Pollack,    B. 

perjury,  in  which  it  was    claimed    that  '-"Roberts    v.    People,    19    Mich.    401; 

the  defendant  was  insane  from  delirium  People  v.  Uarbutt,   17  Mich.  9.   97  Am. 


836  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONE         [§  227 

II.  Present  intoxication. 

227.  Mere  drunkenness  does  not  avoid  responsibility. — Drunkenness, 
so  long  as  it  does  not  prostrate  the  faculties,  cannot  be  distinguished 
from  anj  other  kind  of  passion.  If  drunkenness  so  incapacitates  the 
reason  as  to  make  it  at  least  partially  incapable  of  distinguishing  be- 
tween right  and  wrong,  or  else  so  inflames  the  passions  as  to  make  re- 
straint insupportable,  then  comes  in  the  familiar  principle  that  the 
man  who  voluntarily  assumes  an  attitude  or  does  an  act  which  is 
likely  to  injure  others,  is  responsible  for  the  consequences,  even 
though  he  had  at  the  time  no  specific  intention  to  cause  injury.  It  is 
the  universal  rule,  therefore,  that  voluntary  intoxication  is  no  justifi- 
cation or  excuse  for  crime  ;^^  and  mere  drunken  excitement  and  rage 

Dec.  162;  Vpstone  v.  People,  109  111.  butt,  17  Mich.  9,  97  Am.  Dec.  162; 
169;  State  v.  Wilson,  104  N.  C.  868,  10  State  v.  Garvey,  11  Minn.  154,  Gil.  95; 
S.  E.  315.  Kelly    v.    State,    3    Sniedes   &   M.    518; 

In  such  case  he  must  be  held  to  have  State  v.  Hundley,  46  Mo.  414;  State  v. 
intended  the  extraordinary  derangement  West,  157  Mo.  309,  57  S.  W.  1071;  Ter- 
as  well  as  the  intoxication  and  the  re-  ritory  v.  Manton,  8  Mont.  95,  19  Pac. 
suit  produced  by  it,  and  the  same  de-  387;  O'Urady  v.  State,  36  Neb.  320,  54 
gree  of  mental  incapacity  would  be  re-  N.  W.  556;  State  v.  Thompson,  12  Nev. 
quired  to  render  him  irresponsible  140;  State  v.  Martin,  4  N.  J.  L.  J.  252, 
whether  the  derangement  was  caused  3  Grim.  L.  Mag.  44 ;  Territory  v.  Frank- 
by  the  intoxication  combined  with  the  lin,  2  N.  M.  307;  Flanigan  v.  People,  86 
infirmity  or  by  the  intoxication  alone.  N.  Y.  554,  40  Am.  Rep.  556;  State  v. 
Roberts  v.  People,  19  Mich.  401.  John,  30  N.  C.  (8  Ired.  L.)  330,  49  Am. 

-"^The  cases  stating  or  acting  upon  this  Dec.  396;  State  v.  Kale,  124  N.  C.  816, 
rule  are  almost  without  number;  among  32  S.  E.  892;  State  v.  Koerner,  8  N.  D. 
them  are:  Beasley  v.  State,  50  Ala.  292,  78  N.  W.  981;  Pigtnan  v.  State, 
149.  20  Am.  Rep.  292;  McLeroy  v.  State,  14  Ohio,  555,  45  Am.  Dec.  558;  Cline  v. 
120  Ala.  274,  25  So.  247;  Chrismun  v.  Slate,  43  Ohio  St.  332,  1  N.  E.  22; 
State,  54  Ark.  283,  15  S.  W.  889,  26  Am.  Keenan  v.  Com.  44  Pa.  55,  84  Am.  Dec. 
St.  Rep.  44;  People  v.  Nichol,  34  Gal.  414:  Com.  v.  Cleary,  148  Pa.  26,  23  Atl. 
212;  People  V.  Methcver,  132  Gal.  326,  1110;  State  v.  Bundy,  24  S.  G.  439,  58 
64  Pac.  481;  State  v.  Johnson,  41  Gonn.  Am.  Rep.  263;  Wilcox  v.  State,  94  Tenn. 
584;  State  v.  Johnson,  40  Conn.  1.30;  100,  26  S.  W.  312;  Carter  v.  State,  12 
People  V.  Odell,  1  Dak.  197,  46  N.  W.  Tex.  500,  C2  Am.  Dec.  539;  Evers  v. 
601;  State  v.  Thomas,  Houst.  Grim.  State,  31  Tex.  Grim.  Rep.  318,  18  L.  R. 
Rep.  (Del.)  511;  State  v.  Snow,  3  Penn.  A.  421,  37  Am.  St.  Rep.  811,  20  S.  W. 
(Del.)  259,  51  Atl.  007;  Hanis  v.  Unit-  744:  Slate  v.  Tatro,  50  Vt.  483;  Longley 
ed  States,  8  App.  D.  G.  20,  36  L.  R.  A.  v.  Com.  99  Va.  807,  37  S.  E.  483;  State 
405;  (lamer  v.  State,  28  Fla.  113,  29  v. /2o6inso«,  20  W.  Va.  713,  43  Am.  Rep. 
Am.  St.  Rep.  262.  9  So.  835;  Choice  v.  799;  United  States  v.  McGlue,  1  Curt. 
State,  31  Ga.  424-  Cribb  v.  State  (Ga.)  G.  G.  1,  Fed.  Gas.  No.  15,679;  Beverley's 
45  S.  E.  396;  Upstone  v.  People,  109  Case,  4  Goke,  125a;  Reg.  v.  Dixon,  11 
111.   169;   Dawson  v.  State,  16  Ind.  428,   Cox  G.  G.  341. 

79  Am.  Dec.  439;  Aszman  v.  State,  123  And  the  disease  of  oinomania,  or  dip- 
[nd.  347,  8  L.  R.  A.  33,  24  N.  E.  123;  somania,  consisting  of  an  inordinate 
State  V.  Hart,  29  Iowa,  268;  State  v.  thirst  for  liquor,  caused  by  a  habit  of 
Roan  (Iowa)  97  N.  W.  997;  State  v.  drinking,  does  not  afTect  criminal  re- 
O'Neil,  51  Kan.  651,  24  L.  R.  A.  555,  33  sponsibility  for  acts  committed  by  one 
Pac.  287;  Shannahan  v.  Com.  8  Bush,  becoming  intoxicated  after  being  thus 
464,  8  Am.  Rep.  465;  Conley  v.  Com.  98  impc'lled  to  drink.  Choice  v.  State,  31 
Ky.  125,  32  S.  VV.  285;  State  v.  Coleman,  Ga.  424;  Slate  v.  Potts,  100  N.  C.  457, 
27  La.  Ann.  091;  Corn.  v.  Gilbert,  165  6  S.  E.  657. 
Mass.  45,  42  N.  E.  330;  People  v.  Gar-        And   the   fact   that   a   party  carrying 


§  227]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME.  237 

constitute  no  excuse."^  Drunkenness  is  not  insanity,  and  does  not 
constitute  unsoundness  of  mind,  unless  the  derangement  which  it  has 
caused  has  become  fixed  and  continuous,^^  the  character  of  the  liquor 
drunk  being  immaterial.^"*  And  mental  incapacity  produced  by  vol- 
untary intoxication,  existing  only  temporarily  at  the  time  of  the  com- 
mission of  a  criminal  offense,  is  no  excuse  therefor  or  defense  in  a 
prosecution  therefor.-^  Som.e  of  the  cases,  however,  state  the  rule 
to  be  that  drunkenness  will  not  excuse  criminal  acts  unless  it  destroys 
capacity  to  distinguish  between  right  and  wrong,-°  or  unless  it  ren- 
ders the  party  unconscious  of  what  he  is  doing,-''  or  unless  it  is  such 


brass  knuckles  was  too  drunk  to  know 
lie  had  tliem  at  the  time  of  discovery  is 
not  a  defense  to  a  prosecution  therefor, 
where  he  was  not  innocently  carrying 
them  without  knowing  it.  Osborn  v. 
Htate   (Tex.  Crini.  Rep.)    26  S.  W.  625. 

--State  V.  Wilson,  104  N.  C.  868,  10 
S.  E.  315.  And  see  State  v.  Lowe,  93 
Mo.  547,  5  S.  W.  889. 

^^State  V.  Martin,  4  N.  J.  L.  J.  252, 
3  Crim.  L.  Mag.  44;  Ke  Johnson,  57  Cal. 
529;  Aszman  v.  State,  123  Ind.  347,  8 
L.  R.  A.  33,  24  N.  E.  123;  Choice  v. 
State,  31  Ga.  424;  People  v.  Odell,  1 
Dak.  197,  46  N.  VV.  601 ;  State  v.  Wells, 
54  Kan.  161,  37  Pae.  1005;  Wilkerson 
V.  Com.  88  Ky.  29,  9  S.  W.  836;  Buck- 
hannon  v.  Corn.  86  Ky.  110,  5  S.  W.  358; 
Com.  V.  Gilbert,  165  Mass.  45,  42  N.  E. 
336. 

Where  a  man  and  wife  went  to  a 
neighboring  town,  where  they  drank 
together,  after  which  they  walked  toward 
home,  but  before  reacliing  it,  and  at  a 
place  within  easy  calling  distance,  the 
wife  fell  down  on  the  ice,  and  the  hus- 
band left  her  there  all  night,  poorly  clad 
and  exposed  to  the  cold,  from  the  effects 
of  which  she  died,  his  drunkenness  is  no 
excuse  for  his  failure  to  take  proper 
care  of  her.  Territory  v.  Alanton,  8 
Mont.  95,  19  Pac.  387. 

And  wheie  evidence  in  a  criminal 
prosecution  has  been  given  of  strange 
statements  and  actions  of  the  accused 
on  the  day  of  the  offense,  claimed  to  in- 
dicate insanity,  evidence  may  be  given 
that  he  was  intoxicated  on  that  day,  for 
the  purpose  of  rebutting  such  inference. 
People  V.  Miles,  143  N.  Y.  383,  38  N.  E. 
456. 

=^Crihb  V.  State  (Ga.)  45  S.  E.  396. 

-'Fisher  v.  State,  64  Ind.  435;  State 
V.  Bullock,  13  Ala.  413;  People  v.  Lewis, 
36  Cal.  531 ;  People  v.  Williams,  43  Cal. 


344;  Beck  v.  State,  76  Ga.  452;  Vp- 
stonc  V.  People,  109  111.  169;  Wright  v. 
Com.  24  Ky.  L.  Rep.  1838,  72  S.  W.  340  . 
State  V.  Haah,  105  La.  2.30,  29  So.  725; 
State  V.  Hundley,  40  Mo.  414;  Schlcnck- 
er  V.  State,  9  Neb.  241,  1  N.  W.  857; 
State  v.  Thompson,  12  Nev.  140 ;  Garner 
V.  State,  28  Fla.  113,  20  Am.  St.  Rep. 
262,  9  So.  835;  State  v.  Martin,  4  N.  J. 
L.  J.  252,  3  Crim.  L.  Mag.  44 ;  People  v. 
Krist,  168  N.  Y.  19,  60  N.  E.  1057; 
Longley  v.  Com.  99  Va.  807,  37  S.  E. 
839 ;  Gustavenson  v.  State,  10  Wyo.  300. 
68  Pac.   1006. 

This  is  so  though  the  intoxication 
was  such  as  to  render  the  person  in 
capable  of  distinguishing  between  right 
and  wrong  for  the  time  being.  State  v. 
Ilaab,  105  La.  230,  29  So.  725;  Monta<; 
v.  People,  141  111.  75,  30  N.  E.  337. 

Insanity  originating  from  the  use  ol 
drugs  is  not  regarded  witli  the  same 
leniency  as  an  excuse  for  crime,  as  in 
sanity  not  caused  by  the  act  of  the 
party  himself.  Wilcox  v.  Sta4e,  94 
Tenn.  106,  28  S.  VV.  312. 

And  the  test  of  insanity  as  affecting 
criminal  responsibility,  that  the  accused 
must  have  labored  under  such  a  defect 
of  reason  as  not  to  know  the  nature  or 
the  quality  of  the  act,  or,  if  he  did 
know  it,  that  he  did  not  know  he  was 
doing  wrong,  does  not  apply  to  drunk- 
enness.    People  V.  Ferris,  55  Cal.  588. 

■"Ross  v.  Slate,  62  Ala.  224;  Slate  v. 
Wells,  54  Kan.  161,  37  Pac.  1005;  State 
V.  Ford  (S.  D.)  92  N.  W.  18.  And  see 
Territory  v.  Franklin,  2  N.  M.  307; 
Com.  V.  Hart,  2  Brewst.  (Pa.)  546. 

■'State  V.  Till,  Houst.  Crim.  Rep. 
(Del.)  233;  Pigman  v.  State,  14  Ohio, 
555,  45  Am.  Dec.  558;  Osborn  v.  State 
(Tex.  Crim.  App.)  26  S.  W.  625.  And 
see  State  v.  Wells,  54  Kan.  161,  37  Pac. 
1005. 


838  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  227 

as  to  prevent  him  from  restraining  himself  from  committing  the  act.-* 
And  some  of  the  cases  have  regarded  intoxication  as  an  aggravation 
rather  than  an  excuse  for  crime.^''  But  the  general  rule  seems  to  be 
that  drunkenness  neither  aggravates,  excuses,  extenuates,  nor  miti" 
gates  crime.^^ 

228.  This  view  necessary  to  public  safety. —  The  safety  of  the  com- 
munity in  fact,  requires  tliat  this  rule  should  be  observed.  Every 
murderer  would  drink  to  shelter  his  intended  guilt.  There  never 
could  be  a  conviction  for  homicide  if  drunkenness  should  avoid  re- 
sponsibility. As  it  is,  some  of  tlie  most  premeditated  homicides  are 
committed  imder  the  stimulus  of  liquor.  The  guilty  purpose  is  at 
first  sedately  conceived,  but  there  are  few  men  whose  temperaments 
are  so  firmly  loiit  as  to  enable  them  to  enter  a  scene  of  blood  without 
first  fortifying  tliemselves  for  the  task  to  be  performed.  The  head 
dreads  the  heart's  cowardice,  and  seeks  to  insure  against  it  by 
drink.  And,  if  the  assassin  did  not  take  liquor  to  strengthen  his 
nerves,  he  would  take  it  to  avoid  conviction.  There  would  be  no  spec- 
ies of  deliberate  homicide,  under  such  a  dispensation,  that  would  not 
avoid  punishment.  It  Avould  be  the  imdeliberate  only  that  would  be 
made  responsible. 

229.  Right  to  show  to  indicate  noncommission. —  Intoxication  may 
be  shown  in  a  prosecution  for  crime  like  any  other  fact ;  not  as  an  ex- 
cuse or  defense,  but  to  throw  light  upon  the  other  facts  and  circum- 
stances in  the  case,^^   or  as  tending  to  show  that  the  accused  was 

^Reg.  V.  Monkhouse,  4  Cox  C.  C.  55;  v.  Sneed,  88  Mo.  138;  State  v.  Ramsey, 

People  V.  Odell,   1  Dak.   197,  46  N.  W.  82  Mo.   133;   State  v.  Edwards,  71  Mo. 

GOl:  Com.  v.  Gilbert,  165  Mass.  45,  42  321:   State  v.  Cross,  27  Mo.  332;  State 

N.  E.  336.  V.  Uarloir,  21  Mo.  446. 

^^Unitcd    States    v.    Forbes,    Crabbe,  In   Missouri,    intoxication   is   not   ad- 

558,  Fed.  Cas.  No.  15,129;  United  States  missible   in   a   criminal   prosecution   for 

V.  Cornell.  2  Mason,  99,  Fed.  Cas.  No.  any   purpose.     State   v.    Sneed,    88   Mo. 

14,868;     State    v.     Thompson,     Wright  138. 

(Ohio)   617;  United  States  v.  Claypool,  It  has  been  held,  however,  that  tran- 

14  Fed.   127.  sient  insanity  ensuing  from  intoxication 

And    it    has   been    held    that   it   may  caused  by  sensual  ratification  or  social 

raise   homicide   to  murder   in   the   first  hilarity,  thougli  not  an  excuse  for  homi- 

degree.     Willis  v.  Com.  32  Gratt.  929.  cide,  sliould  mitigate  it.    Smith  v.  Com. 

But    drunkenness    cannot    convert    a  1  Duv.  224. 

mere  accident  into  a  felonv.     State  v.  So,  in  Conley  v.  Com.  98  Ky.  125,  32 

Cross,  42  W.  Va.  253,  24  S.  E.  996.  S.  W.  285,  evidence  of  drunkeriness  was 

And   a   remark   by   the   court   in   the  held   to   be   admissible   for   the   purpose 

hearing  of  the  jury  in  a  criminal  prose-  of  mitigating  the  ofTonse  charged, 

cution  that  drunkenness  is  more  of  an  '\Jcnkins  v.  State,  93  Ga.  1.  18  S.  E. 

aggravation  than  an  excuse,  without  an  992;    Hanvey    v.    State,    68     Ga.     612; 

explanation,      is     improper.      Slate     v.  Lanerqan    v.     People,    6     Park.     Crim. 

Donovan,  61  Iowa,  369,  16  N.  W.  206.  Rep.  209;  Ferrcll  v.  State,  43  Tex.  503. 

^Mclntyre  v.  People,  38  111.  514;  I'er-  Where  the  jury  in  a    prosecution    for 

rell    v.    State,    43    Tex.    503;    State    v.  homicide  is  required  to  fix  the    punish- 

ihirphy,  118  Mo.  7,  25  S.  W.  95;  State  ment,  the  intoxication  of  the  defendant 


g  22dl         rNTOXlCATlOISi  A8  DEFENSE  TO  CHARGE  OF  CKIME.  239 

physically  unable  to  commit  the  olfensc,^^  and  also  to  enable  tlie  jury 
to  determine  whether  the  mental  condition  of  the  accused  was  such 
that  he  knew  he  was  committing  an  offense."^  Excuse  for  criminal 
acts  because  of  drunkenness,  however,  is  at  all  times  to  be  received 
with  great  caution,  on  account  of  the  ease  with  which  it  may  be  per- 
verted.^^ 

230.  Right  to  show  on  question  of  intent  generally. —  Where  a  crim- 
inal act  is  one  which  can  be  committed  only  by  doing  a  particular 
thing  with  a  specific  intent,  it  may  be  shown  that  at  the  time  of  doing 
it  the  accused  was  so  drunk  that  he  could  not  have  entertained  the 
intent  necessary  to  constitute  the  offense.^^     And  intoxication  may 


at  the  time  of  the  commission  of  the 
criminal  act  should  be  considered  as 
tending  to  give  character  to  it.  Rafferty 
V.  People,  66  111.  118. 

.  And  proof  of  intoxication  of  a  man 
who  cut  a  boy's  throat  without  motive, 
and  talked  and  acted  strangely  at  the 
time,  is  pertinent  and  admissible  in  a 
prosecution  for  the  crime,  as  a  circum- 
stance helping  to  account  for  his  act. 
Blimm.  v.  Com.  7  Bush,  320. 

''yenkins  v.  State,  93  Ga.  1,  18  S.  E. 
092:  State  v.  Koemer,  8  N.  D.  292,  78 
N.  W.  981;  Ferrell  v.  State,  43  Tex.  .503. 

"'^People  V.  Harris,  29  Cal.  678;  Pig- 
man  V.  State,  14  Ohio,  555,  45  Am.  Dec. 
558.  And  see  Fisher  \.  State,  30  Tex. 
App.  502,  18  S.  W.  90. 

And  the  fact  that  a  person  accused  of 
crime  talked  with  his  usual  intelligence 
at  the  time  is  competent  and  material, 
where  he  claims  to  have  been  so  under 
the  influence  of  liquor  at  the  time  as  not 
to  know  what  he  was  doing.  White  v. 
State,  103  Ala.  72,  16  So.  63. 

^'Kriel  v.  Com,  5  Bush.  362. 

A  remark  by  the  judge  to  the  jury  in 
•a  criminal  prosecution,  that  there  was 
some  evidence  of  the  defendant's 
drunkenness,  is  erroneous  as  liable  to  be 
understood  as  expressing  an  opinion  as 
to  the  quantity  and  weight  of  the  evi- 
dence on  that  question  unfavorable  to 
the  accused,  though  without  the  quali- 
fying word  "some"  the  expression  would 
not  have  been  objectionable.  State  v. 
Donovan,  61  Iowa,  369,  16  N.  W.  206. 

And  an  instruction  in  a  criminal 
prosecution  that  if  the  accused  was  in- 
toxicated to  such  an  extent  that  she 
was  not  conscious  of  what  she  was 
doing,  still  the  law  holds  her  responsible 
for  her  act,  is  not  error,  where  there 
were  no  facts  or  circumstances  in  the 
case  warranting  an   inference    that  she 


was  in  a  state  of  unconsciousness  or  in- 
sensibility from  intoxication.  People  v. 
RobiASon,  2  Park.  Grim.  Rep.  235. 

And  an  instruction  in  a  criminal 
prosecution  characterizing  drunkenness 
as  gross  vice  and  misconduct  is  not  re- 
versible error,  where  the  language  was 
not  applied  to  the  defendant.  People  v. 
Calton,  5  Utah,  451,  16  Pac.  902. 

And  an  expression  by  the  court  in  a 
criminal  prosecution,  in  instructing  the 
jury,  that  "there  is  something  said  in 
regard  to  drunkenness,"  is  not  subject 
to  the  objection  that  the  words  had  a 
tendency  to  make  light  of  the  plea  of 
driinkenness.  Vann  v.  State,  83  Ga. 
44,  9  S.  E.  945. 

^  This  rule  is  now  settled  and  sup- 
ported by  numerous  cases,  among  wliich 
are:  McLeroy  v.  State,  120  Ala.  274, 
25  So.  247;  Chrisman  v.  State,  54  Ark. 
283,  26  Am.  St.  Rep.  44,  15  S.  W.  889; 
People  V.  Methever,  132  Cal.  326,  64 
Pac.  481;  State  v.  Fiske,  63  Conn.  388, 
24  Atl.  572;  State  v.  Faino,  1  Marv. 
(Del.)  492,  41  Atl.  134;  Garner  v. 
State,  28  Fla.  113,  29  Am.  St.  Rep.  262, 
9  So.  835;  Malone  v.  State,  49  Ga.  210; 
Bartlwlomeic  v.  People,  104  111.  605,  44 
Am.  Rep.  97;  Boohcr  v.  State.  156  Ind. 
435,  54  L.  R.  A.  391.  60  N.  E.  156;  State 
V.  Pasnau,  118  Iowa,  501,  92  N.  W.  682; 
State  V.  Mom-y,  37  Kan.  369,  15  Pac. 
282;  Keeton  v.  Com.  92  Ky.  522,  18  S. 
W.  359:  State  v.  Trivas.  32  La.  Ann. 
1086,  36  Am.  Rep.  293;  People  v. 
Walker,  38  Mich.  156;  State  v.  Carrey, 
11  Minn.  154,  Gil.  95;  Kelly  v.  State,  3 
Smedos  &  M.  518;  O'Grady  v.  State.  36 
Neb.  320.  54-  N.  W.  556;  People  v. 
Leonardi,  14^  N.  Y.  360,  38  N.  E.  372: 
Siran  v.  State,  4  Humph.  136;  Scott  v. 
State,  12  Tex.  App.  31;  Hempton  v. 
Slate,  111  Wis.  127,  86  N.  W.  596; 
Gustavenson  v.  State,  10  Wyo.  300,  68 


240  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  230 

be  shoAvn  for  the  purpose  of  determining  the  condition  of  the  defend- 
ant's mind,  and  to  throw  liglit  upon  the  inquiry  whether  there  Avas 
malice,^®  and  to  show  that  the  necessary  intent  did  not  exist,  and. 
therefore,  that  the  crime  in  question  had  not  been  committed.^'  And 
intoxication  may  also  be  considered  in  determining  the  purpose  or 
motive  or  intent  with  which  a  crime  was  committed,  in  cases  of  crimes 
which  are  divided  into  degTces,  or  which  are  clearly  so  divided  by 
inferential  construction.^^  The  mere  fact  of  intoxication,  how^ever, 
is  not  conclusive  against  the  existence  of  a  criminal  intent.''^  So 
long  as  the  offender  was  capable  of  conceiving  a  design  to  commit  tlic 

Pac.  1006;  Re(].  v.  Monkhouse,  4  Cox  C.  some     infirmity     besides     drunkenness: 

C.  55.       And  see    also    fitate   v.    Gather  and  that  in  order  to  be    too    drunk    to 

(Iowa)   90  N.  W.  722.  form  an   intent  to    kill    he    must    have 

The  presumption  that  every    one  in-  been  too  drunk  to  shoot, 
tends  the  natural  consequences    of    his        ^''People  v.  Harris,  29  Cal.  678;  Stale 

acts,   arising   in    a    prosecution     for    a  v.    Di    Gufjliclmo    (Del.)    55    Atl.    350; 

criminal  act  involving  the  element  of  in-  State  v.  Garrcy,  11   Slinn.  154,  Gil.  95; 

tent,  would  be  rebutted  by  the  fact  that  O'Grndy  v.  State,  30  Neb.  320,    54    N. 

the  accused  was  so  drunk  at  the    time  W.  550;   People    v.    Robinson,    2    Park. 

that  he  did  not  know  what  he  was  doing.  Crim.  Rep.  235;  Cline  v.  State,  43  Ohio 

State    V.    Barbee,    92    N.    C.    820.     But  St.  332,  1   N.  E.  22;    Siran  v.  State,  4 

see  State  v.  Cross,  27  Mo.  334.  Humph.  13G;   Scott    v.    State,    12    Tex. 

The  rule  that  a  man  who.  by    intoxi-  App.  31;  Ingalls  v.  State,  48  Wis.  648, 

cation,  voluntarily  puts  himself  into  a  4  N.  W.  785. 

condition    to    have    no    control    of    his        A  person  accused  of  crime,    who   was 

actions,  must    be    held    to    intend    the  too  intoxicated  to  be  able  to  entertain 

consequences,  includes    only    the    conse-  the  particular  intent  necessary  to  consti- 

quences   which  actually  ensue,   and   not  tute  the  crime,  would  be    incapable    of 

an   intent   in   addition    thereto,    where,  committing  it.     Garner  v.  State,  28  Fla. 

at  the  time,  the  accused  was  incapable  113,  29  Am.  St.  Rep.  262,    9    So.    835; 

of  entertaining  such  intent,  and  did  not  State  v.  Donovan,  01   Iowa,  369,   10  N. 

in  fact  entertain  it.      Roberts  v.  People,  W.  206 ;   People  v.  Haley,  48  Mich.  495. 

19  Mich.  401.  12  N.  W.  671. 

^Malone  v.  State,  49  Ga.  210;   Moon        ^'People  v.   Odell,   1   Dak.   197,  46  N. 

V.  State,  08  Ga.  087;    Daicson  v.  State,  W.  001;  People  v.  Young,  103  Cal.  411. 

16  Ind.  428,  79  Am.  Dec.  439;   Golliher  30  Pac.  770;  O'Gradt/  v.  State,  36  Neb. 

V.  Com.  2  Duv.  163,  87  Am.    Dfc.    493;  320,  54  N.  W.  550;  Wilson  v.  State,  60 

State  V.  Triras,  32  La.  Ann.    1086,    36  N.  J.  L.   171,  37  Atl.  954,  38  Atl.  428; 

Am.  Rep.  293;  Kelly  v.  State,  3  Sraedes  United  States  v.  Meagher,  37  Fed.  875; 

&  ^r.  518.  Reg.  v.  Gamlen.  1   Post.  &  F.  90.     And 

In  Is'icholas  v.  State,  8  Ohio  St.    435,  see  People    v.    Belencia,    21    Cal.     544; 

however,  it  was  held,  that    the    intoxi-  Conley  v.  Cow.  98  Ky.    125,    32    S.    W. 

cation  of  a  person  at  the  time  of  com-  285 ;  Kriel  v.  Co7n.  5  Bush,  363 ;  Smith 

mitting  homicide  has  nothing  to  do  with  v.  Com.  1  Duv.  224. 
the  question  of  malice.  A    lesser    provocation    might    sudden- 

And  in  Estes  v.  State,  55  Ga.  30,  it  ly  heat  and  blind  a  man  with  angry 
was  held  that  one  who  is  sober  enough  passion  while  intoxicated  than  while 
to  intend  to  shoot  at  another,  and  who  sober,  and  for  that  reason  intoxication 
actually  does  shoot  at  and  hit  him,  may  be  considered  in  determining  the 
without  provocation  or  justification,  question  of  malice  with  a  view  to  reduce 
must  be  considered  sober  enough  to  the  killing  from  murder  to  man- 
form  the  specific  intent  to  murder.  slaughter.       State    v.     Hurley,     Houst. 

And  in  Marshall  v.  State,  59  Ga.  154,  Crim.  Rep.  (Del.)  28. 
it  was  held  that  one  who  can  voluntarily        ^"State  v.  White,  14  Kan.  538;  State 

shoot   is   capable   of    entertaining,    and  v.  Avery,  44  N.  H.  392. 
acting  from,  malice,  unless  he  can  plead 


§  230J        J  NTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


241 


crime  in  question,  the  fact  that  he  was  intoxicated  cannot  be  allowed 
to  affect  the  legal  character  of  his  act,"**^  and  he  will  be  presumed,  in 
the  absence  of  ])roof  to  the  contrary,  to  have  intended  the  actual  con- 
sequences of  his  acts."*^  And  where,  witliout  intoxication,  the  law 
would  impute  to  the  act  a  criminal  intent,  voluntary  drunkenness  is 
not  available  to  disprove  such  intent.'*"  Intoxication  cannot  be  con- 
sidered in  any  but  cases  involving  the  condition  of  the  mind  of  the 
accused  when  the  act  was  done,"*"  and  evidence  as  to  whether  the  de- 
fendant was  drunk  or  sober  on  a  trial  for  an  offense  not  involving;  anv 
specific  intent  is  immaterial  and  inadmissible.^"*  The  question 
whether  one  accused  of  crime,  of  which  a  specific  intent  is  an  essential 
element,  who  had  interposed  drunkenness  as  a  defense,  knew  \yhat  he 
was  doing  or  not,  is  one  of  fact  for  the  jury.*^ 


"Triery  v.  People,  54  Barb.  319;  King 
V.  .State,  90  Ala.  612,  8  So.  85(); 
CLatJiam  v.  mate,  92  Ala.  47,  9  So.  607 ; 
Tidu'cll  V.  mate,  70  Ala.  33;  White  v. 
mate,  103  Ala.  72,  16  So.  63;  mate  v. 
O'l^eil,  51  Kan.  051,  24  L.  R.  A.  555,  33 
Pac.  287;  WUson  v.  mate,  60  N.  J.  L. 
171,  37  Atl.  954,  38  Atl.  428;  mate  v. 
Trivas,  32  La.  Ann.  1086,  36  Am.  Rep. 
293;  State  v.  Kale,  124  N.  C.  816,  32  S. 
E.  892. 

An  instruction  in  an  action  for  know- 
ingly and  wilfully  resisting  an  officer, 
that  if  the  defendant  was  so  drunk  as  to 
be  incapable  of  forming  the  statutory 
intent,  he  would  be  free  from  the  statu- 
tory ^lilt,  but  not  otherwise,  is  suf- 
ficiently favoi'able  to  the  defendant. 
Peonle  v.  Ealey,  48  Mich.  495,  12  N.  W. 
671. 

"Smiirr  v.  State,  88  Ind.  504;  People 
V.  Fish,  125  N.  Y.  136,  26  N.  E.  319; 
Friery  v.  People,  54  Barb.  319. 

Drunkenness  will  not  change  the 
grade  of  an  offense  unless  the  evidence 
suggests  some  other  motive  for  the  act, 
to  be  compared  by  the  jury  with  the 
state's  theory  of  a  malicious  intent,  and 
in  the  absence  of  such  suggestion  no 
charge  with  reference  to  drunkenness  as 
a  separate  element  in  grading  the  of- 
fense need  be  given.  Estes  v.  State,  55 
Ga.  .30. 

'-ZJpstone  V.  People.  109  111.  \09-;  Raf- 
ferty  v.  People,  66  111.  118;  OTIevrin  v. 
State,  14  Ind.  420;  State  v.  Peterson, 
129  N.  C.  556,  85  Am.  St.  Rep.  756,  40 
S.  E.  9;  Little  v.  Stale,  42  Tex.  Crim. 
Rep.  551,  61  S.  W.  483. 

Refusal  to  charge  as  to  intoNicilion 
as  affecting  intent  in  a  criminal  prose- 
VoL.  I.  Med    .Iuu. — 10. 


cution  is  not  error,  where  temporary  in- 
sanity from  the  recent  use  of  invoxi- 
cating  liquor,  incapacitating  the  party 
to  form  an  intent,  would  not  have  re- 
duced the  grade  of  the  crime.  Hernan- 
dez V.  State,  32  Tex.  Crim.  Rep.  271,  22 
S.  W.  972. 

And  drunkenness,  no  matter  what  the 
degree,  is  no  excuse  or  defense  for  carry- 
ing a  concealed  weapon,  since  it  is  un- 
important whether  there  was  a  par- 
ticular intent  to  carry  it  concealed  or 
not.  Fieldiny  v.  Stale,  135  Ala.  50,  33 
So.  677. 

"-S'^a/e  V.  Moury,  37  Kan.  369,  15  Rac. 
282;  People  v.  Nichol,  34  Cal.  211; 
State  V.  Loice,  93  Mo.  547,  5  S.  W.  889 ; 
Scott  V.  State,  12  Tex.  App.  31. 

It  is  not  a  legitimate  subject  of  in- 
quiry as  between  murder  in  the  second 
degree  and  manslaughter.  Wilson  v. 
State,  60  N.  J.  L.  171,  37  Atl.  954,  38 
Atl.  428. 

"-^People  V.  Marseiler,  70  Cal.  98.  11 
Pac.  503;  Smurr  v.  State,  88  Ind.  504; 
State  V.  Welch,  22  Minn.  22 ;  Friery  v. 
People,  54  Barb.  319;   People  v.  Porter, 

2  Park.  Crim.  Rep.  14;  White  v.  State, 
103  Ala.  72,  16  So.  63.  But  see  People 
V.  Harris,  29  Cal.  678. 

''White  V.  State,  103  Ala.  72,  16  So. 
03;  State  v.  Bell,  29  Iowa.  316;  Keeton 
V.  Com.  92  Ky.  522,  18  S.  W.  359; 
People  V.  Mills,  98  N.  Y.  176;  State  v. 
Parbee,  92  N.  C.  820;  Cook  v.  Territory, 

3  Wyo.  110,  4  Pac.  887.  And  see  Armor 
V.  Stale,  63    Ala.  176. 

All  that  a  court  eight  ordinarily  to 
do  in  a  criminal  ])rosccution  is  to  state 
to  tlie  jury  that  drunkenness  is  one  of 
the   circamstances   tending  to   show   the 


242 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  231 


231.  Intent  in  larceny,  burglary,  robbery,  etc. —  Larceny  consists  of 
a  ANTongful  taking  A\-itIi  a  felonious  intent;  and  where  the  taker  was 
so  intoxicated  as  to  be  nnable  to  form  such  intent,  he  is  not  guilty  of 
the  crime.^^  The  general  condition  of  the  accused  as  to  drunkenness, 
therefore,  is  admissible  in  evidence,  and  to  be  taken  into  consideration 
in  a  prosecution  for  larceny,  to  enable  tlie  jury  to  determine  his  inten- 
tion in  taking  the  property,'*'^  and  as  throwing  light  upon  the  question 
whether  or  not  the  accused  was  in  a  condition  to  conmiit  the  crime  at 
the  time  of  the  taking.^^  Drunkenness  cannot  be  considered  as  a 
defense,  however,  unless  it  had  the  effect  in  some  degree  to  deprive  the 
accused  of  his  reason.'*^  It  must  appear  that  he  was  incapable  of 
entertaining  the  intent  to  steal.^*^     Likewise  one  who  robbed  another 


state  of  the  defendant's  mind,  as  bear- 
ing upon  the  question  of  the  presence  or 
absence  of  a  criminal  intent.  State  v. 
White,  14  Kan.  538. 

And  refusal  to  instruct  the  jury  in  a 
prosecution  for  homicide  that  in  fixing 
the  grade  of  the  crime  evidence  of  in- 
toxication is  important,  and  must  be 
carefully  weighed,  is  not  error,  where 
the  juiy  were  required  to  weigh  careful- 
ly all  the  evidence  in  the  case,  but  were 
told  that  they  themselves  had  to  de- 
termine its  importance.  People  v. 
Kemmler,  119  N.  Y.  580,  24  N.  E.  9. 

And  an  instruction  that  if  the  de- 
fendant committed  the  homicide  in  ques- 
tion under  the  iniiuence  of  intoxication 
or  the  effects  of  previous  habits  of  in- 
toxication, and  if  the  intoxication  or 
the  effect  was  not  such  as  wholly  to 
negative  the  legal  inference  of  malice 
implied  by  law  from  the  character  and 
circumstances  of  the  act  and  the  want 
of  provocation,  he  should  be  found  guilty 
of  murder  in  the  second  degi'ee,  is  er- 
roneous as  a  charge  on  the  sufficiency 
and  weight  of  evidence.  Guatkin  v. 
Com.  9  Leigh,  678,  33  Am.  Dec.  2G4. 

«TFood  v.  State,  34  Ark.  341,  30  Am. 
Rep.  13;  Rohinson  v.  State,  113  Ind. 
510.  Ifi  N.  E.  184;  People  v.  Cummins. 
47  Mich.  334.  11  N.  W.  184,  18G;  People 
V.  Walker,  38  Mich,  lofi;  State  v.  Schin- 
(jen,  20  Wis.  75.  And  see  Heiislie  v. 
State,  3  Ileisk.  202. 

So,  a  person  prosecuted  for  burglary 
with  int<^!nt  to  commit  larceny  cannot  be 
found  guilty  if  his  intoxication  was 
such  that  he  could  not  entertain  a 
criminal  intent  at  the  time  of  the  deed. 
State  V.  Bell,  2!)  Iowa,  310. 

"Loza  v.  State,  1  Tex.  App.  488.  28 
Am.  licp.  416;   Wenz  v.  State,    1    Tex. 


App.  36;  Bartholomew  v.  People,  104 
111.  605,  44  Am.  Rep.  97;  Robinsan  v. 
State,  113  Ind.  510.  16  N.  E.  184;  Sta.te 
V.  Koerner,  8  N.  D.  292,  78  N.  W.  981. 

The  intoxication  of  the  accused  in  a 
prosecution  for  larceny  is  a  matter 
which  ought  to  be  submitted  to  the  jury 
under  proper  instructions  as  bearing 
upon  the  question  of  his  capacity  to 
judge  between  right  and  wrong,  the  pro- 
priety of  the  instruction  necessarily  de- 
pending upon  the  peculiar  circumstances 
of  each  case,  as  developed  by  the  evi- 
dence.      Wenz  v.  State,  1  Tex.  App.  36. 

*Hngalls  v.  State,  48  Wis.  647,  4  N. 
W.  785;  Jenkins  v.  State,  93  Ga.  1,  18  S. 
E.  992. 

So,  intoxication  may  be  considered 
upon  the  question  of  knowledge  in  a 
prosecution  for  knowingly  receiving 
stolen  property.  Com.  v.  Ault,  10  Pa. 
Super.  Ct.  651. 

"•"State  v.  Eart,  29  Iowa,  268 ;  Rohin- 
son V.  State,  113  Ind.  510,  16  N.  E.  184. 

'•'"Bartholomew  v.  People,  104  111.  605, 
44  Am.  Rep.  97. 

A  plea  that  larceny  was  committed  in 
fun  and  while  the  accused  was  drunk 
will  not  protect  him  where  the  evidence 
as  to  the  larceny  itself  was  sufficient  to 
warrant  conviction.  People  v.  Wilson, 
55  Mich.  506,  21  N.  W.  905. 

So.  i.i  O'Uerrin  v.  State,  14  Ind.  420, 
it  was  held  that  voluntary  drunkenness 
is  no  excuse  for  larceny  or  other  crime 
other  than  certain  grades  of  homicidfl 
conunitted  while  the  intoxication  lasted, 
and  being  its  immediate  result,  since 
such  drunkenness  is  a  wrongful  act,  and 
the  law  will  hold  the  party  responsible 
for  tlie  immediate  consequences,  without 
reference  to  intent. 


§  231]         INTOXICATION  AS  DEFENSE  TO  CILUIGE  OF  CRIME. 


trs 


while  so  dmnk  as  not  to  know  what  he  was  doing  will  not  be  deemed 
to  have  taken  property  with  felonious  intent, '^^  and  the  intent  with 
which  a  building  is  entered  is  a  necessary  element  of  the  crime  of 
burglary,  and  the  drunkenness  of  the  accused  may  be  considered  in 
determining  his  purpose,  motive,  or  intent  in  entering  the  building.^^ 
Nor  can  one  be  guilty  of  forgery  with  intent  to  defraud  if  he  was  so 
intoxicated  as  to  be  incapable  of  entertaining  such  intent.""  Intoxi- 
cation is  no  excuse  for  such  acts,  however,  where  the  intent  neverthe- 
less existed. ^^ 

232.  Intent  in  homicide  cases. —  While  drunkenness  does  not  ex- 
cuse or  palliate  homicide,  it  may  produce  a  state  of  mind  in  which 
one  is  incapable  of  entertaining  or  forming  a  design  to  take  life.^^ 
And  it  may  be  taken  into  consideration  in  determining  his  purpose, 
motive,    and    intent   in    the    commission    of   the    act,'^^    as    bearing 


'-^Keeton  v.  Com.  92  Ky.  522,  18  S. 
W.  359. 

So,  one  person  cannot  be  convicted  ior 
the  murder  of  another,  done  by  a  third 
person,  on  the  ground  that  he  conspired 
with  the  third  person  to  rdb  the  person 
killed,  and  that  the  killing  occurred  in 
a  robbery,  where  it  appears  that  at  the 
time  he  was  not  sufficiently  sober  to 
form  the  specific  intent  to  commit  the 
robbery.  McLeroy  v.  State,  120  Ala. 
274,  24  So.  374. 

"-People  V.  Phelan,  93  Cal.  Ill,  28 
Pac.  855. 

''^-People  V.  Blake,  Go  Cal.  275,  4  Pac. 
1;  Riley  v.  State  (Tex.  Grim.  App.)  44 
S.  W.  498. 

And  evidence  tending  to  show  that  in 
consequence  of  protracted  intemperance 
the  accused  had  not  capacity  to  dis- 
tinguish between  right  and  wrong,  and 
that  he  did  not  know  what  he  was  doing 
at  the  time,  is  admissible  in  a  prose- 
cution for  forgery,  on  the  question  of 
intent.  People  v.  Blake,  65  Cal.  275, 
4  Pac.  1. 

And  the  condition  of  the  accused, 
whether  drunk  or  sober,  at  the  time  he 
signed  a  paper  properly  in  evidence  in 
a  prosecution  for  forgery,  for  the  pur- 
pose of  a  comparison  of  handwriting,  is 
competent  evidence.  People  v.  Parker. 
67  Mich.  222,  11  Am.  St.  Rep.  578,  34 
N.  W.  720. 

So,  one  who  passes  covmterfeit  money 
when  so  drunk  as  not  to  know  that  he 
passed  it,  or  that  he  was  passing 
counterfeit  money,  is  not  criminally  re- 
sponsible therefor.  Piqman  v.  State. 
14  Ohio,  555,  45  Am.  Dec.  558. 


But  intoxication  is  no  defense  in  a 
prosecutio)!  for  passing  counterfeit 
notes,  Avhere  the  accused  possessed 
reason  enough  to  know  whether  the 
notes  passed  were  good  or  bad,  though 
in  the  absence  of  proof  of  such  knowl- 
edge, he  could  not  be  found  guilty. 
United  States  v.  Roudenhush,  Baldw. 
514,  Fed.  Cas.  No.  16,198. 

In  State  v.  Welch,  21  Minn.  22,  how- 
ever, it  was  held  that  intoxication  is  no 
defense  in  a  prosecution  for  voting  more 
than  once,  though  the  accused  wa.s  so 
drunk  when  he  voted  the  second  time 
that  he  did  not  know  what  he  was  doing, 
did  not  remember  that  he  had  voted  be- 
fore; but  the  contrary  was  held  in 
People  V.  Harris,  29  Cal.  678. 

'^State  V.  Sch.ingen,  20  Wis.  75 ;  State 
V.  Bell,  29  Iowa,  316. 

"•'Fonville  v.  State,  91  Ala.  39.  8  So. 
688;  Morrison  v.  State,  84  Ala.' 405.  4 
So.  402;  State  v.  Smith,  49  Conn.  376. 
Kclh/  V.  State,  3  Smedes  &  M.  518. 

''"People  V.  Cassiano,  30  Hun,  388; 
Rof/ers  v.  People,  3  Park.  Crim. 
633;  People  v.  Eastivood,  14  N.  Y. 
Lanergan  v.  People,  50  Barb. 
People  V.  Hammill,  2  Park.  Crim.  Rep. 
223 :  People  v.  Methever,  132  Cal.  326, 
64  Pac.  481;  People  v.  King,  27  Cal. 
507,  87  Am.  Dec.  95;  People  v.  Xichol. 
34  Cal.  211;  People  v.  Kloss,  115  Cal. 
567,  47  Pac.  459;  Jenkins  v.  State,  9:^ 
Ca.  1,  18  S.  E.  992:  Aszman  v.  Slate, 
123  Ind.  347,  8  L.  R.  A.  33.  24  N.  E.  123 ; 
Keeton  v.  Com.  92  Kv.  522,  18  S.  W. 
359;  Kelly  v.  State,  3  Smedes  &  M.  518; 
State  v.  Roan  (Iowa)  97  N.  W.  997: 
State  v.  Williams  (Iowa)  97  N.  W.  992; 


Rep. 
562 ; 
266; 


244 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  232 


solely  upon,  the  existence  or  nonexistence  of  malice.^^  A  homicide 
committed  when  the  accused  was  so  intoxicated  that  no  intent  to  com- 
mit the  crime  of  murder  existed  is  not  murder  in  the  first  degree,  but 
either  manslaughter  or  murder  in  the  second  degTce.^^  But  intoxica- 
tion cannot  operate  as  an  entire  exemption  from  criminal  responsi- 
bility.^'^  At  the  utmost  it  only  extenuates  the  crime  from  murder 
to  manslaughter.^'-*  And  it  does  not  reduce  the  offense  of  murder  to 
manslaughter  as  a  matter  of  law.^^  It  is  to  be  left  to  the  jury  to 
determine  whether  the  accused  was  capable  of  entertaining  the 
specific  intcnt.^^ 

233.  Degree  of  intoxication  necessary  to  affect  intent. — The  intent 
with  which  a  person  commits  a  homicide,  and  not  the  motive  or  pur- 
pose of  the  act,  is  the  test  of  his  criminal  responsibility  in  determin- 


Unifed  States  v.  Meagher,  37  Fed.  875. 
And  see  Jones  v.  State,  29  Ga.  594; 
GolUher  v.  Com.  2  Duv.  163,  87  Am. 
Dec.  493. 

An  instruction  in  a  prosecution  for 
murder,  in  the  language  of  California 
Penal  Code,  §  22,  that  no  act  committed 
bj'  a  person  while  in  a  state  of  voluntary 
intoxication  is  less  criminal  by  reason  of 
his  having  been  in  such  a  condition, 
would  be  erroneous  if  given  alone,  be- 
cause of  the  omission  of  that  portion  of 
the  section  which  qualifies  it  in  cases 
where  the  actual  existence  of  an  inten- 
tion is  a  necessary  element  in  the  of- 
fense, but  is  proper  where  the  whole  sec- 
tion is  given,  if  the  information  includes 
the  offense  of  manslaughter,  to  which 
that  part  is  applicable.  People  v. 
Lane,  100  Cal.  379,  34  Pac.  856. 

'•"'Ford  V.  State,  71  Ala.  385;  State  v. 
Johnson,  40  Conn.  136;  WiUcerson  v. 
Com.  88  Ky.  29,  9  S.  W.  836;  Shanna- 
han  V.  Com.  8  Bush.  464.  8  Am.  Rep. 
460;  Blimm  v.  Com.!  Bush,  320;  Golii- 
her  T.  Com.  2  Duv.  10,3,  87  Am.  Dec 
493;  Moon  v.  State,  68  Ga.  687;  Kelly 
V.  State,  3  Smedes  &  M.  518. 

'*Roaers  v.  People,  3  Park.  Crim.  Rep. 
633;  People  v.  L^ine,  100  Cal.  379,  34 
Pac.  856;  Tidirell  v.  State,  70  Ala.  33; 
Smith  v.  State,  4  Neb.  277;  State  v. 
Martin,  4  N.  J.  L.  J.  252,  3  Crim.  L. 
Mag.  44;  Com.  v.  Baker,  W  Phila.  631; 
Tucker  v.  United  States,  loi  U.  S.  104, 
38  L.  ed.  112,  14  Sup.  Ct.  Re];.  299. 

Unless  the  jury  in  a  prosecutior  for 
murder  is  satisfied  lx;yond  a  reasonable 
doubt  that  the  accused  was  so  free  froT. 
intoxii.-ation  that  he  could  form  an  in- 
tention maliciously  to  kill,  and  did  form 
such   an  intention,   they  cannot  convict 


him     of     a     higher     crime     than    man- 
slaughter.    Smith  V.  State,  4  Neb.  277. 

"Kriel  v.  Com.  5  Bush,  3(i3 ;  Blimm 
V.  Com.  7  Bush,  320;  Cleveland  v.  State, 
86  Ala.  1,  5  So.  426;  State  v.  Martin,  4 
N.  J.  L.  J.  252,  3  Crim.  L.  Mag.  44; 
State  v.  Wilson,  104  N.  C.  868,  10  S.  E. 
315. 

""Blimm  v.  Com.  7  Bush,  320. 

"'State  V.  Johnson,  40  Conn.  136: 
White  V.  State,  103  Ala.  72,  16  So.  63; 
State  V.  Ashley,  45  La.  Ann.  1036,  13 
So.  738.  And  see  State  v.  White,  14 
Kan.  538. 

Evidence  of  drunkenness  can  only  be 
considered  in  a  prosecution  for  homicide 
for  the  purpose  of  determining  the  de- 
gree of  the  crime;  and  for  this  purpose 
it  must  be  received  with  great  caution. 
People  V.  Levis,  36  Cal.  531. 

And  though  drunkenness  is  a  circum 
stance  tending  to  show  absence  of  malice 
in  a  prosecution  for  homicide,  it  should 
not  be  singled  out  from  the  other  proof 
and  laid  before  the  jury  with  the  state- 
ment that  it  mitigates  the  offense. 
Shannahan  v.  Com.  8  Bush,  464,  8  Am. 
Rep.  465. 

'-United  States  v.  Meaqher,  37  Fed. 
879;  Chatham  v.  State,  92  Ala.  47,  9 
So.  607;  .\.rmor  v.  State.  63  Ala.  176; 
Kinq  v.  State,  90  Ala.  612,  8  So.  856; 
State  V.  Smith,  49  Conn.  376;  People  v. 
Mills,  98  N.  Y.  176;  Cook  v.  Territory, 
3  Wyo.  110,  4  Pac.  887. 

Refusal  to  instruct  in  a  murder  case 
that  if  the  defendant  was  so  intoxicated 
that  his  drunken  condition  was  observ- 
able, it  is  important  on  the  question  of 
his  capacity  to  form  an  intent  to  com- 
mi'  the  deed,  is  not  error,  where  the^ 
court  bad  previously  instructed  that  in- 


233] 


INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


245 


ins:  the  dearree  of  his  c-iiilt.'''^  The  drunkenness  which  will  reduce 
homicide  from  murder  to  manslaughter  must  be  of  such  a  character 
and  extent  as  to  render  the  accused  incapable  of  entertaining  or  form- 
ing a  design  to  take  life.*'^  It  must  have  been  such  as  to  result  in  a 
fixed  mental  disease  of  some  duration  ;^^  or  such  as  to  effect  a  tem- 
porary destruction  of  the  reason,  mere  nervous  excitement  not  being 
sufficient.*'^  One  who,  though  intoxicated,  knows  what  he  is  doing 
and  selects  the  means  naturally  adapted  to  his  purpose,  and  kills  his 
victim  by  such  means,  will  be  deemed  capable  of  entertaining  the 
intent,  and  is  responsible  for  his  acts  in  the  same  manner  and  to  the 
same  extent  as  if  h?  were  sober.^^  And  the  fact  that  the  accused  was 
intoxicated,  and  that  he  was  induced  to  conceive  a  design  to  kill  more 
readily  because  of  his  intoxication,  will  not  reduce  the  degree  of  his 
crime.^** 


toxication  might  destroy  capacity  to 
form  an  intent  to  kill.  State  v.  Smith, 
4!)  Conn.  376. 

^State  V.  Hansen,  25  Or.  391,  35  Pac. 
976,  36  Pac.  296;  Reg.  v.  Dixon,  11  Cox 
C.  C.  341. 

"'King  v.  State,  90  Ala.  612,  8  So. 
856;  Gillooley  v.  State,  58  Ind.  182; 
Roberts  v.  People,  19  Mich.  401. 

'^^Lanergan  v.  People,  6  Park  Crim. 
Rep.  209;  Gillooley  v.  State,  58  Ind. 
182. 

''"Casat  V.  State,  40  Ark.  511;  Walker 
V.  State,  91  Ala.  76,  9  So.  87. 

Voluntary  intoxication,  although 
amounting  to  a  frenzy,  of  one  who,  with- 
out provocation,  committed  a  homicide, 
does  not  exempt  him  from  the  same  con- 
struction of  his  conduct,  and  the  same 
legal  inferences  upon  the  question  of  in- 
tent as  affecting  the  grade  of  his  crime, 
as  those  applicable  to  persons  entirely 
sober.  Flanigan  v.  People,  86  N.  Y.  554, 
40  Am.  Rep.  566. 

"'Roberts  v.  People,  19  Mich.  401; 
State  V.  Gut,  13  Minn.  343,  Gil.  315; 
Warner  v.  State,  56  N.  J.  L.  086,  44  Am. 
St.  Rep.  415,  29  Atl.  505;  People  v. 
Hammill,  2  Park.  Crim.  Rep.  223;  Peo- 
ple V.  Jones,  2  Edm.  Sel.  Cas.  88;  State 
V.  Tatro,  50  Vt.  483;  Reg.  v.  Dixon,  11 
Cox  C.  C.  341. 

Whore  a  killing  was  unprovoked,  the 
fact  that  the  perpetrator  was  intoxi- 
cated cannot  be  allowed  to  affect  the 
legal  character  of  the  act.  Friery  v. 
People,  54  Barb.  319. 

And  one  who  was  sober  enough  to 
force  his  way  into  a  building  where  his 
intended    victim    was,    and    follow    him 


from  room  to  room,  and  to  provide  him- 
self with  a  murderous  weapon,  and  to 
announce  his  intentions,  and  finally  ex- 
ecute his  purpose  by  a  repetition  of 
fatal  blows,  and  to  plan  and  execute  an 
immediate  escape,  was  not  sufficiently 
intoxicated  to  reduce  the  grade  of  the 
offense.     Kenny  v.  People,  31  N.  Y.  330. 

And  one  who,  at  the  time  of  commit- 
ting a  homicide,  tliough  intoxicated, 
was  conscious  of  and  understood  what 
was  done  and  snid  by  himself  and  others 
so  as  to  give  an  intelligent  and  true  ac- 
count of  it  at  the  trial,  must  be  held 
responsibli'  for  his  conduct.  Territory 
V.  Franklin,  2  N.  M.  307. 

And  or.e  mIio  committed  a  homicifle 
by  mixing  arsenic  with  the  drink  of 
the  person  killed,  for  the  purpose  of 
killing  hi;n,  is  guilty  of  murder  without 
reference  to  the  degree  of  intoxication 
under  which  he  labored.  People  v.  Rob- 
inson, 2  Pork  Crim.  R,ep.  235. 

And  while  intoxication  may  be  ad- 
verted to  in  a  prosecution  for  homicide 
where  no  malicious  intent  is  to  be  in- 
ferred, and  where  the  accused  had  been 
aggravated,  it  cannot  be  done  where  the 
killing  was  caused  by  the  use  of  a  dan- 
gerous weapon.  Lanergan  v.  People,  50 
Barb.  266;  Rex  v.  Mealdyi,  7  Car.  &  P. 
297. 

"nrarne-r  v.  State,  56  N.  J.  L.  680,  44 
Am.  St.  Rep.  415,  29  Atl.  505. 

Deliberate  intent  unlawfully  to  take 
life  constitutes  malice  necessary  to 
murder  in  the  first  degree,  whether  it 
springs  from  hatred,  ill-will,  revenge,  or 
a  mere  frenzy  of  drunkenness.  Beck  t. 
State,  76  Ga.  452. 


246 


IVIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  234 


234.  Deliberation  and  premeditation  in  homicide  cases. — Intoxica- 
tion, though  involuntary,  is  to  be  considered  by  the  jury  in  a  prosecu- 
tion for  murder  in  the  first  degree,  in  which  a  premeditated  design  to 
effect  death  is  essential,  with  reference  to  its  effect  upon  the  ability  of 
the  accused  at  the  time  to  form  and  entertain  such  a  design  f^  not  be- 
cause pi?r  se  it  either  excuses  or  mitigates  the  crime,  but  because,  in 
connection  with  other  facts,  an  absence  of  malice  or  premeditation 
may  appear."*'  Drunkenness  as  evidence  of  want  of  premeditation 
is  not  within  the  nile  which  excludes  it  as  an  excuse  for  crime.'^' 
And  a  person  who  commits  a  homicide  while  so  drunk  as  to  be  in- 
capable of  forming  a  premeditated  and  deliberate  design  to  kill  is  not 
guilty  of  murder  in  the  first  degree.*^^     Intoxication,  however,  raises 


'^People  V.  Nichol,  34  Cal.  212;  People 
V.  Belencia,  21  Cal.  544;  People  v.  Will- 
iams, 43  Cal.  344;  t^tate  v.  Johnson,  40 
Conn.  136;  Garner  v.  State,  28  Fla.  113, 
29  Am.  St.  Rep.  262,  9  So.  835;  Golden 
V.  State,  25  Ga.  527;  Jones  v.  State,  29 
Ga.  594;  Aszman  v.  State,  123  Ind.  347. 

8  L.  R.  A.  33,  24  N.  E.  123:  State  v. 
O'Neil,  51  Kan.  651.  24  L.  R.  A.  .555.  33 
Pac.  287;  State  v.  Mowry,  37  Kan.  369, 
15  Pac.  282;  Buckhannon  v.  Com.  86 
Ky.  110,  5  S.  W.  358;  Curry  v.  Com.  2 
Bush,  67:  GolHher  v.  Com.  2  Duv.  164, 
87  Am.  Dec.  493 :  Hill  v.  State,  42  Neb. 
503.  60  N.  W.  916;  Schlencker  v.  State, 

9  Neb.  241,  1  N.  W.  857;  Smith  v.  State, 
4  Neb.  277  :  Peovle  v.  Batting,  49  How. 
Pr.  392 :  People  r.  Conroy,  2  N.  Y.  dim. 
Rep.  247 ;  Pigman  v.  State,  14  Ohio 
555,  45  Am.  Dec.  558;  State  v.  Zorn, 
22  Or.  591.  30  Pao.  317;  State  v.  Weav- 
er, 35  Or.  415,  58  Pac.  109;  Cartwright 
V.  State,  8  Lea,  381;  Pirtle  v.  State,  9 
Humph.  663;  Uaile  v.  State,  11  Humph. 
154;  Siran  \.  State,  4  Humph.  136;  Nor- 
fleet  V.  State,  4  Sne^d.  345;  Ayres  v. 
State  (Tex.  Crim.  App.)  26  S.  W.  396; 
Clore  V.  State,  26  Tex.  App.  624,  10  S. 
W.  242 ;  Williams  v.  State,  25  Tex.  App. 
76.  7  S.  W.  661:  Charles  v.  State,  13 
Tex.  App.  658:  McCarty  v.  State,  4  Tex. 
App.  468;  Colhath  v.  State,  4  Tex.  App. 
76;  Brown  v.  State.  4  Tex.  App.  275; 
Colbath  V.  State,  2  Tox.  App.  391;  Wil- 
lis V.  Com.  32  Gratt.  929;  Stale  v.  Rob- 
inson, 20  W.  Va.  713.  43  Am.  Rep.  799; 
Cross  V.  State,  55  Wis.  201,  12  N.  W. 
425:  Ilopt  V.  Utah,  104  U.  S.  631,  26  L. 
ed.  873;  Rex  v.  Grindley,  cited  in  1  Rus- 
sell on  Crimes,  2d  Am.  ed.  *8.  P>ut  see 
Rex  V.  Carroll,  7  Car.  &  P.  145. 

Tlie  influence  of  voluntary  intoxica- 
tion upon  the  question  as  to  whether  or 


not  there  was  sufficient  premeditation 
to  constitute  a  homicide — murder  in  the 
first  degree — depends  upon  its  degree 
and  its  effect  on  the  mind  and  passions. 
Golliher  v.  Com.  2  Duv.  164,  87  Am. 
Dec.  493. 

''"Buekhannon  v.  Com.  86  Ky.  110,  5 
S.  W.  358:  Hill  v.  State,  42  Neb.  503, 
60  N.  W.  916;  People  v.  King,  27  Cal. 
507,  87  Am.  Dec.  95;  State  v.  Johnson, 
40  Conn.   136. 

A  conviction  of  murder  in  the  first 
degree  is  not  warranted  where  death 
was  inflicted  in  a  conflict  while  the  de- 
fendant was  excited  by  liquor,  in  the 
absence  of  evidence  tending  to  show  that 
after  the  conflict  began,  and  before  the 
stabbing,  there  might  have  been  an  in- 
stant of  time  for  deliberation  and  pre- 
meditation. State  V.  Sopher,  70  Iowa. 
494,  30  N.  W.  917. 

And  a  homicide  committed  in  a  sud- 
den quarrel,  hy  a  blow  inflicted  by  an 
iron  bar  suddenly  caught  up  while  the 
party  was  intoxicated,  is  not  murder 
in  the  first  degree  imless  done  in  an  at- 
tempt to  commit  a  felony.  Kelly  v. 
Com.  1  Grant  Cas.  484. 

''^People  V.  Belencia,  21  Cal.  544. 

''■Com.  V.  Perrier,  3  Phila.  229:  Com. 
V.  Cleary,  148  Pa.  26,  23  All.  1110;  Mc- 
Ginnis  v.  Com.  102  Pa.  6G;  Com.  v. 
Plait,  11  Phila.  421:  Com.  v.  Hart,  2 
Brewst.  (Pa.)  546;  Com.  v.  Baker,  11 
Phila.  631;  Cartirright  v.  State.  8  Lea, 
377;  State  r.  Rohin.'^on,  20  W.  Va.  713, 
43  Am.  Rep.  799;  Slate  v.  Williams 
( Iowa  )  97  N.  W.  992. 

.\  homicide  committed  without  provo- 
cation, but  while  so  intoxicated  as  to 
render  the  person  incapable  of  doing 
a  deliberate  or  premeditated  act,  is  mur- 
der  in    the   second    degree.      Bosicell   v. 


§  234]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


247 


po  inference  as  to  the  absence  of  premeditation  and  deliberation  in 
the  commission  of  the  ci-ime  as  a  matter  of  law,'^^  and  it  cannot  sen^e 
as  an  excuse  for  the  offender.''^'*  The  only  purpose  for  which  it  is 
admissible  in  a  prosecution  for  murder  is  to  show  an  absence  of  pre- 
meditated desig-n  to  kill,  so  as  to  reduce  the  homicide  to  a  lower  de- 
gree.'^^  And  it  does  not  form  a  legitimate  matter  of  inquiry  as  be- 
tween murder  in  the  second  degree  and  manslaughter,  unless  the  prov- 
ocation was  such  as  would,  at  common  law,  have  reduced  the  degree 
to  manslaughter  ;"'^  or  unless  it  existed  to  such  an  extent  as  to  render 
the  person  incapable  of  forming  a  purpose  or  of  intending  the  act.'^^ 
The  question  whether  drunkenness  has  incapacitated  a  person  to  form 
a  premeditated  design  to  murder  is  one  for  the  jury.'^^  And  so  is  the 
question  as  to  the  weight  to  which  the  evidence  is  entitled."*^ 

235.  Degree  of  intoxication  necessary  to  affect  deliberation. — Mur- 
der in  the  first  degree,  in  which  malice  and  premeditation  are  dis- 
tinguishing ingTedients,  cannot  be  committed  by  one  who  is  inca- 


Oom.  20  Gratt.  860;  State  v.  Robinson, 
20  W.  Va.  713,  43  Am.  Rep.  799. 

'"'People  V.  Mills,  98  N.  Y.  176; 
■O'Brien  v.  People,  48  Barb.  274;  State 
V.  Avery,  44  N.  H.  394;  Pennsylvania  v. 
M'Fall,  1  Addison  (Pa.)  257.  And  see 
People  V.  Williams,  43  Cal.  344;  People 
V.  Belencia,  21  Cal.  544. 

And  while  evidence  of  intoxication 
may  reduce  a  homicide  to  murder  in  a 
lower  degree,  it  should  be  received  with 
great  caution,  even  for  that  purpose. 
People  V.  Vincent,  95  Cal.  425,  30  Pac. 
581;  People  v.  Belencia,  21  Cal.  544. 

''^People  V.  Fuller,  2  Park.  Crim.  Rep. 
16;  State  v.  Johnson,  40  Conn.  130. 

''-Garner  v.  State,  28  Fla.  113,  29  Am. 
St.  Rep.  262,  9  So.  835;  People  v.  Yin- 
cent,  95  Cal.  425,  30  Pac.  581;  State  v. 
Johnson,  40  Conn.  136;  Com.  v.  Crozier, 
1  Brewst.   (Pa.)  349. 

Murder  in  the  second  degree  rests  up- 
on implied  malice,  and  the  jury  may 
find  tlie  existence  of  implied  malice 
which  will  subject  the  accused  to  a 
charge  of  murder  in  the  second  degree, 
though  his  intoxication  was  such  as  to 
disprove  express  malice.  State  v.  John- 
son, 41  Conn.  584. 

''"People  v.  Lanyton,  67  Cal.  427,  7 
Pac.  843:  People  v.  Nichol,  ,34  Cal.  211; 
State  v.  Robinson,  20  W.  Va.  713,  43 
Am.  Rep.  799;  Davis  v.  State,  25  Ohio 
St.  369;  State  v.  Weaver,  35  Or.  415,  58 
Pac.  109;  Pirtle  v.  State,  9  Humph. 
663;  Norflcet  v.  State,  4  Sneed.  3-15: 
Res:  V.  Carroll.  7  Car.  &  P.  145. 


Voluntary  intoxication  cannot  reduce 
a  homicide  which  woukl  have  been  mur- 
der if  committed  by  a  sober  man,  to 
manslaughter.  Broicn  v.  State,  4  Tex. 
App.  275;  Hanvey  v.  State,  68  Ga.  612; 
Com.  V.  Piatt,  11  Phila.  415. 

'Wavis  V.  State,  25  Ohio  St.  369.  And 
see  Keenan  v.  Com.  44  Pa.  55,  84  Am. 
Dec.  414. 

''^Pennsylvania  v.  M'Fall,  1  Addison 
(Pa.)  255;  King  v.  State,  90  Ala.  612. 
8  So.  856 ;  State  v.  Smith,  49  Conn.  376 ; 
Kinq  v.  State  (Tex.  Crim.  App.)  64  S. 
W.  245. 

Drunkenness  on  the  part  of  the  ac- 
cused in  a  prosecution  for  murder  in  the 
first  degree  should  be  submitted  to  the 
jury,  whatever  its  degree.  Lancaster  v. 
State,  2  Lea,  575. 

''"People  v.  Belencia,  21  Cal.  544. 

But  where  the  question  of  the  capaci- 
ty of  a  person  charged  with  murder  to 
deliberate  at  the  time  o^'  its  commission 
is  placed  distinctly  before  the  jury  in  a 
prosecution  tlierefor,  at  his  instance,  it 
is  not  improper  for  the  court  to  instruct 
them  as  to  what  miglit  amount  to  do- 
liberation  and  premeditation  on  his 
part.     People  v.  Williams,  43  Cal.  344. 

And  an  instruction  as  to  intoxication 
in  a  prosecution  for  murder  in  the  first 
degree  should  designate  the  eflfect  of  in- 
toxication to  a  degree  sullicient  to 
lender  the  accused  incapable  of  forming 
a  prpmeditated  design  to  kill.  Garner 
V.  Slate,  28  Fla.  113,  29  Xm.  St.  Rep 
2(12,  9  So.  835. 


248  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS,         [§  235 

pacitatecl  to  think  deliberately  and  determine  rationally  as  to  the 
quality,  character,  and  consequences  of  the  act;  and  intoxication  de- 
priving a  person  of  the  power  to  see  and  weigh  the  nature  of  the  act 
is  sufficient  to  reduce  homicide  from  murder  in  the  first,  to  murder  in 
the  second,  degTce.^'^  The  test  of  responsibility  in  such  case  is  the 
question  whether  the  accused  was,  at  tlie  time,  rendered  incapable  of 
fonning  an  intent,  or  exercising  the  deliberation  and  premeditation 
which  are  essential  to  the  commission  of  the  crime.^^  The  only  ques- 
tion is  wdiether  the  accused  was  in  such  a  condition  as  to  be  capable 
of  forming  a  design  to  kill,  and  did  kill  in  pursuance  of  that  design.^^ 
But  the  intoxication  need  not  go  to  the  extent  of  depriving  the  person 
of  the  power  of  volition  or  of  the  ability  to  form  an  intent,  in  order 
to  wai-rant  a  finding  of  the  absence  of  the  necessary  degree  of  deliber- 
ation or  premeditation  to  constitute  murder  in  the  first  degree.^^  Nor 
need-  it  be  such  as  to  deprive  him  of  the  capacity  to  form  a  premedi- 
tated and  deliberate  design  to  take  life,  w^here  the  question  is  between 
murder  in  the  first,  and  murder  in  the  second,  degree.^*  But  no 
proof  of  intoxication  short  of  showing  that  the  person  charged  with 
the  murder  was  utterly  incapable  of  free  motive  will  shield  him.^^ 
And  one  who  is  drunk  may  act  Avith  premeditation  as  well  as  one  who  ' 
is  sober,  and  in  such  case  is  equally  responsible.^^  Voluntary  intoxica- 
tion, in  the  absence  of  such  mental  incapacity  resulting  therefrom  as 

o^Asztnan  v.  State,  123  Ind.  347,  8  L.  **Haile  v.  State,  11  Humph.  154;  Cart- 

R.  A.  33,  24  N.  E.   123;   Jones  v.  Com.  loright  v.  State,  8  Lea,  377;   Lancaster 

75  Pa.  403;  Com.  v.  Cleary,  148  Pa.  26,  v.  State,  2  Lea,  575. 

23  Atl.   1110;   Com.  v.'  Hart,  2  Brewst.  ^''Cluck  v.  State,  40  Ind.  263;  State  v. 

(Pa.)     546;    Com.    v.    Perrier,    3    Phila.  Bullock,  13  Ala.  403;   State  v.  Davis,  9 

221);   State    v.   Davis,  9    Houst.    (Del.)  Hoiist.    (Del.)    407,  33  Atl.  55;   Kenney 

407,  33  Atl.   55;    Ay  res  v.   State    (Tex.  v.  People,  27  How.  Pr.  206. 

Crim.  App.)   26  S.  W.  326;  McCarty  v.  Intoxication  which  will  reduce  honii- . 

State,  4  Tex.  App.  461;   Willis  x.'Com.  cide  from  murder  in  the  first  degree  to 

32  Gratt.  929 ;  Boswcll  v.  Com.  20  Gratt.  murder   in   the   second   degree   must   be 

860;  State  v.  liohinson,  20  W.  Va.  713,  such  as  to  deprive  the  person  commit- 

43    Am.    Rep.    799.      And    see    State   v.  ting  it  of  the  power  of  judging  of  his 

Boioen,  Houst.  Crim.  Rep.    (Del.)    91.  acts  and   their  legitimate  consequences. 

n^Territory  V.  Davis  (xVriz.  Super.  Ct.)  Com.  v.  Crozier,  1  Brewst.    (Pa.)    349. 

6   Lawson,   Crim.   Defenses,   63();    Bern-  '^"People  v.  Belencia,  21  Cal.  544;  Peo- 

hardt   v.   State,  82   Wis.   23,   51   N.  W.  pie  v.   Williams,  43   Cal.  344;   State  v. 

1009.  Bullock,  13  Ala.  417;   State  v.  Hansen, 

'"'Nevling  v.   Com.  98  Pa.   323;    State  25  Or.   391,   35  Pac.  976,  36  Pac.  296; 

V.  McDaniel,  115  N.  C.  807,  20  S.  E.  622.  Com.  v.  McGoivan,  189  Pa.  641,  69  Am. 

^People  V.   Leonardi,   143   N.  Y.   360,  St.  Rep.  836,  42  Atl.  3Q5;  State  v.Tatro, 

38  N.  E.  372;  Mclntyre  v.  People,  38  111.  50  Vt.  483;  Honest^/  v.  Com.  81  Va.  283; 

614.  State  v.  Douf/lass.  28  W.  Va.  297;  State 

The    fact    that    a    person    was    sober  v.  Robinson,  20  W.  Va.  713,  43  Am.  Rep. 

enough  to  form  an  intent  raises  no  pre-  799;  Rrx  v.  Thomas,  7  Car.  &  P.  817. 

sumption  that   he  was  sober  enough  to  The  intoxication  of  a  person  comuiit- 

form    a    premeditated    design    to    kill,  ting  a   homicide,   though   amoimting  to 

Garner  v.  State,  28  Fla.  113,  29  Am.  St.  insensibility,  will  not  repel  an  inference 

Rep.  262,  9  So.  835.  of  malice  and  premeditation  arising  frotn 


§  235]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME.  249 

renders  the  party  incapable  of  thinking  deliberately  or  determining 
rationally  upon  the  purpose  of  taking  human  life,  and  which  leaves 
him  full  power  to  know  the  quality  of  his  act,  and  abstain  from  doing 
it,  cannot  reduce  homicide  from  murder  in  the  first,  to  murder  in  the 
second,  degi'ee.^^ 

236.  Provocation. — Whether  a  party  committing  a  homicide  was 
sober  or  intoxicated  cannot  affect  tlie  question  of  the  existence  or  non- 
existence of  such  an  adequate  cause  of  provocation  as  might  reduce 
the  offense  to  manslaughter.^^  But  where  a  person  committing  a 
crime  has  received  a  provocation  which,  if  acted  upon  instantly, 
would  mitigate  the  offense  of  a  sober  man,  evidence  of  intoxication 
may  be  considered  in  determining  whether  it  w\as  due  to  provocation 
or  malice,  whether  it  was  done  in  tlie  heat  of  passion,  or  with  a  delib- 
erate purpose,  or  otherwise,  and  generally  to  explain  his  conduct.^'* 
The  principle  is  that  where,  in  prosocutions  for  violence,  the  en- 
counter was  sudden,  and  the  defendant,  prior  to  such  encounter,  had 
no  malice  or  old  grudge,  intoxication  at  the  time  of  tlie  encounter  can 
be  taken  into  consideration  to  ascertain  whether  tlie  defendant,  when 
under  a  legal  provocation,  acted  from  malice  or  from  sudden  pas- 
sion,^'' and  whetlier  the  act  done  was  specifically  intended.     But  if 

other  facts  in  the  case,  or  mitigate  the  when  the  offender  was  not  in  a  frame  of 

offense  to  a  crime  of  less  degree.     State  mind  to  deliberate  and  premeditate,  is 

V.  Bearing,  65  Mo.  533.  murder  in  the  second  degree.     Willis  v. 

"Aszman  v.  State,  123  Ind.  347,  8  L.  Com.  32  Gratt.  929. 
R.  A.  33,  24  N.  E.  123;  People  v.  Fish,        ^'Joncs  v.   State,   29   Ga.   594;    People 

125  N.  Y.   136,  26  N.  E.  319;   State  v.  v.  Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484: 

McDaniel,  115  N.  C.  807,  20  S.  E.  622;  Eastwood  v.  People,  3  Park.  Crim.  Rep. 

Keenan  v.  Com.  44  Pa.  55,  84  Am.  Dec.  25;  State  v.  McCants,  1  Spcers  L.  389; 

414.  Cartivright  v.  State,  8  Lea,  377;   State 

And  a  refusal  to  instruct  the  jury  in  v.    Mullen,    14    La.    Ann.    o77;    Rex    v. 

a  prosecution   for  homicide  that  if  the  Thomas,  7  Car.  &  P.  817;  Reg.  v.  Monk 

accused  and  the  person  killed  were  en-  house,  4  Cox  C.  C.  55. 
gaged   in   a   drunken   brawl,   and   while        A  jury  may  consider  the  drunkenness 

so  engaged  the  accused  took  the  other's  of  a  person  accused  of  homicide  in  grad 

life,  no  premeditation   can  be  inferred,  ing  tlie  act,  not  to  excuse  or  mitigate  or 

and  he   cannot  be  convicted  of  murder  extenuate  it,  but  to  assist  in  deciding, 

in    any    degree,     is    not    error,     where  where  there  was  a  provocation,  whether 

there  was  evidence  tending  to  show  that  the  intention  to  kill  preceded  the  provo 

he  had  threatened  to  kill  the  deceased,  cation  or  was  produced  by  it.    Jones  v. 

and  that  he  sought  the  quarrel  for  the  State,  29  Ga.  594. 

purpose   of   furnishing   an   occasion   for        But  an  instruction  in  a  trial  for  mur 

the  killing.     Cook  v.  Territory,  3  Wyo.  der  that  if  the  accused,  when   he  fired 

110,  4  Pac.  887.  the  fatal  shot,  was  intoxicated  and  un- 

^Gaitan  v.  State,   11  Tex.  App.  544;  der    the    influence   of    liquor,    the    jury 

Mclntyre  v.  People,  38  111.  514;  Com.  v.  may  consider  that  fact  in  determining 

Hawkins,  3  Gray,  463 ;    Vann  v.  State,  whether   he   acted   in   passion   and   heat 

83  Ga.  44,  9  S.  E.  945 ;  Keenan  v.  Com.  of  blood  or  from  excitement  from  a  blow 

44  Pa.  55,  84  Am.  Dec.  414.  he    had    received,    or    from    malice,    is 

A    murder    committed    by    a    drunken  properly  refused.     Morrisoti  v.  State,  84 

man   from  a  sudden  passion,  imagining  Ala.  405,  4  So.  402. 

a  provocation  when  there  was  none,  or        ""See  Schaller  v.  State,   14  Mo.  502; 

when   it  was   not   adequate,   at   a  time  Rex   v.  Thomas,  7  Car.  &  P.  817. 


250  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  23G 

malice  or  specific  intent  to  do  the  criminal  act  is  proved  aliunde,  then 
intoxication  at  the  time  does  not  lower  the  grade  of  offense.^^ 

237.  Self-defense. —  Voluntary  di-unkenness  does  not  enlarge  the 
right  of  self-defense,  and  it  is  not  available  as  a  defense  to  a  charge  of 
murder  when  in  consequence  thereof  the  accused  acted  upon  an  ex- 
aggerated or  unjustifiable  belief  as  to  the  necessity  for  taking  tlie  life 
of  another  in  defense  of  his  own.^^  But  one  who  kills  another  be- 
lieving that  he  is  acting  in  self-defense,  but  who  errs  in  determining 
Avhetlier  or  not  his  peril  is  imminent,  his  error  being  due  to  the  fact 
that  he  was  intoxicated,  is  negligent  in  forming  his  belief,  and  wull 
be  guilty  of  manslaughter,  since  negligent  homicide  is  manslaugh 
ter.^^  And  the  intoxication  of  a  person  committing  a  homicide  al- 
leged to  be  in  self-defense  may  be  considered  on  the  question  whether 
the  apprehended  danger  was  sufficient  to  justify  the  act.^^ 

238.  Intent  in  assault  cases. — The  voluntary  drunkenness  of  the 
accused  will  not  excuse  an  assault,  though  he  was  so  intoxicated  as 
to  be  unconscious  of  what  he  was  doing,  since  the  questions  of  malice 
and  intent  are  not  involved.''^  The  crime  of  assault  with  intent  to 
kill,  however,  is  separable  into  degrees,  so  as  to  render  evidence  of 
the  intoxication  of  tlie  accused  admissible  on  a  trial  therefor.^^  And 
in  determining  whether  an  assault  was  committed  with  intent  to  kill, 
it  is  material  to  inquire  whether  the  defendant's  mental  faculties  were 
so  overcome  by  intoxication  as  to  render  him  incapable  of  entertain- 
ing the  intent."'^     But  one  charged  with  assault  with  intent  to  kill  is 

"'See    cases    in    Wharton    Grim.    Law,  So.  356;  Co?n.  v.  MaZonc,  114  Mass.  295 ; 

Sth  ed.  §54  et  seq.  Tyni  v.  Com.  2  Met.    (Ky.)    1. 

^'■^Spi-infificld  V.  State  96  Ala.    81,    38  But  the  jury  on  a  prosecution  for  as- 

Am.  St.  Rep.  85,  11  So.  250.  sault  may  look  to  the  acts  and  declara- 

^^United  States  v.  King,  34  Fed.  302.  ticns  of  the  defendant  and  all  the    evi- 

'*Reg.  V.   Gamlen,   1    Fost.  &    F.  90;  denee  in  the  case  to  determine  whether 

Rev  V.  Thomas,  7  Car.  &  P.  817 ;    Mar-  he  was  drunk  or  insane.     Ross  v.  State, 

shall's  Case.  1  Lewin  G.  G.  76;  State  v.  02  Ala.  224. 

Roan    (Iowa)   97  N.  W.  997.  ""People  v.  Odell,  1  Dak.   197,    46    N. 

And  a  person  is  not  bound    to    stand  W.  601;  Lancaster  v.  State,  2  Lea,  575. 

by  and  see  his  brother  killed  or    sulTer  In  an  assault  with  intent  to  kill,  the 

groat  bodily  harm  because  the    brother  state  and  condition  of  the  mind,  and  an 

was  so  drunk  as    not    to    be    mentally  ability  to  form  the  intent,  are    of    the 

competent  to  know  his  duty  to  retreat  very    essence    of    the    crime.    State    v. 

and  get  out  of  the  way  of  bodily  harm,  O'Connor,  11  Nev.  416. 

or  as  to  be  physically  unable  to  retreat.  ^''Rohcrts   v.    People,     19     Mich.    401 ; 

Staie  V.  Greer,  22  W".  Va.  800.  Mooncn  v.  State,  33  Ala.  419;    State  v. 

So,  drunkemiess  may    be    taken    into  Fislce,  63  Conn.  388,  28  Atl.  572;  United 

consideration  in  a  pros»?cution  for  stab-  Stales  v.  Bojcen,  4  Cranch    G.    C.    604, 

bing,  to  determine  whether  the    accused  Fed.    Cas.   No.    14,629;    State  v.    O'Con- 

acted   under   a   bona    fide    apprehension  nor,  11  Nev.  416;  Reg.  v.  Monkhouse,  4 

that  his  person  or   property   was  about  Cox   C.   C.   55;    Reg.   v.   Frances,   4   Cox 

to     be     attacked.      Marshall's     Case,    1  C.  G.  57.     But  see  Donelson  v.  Posey,  13 

Lowin  C.  C.  76.  Ala.  752. 

"'Kiifielhardt  v.  State,  88  Ala.   100,  7  But  an   instruction  that  drunkenness 

So.  154;  Carter  v.  State,  87  Ala.  113,  6  is  no  excuse  for  crime  is  not  error  in  a 


§  238]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


251 


not  entitled  to  acquittal  upon  proof  that  lie  was  so  drunk  at  tlie  time 
us  to  be  incapable  of  forming  the  necessary  intent ;  it  merely  reduces 
the  case  to  one  of  assault  and  battery.^^  And  drunkenness  will  not 
reduce  a  voluntary  assault  with  intent  to  murder  to  an  aggi*avated 
assault  and  battery.''^  To  be  capable  of  entertaining  an  intent  to 
kill,  however,  an  intoxicated  person  need  not  have  been  capable  of 
appreciating  the  moral  qualities  of  his  act.^^*^  And  one  who  commits 
an  assault,  entertaining  in  fact  an  intent  to  kill,  which  intent  he 
would  not  have  entertained  but  for  tlie  intoxication,  is  responsible  for 
the  intent  as  well  as  for  the  act.^  It  is  a  question  for  the  jury 
whether  the  accused  was  so  far  intoxicated  as  to  be  unable  to  form 
an  '"ntent  to  kill.-     So,  proof  of  intoxication  may  be  considered  in  a 


prosecution  for  assault  with  intent  to 
kill,  where  the  jury  was  told  that  if  the 
accused  was  so  frenzied  from  the  use  of 
liquor  as  to  be  incapable  of  knowing 
wliat  he  was  doing  they  would  be  justi- 
fied in  acquitting  him,  and  tliat  they 
were  to  take  all  the  circumstances  into 
consideration  together  in  determining 
if  he  acted  with  deliberation.  Cross  v. 
mate,  55  Wis.  261,  12  N.  W.  425. 

And  a  person  charged  with  assault 
with  intent  to  kill  may  be  held  responsi- 
ble therefor  though  he  was  so  drunk  at 
the  time  as  to  be  incapable  of  forming 
an  intent  to  kill,  where  the  assault  was 
made  pursuant  to  a  conspirac}%  and  the 
accused  was  actuall_y  present,  aiding  and 
abetting;  but  he  would  not  be  responsi- 
ble if  he  was  so  drunk  as  to  be  incapable 
of  understanding  its  nature  and  conse- 
quences at  the  time  the  conspiracy  was 
formed.  State  v.  Pasnau,  118  Iowa, 
501,  92  N.  W.  682. 

"HJooney  v.  mate,  33  Ala.  419;  Walk- 
er V.  mate,  85  Ala.  7,  7  Am.  St.  Rep.  17, 
4  So.  686;  People  v.  Odell,  1  Dak.  197, 
46  N.  W.  601;  mate  v.  Grear,  29  ]\Iinn. 
221,  13  N.  W.  140. 

Rut  mere  intoxication  on  the  part  of 
the  defendant  in  a  prosecution  for  as- 
sault with  intent  to  kill  does  not 
authorize  the  court  to  charge  the  law 
applicable  to  a  lesser  grade  of  the  of- 
fense.      Piigh  V.  State,  2  Tex.  App.  539. 

And  error  in  instructing  that  intoxi- 
cation cannot  reduce  the  degree  of  the 
ofl'enso  of  assault  with  intent  to  kill  is 
harmless,  where  the  accused  received  the 
lowest  legal  punishment  for  the  offense. 
Ayrrs  v.  State  (Tex.  Crim.  App.)  26  S. 
W.  396. 

And  refusal  to  charge  on  drunkenness 
in  such  case  Is  not  error.  Flrrnandes 
V.  State,  32  Tex.  Crim.  Rep.  271,  22  S. 


VV.  972.  And  see  State  v.  Boicen, 
Houst.  Crim.  Rep.    (Del.)    91. 

''■■'Jeffries  V.  State,  9  Tex.  App.  598. 

^"''Roberts  v.  People,  19  Mich.  401. 

To  excuse,  the  drunkenness  must 
amount  to  insanity.  Little  v.  State,  42 
Tex.  Crim.  Rep.  '551,  61  S.  W.  483. 

But  an  instruction  in  a  prosecution 
for  assault  with  intent  to  kill  that 
drunkenness  is  no  excuse  for  crime  is 
not  error,  where  the  court  had  charged 
that  if  the  accused  was  so  frenzied  from 
the  use  of  liquor  as  to  be  incapable  of 
knowing  what  he  was  doing  his  acquittal 
would  lie  justified.  Cioss  v.  State,  55 
Wis.  261,  12  N.  W.  425. 

And  a  degree  of  drunkenness  by  which 
the  party  was  greatly  excited,  and 
which  produced  a  state  of  mind  unfavor- 
able to  deliberation  and  premeditation, 
may  be  considered  in  a  prosecution  for 
assault  with  intent  to  kill,  though  it 
was  not  so  excessive  as  to  render  him 
absolutely  incapable  of  forming  a  de- 
liberate purpose.  Lancaster  v.  State, 
2  Lea,  575. 

^Roberts  v.  People,  19  Mich.  401. 

And  ill-treatment  of,  and  bad  conduct 
toward,  and  threats  against,  the  person 
injured,  are  admissible  m  evidence  in  a 
prosecution  for  an  assault  with  intent 
to  kill,  to  meet  the  theory  of  temporary 
insanity  produced  by  the  recent  use  of 
intoxicating  liquors,  as  tending  to  show 
malice,  ill-will,  and  motive,  and  as  ex- 
planatory of  the  real  purpose  of  the  ac- 
cused. Eall  V.  Slate,  31  Tex.  Crim. 
Rep.  565,  21  S.  W.  368. 

-Com,.  V.  Haaenloclc,  140  Mass.  125.  3 
X.  E.  36.  And  see  State  v.  Barbce,  92 
N.  C.  820;. State  v.  While,  14  Kan.  538; 
Crosbv  V.  People.  137  111.  325.  27  N.  E. 
49. 

But  the  defendant  in  a  prosecution  for 


252 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  238 


prosecution  for  assault  with  intent  to  wound,  since  the  intent  is  of 
the  essence  of  the  offense;  but  not  as  an  excuse  to  show  that  the 
crime  was  not  committed.^  And  the  intention  to  do  great  bodily 
liarm  must  in  fact  exist  to  justify  a  conviction  for  an  assault  with 
such  intent,  and  in  case  of  such  intoxication  as  to  render  the  accused 
incapable  of  forming  such  intent,  he  is  not  guilty.^ 

239.  Intent  in  assault  to  rape. —  Drunkenness  is  not  an  excujse  for 
the  crime  of  rape,  though  the  mind  of  the  party  was  so  far  overcome 
as  to  render  him  incapable  of  forming  an  intent.^  But  one  who  was 
so  drunk  at  the  time  of  tlie  alleged  criminal  act  as  to  be  incapable 
of  forming  an  intent  to  ravish  cannot  be  found  guilty  of  an  assault 


with  intent  to  commit  a 


rape. 


assault  with  intent  to  kill  in  which  the 
jurv  had  been  properly  instructed  with 
regard  to  the  specific  intent  essential 
to  the  commission  of  the  crime,  who  de- 
sires that  the  jury  shall  be  informed  as 
to  the  law  with  regard  to  the  effect  of 
intoxication  upon  such  intent,  must  ask 
additional  instructions  covering  the  sup- 
posed defects.  Bramlette  v.  State,  21 
Tex.  App.  Gil,  57  Am.  Rep.  622,  2  S.  W. 
765. 

And  failure  to  charge  as  to  the  effect 
of  intoxication  on  responsibility  for  an 
assault  with  intent  to  kill  is  not  error, 
where  the  entire  proof  shows  that  the 
accused  was  sober  enough  to  understand 
the  nature  of  the  act,  and  that  it  was 
not  caused  by  a  sudden  outburst  of  pas- 
sion. Carpenter  v.  Com.  92  Ky.  452. 
18  S.  W.  9. 

^Cline  V.  State,  4.3  Ohio  St.  332,  1  N. 
E.  22. 

And  when  evidence  of  the  intoxication 
of  the  defendant  is  admitted  in  a  prose- 
cution for  maliciously  stabbing  with  in- 
tent to  wound,  it  is  not  error  for  the 
court  to  refuse  to  charge  that  it  is 
proper  to  be  taken  into  consideration 
and  should  have  its  just  weight  in  de- 
termining as  to  the  existence  of  a 
malicious  intent.  'Nichols  v.  State,  8 
Ohio  St.  435. 

So,  refusal  to  instruct  in  a  prose- 
cution for  assault  with  intent  to  do 
great  bodily  harm,  that  if  the  jury  are 
not  satisfied  l>eyo!id  a  reasonable  doubt 
that  the  defendant  was  guilty  of  the  in- 
tent charged,  they  may  find  him  guilty 
of  an  assault  only,  and  a  remark  by  tlx^ 
court  that  the  only  evidence  of  an  as- 
sault is  evidence  tending  to  prove  an  as- 
sault for  the  purpose  of  doing  great 
bodily  harm.,  and  if  the  defense  of 
drunkenness  is  made  out  so  as  to  ren- 


der the  defendant  irrespoosible  it  would 
cover  a  common  assault  as  well  as  the 
other,  are  not  reversible  error,  where  it 
had  charged  upon  the  subject  of  intoxi- 
cation that  if  the  defendant  was  in  such 
a  condition  of  mind  by  reason  of  intoxi- 
cation that  he  did  not  know  what  he 
was  doing  or  whether  the  action  were 
right  or  wrong,  then  he  is  irresponsible, 
since  it  gives  the  prisoner  a  chance  of 
acquittal  to  which  he  is  not  entitled. 
State  V.  Grear,  29  Minn.  221,  13  N.  W. 
140. 

*State  V.  Garvey,  11  Minn.  154,  Gil. 
95. 

So,  while  voluntary  intoxication  is  no 
excuse  for  crime,  one  who  makes  an  as 
sault  while  so  drunk  that  he  does  not 
know  what  he  is  doing  and  is  unable  to 
form  a  criminal  intent,  should  be  acquit 
ted  upon  a  cluirge  of  assault  with  intent 
to  rob.     Scott  \.  State,  12  Tex.  App.  31. 

'Crew  V.  State  (Tex.  Crim.  App.)  2:i 
S.  W.  14;  State  v.  UurpJnj,  118  Mo.  7. 
25  S.  W.  95. 

'■State  V.  Donovan,  Gl  Iowa.  309.  16  N. 
W.  20G;  Rcaqan  v.  State.  28  Tex.  App. 
227,  19  Am.  St.  Rep.  833.  12  S.  W.  601: 
Whitten  v.  State,  115  Ala.  72,  22  So. 
483. 

But  an  instruction  in  a  prosecution 
for  a.«sault  with  intent  to  ravish,  calling 
the  attention  of  the  jury  to  certain  facts 
and  circu)ustanees  in  the  case,  and 
directing  them  that  if  the  accu.sed  was 
in  too  imbecile  a  condition  to  form  a 
design  or  purpose  to  ravi.sh,  they  could 
not  find  him  guilty,  is  objectionable  as 
opening  a  field  of  inquirv  as  to  hi* 
capacity  to  exercise  his  will  and  to  dis- 
tinguisl)  between  right  and  wrong. 
Staie  v.  Donovan,  61  "lowa.  3(i9,  16  N. 
\V.  20G. 


i  240]         INTOXICATION  AS  DKFJ!:N>SE  TO  CHARGE  OF  CRIME.  253 

240.  Intent  in  attempt  to  commit  suicide.—  Dninkunness  is  no  ex- 
cuse for  an  attempt  to  commit  suicide,  but  it  is  a  material  fact  for  the 
consideration  of  tlie  jury  in  arriving  at  a  conclusion  as  to  whether  or 
not  the  accused  really  intended  to  destroy  his  life/ 

241.  Texas  statute  as  to  intoxication. —  There  is  a  statute  in  Texas 
providing  tlint  neither  intoxication  nor  temporary  insanity  produced 
by  the  voluntary  recent  use  of  ardent  spirits  shall  constitute  an 
<^xcuse  for  the  commission  of  crime,  nor  shall  intoxication  mitigate 
either  the  degree  or  the  penalty  of  a  crime;  but  evidence  of  tem- 
porary insanity  produced  by  such  use  of  ardent  spirits  may  be  intro- 
duced in  mitigation  of  a  penalty,  and,  in  cases  of  murder,  to  deter- 
mine the  degree.  The  object  of  this  statute  is  to  eliminate  mere 
intoxication  as  a  defense  in  a  criminal  prosecution,  regardless  of  the 
constituent  elements  of  the  crime,  and  to  prevent  temporary  insanity 
produced  by  intoxication  from  being  a  defense,  but  to  permit  it  to 
be  introduced  in  murder  cases  to  determine  the  degree,  and  in  all 
criminal  prosecutions,  to  mitigate  or  lessen  the  penalty.^  And  under 
it  mere  intoxication  from  the  recent  use  of  ardent  spirits  will  not 
excuse  or  mitigate  the  degree  of  the  crime  unless  the  intoxication 
was  such  as  to  produce  temporary  insanity,  depriving  the  person  of 
capacity  to  distinguish  between  right  and  wrong  as  to  tlie  particular 
act  charged.®  A  person  committing  a  crime,  however,  whose  intoxi- 
cation was  so  excessive  as  to  render  him  unconscious  that  he  was 
doing  a  wrong  act  which  would  subject  him  to  punishment,  is  not 

''Reg.  V.  Doody,  G  Cox  C.  C.  463.  And  refusal  to  charge  with  reference 

Evidence  at  the  trial  of  an  indictment  to  temporary  insanity  produced  by  the 
for  an  attempt  to  commit  suicide,  that  recent  use  of  intoxicating  liquors,  in  a 
the  accused  was  at  the  time  so  drunk  criminal  prosecution,  is  not  error,  where 
that  she  did  not  know  what  she  did,  is  the  evidence  shows  a  state  of  drunken- 
sufficient  to  negative  the  intent  to  kill  ness  short  of  temporary  insanity  only, 
herself.  Keg.  v.  Moore,  3  Car.  &  K.  and  the  court  gives  the  defendant  the 
319,   16  Jur.  750.  same  advantage  he  would  have  had   in 

"Ethers  V.   State,  31   Tex.  Crira.    Rep.  case  of  temporary  insanity.     Dclgado  v. 

318,  18  L.  R.  A.  421,  37  Am.  St.    Rep.  State,  34  Tex.  Crim.  Rep.  157,  29  S.  VV. 

811,  20  S.  W.  744:   Lyle    v.    State,    31  1070. 

Tex.   Crim.  Rep.   103,    19    S.    VV.    903;        And  a  continuance  will  not  be  granted 

Williams  v.  Siate,  25  Tex.  App.  7(i,  7  S.  in   a   prosecution   for  homicide,   to   pro- 

W.  6G1.  cure  the  evidence  of  a  witness  by  whom 

^Evers  v.  State,  31  Tex.    Crim.    Rep.  it  is  expected  to  prove  that  the  accused 

318,  18  L.  R.  A.  421,  37  Am.    St.    Rep.  was    drunk    previous    to    the    homicide, 

811,  20  S.  W.  744;   Ex  parte  Evers,  29  there   being  no   issue   of  temporary   in- 

Tex.  App.  539,  16  S.  W.  343;   Kelley  v.  sanity  produced  by  the  recent  use  of  in- 

Statc,  31  Tex.  Crim.  Rep.  216,  20  S.  W.  toxicating  liquors.     Sherar  v.  State,  30 

357;  De  Alberts  v.  State.  34  Tex.  Crim.  Tex.  App.  349,  17  S.  W.  621. 
Rep.  508,  31   S.    W.     391;    Tloiiston    v.        And  a  person  committing  a  homicide 

State,  26  Tex.  App.  657,  14  S.  W.  352;  is  not  entitled  to  bail  under  the  Texas 

Clore  V.  State,  26  Tex.  App.  624,  10  S.  statute  because  of  his  mere  intoxication 

W.  242.       And  see  Eollou->ay    v.    State  at  the  time  he  committed  it.     Ex  parte 

<Tex.  Crim.  App.)  77  S.  W.  14.  Evers,  29  Tex.  App.  539,  16  S.  W.  343. 


254 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  241 


prevented  from  pleading  his  condition  in  defense.^"  And  intoxica- 
tion may  be  shown  where  the  crime  committed  consists  of  an  act 
combined  with  q.  particular  intent,  for  the  purpose  of  sho^ving  that 
the  perpetrator's  mental  faculties  were  so  far  overcome  as  to  render 
him  incapable  of  entertaining  the  intent  which  is  one  of  the  neces- 
sary ingi'edicnts  of  the  crime,  without  which  it  could  not  have  been 
committed.^ ^  And  temporary  insanity  produced  by  the  voluntary 
recent  use  of  ardent  spirits  may  be  considered  in  determining  the 
degree  of  the  crime  in  murder  cases.^^  And  insanity,  though  arising 
from  intoxication,  but  not  produced  by  the  recent  use  of  intoxicating 
liquors,  is  a  good  defense. ^^  Nor  does  the  statute  apply  to  delirium 
tremens,  or  mania  a  potu,  generally  caused  by  abstinence  from  liquor 
after  long  indulgence,  which  is  an  absolute  defense.^* 

242.  Drinking  for  the  purpose  of  crime.—  Intoxication  or  drunken- 
ness is  entitled  to  no  consideration  in  detennining  the  degree  of  a 
homicide  or  other  crime,  where  the  accused  drank  liquor  for  the  pur- 
pose of  nerving  himself  for  the  deed,  or  to  excite  his  animal  courage.^ ^ 


'"Evers  v.  State,  31  Tex.  Grim.  Rep. 
.318,  18  L.  R.  A.  421,  37  Am.  St.  Rep. 
811,  20  S.  W.  744. 

But  in  order  to  raise  the  question  of 
temporary  insanity  from  the  voluntary 
recent  use  of  liquor,  in  a  prosecution  for 
homicide,  the  intoxication  must  have 
been  operative  on  the  mind  of  the  ac- 
cused at  the  time,  to  the  extent  of  ren- 
dering him  temporarily  insane.  Gon- 
zales v.  State,  31  Tex.  Grim.  Rep.  508, 
21  S.  VV.  253. 

"Reagan  v.  State,  28  Tex.  App.  227, 
19  Am.  St.  Rep.  833.  12  S.  W.  601; 
Fisher  v.  State,  30  Tex.  App.  502,  18  S. 
W.  90. 

But  evidence  of  into.xication  at  the 
time  of  the  conmiission  of  a  criminal 
act  is  admissible  on  a  prosecution  there- 
for only  as  bearing  upon  the  question 
of  criminal  intent.  Scott  v.  State,  12 
Tex.  App.  31. 

'-Houston  V.  Stato,  26  Tex.  App.  657, 
14  S.  W.  352:  Ex  parte  Evers,  29  Tex. 
App.  .'>39,  IG  S.  W.  343:  Ward  v.  State, 
19  Tex.  App.  664:  Rather  v.  State,  25 
Tex.  App.  624,  9  S.  \V.  69. 

Evidence  tending  to  prove  that  a  per- 
son MT.s  temporarily  insane  from  the  use 
of  ardent  spirits  at  the  time  he  commit- 
ted a  homicide  is  sudicient  to  require  the 
'submission  of  the  issue  of  murder  in  the 
second  degree  to  the  jury  in  a  prosecu- 
tion therefor.  Biirkhard  v.  State,  18 
Te.x.  App.  599. 


But  it  is  no  defense  in  a  prosecution 
for  murder  in  the  second  degi'ee.  Tip- 
pett  V.  State,  37  Tex.  Grim.  Rep.  186,  39 
S.   W.   120. 

"IFflrcZ  V.  State,  19  Tex.  App.  664; 
Rather  v.  State,  25  Tex.  App.  623,  9  S. 
W.  69;  Williams  v.  State  (Tex.  Grim. 
App.)  53  S.  W.  859. 

Intoxication  short  of  insanity  is  not 
to  be  regarded  by  the  jury  for  any  pur- 
pose in  a  prosecution  for  crime;  but  if 
it  renders  the  party  incapable  of  dis- 
tinguishing between  right  and  'vrong  as 
to  the  particular  act  done,  the  jury  may 
regard  it  in  giving  a  lesser  punishment, 
but  not  in  an  acquittal.  Kelley  v.  State, 
31  Tex.  Grim.  Rep.  216,  20  S.  W.  357. 

''Kelley  v.  State,  31  Tex.  Grim.  Rep. 
210.  20  S.  W.  357. 

"Willis  V.  Com.  32  Graft.  929;  Garner 
v.  State,  28  Fla.  113,  29  Am.  St.  Rep. 
202,  9  So.  835;  Blimm  v.  Com.  7  Bush, 
320;  O'Grady  v.  State,  36  Neb.  320,  54 
N.  W.  556.  And  see  State  v.  Robinson, 
20  W.  Va.  713,  43  Am.  Rep.  799. 

But  an  instruction  in  a  prosecution 
for  homicide  assuming  that  the  fact  of 
drunkenness  at  the  time  of  the  act  is 
so  inconsistent  with  malice  that  it  be- 
comes the  duty  of  the  state  to  trace  its 
existence  to  a  period  anterior  to  the 
drunkenness,  and  show  affirmatively  that 
the  drinking  was  for  the  purpose  of  com- 
mitting the  deed,  is  erroneous.  Stale  v. 
Ashley,  45  La.  Ann.  1036,  13  So.  738.  . 


§  242]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME. 


265 


Nor  is  it  an  excuse  where  it  is  done  for  tlie  pui'pose  of  preparing  an 
excuse  for  the  Ivilling.^® 

243.  Involuntary  intoxication.—  Drunkenness  which  18  involun- 
tary excuses  crime.^^  And  drunkenness  is  an  excuse  for  crime  when 
brought  about  by  the  fraud,  contrivance,  or  force  of  some  other 
person  or  persons  for  the  purpose  of  causing  the  perpetration  of  the 
offense.^^  But  intoxication  is  not  rendered  involuntary,  so  as  to 
affect  criminal  responsibility,  by  the  fact  that  the  accused  became 
intoxicated  in  whole  or  in  part  upon  liquor  furnished  by  or  at  the 
request  of  the  person  or  persons  against  whom  the  crime  was  com- 
mitted.^^ And  where  one  was  only  slightly  under  the  influence  of 
liquor,  it  is  not  a  legal  excuse  for  crime  that  the  liquor  was  taken 
involuntarily.^** 

III.    Intoxication  of  the  person  injured. 

244.  Effect  of,  generally. —  Eape  may  be  committed  upon  a  person 
who  is  insensible  from  drunkenness,  though  no  resistance  is  made, 
and  the  fact  that  the  liquor  was  given  her  for  tlie  purpose  of  exciting 


^"Smith  V.  Com.  1  Duv.  224 ;  Blimm  v. 
Com.  7  Bush,  320. 

Where  intoxication  is  resorted  to  to 
blunt  moral  responsibility,  it  heightens 
the  culpability  of  a,  criminal  act. 
United  States  v.  Claypool,  14  Fed.  127. 

"People  V.  Robinson,  2  Park.  Crim. 
Rep.  235:  Carter  v.  State,  12  Tex.  500. 
62  Am.  Dec.  539. 

Where  a  person  from  any  cause,  sucli 
as  sickness,  want  of  sleep,  or  the  like,  i** 
reduced  to  such  a  condition  that  a 
smaller  quantity  of  stimulant  would  in- 
toxicate him  than  would  be  required  if 
he  were  in  health,  he  will  not  he  held 
responsible  for  a  criminal  act  while  in- 
toxicated by  a  small  quantity,  since  his 
acts  are  not  voluntary,  but  produced  by 
disease.  Rcr/.  v.  Mary  R.  (1887)  Palles, 
C.  B.  cited  by  N.  Kerr  on  Inebriety,  2d 
ed.  395. 

And  the  drinking  of  liquor  not  in  suf- 
ficient quantities  to  produce  intoxica- 
tion, after  which  the  party  is  struck  a 
blow  upon  the  head  which  puts  him  in 
such  a  condition  as  not  to  know  wliat 
he  is  doing,  and  as  not  to  be  able  to  dis- 
tinguish right  from  wrong,  does  not  con- 
stitute voluntary  intoxication,  and  is 
sufficient  to  relieve  from  criminal  re- 
s])onsibility,  where  the  liquor  alono 
would  not  have  produced  such  a  condi- 


tion.    Legqett    v.  State,    21    Tex.  App. 
382,  17  S.  W.  159. 

^^Peoplev.  Nichol,  34  Cal.  212;  People 
V.  Rohinson,  2  Pai'k.  Crim.  Rep.  235; 
Bartholoineio  v.  People,  104  111.  605,  44 
Am.  Rep.  97. 

But  a  person  is  not  excused  from 
criminal  responsibility  by  the  fact  that 
others  had  given  him  liquor  in  a  social 
way,  with  no  intent  at  the  time  to  in- 
duce him  to  commit  a  crime,  but  after- 
wards, when  he  had  become  so  drunk 
that  he  did  not  know  what  he  was  doing, 
they  did  induce  him  to  conunit  one.  If 
it  were  done  with  a  criminal  intent, 
however,  th&y,  and  not  he,  would  be 
guilty.  McCook  v.  State,  91  Ga.  740,  17 
S.  E.  1019. 

^"State  V.  Sopher,  70  Iowa,  494,  30  N. 
W.  917. 

In  Com.  V.  French,  Thacher  Crim.  Cas. 
163, however,  it  was  held  that  a  boy  thir- 
teen years  of  age,  who  was  put  in  a 
state  of  mental  derangement  by  drink- 
ing liquor  and  smoking  a  cigar,  which 
the  prosecutor  sold  him,  who  committed 
an  ofl'ense  while  in  that  condition, 
should  be  acquitted,  since  it  was  a 
wrongful  act  for  the  prosecutor  to  sell 
liquor  to  siich  a  child. 

-"Com.  V.  Gilbert,  1G5  Mass.  45,  42  N. 
E.  330. 


266  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  244 

her,  only,  does  not  affect  the  criminal  nature  of  the  act;^^  and  a  man 
may  be  guilty  of  adultery  and  be  convicted  alone  therefor,  tliough 
the  participant  was  so  stupefied  by  drink  as  to  be  incapable  of  giving 
'"onsent,  and  the  fact  that  the  crime  is  also  rape  does  not  render  it 
any  the  less  adultery.^^  Likewise,  evidence  in  a  prosecution  for 
homicide  that  the  person  killed  was  under  the  influence  of  intoxicat- 
ing liquor  is  admissible  generally ,^^  and  as  tending  to  show  that  he 
was  incapable  either  of  attack  or  defense.-*  And  on  a  prosecution 
for  larceny  it  is  competent  to  show  that  liquor  drank  by  the  prosecut- 
ing witness  had  been  drugged,  and  the  potency  of  the  drug,  and  the 
condition  to  which  it  reduced  him,^^  But  evidence  as  to  whether  or 
not  the  witness  had  seen  deceased  drink  is  not  admissible  in  a  prose- 
cution for  homicide,  on  behalf  of  the  prosecution,  to  rebut  evidence 
offered  by  the  defense  to  show  that  tlie  deceased  was  intoxicated,  to 
establish  the  theory  of  self-defense,  though  it  is  admissible  to  rebut 
evidence  that  he  was  boisterous,  quarrelsome,  and  dangerous  when 
intoxicated.^® 

IV.    Effect  of  addictio^t  to  the  use  of  dkugs. 

245.  General  rules. — The  same  rules  seem  to  apply  to  the  effect  of 
morphine  and  otlier  drugs  on  criminal  responsibility  as  apply  to  the 
effect  of  intoxicating  liquors;  and  the  fact  that  insanity  rendering 
one  incapable  of  knowing  the  criminal  nature  of  his  act  was  caused 
by  morphine  or  other  drugs  does  not  prevent  it  from  being  a  com- 
plete defense.^'^  And  if  the  offense  was  one  involving  a  criminal 
intent,  a  conviction  cannot  be  had  if  it  rendered  the  person  unable 
to  entertain  the  particular  intent.^^      But  one  committing  a  crime 

^Reg.  V.   CampUn,   1   Car.  &  K.   746,  Rep.  386,  39  L.  R.  A.  262,  43  S.  W.  112. 

Den.  C.  C.  89,  1  Cox^  C.  C.  220.  And  the  fact  that  a  person  committing 

-Com.  V.  Bahcman,  131  Mass.  577,  41  a  homicide  was  in  a  frenzy  produced  by 

Am.  Rep.  248.  an   overdose   of   morphine   administered 

^Holmes  v.  State,   11  Tex.  App.  233.  as  a  medicine  is  a  complete  defense  in 

"State  V.  Home,  9  Kan.  119.  a  prosecution  therefor.     State  v.  Rippy, 

So,    where   a   husband    left   his    wife  104  N.  C.  752,  10  S.  E.  259. 

exposed  to  the  cold  all  night,  whereby  And  refusal  to  instruct  in  a  prosccu 

her  deith  was  caused,  her  drunkenness  tion  for  murder  that  if  the  defendant's 

is  admissible  in  evidence  in  a  prosecu-  alleged    insanity   was    produced   by   the 

tion   against  him   for   her  homicide,   as  use  of  morphine,  referring  to  morphine 

tending  to  shed  light  upon  the  question  as  a  cause  for  the  alleged  insanity,  is 

whether  or  not  she  was  too  violent  to  not    error,    where    ample     instructions 

be  controlled  by  him.    Territory  v.  Man-  with  regard  to  insanity  and  diseases  of 

ton,  8  Mont.  9.5,  19  Pac.  387.  the  mind  were  given,  without  mention- 

^State  V.  Buckley,  72  N.  C.  358.  ing  any  specific  drug  or  liquor  as  the 

''State  V.  Ahranis,  11  Or.  109,  8  Pac.  cause.  '  Slate  v.  Mahn,  25  Kan.  182. 

327.  ^Ednards  v.  State,  38  Tex.  Crim.  Rep. 

"State  V.  Rippy,  104  N.  C.  752,  10  S.  380,  39  L.  R.  A.  202,  43  S.  W.  112. 

E.  259;  Edwards  v.  State,  38  Tex.  Crim.  And    this    is    the    rule    although    the 


§  245]         INTOXICATION  AS  DEFENSE  TO  CHARGE  OF  CRIME.  257 

under  the  influence  of  a  drug  would  be  held  guilty  if  he  took  the 
drug  knowing  the  effect  it  would  be  likely  to  have.^^  So  the  probable 
effect  of  a  customary  supply  of  a  drug  upon  the  mental  condition  of 
a  person  addicted  to  its  use  is  proper  to  be  considered  on  a  claim  of 
irresponsible  insanity  caused  by  such  deprivation.^^ 

statute  provides  that  insanity  from  vol-        ^Edicards  v.  State,  38  Crira.  Rep.  386, 
untary  use  of  intoxicating  liquors  shall    38  L.  T.  A.  262,  43  S.  W.  112. 
be   no   defense.      Edwards   v.   State,    38        *^Rogeri  v.  State,  33  Ind.  543. 
Tex.  Criin.  Rep.  386,  39  L.  R.  A.  262,  43 
S.  W.  112. 

Vol.  I.  Med.  Jur.— il. 


CHAPTER  X. 

UFR  INSURANCR. 

I.  Lttnacy. 

246.  Insanity  as  a  breach  of  warranty. 

247.  Insane  homicide  as  breach  of  condition. 

248.  Condition  against  suicide,  question  one  of  construction. 

249.  General  rule  as  to  effect. 

250.  Degree  of  capacity;   test  of  consciousness  and  intent. 

251.  Test  of  responsibility  for  criminal  acts. 

252.  Test  of  capacity  to  understand  moral  character  of  the  act. 

253.  "Sane  or  insane"  is  a  good  condition. 

254.  "In  the  know-n  violation  oi  the  law  of  any  state"  does  not  extend  to 

insanity. 

255.  Rule  in  case  of  exception  as  to  assigned  policies. 

256.  Effect  of  insanity  on  accident  insurance. 

257.  Effect  of  insanity  on  mutual  insurance. 

258.  Method  of  determining  existence  of  insanity. 

259.  Sufficiency  of  evidence  to  establish. 
11.  Deunkenness. 

260.  Effect  as  a  breach  of  warranty  or  condition. 
201.  Subsequently  acquired   habits  of  intoxication. 

262.  Accident  and  mutual  insurance. 

263.  Habits;  a  question  for  the  jury. 

I.  Lunacy. 

246.  Insanity  as  a  breach  of  warranty. — A  false  answer  to  a  ques- 
tion in  an  application  for  life  insurance  as  to  insanity  of  the  appli- 
cant or  in  his  family  is,  of  course,  a  breach  of  warranty  which  will 
invalidate  the  policy.-'  But  insanity  is  not,  as  a  matter  of  law,  a 
breach  of  warranty  of  sound  health  in  an  application  for  an  insur- 
ance policy.^  The  question  as  to  the  extent  to  which  mental  disturb- 
ances will  destroy  or  interfere  with  the  functions  of  the  body  depends 

'  See   Newton  v.  Mutual  Ben.  L.  Ins.  state  in  the  application  that  he  had  been 

Co.  15  Hun,  595,  Affirmed  in  76  N.  Y.  insane,   will   not   invalidate   the   policy, 

426,  32  Am.  Rep.  335;  Meacham  v.  New  where  he  had  apparently  recovered,  un- 

York  State  Mut.  Ben.  Asso.   120  N.  Y.  less  he  knew  that  it  was  material;  and 

237,  24  N.  E.  283.  such   knowledge   is   not   proved   by   the 

■Jacklin    v.    National    Life    Asso.    75  fact  that  he  had  been  instructed  not  to 

Hun,  .595,  27  N.  Y.  Supp.  1112.  insure  insane  persons.     Mallory  v.  Trav- 

Failure   of   an    insurance   agent,   who  elers'  his.  Co'.  47  N.  Y.  52,  7  Am.  Rep. 

applied    for    insurance    for    himself,    to  410. 

258 


§  246]  LIFE   INSURANCE.  ?M 

in  such  case  upon  the  circumstances,  and  is  a  question  of  fact.^  And 
a  question  in  an  application  for  insurance  as  to  whether  the  relatives 
of  the  applicant  died  of,  or  had  been  afflicted  with,  insanity  or  other 
hereditary  disease,  includes  insanity  of  a  hereditary  character  only; 
and  an  answer  in  the  negative  does  not  constitute  a  breach  of  war- 
ranty because  a  relative  died  of  temporary  insanity.^ 

247.  Insane  homicide  as  breach  of  condition. —  The  killing  of  an  in- 
sured person  by  an  insane  person  is  not  within  a  condition  in  the 
insurance  policy  invalidating  it  if  death  should  result  from  inten- 
tional injuries  inflicted  by  the  insured  or  any  other  person.^  And 
the  killing  of  the  insured  by  the  beneficiary  in  a  policy,  under  such 
circumstances  that  it  would  be  murder  if  he  were  sane,  does  not  for- 
feit it  or  bar  a  suit  thereon,  where  he  was  insane.^ 

248.  Condition  against  suicide,  question  one  of  construction. — The 
clauses  in  the  insurance  policies  which  provide  that  the  policies  shall 
be  void  if  the  insured  party  kills  himself  are  usually  worded  in  one 
of  two  ways.  Either  the  phrase  "shall  die  by  his  own  hand  or  act" 
is  used,  or  the  shorter  phrase,  "shall  die  by  suicide."  We  shall  now 
consider  the  constructions  which  have  been  put  upon  these  phrases 
by  the  various  courts  to  whose  judgment  they  have  been  submitted. 

249.  General  rule  as  to  effect. —  An  insurance  policy  is  not  ren- 
dered void  by  the  death  of  the  assured  by  his  own  hand  while  insane, 
upon  any  principle  of  public  policy,  in  the  absence  of  a  provision  to 
that  effect,^     And  the  general  rule  is  that  the  death  of  an  insured 

MackJin    v.    National    Life    Asso.    75  And  an  instruction  in  an  action  upon 

Hun,  595,  27  N.  Y.  Supp.  1112.  an  insurance  policy  in  which  the  insured 

Evidence  in  an  action  on  an  insur-  was  killed  by  another,  that,  if  the  per- 
ance  policy,  given  by  the  widow  of  the  son  who  killed  him  was  impelled  by  an 
father  of  the  insured,  that  her  husband  insane  impulse  wliicli  he  could  not  re- 
needed  quiet  and  treatment,  and  went  sist,  the  injuries  were  unintentional 
to  an  insane  hospital,  but  was  not  con-  within  the  meaning  of  the  policy,  will 
fined  with  the  patients,  and  that  he  had  be  construed  as  meaning  that  he  was 
pains  in  his  head  where  he  had  been  incapable  of  weigliing  the  moral  charac- 
hurt  when  a  child,  but  that  he  always  ter  of  the  act,  and  of  determining  wheth- 
seemed  to  know  what  was  going  on,  and  er  it  was  right  or  wrong;  and  thus 
proof  that  his  brains  were  in  a  hard-  construed  it  will  cause  no  injury  to  the 
ened  state  at  death,  is  sufficient  to  send  defendant  in  an  action  on  the  insurance 
to  the  jury  the  question  whether  a  policy,  where  the  court  had  carefully 
statement  in  the  policy  that  tlie  fatlier  instructed  as  to  the  law  of  insanity, 
had  died  of  brain  disease  caused  by  a  Ibid. 

hurt  was  true.     Newton  v.  Mutual  Ben.  ^Holdom  v.  Ancient  Order,  U.  W.  159 

L.  his.  Co.  15  Hun.  595,  Affirmed  in  7G  III.  619,  31  L.  R.  A.  67,  50  Am.  St.  Rep. 

N.  Y.  426,  32  Am.  Rep.  335.  183,  43  N.  E.  772. 

*Neuton    v.  Mutual    Ben.  L.  Ins.  Co.  ''Horn  v.  Anglo- Australian  Assur.  Co. 

15  Htjn,  595,  Affirmed  in  76  N.  Y.  426,  9   Week.   Rep.   359,   4   L.   T.   N.   S.    142, 

32  Am.  Rep.  335;  Peasley  v.  Safety  De-  30  L.  J.  Ch.  N.  S.  511,  7  Jur.  N.  S.  S73. 
posit  L.  Ins.  Co.  15  Hun,  227. 

^Marceau    v.    Travelers'    Ins.    Co.    101 
Cal.  338,  35  Pac.  856,  36  Pac.  813. 


260 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  249 


person  bj  his  own  hand  while  non  compos  inentis  is  regarded  as  being 
as  much  the  result  of  disease  as  death  bj  fever  or  consumptiou  f  and 
that  self-destruction  in  a  fit  of  insanity  cannot  be  deemed  death  by 
one's  own  hand  within  the  meaning  of  an  insurance  policy  containing 
a  condition  against  suicide,^  the  words  "suicide"  and  "die  by  his  own 
hand,"  being  of  the  same  legal  signification.^*^  The  act  of  suicide, 
however,  must  have  been  an  insane  act,  and  the  immediate  conse- 
quence and  result  of  the  insanity.^  ^  The  suicide  by  one  in  possession 
of  his  ordinary  reasoning  faculties,  from  pride,  anger,  jealousy, 
shame,  dread  of  exposure,  or  a  desire  to  escape  from  the  ills  of  life, 
is  within  such  a  proviso,  and  invalidates  the  policy.^ ^ 

250.  Degree  of  capacity;  test  of  consciousness  and  intent.  —  The 
English  rule  is  that  a  condition  against  liability  in  case  of  suicide  in 
an  insurance  policy  includes  all  cases  of  voluntary  self-destruction, 
whether  the  insured  was  sane  or  not  at  the  time,^^  and  that  a  proviso 
in  a  policy  that  it  shall  be  void  if  the  assured  shall  die  by  his  own 
hand  includes  all  voluntary  acts  of  self-destruction.**     But  to  avoid 


Vo/in  Hancock  Mut.  L.  Ins.  Co.  v. 
Moore,  34  Mich.  4L  And  see  Breasted 
V.  Farmers'  Loan  &  T.  Co.  8  N.  Y.  299, 
59  Am.  Dec.  482;  Connecticut  Mut.  L. 
Ins.  Co.  V.  Gi-oom,  8(5  Pa.  92,  27  Am. 
Rep.  G89 ;  Phadenhauer  v.  Germania  L. 
Ins.  Co.  7  Heisk.  507,  19  Am.  Rep.  623. 

'Accident  Ins.  Co.  v.  Crandal,  120  U. 
S.  527,  30  L.  ed.  740,  7  Sup.  Ct.  Rep. 
085 ;  Kniclccrhocker  L.  Ins.  Co.  v.  Pe- 
ters, 42  Md.  414;  Eastahrook  v.  Union 
Mut.  L.  Ins.  Co.  54  Me.  224,  89  Am. 
Dec.  743 ;  Blackstone  v.  Standard  Life 
d  Acci.  Ins.  Co.  74  Mich.  592,  3  L.  R.  A. 
486,  42  N.  W.  156 ;  Phillips  v.  Louisiana 
Equitable  L.  Ins.  Co.  26  La.  Ann.  404, 
21  Am.  Rep.  549;  Breasted  v.  Farmers' 
Loan  d  T.  Co.  8  N.  Y.  299,  59  Am.  Dec. 
482.  Affirming  4  Hill,  73;  Life  Asso.  v. 
Waller,  57  Ga.  533;  Scheffer  v.  Na- 
tional L.  Ins.  Co.  25  Minn.  534;  Foil- 
mar  V.  Germania  L.  Ins.  Co.  cited  in 
Bliss  on  Life  Insurance,  §  242;  Horn  v. 
Anglo- Australian  &  Universal  Family  L. 
Ins.  Co.  7  Jur.  N.  S.  673,  9  Week.  Rep. 
.359,  30  L.  J.  Ch.  N.  S.  511,  4  L.  T.  N.  S. 
142. 

^"Moore  v.  Connecticut  Mut.  L.  Ins. 
Co.  1  Flipp.  363,  Fed.  Gas.  No.  9,755; 
Mutual  L.  Ins.  Co.  v.  M'iswell,  50  Kan. 
765,  35  L.  R.  A.  258,  44  Pac.  996;  Mu- 
tual L.  Ins.  Co.  V.  Terry,  15  Wall.  580, 
21  L.  ed.  236;  Eastabrook  v.  Union  Mut. 
L.  Ins.  Co.  54  Me.  224,  89  Am.  Dec.  743. 

^^Hathaway  v.  National  L.  Ins.  Co.  48 
vt    336. 

^Mutual  L.  Ins.  Co.  v.  Terry,  15  Wall. 


580,  21  L.  ed.  236;  Charter  Oak  L.  Ins. 
Co.  V.  Rodel,  95  U.  S.  235,  24  li.  ed.  433 ; 
Moore  v.  Connecticut  Mut.  L.  Iits.  Co. 

I  Flipp.  363,  Fed.  Gas.  No.  9,755. 
^^Clift  V.  Schwabe,  2  Gar.  &  K.   134, 

3  G.  B.  437,  17  L.  J.  G.  P.  N.  S.  2. 

A  person  is  not  necessarily  insane 
imder  this  rule  who  voluntarily  commits 
suicide,  intending  to  do  so,  at  a  time 
when  he  is  stated  in  general  terms  to 
be  incapable  of  distinguishing  between 
right  and  wrong,  since  he  might  be  in- 
capable of  so  distinguishing  because  of 
want  of  requisite  knowledge  or  expe- 
rience or  want  of  reasoning  powers 
equal  to  the  occasion,  though  quite  suf- 
ficient to  sustain  the  character  of  a 
man  of  sense  and  understanding  on  ordi- 
nary occasions.  Dormay  v.  Borrodaile, 
10  Beav.  335,  Affirmed  in  5  C.  B.  380, 

II  Jur.  231. 

^'■Borradaile  v.  Hunter,  5  Mann.  &  G. 
639,  12  L.  J.  G.  P.  N.  S.  225,  7  Jur. 
443,  5  Scott  N.  R.  418;  Dormay  v.  Bor- 
radaile,  5  G.  B.  380,  11  Jur.  231. 

^'-Clift  V.  Schwabe,  2  Gar.  &  K.  1.34, 
17  L.  J.  G.  P.  N.  S.  2,  3  G.  B.  437. 

Where  an  insured  person  falls  from  a 
window,  and  there  is  evidence  tending 
to  show  insanity,  the  question  is  not 
whether  he  threw  himself  out  of  the 
window,  but  whether,  if  so,  he  did  it 
voluntarily,  and  not  through  confusion 
of  his  own  senses.  Stormont  v.  Water- 
loo Life  d  C.  Assur.  Co.  I  Fost.  &.  F. 
22. 


250] 


LIFE   INSURANCE. 


261 


a  life  insurance  policy  containing  such  a  provision,  it  must  appear 
that  the  assured,  at  the  time  he  committed  suicide,  could  distinguish 
between  right  and  wrong  to  the  extent  of  being  able  to  understand 
and  appreciate  the  nature  and  quality  of  the  act.^^  Likewise  in  many 
of  the  American  states  the  rule  is  adopted  that  a  life  insurance  policy 
containing  a  condition  that  it  shall  be  void  if  the  assured  shall  die 
by  his  own  hand  is  avoided  by  suicide  committed  when  he  understood 
the  nature  of  the  act  and  intended  to  take  his  own  life,  though  he  may 
have  been  insane,^ *^  au4  though  he  was  not  capable  of  judging  be- 
tween right  and  wrong,^'^  or  of  understanding  or  appreciating  the 
nature  and  quality  of  his  act.^*  An  act  of  self-destruction  will  in- 
validate an  insurance  policy  containing  such  a  condition  when  the 
insured  had  sufficient  mind,  reason,  and  judgment  to  rationally  con- 
sider and  determine  whether  he  preferred  to  die  or  live,  though  his 
mind  was  somewhat  unsound.-^ ^  Suicide  will  invalidate  such  a  policy 
in  the  absence  of  evidence  of  delirium  or  madness  or  that  the  act  was 
involuntary,-*'  the  rule  being  that  to  take  the  case  out  of  the  proviso 
the  assured  must  have  been  so  mentally  disordered  as  not  to  have  un- 
derstood that  the  act  he  committed  would  cause  his  death,  or  he  must 
have  committed  it  under  the  influence  of  some  insane  impulse  which 
he  could  not  resist.^  ^ 


"Dean  v.  American  Mut.  L.  Ins.  Co. 
4  Allen,  96;  Cooper  v.  Massachusetts 
Mut.  L.  Ins.  Co.  102  Mass.  227,  3  Am. 
Rep.  451;  Weed  v.  Mutual  Ben.  L.  Ins. 
Co.  70  N.  Y.  561;  Van  Zandt  v.  Mutual 
Ben.  L.  Ins.  Co.  55  N.  Y.  176,  14  Am. 
Rep.  215;  Mutual  Ben.  L.  Ins.  Co.  v. 
Daviess,  87  Ky.  541,  9  S.  W.  812; 
Hathaway  v.  National  L.  Ins.  Co.  48 
Vt.  336 ;  Boorman  v.  Northivestern  Mut. 
Relief  Asso.  90  Wis.  144,  62  N.  VV.  924 ; 
Gay  V.  Union  Mut.  L.  Ins.  Co.  9  Blatclif. 
142,  Fed.  Cas.  No.  5,282;  Zimmerman  v. 
Masonic  Aid.  Asso.  75  Fed.  236.  And 
see  Eastabrook  v.  Union  Mut.  L.  Ins.  Co. 
54  Me.  224,  89  Am.  Dec.  743;  Knicker- 
bocker L.  Ins.  Co.  V.  Peters,  42  Md.  414; 
Scheffer  v.  National  L.  Ins.  Co.  25  Minn. 
534. 

Under  this  rule  the  question  in  an 
action  upon  an  insurance  policy  con- 
taining a  condition  against  self-destruc- 
tion, in  which  the  assured  had  com- 
mitted suicide,  is  not  whether  the  party 
was  sane  or  insane,  but  whether  the 
act  of  self-destruction  was  a  criminal, 
intentional,  and  voluntary  act,  denigiied 
to  take  life,  and  the  party  was,  at  the 
precise  time,  competent  to  realize  the 
consequences  of  the  means  employed  to 


take  his  life.  Fowler  v.  Mutual  L.  Ins. 
Co.  4  Lans.  202. 

"Gay  V.  Union  Mut.  L.  Ins.  Co.  9 
Blatchf.   142,  Fed.  Cas.  No.  5,282. 

^^Nimick  v.  Mutual  Ben.  L.  Ins.  Co. 
3  Brewst.  (Pa.)  502;  Mutual  Ben.  L. 
Ins.  Co.  V.  Daviess,  87  Ky.  541,  9  S.  W. 
812;  Pierce  v.  Travelers'  L.  Ins.  Co.  34 
Wis.  389;  Gay  v.  Union  Mut.  L.  Ins. 
Co.  9  Blatchf.  142,  Fed.  Cas.  No.  5,282. 

'^^Hathaway  v.  National  L.  Ins.  Co.  48 
Vt.  .336. 

The  act  of  self-destruction  which  will 
avoid  an  insurance  policy  containing  a 
condition  that  it  shall  be  void  if  the  as- 
sured shall  die  by  his  own  hand  must 
be  voluntary.  St.  Louis  Mut.  L.  Ins. 
Co.  V.  Graves,  6  Bush,  268. 

'"Cooper  V.  Massachusetts  Mut.  L.  Ins. 
Co.  102  Mass.  227,  3  Am.  Rep.  451; 
Mutual  Ben.  L.  Ins.  Co.  v.  Daviess,  87 
Ky.   541,   9   S.   W.   812. 

^McCiure  v.  Mutual  L.  Ins.  Co.  55 
N.  Y.  651;  Weed  v.  Mutual  Ben.  L.  Ins. 
Co.  70  N.  Y.  561;  Newton  v.  Mutual 
Ben.  L.  Ins.  Co.  76  N.  Y.  426,  32  Am. 
Rep.  335;  Meacham  v.  New  York  State 
Mut.  Ben.  Asso.  46  Hun,  363;  Hathaway 
V.  National  L.  Ins.  Co.  48  Vt.  335. 

The  rule  that  suicide  caused   by  ir- 


262  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§251 

S51.  Test  of  responsibility  for  criminal  acts. — The  rule  has  been  laid 
down  that  since  suicide  is  a  criminal  act,  the  rule  of  responsibility 
for  criminal  acts  should  be  applied  to  its  effect  uj)on  an  insurance 
policy  containing  a  condition  against  self-destruction,  and  that  sui- 
cide which  will  avoid  such  a  policy  must  have  been  committed  when 
there  was  mind  enough  to  form  a  criminal  intent,-^  the  test  being  the 
capability  of  the  assured  to  judge  between  right  and  wTong.^^  But  it 
has  been  held  that  to  understand  the  general  nature,  consequences, 
and  effect  of  the  act  means  more  than  merely  to  understand  the  act 
by  which  life  was  taken,  covering  suicide  and  its  effect  as  an  accom- 
plished fact."*  And  the  above  test  must  be  deemed  to  have  been  su- 
perseded either  by  the  test  of  consciousness  and  intent  or  that  of 
capacity  to  understand  the  moral  character  of  the  act,  particularly  in 
Federal  jurisdictions.^^ 

252.  Test  of  capacity  to  understand  moral  character  of  the  act. — 
The  rule  adopted  by  the  United  States  Suj^reme  Court  and  followed 
by  a  number  of  the  state  courts  is,  that  the  intentional  killing  of  him- 
self by  an  assured  person  when  his  reasoning  faculties  were  so  far 
impaired  by  insanity  that  he  was  unable  to  understand  the  moral 
character  of  his  act,  is  not  suicide,  self-destruction,  or  dying  by  his 
own  hand,  within  the  meaning  of  such  words  in  a  condition  in  an  in- 
resistible  impulse  will  not  relieve  the  the  insured  unless  it  be  clearly  shown 
insurer  has  been  adopted  in  New  York  that  at  the  time  his  mental  condition 
courts,  though  they  hold  to  the  doctrine  v,-as  such  as  to  render  him  morally  ir- 
that  the  test  is  that  of  consciousness  responsible  for  his  acts.  Merritt  v.  Cot- 
and  intent  rather  than  capacity  to  un-  ton  Htatcs  L.  Ins.  Co.  55  Ga.  103. 
derstand  the  moral  character  of  the  act,  '^Moore  v.  Connecticut  Mut.  L.  Inft. 
the  rule  being  that  a  policy  is  invali-  Co.  1  Flipp.  3G3,  Fed.  Cas.  No.  9,755 ; 
dated  by  suicide  unless  the  insured  was  Breasted  v.  Farmers'  Loan  &  T.  Co.  S 
so  mentally  disordered  as  not  to  under-  N.  Y.  299^  59  Am.  Dec.  482. 
.stand  tliat  the  act  he  committed  would  The  right  and  wrong  test  has  been 
cause  his  deaih,  or  unless  he  committed  distinctlj^  repudiated  in  New  York.  See 
it   under   the    influence   of   some    insane    supra,   §    250. 

impulse  which  he  could  not  resist;  and        '*Moore  v.    Connecticut    Mut.   L.   Ins. 
it  is  not  sufficient  that   his   mind  was    Co.  1  Flipp.  363,  Fed.  Cas.  No.  9,755. 
so  impaired  that  he  was  not  conscious        "  See    preceding   and    succeeding   sec- 
of  the  moral  obliquity  of  the  act.     Van    tions. 

Zandt  V.  Mutual  Ben.  L.  Ins.  Co.  55  N.  For  circuit  court  cases  on  this  ques- 
Y.  169,  14  Am.  Rep.  215;  Meacham  v.  lion  deprived  of  their  authority  by  the 
'New  York  Slate  Mut.  Ben.  Asso.  46  decision  in  Mutual  L.  Ins.  Co.  v.  Terry, 
Hun,  363;  Newton  v.  Mutual  Ben.  L.  15  WnU.  580,  21  L.  ed.  230.  see  Cay  v. 
Ins.  Co.  76  N.  Y.  426,  32  Am.  Rep.  335.      Union  Mut.  L.  Iris.  Co.  9  Blatchf.   142, 

^Phadenhauer  V.  Germania  L.  Ins.  Co.  Fed.  Cas.  No.  5.282:  Nijnick  v.  Mutual 
7  Heisk.  567,  19  Am.  Rep.  623;  Beijley  Ben.  L.  Ins.  Co.  3  Brewst.  (Pa.)  502; 
V.  Alexander,  East's  Notes,  Cas.  79,  Mor-  Coverston  v.  Connecticut  Mut.  L.  Ins. 
ley's  India  Digest,  352.  Co.  4  Bigelow  Life  &  Acci.  Ins.  Rep.  169, 

Under  this  rule  an  insurance  policy  Fed.  Cas.  No.  3,290.  Following  Mu- 
containing  a  condition  that  it  shall  be  tual  L.  Ins.  Co.  v.  Terry  is  Moore  v. 
void  if  the  assured  shall  die  by  liis  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp. 
own   hand   is   invalidated   by   suicide   of    363,  Fed.  Cas.  No.  9,755. 


252] 


LIFE  INSURANCE. 


263 


surance  policy  against  liability  for  death  thus  caused,  though  he 
understood  the  physical  nature,  consequences,  and  effect  of  his  act.^^ 
Suicide  by  the  insured  is  not  death  by  his  own  hand  within  the 
meaning  of  this  rule,  where  he  was  incapable  of  forming  a  rational 
judgment  at  the  time  with  respect  to  the  act  of  self-destruction,^^  or 
\vli(!re  his  reason,  conscience,  and  will  were  overpowered.^^  But  if 
the  insured  possessed  sufficient  mental  capacity  to  form  an  intelligent 
intent  to  take  his  own  life,  and  did  so,  being  conscious  that  the  act  he 
was  about  to  commit  would  effect  that  object,  it  avoids  the  policy.^® 
Likewise,  in  order  to  work  a  forfeiture  of  an  insurance  policy  within 
this  rule  under  a  clause  excepting  suicide,  the  act  must  have  been 
performed  voluntarily  and  with  intent  upon  the  part  of  the  assured 
to  end  his  life,  and  not  from  any  uncontrollable  influence  resulting 


-"Connecticut  Mut.  L.  Ins.  Co.  v. 
Akens,  150  U.  S.  468,  37  L.  ed.  1148,  14 
Sup.  Ct.  Rep.  155;  Mutual  L.  Ins.  Co. 
V.  Terry,  15  Wall.  580,  21  L.  ed.  236; 
Manhattan  L.  Ins.  Co.  v.  Broughton,  109 
U.  S.  121,  27  L.  ed.  878,  3  Sup.  Ct. 
Rep.  99;  Charter  Oak  L.  Ins.  Co.  v. 
Rodel,  95  U.  S.  235,  24  L.  ed.  433;  Gay 
V.  Union  Mut.  L.  Ins.  Co.  9  Blatchf.  142, 
Fed.  Cas.  No.  5,282;  Mutual  L.  Ins.  Co. 
V.  Leubrie,  18  C.  C.  A.  332,  38  U.  S. 
App.  37,  71  Fed.  843;  Rifter  v.  Mutual 
L.  Ins.  Co.  42  L.  R.  A.  583,  17  C.  C.  A, 
537,  28  U.  S.  App.  612,  70  Fed.  954; 
Waters  V.  Canneeticut  Mut.  L.  Ins.  Co. 
2  Fed.  892;  Islew  Home  Life  Asso.  v. 
Ilagler,  29  111.  App.  437 ;  Michiqan  Mut. 
L.  Ins.  Co.  V.  Nangle,  130  Ind.  79,  29 
N.  E.  393 ;  Blackstone  v.  Standard  Life 
d  Acci.  Ins.  Co.  74  Mich.  592,  3  L.  R.  A. 
486,  42  N.  W.  156;  Schultz  v.  Insurance 
Co.  40  Ohio  St.  217,  48  Am.  Rep.  676; 
Phadenhauer  v.  Gerniania  L.  Ins.  Co. 
7  Heisk.  567,  19  Am.  Rep.  623;  Ameri- 
can L.  Ins.  Co.  V.  Isett,  74  Pa.  176; 
Connecticut  Mut.  L.  Ins.  Co.  v.  Groom, 
86  Pa.  92,  27  Am.  Rep.  689. 

To  understand  the  general  nature, 
consequences,  and  effect  of  the  act  means 
more  than  merely  understanding  the  act 
by  which  life  was  taken,  and  covers 
suicide  as  an  accomplished  fact.  Moore 
V.  Connecticut  Mut.  L.  Ins.  Co.  1  Flipp. 
363,  Fed.  Cas.  No.  9,755. 

The  above  Pennsylvania  cases  jjrac- 
tically  overrule  Hartman  v.  Keystone 
Ins.  Co.  21  Pa.  466,  where  Black,  Ch.  J., 
said  that,  standing  alone,  the  words  "die 
by  his  own  hand,"  mean  any  sort  of 
suicide. 

"Terry  v.   Life  Ins.   Co.    1   Dill.   403, 


Fed.  Cas.  No.  13,839;  Hiatt  v.  Mutual 
L.  Ins.  Co.  2  Dill.  572,  note;  Moore  v. 
Comiecticut  Mut.  L.  Ins.  Co.  1  Flipp. 
363,  Fed.  Cas.  No.  9,755;  American  L. 
Ins.  Co.  V.  Isett,  74  Pa.  176. 

And  a  warranty  in  an  application 
for  insurance  that  the  applicant  will 
not  die  by  his  own  hand  is  of  the  same 
effect  with  relation  to  the  effect  of  sui- 
cide upon  the  liability  of  the  insurer  as 
a  similar  condition  in  the  policy.  Mu- 
tual L,  Ins.  Co.  V.  Leuhrie,  18  C.  C.  A. 
332,  38  U.  S.  App.  37,  71  Fed.  843. 

'^Knickerbocker  L.  Ins.  Co.  v.  Peters, 
42  Md.  414 ;  Connecticut  Mut.  L.  Ins. 
Co.  V.  Groom,  86  Pa.  96,  27  Am.  Rep. 
689. 

One  who  takes  an  overdose  of  lauda- 
num, which  causes  his  death,  while  in- 
toxicated, does  not  die  by  his  own  hand 
within  the  meaning  of  a  condition  in- 
validating an  insurance  policy  if  the  in- 
sured should  die  by  his  own  hand, 
though  the  mistake  of  taking  the  poison 
was  in  some  sense  occasioned  by  drunk- 
enness; but  if  he  took  it  with  intent 
to  destroy  life,  it  would  be,  though  it 
was  the  intent  of  a  drunken  man.  Equi- 
table Life  Assur.  Soc.  v.  Paterson,  41 
Ga.  388,  5  Am.  Rep.  535. 

-"American  L.  Ins.  Co.  v.  Isett,  74  Pa. 
176;  Ritter  v.  Mutual  L.  Ins.  Co.  42 
L.  R.  A.  583,  17  C.  C.  A.  537,  28  U.  S. 
App.  612,  70  Fed.  550. 

To  relieve  from  the  consequences  of 
suicide  upon  an  insurance  policy  there 
must  be  something  more  than  mere  er- 
ror of  judgment, — there  must  at  least 
be  mental  disorder.  Moore  v.  Connecti- 
cut Mut.  L.  Ins.  Co.  1  Flipp.  363,  Fed. 
Cas.  No.  9,755. 


264 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.  l§  252 


from  iiidanity.^'*     And  where  suicide  is  thus  impelled,  the  condition 
does  not  attach,  and  the  insurer  remains  liable.^^ 

253.  "Sane  or  insane"  is  a  good  condition. —  Of  late  the  insurance 
companies  have  endeavored  to  guard  themselves  against  insane  suicide 
by  extending  the  proviso  to  read  "if  the  insured  shall  die  by  suicide, 
sane  or  insane,"  etc.  That  the  companies  have  a  right  to  do  this  is 
indubitable.^-  And  a  policy  limiting  payment,  in  case  of  insane 
suicide,  to  the  legal  reserve,  is  valid  if  not  prohibited  by  law,  if  the 
reserve  is  ascertainable.^^  Such  clauses,  however,  are  to  be  strictly 
construed,  and  rejected  when  indefinite.^^    And  it  has  been  held  that 


^Blackfttone  v.  Standard  Life  d  Acci. 
Ins.  Co.  74  Mich.  592,  3  L.  R.  A.  486, 
42  N.  W.  156;  Phillips  v.  Louisiana 
Equitable  L.  Ins.  Co.  26  La.  Ann.  404, 
21  Am.  Rep.  549;  Moore  v.  Connecticut 
Mut.  L.  Ins.  Co.  1  Flipp.  363,  Fed.  Gas. 
No.  9,755. 

"Charter  Oak  L.  Ins.  Co.  v.  Rodel,  95 
U.  S.  235,  24  L.  ed.  433;  Mutual  L.  Ins. 
Co.  V.  Terry,  15  Wall.  580,  21  L.  ed. 
236;  Moore  v.  Connecticut  Mut.  L.  .ns. 
Co.  I  Flipp.  363,  Fed.  Gas.  No.  9,7-^5; 
Oay  V.  Union  Mut.  L.  Ins.  Co.  9  Blatchf. 
142,  Fed.  Gas.  No.  5,282;  Waters  v. 
Connecticut  Mut.  L.  Ins.  Co.  2  Fed. 
892 ;  A'ew  Home  Life  Asso.  v.  Hagler, 
29  111.  App.  437;  Suppiger  v.  Covenant 
Mut.  Ben.  Asso.  20  111.  App.  595;  Phil- 
lips V.  Louisiana  Equitable  L.  Ins.  Co. 
26  La.  Ann.  404,  21  Am.  Rep.  549; 
Blackstone  v.  Standard  Life  &  Acci. 
Ins.  Co.  74  Mich.  592,  0  L.  R.  A.  486, 
42  N.  W.  156;  American  L.  Ins.  Co.  v. 
Isett,  74  Pa.  176. 

A  man  was  ini^ane  so  as  to  prevent 
the  forfeiture  of  an  insurance  policy 
conditioned  against  death  by  his  own 
hand,  where  he  was  not  capable  of  un- 
derstanding that  his  design  was  unlaw- 
ful or  that  his  act  was  morally  wrong, 
or  where,  understanding  this,  he  was 
unable  to  control  his  conduct  in  the  light 
of  such  knowledge.  Waters  v.  Connec- 
ticut Mut.  L.  Ins.  Co.  2  Fed.  892. 

Knowledge  that  death  will  ensue,  and 
deliberation  on  the  part  of  an  insured 
person,  are  not  conclusiv"e  as  to  his 
power  to  determine  his  action,  in  an 
issue  as  to  his  responsibility  as  to  sui- 
cide, since  such  knowledge  and  delil)- 
eration  are  consistent  with  his  being 
impelled  by  an  insane  impulse  which  his 
reason  could  not  resist.  Charter  Oak 
L.  Ins.  Co.  V.  Rodel,  95  U.  S.  235,  24 
L.  ed.  433. 

So,  in  St.  Louis  Mut.  L.  his.  Co.  v. 
Craves,  6  Bush,  268,  the  question  wheth- 


er, if  a  paroxysm  of  moral  insanity 
caiised  the  death  of  the  insured,  the 
suicidal  act  would  be  voluntary,  so  as 
to  render  the  policy  void  under  a  con 
dition  therein  that  it  should  be  void  if 
the  assured  should  die  by  his  own  hand, 
was  considered,  two  of  the  judges  hold- 
ing in  the  affirmative  and  two  in  the 
negative,  though  all  concurred  in  the 
resuL  of  the  demsion  of  the  whole  case. 

^-Supreme  Co^imandery,  K.  of  G.  R.  v. 
Ainsworth,  71  Ala.  436,  46  Am.  Rep. 
332;  Jenkins  v.  'National  Union  (Ga.) 
45  S.  E.  449;  Dickerson  v.  Northwestern 
Mut.  L.  Ins.  Co.  200  111.  270,  65  N.  E. 
694,  Affirming  102  111.  App.  280;  Van 
Zandt  V.  Mutual  Ben.  L.  Ins.  Co.  55  N. 
Y.  169,  14  Am.  Rep.  215;  De  Gogorza  v. 
Knickerbocker  L.  Ins.  Co.  65  N.  Y.  232 ; 
Knickerbocker  L.  Ins.  Co.  v.  Peters,  42 
Md.  414;  Pierce  v.  Travelers'  L.  Ins.  Co. 
32  Wis.  389;  Chapman  v.  Republic  L. 
In,'^.  Co.  6  Biss.  238,  Fed.  Gas.  No. 
2,606;  Kelley  v.  Mutual  L.  Ins.  Co.  75 
Fed.  G37;  Bigelow  v.  Berkshire  L.  Ins. 
Co.  93  U.  S.  284,  23  L.  ed.  918. 

A  condition  in  a  life  insurance  policy 
against  liability  in  case  of  self-destruc 
tion,  felonious  or  otherwise,  is  equiva- 
lent to  a  condition  against  liability 
whether  sane  or  insane.  Riley  v.  Hart- 
ford Life  d  Annuity  Ins.  Co.  25  Fed. 
315;  Jacobs  v.  National  L.  Ins.  Co.  1 
]\IacArth.  632. 

^^Frey  v.  Germania  L.  Ins.  Co.  56 
Mich.  29,  22  N.  W.  100;  Salentine  v. 
Mutual  Ben.  L.  Ins.  Co.  24  Fed.  159. 
And  see  Dickerson  v.  Northwestern  Mut. 
L.  Ins.  Co.  200  111.  270,  65  N.  E.  694. 
Affirming  102  111.  App.  280. 

''^Sce  Schultz  v.  Insurance  Co.  40 
Ohio  St.  217,  48  Am.  Rep.  676;  Penfold 
v.  Universal  L.  Ins.  Co.  85  N.  Y.  317, 
39  Am.  Rep.  660;  Jacobs  v.  National  L. 
Ins.  Co.  1  MacArth.  632;  Kelley  v.  Mu- 
tual L.  Ins.  Co.   109  Fed.  56. 


I  253J 


LIFE   INSURANCE. 


2G6 


the  only  construction  to  be  given  to  these  words  is  the  one  they  bear 
jn  their  face, — namely,  that  the  company,  in  case  of  suicide,  is  to 
be  exempt  from  all  liability.^^  But  they  are  not  meant  to  cover  the 
case  of  unintentional  self-destruction.^^  The  rule  is  that  such  a 
clause  covers  all  conscious  acts  of  the  assured  by  which  death  by  his 
own  hand  is  accomplished,  whether  he  was,  at  the  time,  sane  or  in- 
sane ;  and  if  the  act  was  done  with  the  purpose  of  self-destruction,  it 
is  immaterial  whether  or  not  he  had  a  conception  of  the  wrong  in- 
volved in  it.^^  And  the  same  rule  applies  where  the  insured  was 
temporarily  insane.^^  No  recovery  can  be  had  in  such  case  if  the 
assured  committed  the  fatal  act  otherwise  than  accidentally.^®  The 
rule  has  been  laid  down,  how^ever,  in  several  recent  cases,  that  suicide 
will  prevent  a  recovery  upon  such  a  policy,  even  though  the  insured 
killed  himself  intentionally  while  insane.^** 


^'Bigelow  v.  Berkshire  L.  Ins.  Co.  93 
a.  S.' 284,  23  L.  ed.  918;  Chapman  v. 
fZepuhlic  L.  Itis.  Co.  6  Biss.  238,  Fed. 
Cas.  No.  2,G06;  Mallory  v.  Travelers' 
Ins.  Co.  54  N.  Y.  651;  De  Cogorza  v. 
Knickerbocker  L.  Ins.  Co.  Go  N.  Y.  232; 
Pierce  v.  Travelers'  L.  Ins.  Co.  34  Wis. 
389;  Adkins  v.  Columbia  L.  Ins.  Co.  70 
Mo.  27,  35  Am.  Rep.  410. 

And  in  a  statutory  provision  pro- 
hibiting defense  in  an  action  on  a  life 
insurance  policy,  on  the  ground  that  the 
insured  committed  suicide,  the  words 
"committed  suicide"  comprehend  all 
cases  in  which  the  insured  took  his  own 
life,  whether  he  was  sane  or  insane. 
Knights  Templars'  cG  M.  Life  Indemnity 
Co.  V.  Jarman,  44  C.  C.  A.  93,  104  Fed. 
638,  Affirmed  in  187  U.  S.  197,  47  L.  ed. 
139,  23  Sup.  Ct.  Rep.   108. 

^'''Pierce  v.  Travelers'  L.  Ins.  Co.  34 
Wis.  389 ;  Diekerson  v.  Northwestern 
Mut.  L  Ins.  Co.  200  III.  270,  65  N.  E, 
694,  Affirming  102  111.  App.  280. 

'^''Streeter  v.  Western  Union  Mut.  Life 
&  Acci.  Sac.  65  Mich.  199,  8  Am.  St. 
Rep.  882,  31  N.  W.  779;  Sabin  v.  Senate 
of  National  Union,  90  Mich.  177,  51  N. 
W.  202;  Knickerbocker  L.  Ins.  Co.  v. 
Peters,  42  Md.  414:  Adkins  v.  Colum- 
bia L.  Ins.  Co.  70  Mo.  27,  35  Am.  Rep. 
410 ;  De  Cogorza  v.  Knickerbocker  L.  Ins. 
Co.  65  N.  Y,  232;  Tritchler  v.  Keystone 
Mut.  Ben.  Asso.  5  Northampton  Co. 
Rep.  301 ;  Pierce  v.  Travelers'  L.  Ins. 
Co.  34  Wis.  389;  Bigelow  v.  Berkshire 
L.  Ins.  Co.  93  U.  S.  284,  23  L.  ed.  918; 
Travelers'  Ins.  Co.  v.  McConkey,  127  U. 
S.  661,  32  L.  ed.  308,  8  Sup.'Ct.  Rep. 


1360;  Chapman  v.  Republic  L.  Ins.  Co. 
6  Biss.  238,  Fed.  Cas.  No.  2,606. 

Under  this  rule,  the  question  wheth- 
er the  insured  was  capable  of  appreciat- 
ing the  moral  nature  and  quality  of  his 
purpose  is  not  relevant  further  than 
it  may  help  to  illustrate  the  extent  of 
his  capacity  to  understand  the  physical 
character  of  the  act.  Pierce  v.  Trav- 
elers' L.  Ins.  Co.  34  Wis.  389. 

And  no  degree  of  insanity  on  the 
part  of  one  who  intentionally  took  his 
own  life  will  be  sufficient  to  take  tlie 
case  out  of  a  stipulation  in  a  policy  of 
insurance  upon  his  life,  relieving  the 
insurer  from  liability  if  death  results 
from  suicide,  sane  or  insane.  Billings 
V.  Accident  Ins.  Co.  64  Vt.  78,  17  L.  R. 
A.  89,  33  Am.  St.  Rep.  913,  24  Atl.  056. 

^^Dennis  v.  Union  Mut.  L.  Ins.  Co.  84 
Cal.    570,    24    Pac.    120. 

^^Riley  v.  Hartford  Life  d  Annuity  Ins. 
Co.  25  Fed.  315;  Chapman  v.  Republic  L. 
his.  Co.  6  Biss.  238,  Fed.  Cas.  No. 
2,606;  Clarke  v.  Equitable  Life  Assur. 
8oc.  55  C.  C.  A.  200,  118  Fed.  374. 

But  such  a  provision  does  not  in- 
clude accidental  self-killing.  Union  Mut. 
L.  Ins.  Co.  V.  I'ayiie,  45  C.  C.  A.  193, 
105  Fed.  172;  Keels  v.  Mutual  Reserve 
Fund  Life  Asso.  29  Fed.  198;  Knicker- 
bocker L.  Ins.  Co.  V.  Peters,  42  Md.  414. 

^"Sparks  v.  Knights  Templars'  &  M. 
Life  Indemnity  Co.  61  Mo.  App.  109; 
Union  Cent.  L.  Ins.  Co.  v.  Hollowell,  14 
Ind.  App.  611,  43  N.  E.  277;  Searth  v. 
Security  Mut.  L.  Soc.  75  Iowa,  346,  39 
N.  W.  658 ;  Bachmeyer  v.  Mutual  Re- 
serve Fund  Life  Asso.  82  Wis.  255,  52 


26G  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  254 

254.  "In  the  known  violation  of  the  law  of  any  state"  does  not 
extend  to  insanity. —  It  has  been  held  that,  in  the  absence  of  any 
stipulation,  a  policy  taken  out  for  the  benefit  of  a  third  party  will 
not  be  avoided  by  the  subsequent  suicide  of  the  insured.*^  In  a  later 
case  it  was  argued  that  the  act  would  be  covered  by  the  proviso 
against  the  death  of  the  insured,  "in  the  known  violation  of  the  law 
of  any  state,"  but  this  was  disallowed.^- 

255.  Rule  in  case  of  exception  as  to  assigned  policies. — Insurance 
policies  containing  the  condition  sometimes  found  in  England,  that 
they  shall  be  void  if  the  assured  shall  commit  suicide  unless  they  are 
assigned  to  other  parties  for  a  valuable  consideration  before  death,  are 
not  invalidated  as  against  an  assignee  by  the  death  of  the  insured  by 
suicide  while  of  unsound  mind.''^  And  the  same  rule  applies  M'here 
a  policy  was  pledged  as  collateral  security.*^  And  this  is  the  case 
though  the  insurers  themselves  are  the  ones  to  whom  the  policy  is 
pledged.*^  But  this  rule  does  not  apply  to  a  policy  assigned  to  trus- 
tees under  a  deed  of  settlement,  the  assured  covenanting  to  pay 
premiums  and  to  perform  such  acts  as  will  be  necessary  to  keep  the 
policy  on  foot."^^ 

256.  Effect  of  insanity  on  accident  insurance. —  Suicide  committed 
by  the  insured  while  insane  and  not  conscious  of  what  he  was  doing 
constitutes  death  effected  through  external  and  violent  and  accidental 
means  within  the  meaning  of  an  accident  policy  insuring  against 
injuries  thus  caused.'^'^     And  such  an  act  is  not  within  a  condition  in 

N.   W.   101 ;    Bnchmeyer  v.   Mutual  Re-  with  a  floating  balance  due  him,  made 

serve  Fund  Life  Asso.  87  Wis.  328,  58  three  years  previous  to  the  death  of  the 

N.  W.  399.    And  see  Zimmerman  v.  Ma-  insured  by  his  own  hand,  is  within  an 

sonic  Aid  Asso.  75  Fed.  236 ;   Kelley  v.  exception  to  a  proviso  in  the  policy  that 

Mutual  L.  Ins.  Co.  75  Fed.  637.  it  should  be  void  if  the  assured  died  by 

*^Fitch  V.   American  Popular  L.   Ins.  his  own  hand  unless  it  was  assigned  to 

Co.  59  N.  Y.  557,  17  Am.  Rep.  372.  other  parties  for  a  valviable  considera- 

"Patrick  v.    Excelsior   L.   Ins.    Co.   4  tion  six  months  before  his  death.    Jones 

Hun,  263.     See    May    on    Insurance,  2d  v.    Consolidated   Invest.    Assur.    Co.    20 

ed.  §  324.     There  are  two  strong  dicta  Beav.  256,  28  L.  J.  Ch.  N.  S.  66,  5  Jur. 

in  Pennsylvania  to  the  effect  that  even  N.  S.  214. 

in  the  absence  of  any  stipulation,  a  sui-  **WhUe  v.  British  Empire  Mitt.  Life 

cide  by  the    insured    would    be  a  fraud  Assur.  Co.  19  L.  T.  N.  S.  306,  17  Week, 

upon    the    company,    and    hence    would  Rep.  26,  L.  R.  7  Eq.  394,  38  L.  J.  Ch.  N. 

avoid    the    policy.      Black,    Ch.    J.,    in  S.   53. 

flurtman    v.  Keystone    Ins.  Co.  21    Pa.  *'^White  v.  British  Empire  Mut.  Life 

466,  who  comprehended  in  this  the  case  Assur.  Co.  19  L.  T.  N.  S.  306,  17  Week, 

of  an  insane  suicide;  and  Trunkey.  J.,  in  Rep.  26,  L.  R.  7  Eq.  394,  38  L.  J.  Ch. 

Bank  of  Oil  City  v.   Guardian  Mut.  L.  N.  S.  53. 

Ins.   Co.   6   Legal   Gaz.   348,   5   Bigelow,  ^"Dormay  v.  Borradaile,  5  C.   B.  380, 

Life  Ins.  &  Acci.  Rep.  478.  11  Jur.  231. 

"Dufaur  v.  Professional  L.  Assur.  Co.  "Blackstone  v.  Standard  Life  d-  Acci. 

25  Beav.  599,  4  Jur.  N.  S.  841,  27  L.  J.  Ins.  Co.  74  Mich.  592,  3  L.  R.  A.  480,  42 

Ch.  N.  S.  817.  N.  W.  156;  Crandal  v.  Accident  Ins.  Co. 

A    letter   by  an   insured   person   to   a  27  Fed.  40. 
creditor,  charging    an    insurance    policy 


S  256]  LIFE    INSURANCE.  267 

such  a  policy  that  the  insurance  shall  not  extend  to  any  bodily  injury 
happening  directly  or  indirectly  in  consequence  of  bodily  infirmities 
or  disease.*^  A  killing  is  accidental  within  the  meaning  of  an 
accident  insurance  policy,  unless  the  injury  is  the  result  of  miscon- 
duct or  participation  of  the  injured  party,  and  it  is  immaterial  that 
it  was  caused  by  insanity  or  the  druiienness  of  a  third  party.^^ 

257.  Effect  of  insanity  on  mutual  insurance. —  Insanity  is  sickness 
or  disability  within  the  meaning  of  a  by-law  of  a  mutual  benefit  soci- 
ety providing  for  the  payment  of  weekly  benefits  to  members  who, 
through  sickness  or  other  disability,  are  unable  to  follow  their  usual 
occupations.^'^  And  a  member  of  a  benevolent  soci(3ty  who  is  re- 
moved from  the  jurisdiction  thereof  to  an  insane  asylum  becomes  an 
absent  member  within  the  meaning  of  a  by-law  requiring  an  absent 
brother  claiming  benefits  to  send  to  a  designated  ofiicer  a  true  state- 
ment of  his  acts,  attested  in  a  specified  manner,''^  although  his  legal 
status  as  a  resident  of  his  former  place  of  abode  remains  unaffected. 
Subsequent  mental  incapacity,  however,  does  not  relieve  a  member 
of  a  mutual  insurance  society  from  compliance  with  its  regulations, 
and  performance  of  his  contract,  and  he  may  be  expelled  for  viola- 
tion of  its  rules,  though  he  has  become  insane,^^  though  a  judgment 
of  expulsion  of  a  member  of  a  society  is  invalid  where  the  member 
was  insane  at  the  time,  and  under  guardianship,  and  his  guardian 
was  not  a  party  to  the  proceeding  for  the  expulsion.^"^  The  surrender 
by  the  assured  of  his  certificate,  however,  and  the  substitution  of  a 
new  beneficiary,  is  of  no  effect,  where  he  was  at  the  time  so  im- 
paired in  mind  as  to  be  incapable  of  transacting  any  business  requir- 
ing the  exercise  of  judgment  and  discretion.^^     Statutory  prohibition 

*^Blackstone  v.  Standard  Life  d  Acci.  lect  to  appear,  and  punish  him  by  ex- 

Lns.  Co.  74  Mich.  592,  3  L.  R.  A.  486,  42  pulsion  and  loss  of  rights  in  the  society, 

N.  W.  15G;  Grandal  v.  Accident  Ins.  Co.  where  he  had  not  been  adjudged  insane, 

27  Fed.  40.  though  he  was  apparently  and  actually 
"^Campbell  v.  Fidelity  &  C.  Co.  109  Ky.  of  unsound  mind.  Ffeiffer  v.  Weisluiupt, 

661,  60  S.  W.  492.  13  Daly,   161. 

^^McCullough    V.    Expressmen's     Mut.  But  a  waiver  by  a  member  of  a  so- 

Ben.  Asso.  133  Pa.  142,  7  L.  R.  A.  210,  ciet'y  of  the  rules  of  procedure  adopted 

19  Atl.  355 ;   Burton  v.  Eyden,  L.  R.  8  by  it,  in  an  actioji  involving  the  validity 

Q.  B.  295,  42  L.  J.  Mag.  Cas.  N.  S.  115,  of  a  judgment  of  expulsi'^m  of  a  mem- 

28  L.  T.  N.  S.  408,  21  Week.  Rep.  593.  ber,  cannot  be  sustained  if  the  member 
"TFaZs/^  v.  Consumnes  Tribe,  No.  I'f  I.  was  insane  at  the  time  of  the  rendition 

O.  R.  M.  108  Cal.  496,  41  Pac.  418.  of    the    judgment.      Hoeffncr    v.    Grand 

^"Noel    V.    Modern    Woodmen,    61    111.  Lodge,  G.  0.  of  H.  41  Mo.  App.  359. 

App.  597.  '^^Hoeffner  v.   Grand  Lodge,   G.   0.  of 

A  mutual  insurance  society  may  pro-  H.  41  Mo.  App.  359. 

cceu  against  a  person  under  its  constitu-  '"Oicnby  v.  Supreme  Lodge,  K.  of  H. 

tion  and  by-laws  by  preferring  char;;»ts  101  Tenn.  16,  46  S.  W.  758. 

against  him,  and  convict  him  under  ueg- 


268 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


(§  25/ 


against  defending  on  the  ground  of  suicide  applies  to  mutual  as  well 
as  ordinary  insurance. '^^ 

258.  Method  of  determining  existence  of  insanity. — The  question 
whether  death  by  suicide  of  an  insiu'cd  person  was  voluntary  or  in- 
voluntary or  the  result  of  insanity  is  not  determinable  as  a  matter  of 
law  by  the  court,  where  there  is  evidence  of  insanity,  but  is  one  of 
fact  for  the  jury.^^  And  the  weight  of  evidence  of  insanity  in  such 
cases  is  also  a  question  for  the  jury,  and  not  for  the  judge.^'^  And 
the  judge  cannot  properly  take  the  case  from  the  jury  if  there  is  any 
evidence  tending  to  show  that  the  assured  ^vas  insane  when  he  did  the 
act  which  caused  his  death.^®  Kor  will  a  finding  of  a  jury  on  the 
question  of  mental  incapacity  of  the  assured  at  the  time  of  his 
suicide  be  disturbed  on  appeal,  where  there  was  a  conflict  of  testi- 
mony.'^^ But  acts  and  circumstances  which  are  as  consistent  with 
sanity  as  with  insanity  wall  not  authorize  this  submission  of  the 
question  to  the  jury.*'^ 

259.  Sufficiency  of  evidence  to  establish. —  The  mere  fact  that  an 
insured  person  destroyed  his  own  life  is  not  sufficient  to  establish  his 
insanity,*'^  nor  is  mere  proof  that  the  insured  was  insane  at  times 


'^Knights  Templars'  &  M.  Life  Indem- 
nity Co.  V.  Berrv,  1  C.  C.  A.  501,  4  U. 
S.  App.  353,  50  Fed.  511. 

^^•Meacham  v.  A'eic-  York  State  Mut. 
^en.  Asso.  120  N.  Y.  237,  24  N.  E.  283; 
Weed  V.  Mutual  Ben.  L.  Ins.  Co.  3 
Jones  &  S.  380;  Bachmeycr  v.  Mutual 
Reserve  Fund  Life  Asso.  82  Wis.  255, 
52  N.  W.  101.  And  see  Blackstone  v. 
Standard  Life  &  Acci.  Ins.  Co.  74  Mich. 
592,  3  L.  R.  A.  486,  42  N.  W.  156. 

^'Charter  Oak  L.  Ins.  Co.  v.  Rodel,  9.") 
U.  S.  232,  24  L.  ed.  433;  Hathaway  v. 
Naiional  L.  Ins.  Co.  48  Vt.  330. 

Where  the  evidence  in  an  action  on  a 
life  insurance  policy  as  to  the  death 
being  accidental  or  suicidal  is  so  nearly 
balanced  as  to  leave  the  question  in 
doubt,  the  presumption  is  in  favor  of 
the  theory  of  accident.  Mutual  L.  Ins. 
Co.  V.  Wisii-ell,  56  Kan.  705,  35  L.  R.  A. 
258,  44  Pac.  990. 

And  an  instruction  in  such  an  action 
that  the  facts  to  show  suicide  must  Ix; 
irresistible,  and  that  many  doubts  as 
well  as  a  strong  presumption  of  law 
would  have  to  be  overcome  to  show  sui- 
cide, is  erroneous  as  an  invasion  of  the 
province  of  the  jury.  Bachmeycr  v. 
Mutual  Reserve  Fund  Life  Asso.  82  Wis. 
•ir,5,  52  N.  W.  101. 

'^Charter  Oak  L.  Ins.  Co.  v.  Rodel, 
'15  U.  «.  232,  24  L.  ed.  433;  Bachmeycr 


V.  Mutual  Reserve  Fund  Life  Asso.  82 
Wis.  255,  52  N.  W.  101. 

'-■'New  Home  Life  Asso.  v.  Hagler,  29 
111.  App.  437;  Meacham  v.  Hew  York 
State  Mut.  Ben.  Asso.  120  N.  Y.  237,  24 
N.  E.  283. 

'^"Weed  V.  Mutual  Ben.  L.  Ins.  Co.  70 
N.  Y.  501. 

It  is  for  the  judge  to  weigh  the  evi- 
dence of  insanity,  and  to  decide  whether 
it  is  suiTicient  to  go  to  the  jury  and 
warrant  a  verdict.  Fowler  v.  Mutual  L. 
Ins.  Co.  4  Lans.  202. 

And  wliere  an  insured  person  fell,  in- 
juring the  base  of  his  brain,  and  after- 
wards became  insane  and  took  his  own 
life,  the  question  whether  the  injury  re- 
ceived by  the  fall  was  the  cause  of  the 
killing  is  too  conjectural  to  be  submitted 
to  the  jury  as  a  direct  cause  of  self-de- 
struction in  an  action  on  the  policy. 
Strecter  v.  Western  Union  Mut.  Life  & 
Acci.  Soc.  05  Mich.  199,  8  Am.  St.  Rep. 
882,  31  N.  W.  779. 

'■^Knickerbocker  L.  Ins.  Co.  v.  Peters, 
42  Md.  414;  Coffey  v.  Home  L.  I. is.  Co. 
44  How.  Fr.  481;  Merrill  v.  Cotton 
States  L.  Ins.  Co.  55  Ga.  103;  Moore  v. 
Connecticut  Mut.  L.  Ins.  Co.  1  Flipp. 
303,  Fed.  Cas.  No.  9,755. 

And  the  fact  that  a  juror  considered 
suicide  as  conclusive  proof  of  insanity 
is   a  good  cause   for  a  challenge  in  an 


259] 


LIFE    INfcJUKAiNCE. 


sufficient  to  invalidate  the  policy,''^  though  evidence  of  insaiiity  is 
conipete^jt  and  material.^^  And  a  mere  belief  in  spiritualism  on  the 
part  of  thi^  insured  will  not  warrant  a  legal  conclusion  that  his  death 
was  by  suicide,  where  there  is  nothing  to  show  Avhcther  it  was  delib- 
erate or  accidental.'^^  The  declarations  and  conduct  of  the  insured 
at  or  about  the  time  of  his  death,  however,  all  bear  upon  the  question 
of  his  sanity  or  insanity,  and  may  be  sufficient  to  show  insanity  and 
irresponsibility  at  the  time  of  committing  the  act/"^  And  evidence  of 
a  sudden  change  of  disposition  by  an  insured  person  who  had  been 
genial  and  pleasant  and  apparently  happy,  to  listlessness,  nervous- 
ness, sleeplessness  and  apparent  unhappiness,  together  with  an  erratic 
manner  and  pain  in  the  head,  after  which  he  killed  himself,  is  suffi- 
cient to  require  the  submission  of  tbe  question  of  insanity  to  a  jury  f'^' 


action  on  an  insurance  policy  condi- 
tioned against  liability  in  case  of  sui- 
cide. Hiatt  V.  Mutual  L.  Ins.  Co.  2 
Dill.   572,  note. 

The  sudden  disappearance  of  and  fail- 
ure to  discover  any  trace  of  a  man,  how- 
ever, who,  if  living,  would  not  go  un- 
noticed, and  who  was  in  such  a  physical 
and  mental  condition  as  to  excite  the 
anxiety  of  his  friends,  tend  to  establish 
his  death  in  an  action  upon  a  policy  in- 
suring his  life.  John  Hancock  Mut.  L. 
Ins.  Co.  V.  Moore,  34  Mich.  41. 

^-Kniclcerhocker  L.  Ins.  Co.  v.  Peters, 
42  Md.  414. 

^^Schult:;  V.  Insurance  Co.  40  Ohio 
St.  217,  48  Am.  Rep.  670;  New  Home 
Life  Asso.  v.  Ilagler,  29  111.  App.  437. 

'^^Continental  Ins.  Co.  v.  Delpeuch,  82 
Pa.  225. 

*"  See  Haihauay  v.  'National  L.  Ins. 
Co.  48  Vt.  330;  John  Hancock  Mut.  L. 
Ins.  Co.  V.  Moore,  34  Mich.  41. 

A  letter  written  by  a  man  to  his  wife 
immediately  before  committing  suicide, 
in  which  he  states  that  a  voice  called 
upon  him  to  die.,  and  that  he  thinks  it 
is  his  mother,  signing  himself  "no  more 
your  unworthy  husband,  but  almost  a 
corpse,"  and  asking  that  the  revolver 
which  he  intended  to  use  should  be  pre- 
served as  a  keepsake  for  his  child,  fur- 
nislies  sufficient  evidence  to  warrant  a 
jury  in  finding  that  he  acted  under  the 
control  of  an  insane  impulse  cjiusod  by 
disease,  which  deprived  him  of  the  ^a 
pncity  of  governing  his  conduct  in  ac- 
cordance with  reason.  Meacham  v.  Neir 
York  State  Mut.  Ben.  Asso.  46  Hun, 
^03. 

And  the  fact  that  a  man  fifty  years 
of  age  had  sought  to  rid  himself  of  his 
wife,  with  whom  he  had  lived  pleasantly 


many  years,  and  marry  a  young  girl  fif- 
teen years  of  age,  to  whom  he  made  im- 
proper proposals,  and  that  he  committed 
suicide  upon  learning  that  she  had  been 
sent  away,  is  sufficient  to  require  the 
question  of  his  sanity  to  be  submitted  to 
the  jury  in  an  action  upon  a  policy  in- 
suring his  life,  as  well  as  the  question 
whether  the  act  was  done  with  intent 
to  terminate  his  life.  Bachmcyer  v. 
Mutual  Reserve  Fund  Life  Asso.  87  Wis. 
328,   58  N.  W.   399. 

So,  evidence  that  an  insured  person 
left  his  bedroom  very  early  in  the  mom 
ing  and  fell  over  the  banisters  the  day 
before  his  death,  and  that  later  he  com- 
plained of  giddiness  and  pains  in  his 
head,  and  was  found  falling  out  of  a 
window,  his  wife  being  in  the  room  at 
the  time,  supports  a  plea,  of  insanity  as 
an  excuse  for  self-destruction,  to  some 
extent.  tSiornwnt  v.  Waterloo  Life  d  C. 
Assur.  Co.  1   Fost.  &  F.  22. 

But  the  mere  fact  tliat  an  insured  per- 
son set  fire  to  his  own  building  is  not 
sufficient  to  establish  his  insanity  in  an 
action  on  the  insurance  policy.  Knroio 
V.  Continental  Ins.  Co.  37  Wis.  50.  46 
Am.  Rep.  17,  15  N.  W.  27. 

^"Blackstone  v.  Standard  Life  <f:^  Acci. 
Ins.  Co.  74  Mich.  592,  3  L.  R.  A.  486, 
42  N.  W.   156. 

But  such  evidence  does  not  tend  to 
prove  insanity  upon  the  part  of  the  in- 
sured person,  where  the  proof  shows  that 
he  M-as  greatly  embarrassed  financially, 
and  had  appropriated  trust  moneys  and 
committed  forgeries,  and  could  no  longer 
prevent  their  discovery,  but  rather  shows 
a  knowledge  of  his  deplorable  condition 
resulting  from  his  dishonesty.  McClarf. 
v.  Mutual  L.  Ins.  Co.  55  N.'  Y.  651. 
So,   the   fact   that  an   insured   person 


270  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  259 

and  so  is  evidence  that  the  assured  Labored  under  a  disease  of  the  brain 
leading  to  insanity,  together  with  evidence  of  his  disappearance.*^^ 

II.  Drunkenness. 

260.  Effect  as  a  breach  of  warranty  or  condition. —  A  habit  of  using 
intoxicating  liquor  within  a  warranty  or  condition  against  such  use 
in  an  insurance  polic^^  is  defined  to  be  a  disposition  or  condition  of 
mind  or  body,  or  a  tendency  or  aptitude  for  the  performance  of  such 
actions,  acquired  by  custom  or  frequent  repetition,  which  is  held  or 
retained.^^  And  a  statement  in  an  application  for  life  insurance 
as  to  whether  the  applicant  used  intoxicating  liquors  refers  to  the 
3Ustomary  and  habitual  use,  and  not  to  a  single  or  accidental  one.*''' 
An  occasional  use  of  intoxicating  liquors  by  the  accused,  or  an  excep- 
tional case  of  excess,  does  not  render  him  a  man  of  intemperate 
habits  within  the  meaning  of  a  warranty  that  he  is  a  person  of 
temperate  habits."^**  And  this  is  the  rule  though  the  applicant  may 
have  had  an  attack  of  delirium  tremens  resulting  from  an  exceptional 

-was  in  good  health  and  had  a  wife  and  v.  'Neio  England  Order  of  Protection,  123 

children  at  the  time  of  committing  sui-  Fed.   152;   Holtum  v.  Germania  L.  Ins. 

cide   is    entitled    to    consideration    vvitli  Co.  139  Gal.  645^  73  Pac.  591;  Meacham 

other      circumstances      in      determining  v.  'Neic  York  State  Mut.  Ben.  Asso.  120 

whether  the  act  was  voluntary  or  invol-  N.  Y.  238,  24  N.  E.  283;  Union  Mut.  L. 

untarv.     Meacham   v.    New    York   State  Ins.  Co.  v.  Reif,  36  Ohio  St.  596,  38  Am. 

Mut.  Ben.  Asso.  120  N.  Y.  237,  24  N.  E.  Rep.  613. 
283.  An  inquiry  as  to  whether  an  applicant 

"John   Hancock    Mut.   L.   Ins.    Co.   v.  for    insurance    was    temperate    suggests 

Moore,  34  Mich.  41.  moderation,  and  not  abstinence,  and  the 

And  a  letter  ^vritten  by  an  insured  warranty  is  to  the  effect  that  his  habit 
person  upon  committing  suicide,  telling  is  to  refrain  from  excessive  indulgence, 
his  brother  that  he  suffered  from  fear  and  not  abstain  from  all  use.  Meacham 
of  becoming  insane,  and  had  concluded  v.  New  York  State  Mat.  Ben.  Asso.  120 
to  end  his  sufferings,  together  with  N.  Y.  237,  24  N.  E.  283. 
proof  of  a  disease  which  tended  to  pro-  There  is  a  distinction  with  reference 
duce  a  morbid  mental  state,  and  that  he  to  the  effect  of  intemperance  upon  in- 
was  a  spiritualist  and  appeared  some-  surance  between  periodical  sprees  and 
what  excited,  absent-minded,  and  morose,  habitual  intemperance,  unless  the  sprees 
is  sufficient  to  establish  that  his  suicide  were  frequent  and  aroused  an  uncontrol- 
was  a  deliberate  act,  designed  to  take  lable  appetite  while  they  continued, 
life,  which  would  invalidate  a  policv  which  might  amount  to  a  habit  of  in- 
containing  a  condition  against  death  by  temperance.  Holterhoff  v.  Mutual  Ben. 
his  own  hand.  Fowler  v.  Mutual  L.  Ins.  L.  Ins.  Co.  5  Ohio  Dec.  Reprint,  141. 
Go.  4  Lans.  202.  And    an    application     for    insurance, 

'^Holterhoff  v.  Mutual  Ben.  L.  Ins.  Co.  stating  that   the   insured   used   no  nar- 

5  Ohio  Dec.  Reprint,  141.  ootics,    is   a   representation,    and   not   a 

"Van  Valkenhurgh  v.  American  Pop-  warranty,  and  is  not  violated  by  oc- 
ular L.  Ins.  Co.  9  Hun,  583;  Mtna  L.  casional,  but  not  frequent,  use  by  the 
Ins.  Co.  v.  Davey,  123  U.  S.  739,  31  L.  accused,  shortly  before  his  death,  of  a 
cd.  315,  8  Sup.  Ct.  Rep.  331.  narcotic  as  a  remedy,  where  it  was  not 

^"Knickerbocker  L.  his.  Co.  v.   Foley,  made  with  a  purpose  to  deceive,  and  it 

105  U.  S.  350,  26  L.  ed.   1055,   11    Fed.  is  not  claimed  that  such  use  of  narcotics 

760,  note;  Sicick  v.  Home  L.  Ins.  Co.  2  increases  the  risk.     Continental  L.  Ins. 

Dill.   100,  Fed.  Gas.  No.   13,092;   Bacon  Co.  v.  Thoena,  26  111.  App.  495;  Higbeq 


260] 


LIFE    INSURANCE. 


271 


indulgence  in  drink  prior  to  the  issuance  of  the  policy."^^  It  is 
not  necessary  to  the  existence  of  intemperate  habits,  how- 
ever, within  the  meaning  of  a  warranty  against  such  habits  in  an  ap- 
plication for  insurance,  that  the  excessive  use  of  intoxicating  liquors 
should  have  been  continuous  or  daily."^-  The  question  is  whether 
or  not  the  habits  of  the  insured  were  so  far  intemperate  as  to  increase 
the  risk.'^^  And  a  warranty  is  broken,  and  the  insurance  is  forfeited, 
by  habitual  intemperance,  though  the  health  of  the  insured  remained 
good  and  his  constitution  remained  unimpaired,  and  though  his 
habits  were  not  such  as  to  injure  him."^*  But  intemperance  within  a 
condition  against  death  by  intemperance  in  an  insurance  policy,  to 
invalidate  it,  must  have  been  the  proximate  cause  of  death ;  it  is  not 
sufficient  that  it  merely  contributed  to  it.'^^  Though  death  from  sick- 
ness caused  by  intoxication,  in  consequence  of  neglect,  is  within  a 
condition  against  death  from  the  use  of  intoxicating  drinks/* 


V.  Guardian  Mut.  L.  Ins.  Co.  66  Barb. 
462. 

And  this  is  true  though  the  drug  was 
administered  by  a  physician  in  the 
course  of  medical  practice  and  though 
death  was  thereby  caused.  Ranney  v. 
Mutual  Ben.  L.  Ins.  Co.  U.  S.  C.  C.  First 
Jud.  Dist.  Mass.,  cited  in  May  on  In- 
surance, 3d  ed.  §  302. 

''^Knickerhoclcer  L.  Ins.  Co.  v.  Foley, 
105  U.  S.  350,  26  L.  ed.  1055,  11  Fed. 
766,  note;  "N orthioestern  Mut.  L.  Ins.  Co. 
V.  M'UsJceaon  Nat.  Bank,  122  U.  S.  501, 
:?0  L.  ed.llOO,  7  Sup.  Ct.  Rep.  1221. 

An  instruction,  in  an  action  upon  an 
insurance  policy  on  an  issue  as  to  breach 
of  warrant}^  against  drunkenness,  defin- 
ing the  term  "delirium  tremens"  as  sig- 
nifying a  diseased  condition  of  the  brain, 
produced  by  an  excessive  use  of  spirit- 
uous liquors,  is  not  unfair  to  the  in- 
surer, ^tna  L.  Ins.  Co.  v.  Deming,  123 
Ind.  384,  24  N.  E.  86,  375. 

''■Union  Mut.  L.  Ins.  Co.  v.  Reif.  36 
Ohio  St.  596,  38  Am.  Rep.  613. 

"United  Brethren  Mut.  Aid  Soc.  v. 
O'Hara,  120  Pa.  256,  13  Atl.  932. 

While  a  single  or  occasional  excess  in 
the  use  of  intoxicating  liquor  does  not 
make  a  man  an  habitual  drunkard  with- 
in the  meaning  of  a  warranty  against 
habitual  drunkenness  in  an  insurance 
policy,  if  the  habit  and  rule  of  his  life 
are  to  indulge  periodically,  with  increas- 
ing frequency  and  violence,  in  excessive 
fits  of  intemperance,  he  is  an  habitual 
drunkard.  'Northwestern  M%it.  L.  Ins. 
Co.  V.  Musker/on  Nat.  Bank,   122  U.  S. 


,501,   30    L.   ed.   1100,  7    Sup.   Ct.   Rep. 

1221. 

And  a  daily  or  frequent  use  of  in- 
toxicating liquors  is  an  habitual  use 
within  the  meaning  of  a  warranty  in  an 
insurance  policy  against  such  use. 
.^tna  L.  Ins.  Co.  v.  Davey,  123  U.  S. 
739,  31  L.  ed.  315,  8  Sup.  Ct.  Rep.  331. 

''^SoutJtcombe  v.  Merriman,  Car.  &  M. 
256;  McGinley  v.  United  States  L.  Ins. 
Go.  77  N.  Y.  495;  Furniss  v.  Mutual  L. 
Ins.  Co.  14  Jones  &  S.  467  ;  Fox  v.  Penn. 
Mut.  L.  Ins.  Co.  (Pa.)  4  Bigelow  Life 
&  Acci.  Ins.  Rep.  458.  And  see  Mar's 
Case,  cited  in  2  Tavlor  on  Principles  of 
Med.  Jur.  2d  ed.  627. 

The  fact  that  one's  habits  were  intem- 
perate shortly  before  an  application  for 
insurance  was  made  is  evidence  on  the 
question  as  to  his  habits  at  that  time, 
on  an  issue  as  to  broach  of  warranty  of 
temperate  habits.  Daly  v.  John  Ham- 
cock  Mut  L.  Ins.  Co.  (Ind.)  8  Ins.  L.  J. 
319. 

^"Miller  v.  Mutual  Ben.  L.  Ins.  Co.  31 
Iowa,  218,  7  Am.  Rep.  122;  Holterhoff 
V.  Mutual  Ben.  L.  Ins.  Go.  5  Ohio  Dec. 
Reprint,   141. 

'"^New  York  L.  Ins.  Co.  v.  La  Boiteau.r 
(Ohio)  5  Bigelow  Life  &  Acci.  Ins.  Rep. 
395. 

One  accustomed  to  taking  laudanum, 
who  drinks  to  intoxication,  and  while  in 
that  condition,  by  accident,  takes  an 
overdose  of  laudanum,  and  dies  there- 
from, does  not  die  by  his  own  hand, 
within  the  meaning  of  a  condition 
against  such  death^  in  an  insurance  pol- 


272 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  261 


261.  Subsequently  acquired  habits  of  intoxication. —  Habits  of  in- 
toxication acquired  subsequently  to  the  insurance  do  not  invalidate  a 
policy  containing  a  warranty  against  the  use  of  stimulants,  in  the 
absence  of  an  express  provision  tlierefor,  even  though  they  were  the 
direct  cause  of  the  death  of  the  insured. '^^  But  provisions  in  an 
insurance  policy  that  the  insured  shall  not  become  so  far  intemperate 
as  to  impair  his  health  do  not  necessarily  imply  habitual  intemper- 
ance producing  habitual  impairment  of  health;  any  intemperance 
producing  such  impairment  renders  the  policy  void,  though  it  does 
not  amount  to  habitual  intemperance."^^  And  acquiring  habits  of 
intemperance  is  within  a  condition  in  a  policy  that  it  shall  be  void  if 
the  habits  of  the  insured  change  so  as  to  increase  the  risk.'^®  The  im- 
pairment of  health,  however,  to  come  within  a  condition  that  the 
policy  shall  be  void  if  the  insured  shall  become  so  far  intemperate 
as  to  impair  his  health  seriously  or  permanently,  or  to  induce  de- 
lirium tremens,  must  have  been  not  only  serious,  but  permanent.*'^ 


icy,  though  the  accident  was,  to  some  ex- 
tent, caused  by  his  drunkenness.  Equit- 
nhle  Life  Assur.  Soc.  v.  Paterson,  41  Ga. 
338,  .5  Am.  Rep.  535. 

'Uicichard  v.  Manhattan  L.  Ins.  Co.  31 
Mo.  518;  Morton  v.  Equitable  L.  Assur. 
Soc.  (N.  Y.)  2  Bigelow  Life  &  Acci. 
Rep.  108;  Shader  v.  Railicay  Puss. 
Assist.  Co.  5  Thomp.  &  C.  643;  JEtna  L. 
Ins.  Co.  V.  Davei/,  123  U.  S.  739,  31  L. 
od.  315,  8  Sup.  Ct.  Rep.  331;  Bacon  v. 
\ew  England  Order  o/  Protection,  123 
Fed.    152. 

''jEtna  L.  Ins.  Co.  v.  Davetj,  123  U.  S. 
739,  31  L.  ed.  315,  8  Sup.  Ct.  Rep.  331. 

An  excessive  use  of  alcoholic  stimu- 
lants, not  taken  in  good  faith  for  medi- 
cal purposes  or  under  medical  advice, 
whereby  the  health  of  the  icsured  is 
impaired,  is  within  a  condition  against 
such  intemperance  as  to  impair  health, 
though  the  insured  may  not  have  had 
delirium  tremens,  and  though,  previous 
to  his  last  illness,  he  had  not  indulged 
in  strong  drink  for  such  a  long  period 
of  time  or  so  frequently  as  to  become 
habitually  intemperate.     Ibid. 

At>J  the  insurer  in  a  policy  contain- 
ing such  a  condition  would  be  entitled  to 
know  it  if  the  insured  had  been  recently 
afflicted  with  delirium  tremens,  and  had 
required  the  services  of  a  physician  on 
account  of  his  excessive  drinking.  Hut- 
ton  V.  Waterloo  L.  Assur.  Co.  1  Fost.  & 


F.  735.  And  see  Forbes  v.  Edinburgh 
Life  Assur.  Co.   10  Shaw  &  D.  451. 

It  has  been  held  that  a  declaration  by 
the  insured  in  his  application  that  he 
does  not  and  will  not  practise  any  habit 
that  tends  to  shorten  life  is  a  mere 
declaration,  and  not  a  statement  of  fact 
or  warranty,  the  violation  of  which  will 
effect  the  forfeiture  of  the  policy. 
Knecht  v.  Mutual  L.  Ins.  Co.  90  Pa.  118, 
35  Am.  Rep.  ()41.  But  see  Holterhoff  v. 
Mutual  Ben.  L.  Ins.  Co.  5  Ohio  Dee.  Re- 
print, 141. 

'"Boyce  v.  Phoenix  Mut.  L.  Ins.  14 
Can.  S.  C.  723. 

^"JF^tna  L.  Ins.  Co.  v.  Deming,  123  Ind. 
384,  24  N.  E.  86,  375. 

A  proper,  specific,  and  special  stip- 
ulation in  an  insurance  policy  in  Avhich 
no  other  subject  is  mentioned,  that  if 
the  insured  becomes  habitually  intem- 
perate, or  so  far  intemperate  as  to  im- 
pair health  or  induce  delirium  tremens, 
his  policy  may  be  canceled,  and  the  in- 
surer absolved  from  liability  except  for 
the  surrender  value, — is  to  be  given 
preference  over  a  general  stipulation 
that  in  such  case  the  policy  shall  become 
null  and  void,  so  that  it  would  remain 
in  full  force  if  no  steps  were  taken  to 
cancel  it.  Northwesteim  Mut.  L.  Ins. 
Co.  V.  Hazelelt,  105  Ind.  212j  55  Am. 
Rep.  192,  4  N.  E.  582. 


§  201  LIFE    INSURANCE.  "  273 

And  drinking  sufficiently  to  impair  the  health  cannot  be  shown,  in 
the  absence  of  any  showing  that  it  was  actually  impaired.^^ 

262.  Accident  and  mutual  insurance. —  Provisions  in  an  accident 
insurance  policy  against  liability  for  injury  happening  while  the 
accuged  was  intoxicated,  or  in  consequence  of  intoxication,  relievo 
from  liability  for  injury  .'iustained  while  the  insured  was  intoxicated, 
whether  the  intoxication  caused  or  contributed  to  the  injury  or  not;^ 
though  the  rule  would  not  apply  if  the  intoxication  was  caused  by 
the  use  of  spirituous  liquors,  opium,  or  other  drugs  administered  to 
the  person  while  sick  by  a  physician. ^^  And  the  drinking  of  intoxi- 
cating liquors  by  a  member  of  a  society  for  the  insurance  of  its  mem- 
bers and  for  the  enforcement  of  total  abstinence  among  them,  having 
a  by-law  to  the  effect  that  any  member  violating  his  pledge  shall  be, 
by  the  very  act,  suspended  and  expelled  when  proved  guilty,  the  ex- 
pulsion to  take  effect  from  the  day  of  the  violation,  effects  a  self- 
executed  suspension  of  membership,  requiring  no  trial  or  adjudica- 
tion of  expulsion,  depriving  him  of  his  rights,  benefits,  and  privileges 
therein,  though  his  violation  was  not  known  until  after  his  death. ^* 

263.  Habits;  a  question  for  the  jury. —  The  question  whether  an  in- 
sured person  was  of  intemperate  habits  at  the  time  of  the  issue  of  a 
policy  containing  a  warranty  with  reference  thereto,  and  whether  he 
became  habitually  intemperate  after  its  issue,  is  one  of  fact  for  the 
jury  in  an  action  on  the  policy;*^  and  so  is  the  question  whether 
an  alleged  moderate  use  of  intoxicating  liquors  by  the  insured 
amounts  to  a  breach  of  a  condition  of  the  policy  that  he  w?^s  of  cor- 
rect and  temperate  habits,  as  well  as  the  question  whether  he  died 
from  dissipation.^^  And  a  judgment  in  such  an  action  upon  a  policy 
conditioned  against  liability  in  case  the  insured  became  so  far  intem- 
perate ss  to  impair  his  health  seriously  or  permanently,  or  as  to  in- 

"OrZd  Fellows  Mut.  L.  Ins.  Co.  v.  Roh-  (Ohio)  5  Bif2;elow  Life  &  Acci.  Ins.  Hep. 

kopp,  94  Pa.  59.  437 ;   Holferhoff  v.  Mv.tual  Ben.  L.  Ins. 

^^Slandard    Life    d    Acci.  Ins.  Co.  v.  Co.  5  Ohio  Dec.  Reprint,  141. 
Jones,  94  Ala.  434,  10  So.  530;   Shader       ^'Smith  v.  Knights  of  Father  Mathew^ 

V.  Rniluay  Pass.  Assur.  Co.  5   Thomp.  3(i  Mo.  App.   184. 
&  C.  G43.  ^'-Xorlhwcstern    Mut.    L.    Ins.    Co.    v. 

And  a  provision  of  an  accident  policy  Mushegon  Nat.  Bank,  122  U.  S.  501,  30 

exempting   the   company    from    liability  L.    ed.    1100,    7    Sup.    Ct.    Rep.    1221; 

for  injury  occurring  while  under  the  in-  Swick  v.  Home  Jj.  Ins.  Co.  2  Dill.   160, 

(luence   of,    or   affected   by,    intoxicants,  Fed.    Cas.    No.    13,692 ;    John    Hancock 

applies   to   being   so    far   under   the   in-  Mut.   L.   Ins.    Co.   v.    Daly,   65    Ind.   6; 

fiuence  of  intoxicants  as  to  constitute  a  Holterhoff  v.  Mutual  Ben.  L.  Ins.  Co.  5 

state  of   intoxication.      Campbell  v.   Fi-  Ohio  Dec.  Reprint,  141;  Moiory  v.  Home 

delity  <&  C.  Co.   109  Ky.   GCl,  GO  S.   W.  L.  Ins.  Co.  9  R.  I.  340. 
492.  ^'^Mcacliam   v.    New   York   State  Mut. 

^Neic  York  L.  Ins.  Co.  v.  La  Boitcaux  Ben.  .isso.  120  N.  Y.  238,  24  N.  E.  283. 
Vol.  I.  JIki).  Juh.— 1» 


274  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  263 

duce  delirium  tremens,  will  not  be  reversed  as  not  sustained  by 
evidence,  where  the  testimony  as  to  the  fact  of  intoxication  was  con- 
flicting.^' 

"JEtna  L.  Ins.  Co.  v.  Hanna,  81  Tex.    ard  Life  d  Acci.  Jm.  Co.  87  Iowa.  505. 
48T,  -7  &  W,  35;  Sutherland  v.  Stand-    54  N.  W.  4^3. 


CHAPTEK  XL 

TORTS. 

I.  Lunacy. 

264.  Lunatic  liable  for  torts. 

265.  Effect  of  insanity  of  person  injured. 
II.  Drunkenness. 

266.  Effect  of  liability  generally. 

267.  Employment  of  persons  having  the  habit  of  intoxication,  generally. 

268.  In  case  of  injury  to  fellow  servant. 

269.  Effect  as  to  contributory  negligence,  generally. 

270.  With  relation  to  trespassers  upon,  and  persons  crossing,  railroads. 

271.  With  relation  to  passengers  and  carriers. 

272.  With  relation  to  injuries  on  highways,  streets,  etc. 

273.  Application  of  last  clear  chance  doctrine. 

274.  Question  for  jury. 

275.  Sufficiency  of  evidence  to  establish  negligence. 

I.  Lunacy. 

264.  lunatic  liable  for  torts.— A  lunatic  is  liable  for  his  torts  so 
far  as  to  subject  his  estate  to  a  suit  for  damages  worked  to  others  by 
its  negligent  management.-'      And  insanity  will  not  avail  to  defeat  a 

^Weaver  v.  Ward,  Hob.  134 ;  Gross  v.  parte  Leigliton,  14  Mass.  207 ;  Kernot  v. 

Andrews,  Cro.  Eliz.  pt.  2,  p.  622;   Mc-  Norman,^2  T.  R.  390;   Nutt  v.   Verney, 

fntyre  v.  Bholty,  121  111.  660,  2  Am.  St.  4   T.   R.    121. 

Rep.    140,    13    N.   E.   239 ;    Williams   v.  And   a   justice   wrongfully   issuing   a 

Hays,   143  N.  Y.  442,  26  L.  R.  A.   153,  warrant  is  not  excused  by  his  insanity 

42   Am.    St.   Rep.    743,    38   N.    E.    449;  from    liability   for    false   imprisonment, 

Cross  v.   Kent,  32  Md.   581;    Jcicell  v.  but  the  proper  measure  of  damages  is 

Colby,  60  N.  H.  399,  24  Atl.  902;  Brink  compensation    only.      Krom    v.    Schoon- 

V.  Wolf,  24  Pa.  Co.  Ct.  197,  7  Northamp-  raalcer,  3   Barb.   647. 

ton    Co.    Rep.    283 ;    Re    Wolf,    9   Kulp,  And   the   unsoundness   of   mind   of   a 

523 ;    Ward    v.    Conatser,    4    Baxt.    64 ;  co-conspirator  at  the  time  of  the  trial 

Morse  v.  Crawford,  17  Vt.  499,  44  Am.  of    an    action    to    recover    for    injuries 

Dec.  349;  Taggard  v.  Innes,  12  U.  C.  C.  caused  by  the  conspiracy  is  no  defense 

P.  77 ;   1  Hale,  P.  C.  15 ;   1  Hawk.  P.  C.  to  any  of  the  guilty  parties.     Tucker  v. 

chap.    1,    §    5;    Bacon,   Abr.        And   see  Hyatt,   151   Ind.  332,  44  L.  R.  A.   129, 

Behrens  v.  McKenzie,  23  Iowa,  333,  92  51  N.  E.  469. 

Am.   Dec.  428;    Lancaster  County   Nat.  In  Brown  v.  Howe,  9  Gray.  84,  69  Am. 

Bank  v.  Moore,  78  Pa.  407,  21  Am.  Rep.  Dec.  276,  however,  damages  for  the  tort 

24.  of   an   insane    ward,    causing    injury   to 

At  common  law,  insanity  is  no  ground  liis   guardian's   property,   were   refused, 

for  discharging  a  person  from  imprison-  but  not  upon  the  ground  tliat  the  in- 

ment   under   execution   in    a   civil    suit,  sane  person  would  not  be  liable  for  his 

Bush   V.    Pettibone,    4    N.    Y.    300;    Ex  torts,  but  upon   the  ground  that  these 

275 


276 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  264 


judgment  for  a  criminal  act,  though  amounting  to  a  felony.^  Nor 
is  it  a  defense  in  an  action  for  libel  and  slander;  but  may  be  sufficient 
to  defeat  a  recovery  where  well  known  by  disproving  damage  as  well 
as  malice.^  And  for  the  negligence  as  well  as  for  the  active  torts 
of  an  insane  person  resulting  in  damages  to  others,  his  insanity  con- 
stitutes no  defense."*  On  principle,  however,  he  cannot  be  held 
liable  for  malicious  acts  in  cases  where  he  is  not  capax  doli.^  And 
when  the  wrong  lies  in  the  intent,  and  the  condition  of  the  person  is 
such  that  no  intent  exists,  there  can  be  no  recovery.^  And  it  would 
appear  to  be  misfeasance,  as  distinguished  from  nonfeasance, — affirm- 
ative torts  which  in  sane  persons  would  have  been  wilful  or  negligent 
conduct,  as   distinguished   from   mere  failure   to   act, — for  which    a 


matters  were  not  included  in  the  trust 
of  the  fTuardian,  and  were  matters  for 
an   action   at  law. 

■Mclntyre  v.  SlioUy,  121  111.  660,  2 
Am.  St. 'Rep.  140,  1.3  N.  E.  2.39,  Af- 
firming 24  111.  App.  605 ;  Jewell  v.  Col- 
by, 66  N.  H.  399,  24  Atl.  902. 

In  .Tcicell  v.  Colhy,  66  N.  H.  399,  24 
Atl.  902,  it  was  held  that  an  insane 
person  is  civilly  liable  for  a  wrongful 
act  causing  death,  although  it  be  in 
law  such  an  act  as  constitutes  a  fel- 
ony; and  that  evidence  of  insanity  is 
not  admissible  to  defeat  the  right  to 
recover,  unless  the  plaintiff  claims  puni- 
tive or  exemplary  damages,  or  a  sum 
greater  than  mere  compensation  for  the 
actual  loss  sustained. 

In  Christian  v.  Columbus  d  R.  R.  Co. 
79  Ga.  460,  7  S.  E.  216,  however,  the 
liability  of  a  railroad  company  for  the 
killing  of  a  person  by  an  insane  station 
agent  was  made  to  depend  on  the  neg- 
ligence of  the  employer  in  hiring  a  serv- 
ant or  agent,  with  knowledge  of  his  in- 
sanity, or  of  his  being  subject  to  fits 
of  insanity;  but  the  question  was  de- 
cided under  the  law  of  master  and  serv- 
ant. 

'See  Yeates  v.  Reed,  4  Blackf.  463,  32 
Am.  Dec.  43;  Gates  v.  Meredith,  7  Ind. 
440;  Dickinson  v.  Barber,  9  Mass.  225, 
6  Am.  Dec.  58;  Mordaunt  v.  Mordaunt, 
39  L.  J.  Prob.  N.  S.  59. 

In  Bryant  y.  Jackson,  6  Humph.  199, 
however,  it  was  said  that  it  is  not  con- 
troverted that  insanity  is  a  good  plea  in 
slander,  but  the  question  was  as  to  the 
eufliciency  of  proof. 

And  in  Horner  v.  Marshall,  5  Mimf. 
466,  it  was  held  to  be  a  ground  for  an 


injunction  against  proceedings  on  judg- 
ments for  defamation  that  the  defend- 
ant was  insane  at  the  time  of  speaking 
the  defamatory  words. 

^Williams  v.  Hays,  143  N.  Y.  442,  26 
L.  R.  A.  153,  42  Am.  St.  Rep.  743,  3S 
N.  E.  449 ;  Morain  v.  Devlin,  132  Mass. 
87,   42   Am.   Rep.   423. 

The  insanity  of  a  part  owner  of  a 
vessel  does  not  relieve  him  from  liabil- 
ity to  the  other  owners  for  negligence 
in  her  management,  at  least,  unless  his 
insanity  was  produced  wholly  by  efforts 
made  for  the  benefit  of  the  vessel.  Wil- 
liams V.  Hays,  143  N.  Y.  442,  26  L.  R. 
A.  153,  42  Am.  St.  Rep.  743,  38  N.  E. 
449. 

But  the  charterer  of  a  vessel  who  is 
in  command  is  not  liable  for  her  loss 
because  of  a  lack  of  care  or  skill  in 
her  navigation  after  he  has  become  ir- 
responsible on  account  of  physical  and 
mental  exhaustion  resulting  from  his  be- 
ing on  duty  almost  continuously  for 
three  days  and  nights  in  efforts  to  save 
the  vessel  during  a  storm.  Williams  v. 
Hays,  157  N.  Y.  541.  43  L.  R.  A.  253. 
08  Am.  St.  Rep.  797.  52  N.  E.  589. 

And  the  question  of  negligence  of  the 
mate  of  a  vessel  in  failing  to  resort  to 
strong  measures  to  obtain  command  of 
the  ship  because  the  captain  had  bee^me 
mentallj'  deranged  is  for  the  determina- 
tion of  the  jury.     Ibid. 

''See  the  cases  collected  in  Ewell, 
Leading  Cases,  pp.  635.  03S,  642,  n.; 
Wliarton,  Nog.  §§  87,  88,  306,  307.  As 
to  responsibiIit_y  for  malicious  acts,  see 
Wharton,  Crim.  Law,  8th  ed.  §  82  et  seq. 

"Jewell  V.  Colby,  66  N.  H.  399,  24  Atl. 
902. 


I  264]  TORTS.  277 

lunatic  is  liable^  And  in  any  event  tJie  damages  cannot  be  punitive, 
but  must  be  compensatory  onJy.^  The  rule  that  an  insane  person  is 
responsible  for  compensatory  damages  for  his  t/orts,  however,  does 
not  apply  where  <;he  insanity  was  caused  by  the  violence  or  wrong 
of  the  person  damaged.'* 

265.  Effect  of  insanity  of  person  injured. —  It  would  seem  that  an 
insane  act — an  act  of  one  in  such  a  mental  condition  as  not  to  under- 
stand its  nature  and  probable  consequences — could  not  be  an  act  of 
contributory  negligence  any  more  than  could  an  act  of  a  child  too 
young  to  use  judgment  and  discretion  with  reference  to  it;  and  when 
a  negligent  act  of  anothet*  inflicts  an  injury  causing  an  uncontrollable 
frenzy  of  insanity  in  which  the  person  causes  his  own  death  without 
knowledge  or  appreciation  of  the  physical  nature  of  his  act,  the  one 
causing  the  injury  is  liable  for  his  death.^'^  But  when  the  person 
injured  retained  sufficient  mental  capacity  to  form  a  conscious  pur- 
pose to  end  his  life,  and  to  adapt  the  means  to  the  end,  his  death  is 
deemed  to  be  due  to  a  new  intervening  cause  for  which  the  one  inflict- 
ing the  injury  is  not  responsible,  though  the  one  injured  was  so  far 
insane  as  not  to  be  morally  responsible  for  his  conduct;  and  the  bur- 
den of  proof  rests  with  the  one  asserting  it  to  show  that  the  death  was 
caused  by  the  injury.^ ^ 

II.  Drunkenness. 

266.  Effect  of  liability  generally. — Dnmkenness  is  not  an  excuse 

for  tlie  commission  of  a  tort,  such  as  slander,^-  though  evidence  of 
drunkenness  is  admissible  to  disprove  malice  and  damages.^ ^  And 
self-imposed  disability  by  intoxication  affords  no  more  excuse  under 
the  law  of  negligence  than  it  does  under  the  criminal  law.^* 

''Williams  v.  Hays,  157  N.  Y.  541,  43  "Daniels  v.  Nero  York,  A'.  H.  d  H.  R. 

L.  R.  A.  253,  68  Am.  St.  Rep.  797,  52  Co.  183  Mass.  393,  62  L.  R.  A.  751,  67 

N.  E.  589.  N.  E.  424. 

Insanity,  even  if  proved,  is  no  defense  "McKee  v.  Ingalls,  5  111.  30 ;  Reed  v. 

in  an  action  founded  on  trover,  vvhieh  Harper,  25  Iowa,  87,  95  Am.  Dec.  774. 

is  ex  delicto,  and  not  ex  contractu,  and  "Gates  v.  Meredith,  7  Ind.  440. 

a   sale   of    land   made   under   exccutioi  ^*Smith  v.  NM'folk  d  S.  R.  Co.  114  N. 

on  a  judgment  in  such  an  action  is  not  C.  728,  25  L.  R.  A.  287,   19  S.  E.  863. 

vitiated  by  the  mental  status  of  the  de-  923. 

fendant  either  at  the  time  of  the  judg-  One  who  falls  by  accident  against  a 

ment  or  of  the  sale.     White  v.  Farley,  stove    in    a    public    bar-room,    striking 

81  Ala.  563,  8  So.  215.  against    a    vessel    of    hot   water,    which 

^Mclntyre   v.    Sholti/,    121    111.   660,    2  upsets  and  scalds  another,  is  responsiblu 

Am.  St.  Rep.  140,  13  N.  E.  239.  for  the  injury,  where  the  fall  was  the 

''Jenkins  v.  Hankins,  98  Tenn.  545,  41  result  of  intoxication.    Sullivan  v.  Mur- 

S.  W.  1028.  phy,  2  Miles   (Pa.)    298. 

^°See  Daniels  v.   "New  York,  N.  H.  d-  And  the  proprietor  of  a  saloon  or  tav- 

H.  R.  Co.  183  Mass.  393,  62  L.  R.  A.  751,  ern   open   for  the  entertainment  of  the 

67   N.   E.  424.  public  is  bound  to  see  that  a  customer 


278  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  2C7 

267.  Employment  of  persons  having  the  habit  of  intoxication,  gen- 
erally.—  One  who  employs  a  ser\'ant  or  agent  of  intemperate  habits, 
and  retains  him  in  his  employ  witJi  knowledge  thereof,  is  guilty  of 
negligence  in  so  doing,  which  will  render  him  liable  for  injuries 
caused  by  intoxication  on  the  part  of  the  employee,  where  the  duties 
were  such  as  could  not  be  properly  performed  by  a  person  of  such 
habits.'^  And  the  selection  of  servants  by  a  superintendent  is  an 
executive  act  which  will  render  tlie  master  liable  for  injuries  caused 
by  the  negligence  of  drunken  servants  employed  by  liim.^^  So, 
where  persons  are  employed  who  afterwards  become  incompetent  and 
unfit  for  the  duties  of  the  employment,  from  habits  of  intoxication 
subsequently  acquired,  and  this  is  brought  to  the  knowledge  or  notice 
of  the  employer,  and  he  fails  to  discharge  such  persons,  he  is  liable 
for  injury  resulting  from  such  habits.^  ^  And  proof  of  drunkenness 
on  the  part  of  a  servant  so  habitual  as  to  be  generally  kno-vvn  in  the 
community  is  sufficient  to  raise  a  presumption  of  knowledge  on  the 
part  of  the  master  which  will  render  him  responsible  for  an  injury 
thereby  caused.^ ^  And  <^xemplary  damages  may  be  given  in  a  case 
of  gross  negligence.^^  An  employer  cannot  be  held  liable  for  negli- 
gence in  retaining  an  employee  with  habits  of  intoxication,  however, 
where  he  exercised  due  care  and  diligence  in  ascertaining  as  to  the 
employee's  competency,  but  failed  to  learn  of  such  habits.^*^      And  it 

is  properly  protected  from  assa\iHs  or  ^^Sawyer  v.  Sauer,  10  Kan.  466. 
insults,  as  -^ell  of  those  who  are  in  his  And  habits  of  intoxication  on  the  part 
employ  as  of  drinking  and  vicious  men  of  a  railroad  conductor  which  were  so 
whom  he  maj-  choose  to  harbor,  and  is  noticeable  and  so  long  continued  that 
liable  for  damages  for  injury  to  a  cus-  they  must  have  been  known  to  the  di- 
tomer  to  whose  clothes  an  intoxicated  vision  superintendent  are  sufficient  to 
companion  attached  a  piece  of  paper,  and  render  the  railroad  company,  which  re- 
set fire  to  it,  seriously  burning  him.  tained  him  in  its  employ,  liable  for  an 
Rommel  v.  ScJiambacher,  120  Pa.  579,  injury  resulting  therefrom.  Chicago  cf- 
6  Am.  St.  Rep.  732,  11  MA.  779.  A.  R.  Co.  v.  Sullivan,  G3  111.  293. 

A  railroad  company  will  not  be  held  ^'■'Frink  v.   Coe,  4   G.  Greene,  555,  61 

liable   for   damages   to   goods   destroyed  Am.   Dec.    141;   Cleghorn  v.   "Neio   York 

by  fire  in  its  Avarehousc,  however,  upon  C.  &  Jl.  R.  R.  Co.  56  N.  Y.  45,  15  Am. 

the  ground  of  negligence,  upon  evidence  Rep.  375. 

tliat  the  nigh*-  operator  who  had  charge  -"Hilts  v.  CMcof/o  d  G.  T.  R.  Co.  55 

of  the  telegraph  office  in  the  wareho-use  Mich.  437,  21  N.  W.  878.    And  see  Earn- 

was  addicted  to  drink,  and  was  drunk  moor  8.  S.  Co.  v.  Union  Ins.  Co.  44  Fed. 

at  the   time.      Young   v.   ^Y■il1ninf|ton   tC-  374. 

IF.  R.  Co.  116  N.  C.  932,  21  S.  E.  177.  The  Pennsylvania  statute  of  1885,  re- 

'''Creiv  v.  .S'*.  Louis,  K.  d  X.  W.  R.  Co.  <|uiring  that  an  engineer  employed  must 

20  Fed.  87.  be  a  sober  and  competent  person,  is  sat- 

^'Brickner  v.  New  York  C.  R.   Co.  2  isfied  if  the  employer  believes  him  to  be 

Lans.   506,   Affii-med   in   49   N.   Y.   672;  sober  and  competent.   Mulhern  \.  Lehigh 

Laning  v.  'New  York  C.  R.  Co.  49  N.  Y.  Valley    Coal   Co.    161    Pa.    270,    28   Atl 

521,   10  Am.  Rep.  417.  1087. 

"Chapman  v.   Erie  R.   Co.   55   N.   Y.  I?iit  w'tre  the  attention  of  the  officers 

579;  Hilts  v.  Chicago  d  fl.  T.  /'.  Co.  55  of  a  railroad  company  was  called  to  the 

Mich.  437,  21  N.  W.  878.  fact  that  a  yard   master  had   at  timQ3 


§  2G7]  TORTS.  279 

rests  mth  those  asserting  it  to  show  by  a  preponderance  of  evidence 
that  the  accident  was  caused  by  the  incompetency  of  the  employee, 
and  that  due  care  and  diligence  had  not  been  exercised  in  his  selec- 
tion.^i 

268.  In  case  of  injury  to  fellow  servant. —  A  master  is  liable  for  in- 
juries to  a  servant  caused  by  incompetency,  from  habits  of  intoxica- 
tion, of  a  fellow  servant,  where  the  master  had  not  used  due  care  in 
selecting  or  retaining  in  his  employ  the  servant  causing  the  injury.^- 
And  the  rule  is  the  same  if  the  employer  is  negligent  in  failing  to 
ascertain  the  habits,  as  to  drinking,  of  his  employees.^^  And  it  is 
immaterial  whether  the  incompetency  of  the  fellow  servant  existed 
at  the  time  of  hiring  or  has  since  accrued,  where  he  was  continued  in 
the  service  with  notice  or  knowledge  or  means  of  knowledge  on  the 
part  of  tlie  master  of  his  incompetency.^*  Where  a  servant  knows 
of  the  habits  of  intoxication  of  anotlier  servant  as  fully  as  the  master, 
however,  and  he  continues  in  tlie  employment  of  the  master  without 

used  beer,  if  not  stronger  drink,  in  view  &  Coal  Co.  v.  Decker,  84  Pa.  419,  82  Pa. 
of  the  great  danger  liable  to  result  from    119. 

the  use  of  intoxicating  liquors  by  one  ^Zumwalt  v.  Chicago  d  A.  R.  Co.  35 
in  his  position,  it  became  their  duty  to  Mo.  App.  661;  Stevens  v.  San  Francisco 
make  frequent  and  careful  investiga-  d  N.  P.  R.  Co.  100  Cal.  554,  35  Pac. 
tions  upon  the  subject;  the  weight  of  165;  Illinois  C.  R.  Co.  v.  Jeicell,  46  111. 
the  evidence  of  their  knowledge,  there-  99,  92  Am.  Dec.  240 ;  Chicago  &  A.  R. 
fore,  being  for  the  consideration  of  the  Co.  v.  Sullivan,  63  111.  293 ;  Gilman  v. 
jury.  Michigan  C.  R.  Co.  v.  Gilbert,  Eastern  ' R.  Co.  13  Allen,  433,  90  Am. 
46  iVIich.  176,  9  N.  W.  243.  Dec.  210;   Hilts  v.  Chicaqo  &   G.  T.  R. 

"Crcic  V.  St.  Louis,  K.  d  N.  W.R.Co.  Co.  65  Mich.  440,  21  N.  W.  878;  Lyons 
20  Fed.  87;  Hilts  v.  Chicago  &  G.  T.  R.  v.  Neto  York  C.  &  H.  R.  R.  Co.  39  Hun. 
Co.  55  Mich.  437,  21  N.  W.  878.  385;  Pennsylvania  R.  Co.  v.  Brooks,  57 

"Michigan  C.  R.  Co.  v.  Gilbert,  46  Pa.  343,  98  Am.  Dec.  229. 
Mich.  176,  9  N.  W.  243 ;  Kean  v.  Detroit  A  master  who  is  chargeable  with 
Copper  &  Brass  Rolling  Mills,  66  Mich,  knowledge  of  the  intemperate  habits  of 
277,  11  Am.  St.  Rep.  492,  33  N.  W.  395;  a  drunken  superintendent,  who  allows 
Poirier  v.  Carroll,  35»La.  Ann.  699;  Gil-  dangerous  machinery  to  be  operated  by 
man  V.  Eastern  R.  Corp.  10  Allen,  an  intoxicated  workman  whom  he  orders 
233,  87  Am.  Dec.  635 ;  TSleilon  v.  Kaiisas  to  do  an  act  which  must  necessarily 
St.  J.  &  C.  B.  R.  Co.  85  Mo.  599;  Max-  cause  danger  to  another  workman,  who 
v:ell  V.  Hannibal  d  St.  J.  R.  Co.  85  Mo.  is  thereby  injured,  is  guilty  of  a  breach 
95;  Williams  v.  Missouri  P.  R.  Co.  109  of  duty  toward  the  latter  both  at  com- 
Mo.  475,  18  S.  W.  1098;  Laning  v.  New  men  law  and  under  the  employers'  lia- 
York  C.  R.  Co.  49  N.  Y.  521,  10  Am.  Rep.  bility  act,  which  will  support  an  action 
417;  Sizer  v.  Syracuse  B.  d  N.  Y.  R.  for  the  injury.  McPhee  v.  Scully,  16;! 
Co.  7  Lans.  67;  Huntingdon  d  B.  T.  R.  Mass.  216,  39*  N.  E.  1007:  Kean  v.  De- 
d  Coal  Co.  V.  Decker,  84  Pa.  419;  Gal-  troit  Copper  d  Brass  Rolling  Mills,  66 
veston,  H.  d  S.  A.  R.  Co.  v.  Dams,  4  Mich.  284,  33  N.  W.  395. 
Tex.  Civ.  App.  468,  23  S.  W.  301.  "-^Laning  v.  New  York  C.  R.  Co.  49  N. 

A  railroad  company  which  employ?  Y.  521,  10  Am.  Rep.  417;  Baltimore  d 
a  conductor  who,  on  account  of  his  0.  R.  Co.  v.  Hcnthorne,  19  C.  C.  A.  623, 
drimkenness,  is  unfit  for  his  position,  43  U.  S.  App.  113,  73  Fed.  634. 
knowing  his  unfitness,  is  chargeable  In  Chapman  v.  Erie  R.  Co.  55  N.  Y. 
with  the  consequences  of  its  negligence,  579,  however,  in  which  an  engineer  was 
even  to  one  employed  in  the  same  gen-  killed  in  a  collison  through  the  negli- 
eral   service.      Huntingdon  d   B.   T.   R.   gence    of    the    telegrapli    operator    and 


280  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  268 

promise  of  correction  or  change,  he  cannot  recover.^^  The  question 
of  negligence  in  such  case  is  one  of  fact  for  the  jury;-"  as  is  also  tlie 
question  whether  remaining  in  the  master's  employ  after  he  had 
promised  to  discharge  a  drunken  coemployee  was  contributory  negli- 
gence.^^ 

269.  Effect  as  to  contributory  negligence,  generally. —  Intoxication 
does  not  excuse  the  omission  to  use  the  same  care  and  prudence  which 
are  required  of  a  sober  man  under  the  same  circumstances,  to  protect 
himself  from  injury.^*  And  if  one's  intoxication  contributes  to  his 
injury  as  a  proximate  cause,  it  is  a  complete  bar  to  an  action  for 
damages  sustained  thereby.-^  The  question,  in  an  action  for  per- 
sonal injury  from  alleged  negligence,  is  whether  or  not  the  injury 
was  caused  by  negligence  of  the  defendant  or  the  contributoiy  negli- 
gence of  tlie  plaintiff ;  and  not  whetlier  the  plaintiff  was  at  the  time 

train    dispatcher,   competent    when    em-  36  L.  R.  A.  213,  36  Atl.  263;  iJai/eard  v. 

ployed  but  given  to  intoxication  there-  Consolidated  Traction   Co.   64   N.   J.   L. 

after,   it  was  held  that  good  character  316,  49  L.  R.  A.  425,  81  Am.  St.  Rep 

and  qualifications  once  possessed  would  498,  45  Atl.  620;   Missouri  P.  It.  Co.  v. 

be  presumed  to  continue.  Evans,  71  Tex.   361,   1   L.  R.  A.  476,  9 

-'■"Laning  v.  A'eiy  York  C.  R.  Co.  49  N.  S.  W.  325 :   Fisher  v.  West   Virginia  & 

Y.  521,   10  Am.  Rep.  417.  P.  R.  Co.  42  W.  Va.  183,  33  L.  R.  A.  69, 

But  evidence  in  an  action  for  an  in-  24  S.  E.  570;   McDonald  v.  Chicago,  M. 

jury   to    a    brakeman,    alleged   to    have  d  St.  P.  R.  Co.  75  Wis.  121,  43  N.  W. 

been  caused  by  the  intemperate   habits  744. 

of    the    engineer,    that    the    brakeman        -'Fisher  v.  West  Virginia  d  P.  R.  Co. 

knew  nothing  of  the  intemperate  habits,  39  W.  Va.  366,  23  L.  R.  A.  758,  19  S.  E. 

and     that    he    had    been    in    the    em-  578;  Lynch  v.  Tslew  York,  47  Hun,  524: 

ploy    of    the    company    less    than    two  Bradley  v.  Second  Ave.  R.  Co.  8  Daly, 

months,    and    had    made    but    one    trip  289;    Kenney   v.    Rhinehmder,    28    App. 

with  the  engineer,  and  did  not  see  him  Div.  246,  50  N.  Y.  Supp.   1088;  Strand 

often,  is  sufficient  to  support  a  finding  v.  Chicago  d  W.  M.  R.  Co.  07  Mich.  380, 

that  he  had  no  knowledge  of  such  engi-  34  N.  W.  712;   Ronker  v.  St.  John,  21 

neers  intemperate  habits.     And  in  such  Ohio  C.  C.  39;  Walsh  v.  Porterfield,  87 

case  an  instruction    that    if    the  plain-  Pa.  370;  Louisville  &  N.  R.  Co.  v.  Cum- 

tiff  had  equal  means  of  knowledge  with  mins,  23  Ky.  L.  Rep.  681,  63  S.  W.  594. 
the  defendant  in  ascertaining  the  alleged       And   if   a   person   drinks   under   such 

incompetency  of  the  engineer,  he  cannot  circumstances  that  a  reasonably  prudent 

recover,  is  erroneous,  the  engineer  hav-  man  could  foresee  that  he  was  putting 

ing  been  in  the  employ  of  the  company  himself  in  such  a  condition  that  an  in- 

for    five    or     six    years.       yiilliams    v.  jury  would  probably  happen,  it  will  bar 

Missouri  P.  R.  Co.   109  Mo.  485,   18  S.  a  recovery  for  the  injury  received.  Davis 

W.    1098.  V.  Oregon  cC-  C.  R.  Co. 's  Or.   172;   Chi- 

^Campbell  d   Z.   Co.  v.   Roediger,   78  eago  City  R.  Co.  v.  Lewis,  5  111.  App. 

Md.  601,  28  Atl.  901;   Brickner  v.  New  242;  Illinois  C.  R.  Co.  v.  Cragin,  71  HI. 

York  C.  R.  Co.  2  Lans.  515.  177. 

"Laning  v.   Neio   York  C.   R.   Co.  49       And  contributory  negligence  is  charge- 

N.  Y.  521,  10  Am.  Rep.  417.  able  to  a  minor  who  takes  chloroform 

^Louisville  d  N.  R.  Co.  v.  Johnson,  92  when  so  intoxicated  as  to  be  unable  to 

Ala.  204,  25  Am.  St.  Rep.  35,  9  So.  209,  exercise   any   reasonable   degree   of   cau- 

104  Ala.  241,  53   Am.   St.   Rep.   39,    16  tion  or  prudence,  where  he  is  old  enough 

So.  75,  108  Ala.  62,  31  L.  R.  A.  372,  19  to  earn  as  a  clerk  in  a  grocery  store  a 

So.   51 -fWelty  v.   hidianapolis  d    V.   R.  reasonable    and    substantial    compensa- 

Co.  105  Ind.  5.5,  4  N.  E.  410;  Price  v.  tion.     Meyer  v.  King,  72  Miss.  1,  35  L. 

Philadelphia,  W.  d  B.  R.  Co.  84  Md.  50G,  R.  A.  474,  16  So.  245 


i  26D] 


TORTS. 


281 


intoxicated.^**  But  no  greater  degree  of  care  is  required  to  be  exer- 
cised by  an  intoxicated  man  than  by  a  sober  one,  and  if  his  conduct 
was  characterized  by  a  proper  degree  of  care  and  prudence,  it  is 
immaterial  whether  ho  was  drunk  or  sober." ^  And  the  mere  fact  of 
the  intoxication  of  a  person  injured  is  not  evidence  of  negligence 
per  se  which  vill  prevent  a  recovery  for  the  injurv'."^  Nor  is  the 
cx)ndition  of  the  plaintiff  in  an  action  for  a  personal  injury,  with 
reference  to  intoxication,  of  any  importance  when  his  o^vn  negligence 
did  not  contribute  to  the  injury  complained  of.^^  It  must  have  been 
the  substantial  cause  of  the  injury,^^  though  it  is  not  necessary  that 
a  person  should  be  so  drunk  as  to  be  imbecile  before  it  can  be  taken 
into  account  by  a  jury  in  determining  the  question  of  his  contributory 
negligence.^^      Selling  or  giving  liquor  to  anotlier,  however,  is  not 


'"Denver  Tramivay  Co.  v.  Reid,  4  Colo. 
App.  r).3,  35  Pac.  209.  And  see  Buesch- 
ing  V.  St.  Louis  OasUrfht  Co.  6  Mo.  App. 
85;  Brand  v.  Schenectady  d  T.  R.  Co. 
8  Barb.  308. 

^'Chicago  £  N.  W.  R.  Co.  v.  Drake,  33 
111.  App.  114;  Ward  v.  Chicago,,  St.  P. 
M.  d  O.  R.  Co.  85  Wis.  GOl,  55  N.  W. 
771;  Central  R.  d  Blcg.  Co.  v.  Phinazee, 
93  Ga.  488,  21  S.  E.  66. 

^-Neicfon  v.  Central  Vermont  R.  Co. 
SO  Hun,  491,  30  N.  Y.  Supp.  488;  Tomp- 
kins V.  Osirego,  40  N.  Y.  S.  R.  4,  15  N. 
Y.  Supp.  371;  Lynch  v.  New  York,  47 
Hun,  524;  Diichett  v.  Sptiyten  Duyvll 
&  P.  M.  R.  Co.  5  Hun,  165.  Reversed  on 
other  grounds,  67  N.  Y.  425 ;  Baltimore 
d  0.  R.  Co.  V.  Boteler,  38  Md.  568; 
Holmes  v.  Oregon  d  C.  R.  Co.  6  Sawy. 
291.  5  Fed.  523;  Northern  P.  R.  Co.  v. 
Craft,  10  C.  C.  A.  175,  2?  U.  S.  App. 
687,  69   Fed.   124. 

The  fact  that  a  guest  in  a  hotel  was 
intoxicated,  and  that  his  door  was  un- 
locked, does  not  relieve  the  landlord 
from  liability  for  the  acts  of  his  servants 
in  stealing  the  property  of  his  guest. 
Cunn\n<iham  v.  Bucky,  42  W.  Va.  671, 
35  L.  R.  A.  850,  57  Am.  St.  Rep.  876, 
26  S.  E.  442. 

An  innkeeper's  liability  for  the  bag- 
gage of  his  guest  is  increased  rather 
than  diminished  by  the  fact  that  the 
guest  got  too  drunk  at  his  bar  to  care 
for  it  himself.  Ruhenstein  v.  Cruik- 
shanks,  54  Mich.  199,  52  Am.  Rep.  806, 
19  N.  W.  954. 

And  an  innkeeper  in  wliose  inn  a  cus- 
tomer becomes  drunk  and  unconscious, 
who  expels  such  customer  late  at  night, 
by  reason  of  which  he  dies  from  expo- 
sure and  cold,  cannot  escape  liability  on 


account  of  the  customer's  prior  neg- 
lisfcnce  in  getting  drunk.  Weymire  v. 
Wolfe,  52  Towa,  533,  3  N.  W.  541.  And 
see  McHugh  v.  Schlosser,  159  Pa.  480. 
23  L.  R.  A.  574,  39  Am.  St.  Rep.  699,  28 
Atl.  291. 

^^Hoiiston  d  T.  C.  R.  Co.  v.  Reason,  61 
Tex.  613;  Stuart  v.  Machias  Port,  48 
Me.  477;  Alger  v.  Loioell,  3  Allen,  402: 
Central  R.  d  Bkg.  Co.  v.  Phinazee,  93 
Ga.  488,  21  S.  E.  66;  Maguire  v.  Middle 
sex  R.  Co.  115  Mass  239;  Meyer  v.  Pa 
cific  R.  Co.  40  Mo.  151.  And  see  Balii 
more  d  0.  R.  Co.  v.  State,  81  Md.  371. 
32  Atl.  201;  Ijouisvillc  d  N.  R.  Co.  v. 
Cummins,  23  Ky.  L.  Rep.  681,  63  S.  W. 
594;  Texas  d  P.  R.  Co.  v.  Edmond  (Tex. 
Civ.  App.)  29  S.  W.  518;  Ridley  v. 
Lamh.  10  U.  C.  Q.  B.  354. 

^'Davis  V.  Oregon  d  C.  R.  Co.  8  Or. 
172;  Meyer  v.  Pacific  R.  Co.  40  Mo.  151  : 
Ward  v.  Chicaqo,  St.  P.  M.  d  0.  R.  Co. 
85  W;s.  001,  55  N.  W.  771;  Sei/mer  v. 
Lake,  66  Wis.  651,  29  N.  W.  554.  And 
see  McCue  v.  Klein,  60  Tex.  168,  48  Am. 
Rep.  260. 

And  the  intoxication  shouid  be  found 
before  considering  its  effect.  Shelly  v. 
Brunswick  Traction  Co.  6y  N.  J.  L.  630. 
48  Atl.  562. 

-'^Fitzgerald  v.  Weston,  52  Wis.  354. 
9  N.  W.  13.  But  see  Sei/mer  v.  Lake. 
66  Wis.  651,  29  N.  W.  554. 

A  person  is  not  liable,  however,  on 
the  ground  of  injuring  on'?  in  danger, 
for  death  following  his  selling  chloro- 
form to  an  intoxicated  person,  who  is 
not  shown  to  have  been  absolutely  with- 
out mind  to  the  knowledge  of  the  of- 
fender. Meyer  v.  King,  72  JMiss.  1,  35  L. 
R.  A.  474,  16  So.  245. 


282 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  2GD 


contributor)'  negligence  which  will  relieve  the  latter  from  liability 
for  a  wilful  injury  done  bj  him  to  the  former.^^  Xor  is  the  purchas- 
ing and  drinking  liquor  contributory  negligence  which  will  defeat  an 
action  under  a  civil  damage  act.^^ 

270.  With  relation  to  trespassers  upon,  and  persons  crossing,  rail- 
roads.—  Reasonable  care  and  diligence  are  all  that  are  required  to  be 
exercised  by  a  railroad  company  toward  one  who  goes  upon  its  tracks 
at  a  place  other  than  a  crossing,  in  such  an  intoxicated  condition  as 
not  to  be  able  to  take  care  of  himself  or  to  heed  warnings  of  approach- 
ing trains.^^  And  one  who  voluntarily  goes  upon  a  railway  track 
Avhile  in  such  a  condition,  and  is  killed,  is  guilty  of  contributory 
negligence  "which  will  prevent  a  recovery,^''  unless  the  servants  of  the 
railway  company  were  guilty  of  gross  negligence  or  wilful  neglect  of 
duty.^"     ISTor   can  one  who,  Vvdiile   incapable  of   protecting   himself, 


"Cassady  v.  Magher,  85  Ind.  228s 

But  a  licensed  liquor  seller  who 
furnished  another  with  intoxicating 
liquor,  in  violation  of  law,  upon  which 
the  latter  became  intoxicated,  when  the 
dealer  put  him  in  his  vehicle,  drawn  by 
a  gentle  horse,  which  the  intoxicated 
man  had  borrowed,  which  ran  away  and 
was  killed  bj-  reason  of  the  driver's  in- 
toxication, is  liable  to  the  owner  of  the 
horse  for  its  value.  Ditnlap  v.  Wagner, 
85  Ind.  529,  44  Am.  Rep.  42. 

^'Weiimire  v.  Wolfe,  52  Iowa,  533,  3 
N.    W."'541. 

'-^Frice  v.  Philadelphia,  W.  d  B.  R.  Co. 
84  Md.  50G,  3G  L.  R.  A.  213,  36  Atl.  2G3; 
Colvvihvs  &  W.  R.  Co.  V.  Wood,  86  Ala. 
164,  5  So.  463;  Memphis  d  C.  R.  Co.  v. 
Womack,  84  Ala.  149,  4  So.  618.  And 
sec  Houston  &  T.  C.  R.  Co.  v.  Smith,  52 
Tex.  178;  Virginia  Midland  R.  Co.  v. 
Bosicell,  82  Va.  932,  7  S.  E.  383. 

And  the  facts  that  a  person  injured 
by  being  run  over  by  a  street  car  was  in- 
toxicated at  the  time,  and  that  he  was 
negligent  because  of  such  intoxication, 
afford  no  excuse  for  such  negligence,  and 
do  not  prevent  it  from  being  a  bar  to  a 
recovery  of  damages  for  the  injuries  re- 
ceived. Weeks  v.  Neic  Orleans  &  G.  R. 
Co.  32  La.  Ann.  615. 

^"Southiccstern  R.  Co.  v.  Eankerson, 
61  Ga.  114;  Memphis  &  C.  R.  Co.  v.  Wo- 
mar.k,  84  Ala.  149.  4  So.  618;  St.  Louis, 
I.  M.  d  S.  R.  Co.  V.  Wilkerson,  46  Ark. 
513;  Little  Rock  d  Ft.  S.  R.  Co.  v.  Pank- 
hurst,  36  Ark.  371 ;  Little  Rock.  M.  R.  d 
T.  R.  Co.  V.  Ilaynes,  47  Ark.  497,  1  S. 
W.  774;  Illinois  C.  R.  Co.  v.  Uutchin- 
son,  47  111.  408;   O'Keefe  v.  Chicago,  R. 


I.  d  P.  R.  Co.  32  Iowa,  467;  Price  v. 
Philadelphia,  W.  d  B.  R.  Co.  84  Md.  506, 
30  L.  R.  A.  213,  36  Atl.  203;  Whalen  v. 
St.  Louis,  K.  C.  d  N.  R.  Co.  60  Mo. 
323 ;  Button  v.  Hudson  River  R.  Co.  18 
N.  Y.  248;  Smith  v.  Norfolk  d  S.  R.  Co. 
114  N.  C.  728,  25  L.  R.  A.  287,  19  S.  E. 
863,  923;  Herring  v.  Wilmingtoti  d  R. 
R.  Co.  32  N.  C.  (10  Ired.  L.)  402,  51 
Am.  Dec.  395;  Denman  v.  St.  Paul  d 
D.  R.  Co.  26  Minn.  357,  4  N.  W.  605; 
Norfolk  d  W.  R.  Co.  v.  Harman,  83  Va. 
553,  8  S.  E.  251. 

^''Illinois  C.  R.  Co.  v.  Hutchinson,,  47 
111.  408:  Indianapolis  d  St.  L.  R.  Co.  v. 
Galhreath,  63  111.  436;  O'Keefe  v.  Chi- 
cago, R.  I.  d  P.  R.  Co.  32  Iowa,  467'; 
Kean  v.  Baltimore  d  0.  R.  Co.  61  Md. 
154;  Yarnall  v.  St.  Louis,  K.  C.  d  N.  R. 
Co.  75  Mo.  575;  Houston  d  T.  C.  R.  Co. 
V.  Sympkins,  54  Tex.  615,  38  Am.  Rep. 
632. 

A  railway  engineer  in  charge  of  an 
engine,  who  sees  an  apparently  intoxi- 
cated person  upon  the  track  before  him, 
has  no  right  to  presume  that  he  will  get 
out  of  the  way,  but  should  take  means 
to  stop  his  train  in  time  to  prevent  a 
collision.  Lake  Shore  d  M.  S.  R.  Co.  v. 
Miller,  25  Mich.  274. 

But  the  intoxication  of  a  person 
killed  while  driving  along  a  railroad 
track  does  not  excuse  his  negligence  in 
failing  to  get  off  the  track,  tliough  hiri 
getting  on  the  track  in  the  first  place 
was  due  to  the  negligence  of  the  rail- 
road companv.  McDonald  v.  Chicago, 
M.  d  St.  P.  R.  Co.  75  Wis.  121,  43  N.  W. 
744. 


i  270] 


TORTS. 


283 


from  voluntary  intoxication,  enters  a  train  of  cars  from  which  he  is 
forbidden,  without  the  knowledge  or  consent  of  tlie  conductor,  hold 
the  railroad  to  any  duty  beyond  Quinary  care  to  protect  him  from 
injury.'*^  The  mere  fact,  however,  that  a  person  is  guilty  of  negli- 
gence in  going  on  a  railway  track  when  so  intoxicated  that  a  warning 
whistle  would  not  arouse  him,  will  not  relieve  the  railroad  company 
from  liability  for  injury  if  it  could  have  been  prevented  by  due  dili- 
gence.^^ Likewise,  a  person  unable  to  take  care  of  himself,  from 
intoxication,  who  recklessly  and  negligently  attempts  to  cross  a  rail- 
road track  in  front  of  an  advancing  train,  or  under  other  circum- 
stances of  danger,  and  is  injured,  though  at  a  public  crossing,  cannot 
liold  the  company  liable,  in  the  absence  of  negligence  on  its  parf*^ 
And  the  intoxication  of  the  person  injured  is  to  be  taken  into  con- 
sideration in  an  action  for  injury,  on  the  question  of  contributory 
negligence,  where  it  was  the  cause  of  his  attempt  to  cross  the  tracks.^^ 
But  the  intoxication  of  a  person  injured  at  a  railway  crossing  is  not 
material,  where  he  was  not  negligent.^^  And  slight  intoxication 
raises  no  inference  of  want  of  ordinary  care  and  prudence  upon  the 
part  of  a  person  crossing  a  railway  track,  tliough  the  circumstances 
and  the  degree  of  the  intoxication  may  be  considered  upon  the  ques- 
tion of  due  care.^° 


"Misso^tri  P.  R.  Co.  v.  Evans,  71  Tex. 
361,  1  L.  R.  A.  476,  9  S.  W.  325. 

*-Fulp  V.  Roanoke  &  S.  R.  Co.  120  N. 
C.  525,  27  S.'E.  74. 

If  employees  of  a  railroad  company, 
in  charge  of  a  train,  see  a  man  upon  its 
tracks  at  a  distance  ahead  sufficient  to 
enable  him  to  get  out  of  the  way,  they 
have  a  right  to  presume  that  he  will  do 
so,  and  go  on  without  checking  tlie  speed 
of  the  train  until  they  see  he  is  not 
likely  to  do  so,  when  it  becomes  their 
duty  to  give  extra  alarm,  and,  as  a  last 
resort,  to  check  its  speed  and  stop  the 
train,  if  possible,  in  time  to  avoid  dis- 
aster; but  where  the  man  seen  is  known 
to  be,  or  appears  to  be,  grossly  intoxi- 
cated, or  otherwise  insensible  to  danger 
or  unable  to  avoid  it,  they  have  no  right 
to  presume  that  he  will  get  out  of  the 
way,  but  should  act  upon  the  hypothesis 
that  he  may  not  or  will  not,  and  use 
proper  care  to  avoid  injuring  him;  and, 
failing  in  this,  the  company  will  be  re- 
sponsible in  damages,  if,  by  the  use  of 
care,  after  they  became  aware  of  his  neg- 
ligence, they  could  have  avoided  injur- 
ing him.  Bt.  Louis,  I.  M.  d  S.  R.  Gc.  v. 
Wilhcrson,  46  Ark.  513. 

"Chicaao.  R.  I.  d-  P.  R.  Co.  v.  Bell,  70 
.111.  102;  Toledo,  P.  d  W.  R.  Co.  v.  Riley. 


47  111.  514;  Indianapolis  d  St.  L.  R.  Co. 
V.  Galbreaih,  63  111  i36;  Weeks  v.  New 
Orleans  d  C.  R.  Co.  32  La.  Ann.  615; 
Marquette,  H.  d  0.  R.  Co.  v.  Hanford, 
30  Mich.  537;  Brand  v.  Schenectady  d 
T.  R.  Co.  8  Barb.  368. 

But  an  instruction,  in  an  action 
against  a  railroad  company  for  killing 
a  person  upon  a  railroad  bridge,  that  rf 
the  deceased  went  there  in  an  intoxi- 
cated condition  about  schedule  time  for 
a  train  to  pass,  this  would  constitute 
gross  negligence,  is  erroneous  as  calcu- 
lated to  mislead  the  jury,  where  it  ap- 
pears that  the  train  causing  the  injury 
was  a  special,  running  out  of  schedule 
time  and  faster  tlian  the  regular  train 
usuallv  ran.  Eafil  Tennessee  d  W.  N. 
0.  R.  Co.  V.  Winters,  85  Tcnn.  240,  1  S. 
W.  790. 

^^Hankinson  v.  Charlotte,  C.  d  A.  R. 
Go.  41  S.  C.  h  19  S.  E.  206.  And  see 
Butcher  v.  West  Virqinia  d  P.  R.  Co. 
37  W.  Va.  180,  18  L.  R.  A.  519,  16  S.  E, 
457. 

''--Wnrd  V.  Chicaqo.  St.  P.  M.  d  0.  R 
Go.  85  Wis.  601,  55  N.  W.  771. 

■"■Baltimore  d  O.  R.  Co.  v.  Slate,  81 
:\rd.  371,  32  Atl.  201. 

An  intoxicated  person  who  walks  out 
u[)on  a  railroad  trestle  to  a  position  of 


284  MENTAL  UNSOVNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  271 

271.  With  relation  to  passengers  and  carriers. — An  intoxicated  man 
has  the  ri^ht  to  ride  upon  railway  trains  so  long  as  he  behaves  in  an 
orderly  manner,  and  his  intoxication  does  not  absolve  tlie  carrier  from 
its  duty  to  observe  due  care  for  his  safety,  or  relieve  it  from  liability 
for  injur)'  to  him  by  negligence,  unless  his  intoxication  directly  con- 
tributed to  it  f"^  the  question  depending  upon  the  ability  of  the  pas- 
senger to  act  with  proper  care  and  judgment.*^  But  a  passenger  can- 
not recover  for  an  injury  to  which  his  intoxication  contributed,'''*^ 
though  it  is  the  duty  of  the  carrier,  upon  notice  that  a  passenger  i>^ 
so  intoxicated  as  to  be  heedless  of  danger,  and  is  exposing  himself 
thereto,  to  use  ordinary  precautions  for  his  safety,  such  as  calling  hi^ 
attention  to  the  danger,  and  forbidding  such  exposure;  and  it  is 
responsible  for  an  injury  resulting  from  a  neglect  of  such  duty.^^' 
It  is  not  its  duty,  how^ever,  to  place  a  guard  over  a  passenger  to  pre- 
vent him  from  injuring  himself  or  placing  himself  in  a  position  oi 
danger,  and  it  is  not  liable,  in  the  absence  of  evidence  that  its  agents 
or  servants  knew  of  the  perilous  position  and  condition  of  the  pas- 
senger.^^ So*a  carrier  has  the  power,  and  is  under  the  duty,  to  expel 
or  to  refuse  to  receive  as  a  passenger  anyone  who  is  drunk,  disorderly, 
or  riotous,  or  who  is  in  such  a  condition  from  intoxication  as  t(y 
endanger  or  interfere  mtli  the  comfort  of  other  passengers,  and  in 

great  peril,  and    is    there    killed  by  a  a   pontoon   upon    a    dark    night,   ther*'- 

train,  cannot  be  held  to  have  been  free  being  no  light  upon  the  boat  except  ono- 

from  contributory  negligence.    Anderson  lantern   in   the   hands   of  ^   deck   hand. 

V.  Chicaqo,  St.  P.  M.  d  O.  R.  Co.  87  Wis.  fell  into  the  river  through  a  space  be- 

195,  23  L.  R.  A.  203,  58  N.  W.  79.  twcen  the  pontoon  and  the  boat  not  over 

"Milliman  v.  i^'ew  York  C.  d  H.  R.  R.  two   feet   wide    and    was    drowned,   tin 

Co.  66  N.  Y.  642;  Putnam  v.  Broadway  space  being  due  to  the  fact  that  the  boat 

d  8.  Ave.  R.  Co.  55  N.  Y.  108,  14  Am.  had   not   landed    in    its   usual    position. 

Rep.  190;  Illinois  C.  R.  Co.  v.  Sheehan,  JJohnes  v.  Oregon  &  C.  R.  Co.  6  Sawv. 

29 '111.  App.  90;  Pittsburgh,  C.  d  St.  L.  262.  5  Fed.  523. 

R.  Co.  V.  Vandyne,  51  Ind.  576,  26  Am.  *^llilliman  v.  Xeir  York  C.  d  H.  R.  R. 

Rep.   68;    Maguire  v.   Middlesex  R.  Co.  Co.  4  Hun,  409,  6  Thomp.  &,  C.  585,  Af 

115  Mass.  239;   Kingston  v.  Ft.  Wayne  finned  in  66  N.  Y.  642. 

d  E.  R.  Co.  112  Mich.  40,  40  L.  R.  A.  ^'Strand  v.  Chtco^o  d  W.  M.  R.  Co.  67 

131.  70  N.  W.  315,  74  N.  W.  230;  Metjer  Mich.   380.   34   N.   W.   712;    Pittsburgh. 

V.  Pacific  R.  Co.  40  ?*Io.  151.  Ft.  IF.  d  C.  R.  Go.  v.  Hinds,  53  Pa.  .512. 

The  intoxication  of  a  passenger  upon  91  Am.  Dec.  224.  And  see  Roziaidosfskie 

a  railway  train,  who  was  injured  by  the  v.   Inlernaiional  d  (i.   A'.  R.  Co.   1   Tex. 

company's  negligence,  should  not  be  re-  Civ.  App.  487,  20  S.  W.  872;  Norfolk  d 

garded    as    disqualifying    him    to    avoid  W.  R.  Co.  v.  Ferguson,  79  Va.  241. 

the  consequences  thereof,  if  the  circum-  '^"Fisher  v.  West   Virc/inia  d  P.  R.  Co. 

stances  were  such   that  a  prudent  man  39  W.  Va.  306,  23  L.  R.  A.  758.  19  S.  E. 

could  not  have  avoided  them  by  the  ex-  578;  St.    Ijouis,    A.    d    T.    H.  R.  Co-,  v. 

ercise  of  ordinarv  diligence.     Central  R.  Carr,  47  111.  App.  353.     And  see  Cincin- 

d  Bkq.  Co.  V.  Phinazee,  93  Ga.  488,  21  nati,  J.  St.  L.  d  C.  R.  Co.  v.  Cooper,  120 

So.  68.  Ind.  469.  0  L.  R.  A.  241.  10  Am.  St.  Rep. 

And    intoxication    is    not    necessarily  334.  22  X.  K.  340. 

evidence      of      contributory      negligence  ".SV.  honis.  .A.  d  T.  fl.  R.  Co.  v.  Carr, 

where  the  intoxicated  party,  who  was  :i  47   HI.  App-  353. 
passenger  upon  a  boat  which  landed  at 


§  271] 


TORTS. 


285 


liable  for  any  injury  caused  by  passengers  received  in  that  condi- 
tion.^^ And  a  carrier  is  not  bound  to  wait  until  some  act  of  violence 
cr  other  act  of  misconduct  is  actually  committed  before  expelling  an 
intoxicated  passenger:  it  is  sufficient  if  he  is  in  such  a  condition  as 
to  make  it  reasonably  certain  that  he  will  become  offensive.^^  But 
the  intoxication  and  misbehavior  of  a  passenger,  which  will  authorize 
his  expulsion  will  not  justify  expulsion  witliout  the  exercise  of  duo 
care  for  his  safety,  having  reference  to  time,  place,  condition,  and 
surroundings,'''^  thongh  a  railroad  company  is  not  liable  for  an  injury 


^-Edqerly  v.  Union  Street  R.  Co.  C7  N. 
H.  312,  36  Atl.  558;  Vinton  v.  Middle- 
sex li.  Co.  11  Allen,  304,  S7  Am.  Dec. 
714;  Murphy  v.  Union  li.  Co.  118  Mass?. 
228;  I'iitsburg  d  C.  R.  Co.  v.  Pillow,  76 
Pa.  510,  18  Am.  Rep.  424;  Putnam  v. 
Broadwaij  d  8.  Ave.  R.  Co.  55  N.  Y.  108, 
14  Am.  Rep.  190;  Graham  v.  Manhattan 
R.  Co.  149  N.  Y.  330,  43  N.  E.  917;  Rail- 
way Co.  V.  Vallcley,  32  Ohio  St.  345,  30 
Ani.  Rep.  601;  Pittsburgh,  Ft.  W.  d  C. 
R.  Co.  V.  Hinds,  53  Pa.  512,  91  Am.  Dec. 
224;  King  v.  Ohio  d  M.  R.  Co.  22  Fed. 
413. 

But  where  a  drunken  person  got  upon 
a  passenger  train,  and  used  profane  and 
obscene  language  to  the  conductor,  and 
behaved  in  a  disorderly  manner,  and 
drew  his  pistol  when  the  conductor  at- 
tempted to  put  him  off  the  train,  thus 
inducirg  thfe  conductor  to  arm  himself 
in  order  to  expel  him,  after  which  he 
continued  his  profanity  and  insulting 
language,  upon  which  shots  were  ex- 
changed, and  the  drunken  person  was 
injured,  the  railroad  company  is  not  lia- 
ble therefor,  though  the  conductor  might 
not  have  been  fully  excusable  for  shoot- 
ing Peavy  v.  Georgia  R.  d  Bkg.  Co.  81 
Ca.  485.  12  Am.  St.'Rep.  334,  8  S.  E.  70. 

^^Edgerly  v.  Union  Street  R.  Co.  67 
N.  H.  312.  36  Atl.  558;  Sullivan  v.  Old 
Colony  R.  Co.  148  Mass.  119,  1  L.  R.  A. 
513,  18  N.  E.  678;  Johnson  v.  Louisville 
d  N.  R.  Co.  104  Ala.  242,  53  Am.  St. 
Rep.  39,  16  So.  75. 

A  passenger  honestly  supposed  by  the 
conductor  of  a  street  car  to  be  drunk, 
who  repeatedly  disobeys  the  request  of 
the  conductor  to  behave  himself,  and 
whose  conduct  is  annoying  to  other  pas- 
sengers, may  be  ejected  from  the  car 
without  rendering  the  company  liable 
therefor,  though  such  conduct  was 
caused  by  sickness,  and  not  by  intoxica- 
tion, especially  where  he  made  no  ex- 
planation or  complaint  of  sickness.     Le- 


mont  V.  Washington  d  G.  R.  Co.  1 
Mackey,  180,  47  Am.  Rep.  238.  And  see 
Briqqs  v.  Minneapolis  Street  R.  Co. 
52  Minn.  36,  53  N.  W.  lCfl9. 

But  it  cannot  be  presumed  that  be- 
cause a  man  was  drunk  and  offensive  to 
others,  as  well  by  his  demeanor  as  in 
his  appearance,  that  he  was  a  dangerous 
man,  and  that  his  presence  in  a  stree^^ 
car  imperiled  the  safety  of  others,  so  a.-* 
to  warrant  his  expulsion.  Putnam  v. 
Broadway  d  S.  Ave.  R.  Co.  55  N.  Y.  108. 
14  Am.  Rep.  190. 

And  mere  intoxication  upon  the  pari 
of  a  person  ejected  from  a  railway  train 
which  did  not  take  away  consciousness 
and  the  power  to  understand  the  dangei 
to  which  he  was  exposed,  or  deprive  him  > 
of  the  physical  capacity  to  take  care  of 
himself  and  avoid  danger,  does  not  re 
lieve  him  from  the  responsibi'ity  of  ex 
ercising  due  care  after  being  put  off,  in 
order  to  recover  for  an  injury  subse 
quently  received.  Johnson  v.  Louisville 
d  N.  R.  Co.  104  Ala.  242,  53  Am.  St. 
Rep.  39,  16  So.  75. 

^'Louisville  d  N.  R.  Co.  v.  Johnson,  108 
Ala.  02,  31  L.  R.  A.  372,  19  So.  51; 
Johnson  v.  Louisville  d  N.  R.  Co.  104 
Ala.  242,  53  Am.  St.  Rep.  39,  16  So.  75: 
Roseman  v.  Carolina  C.  R.  Co.  112  N. 
C.  709,  19  L.  R.  A.  327,  34  Am.  St.  Rep. 
524,  16  S.  E.  766;  Meyer  v.  Pacific  R. 
Co.  40  Mo.  151;  Louisville,  C.  d  L.  R. 
Co.  V.  Sullivan,  81  Ky.  624.  50  Am.  Rep. 
186.  And  see  Johnson  v.  Chicago,  R.  I. 
d  P.  R.  Co.  58  Iowa,  348,  12  N.  W.  329  > 
Conolly  V.  Crescent  City  R.  Co.  41  La. 
Ann.  57,  3  L.  R.  A.  133,  17  Am.  St. 
Rep.  389,  5  So.  259,  6  So.  526. 

Where  a  person  ejected  from  a  railway 
train  is  incapacitated  to  take  care  of 
himself,  and  so  continues  until  he  per- 
ishes, his  ejection  from  the  train  must 
be  regarded  as  the  proximate  cause  of 
his  death,  whether  he  was  incapacitated 
by  intoxication  or  by  being  stunned  by 


286  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  271 

occurring  from  subsequent  incapacity  to  a  person  ejected  from  its 
trains  at  a  time  when  he  was  able  to  take  care  of  himself.^^  And 
no  liability  is  incurred  by  the  ejection  of  a  trespasser  by  a  conductor 
who  was  not  infonned  of  his  intoxication  and  the  subsequent  peril 
attending  his  ejection.^'' 

272.  "With  relation  to  injuries  on  highways,  streets,  etc.  —  Being 
abroad  in  a  public  way  in  a  state  of  intoxication  is  not  negligence  as 
a  matter  of  law,  but  a  circumstance  from  which  a  juiy  may  find  the 
existjcuoe  of  negligence  as  a  fact.^'^      The  question  in  such  case  is 

the  fall  from  the  car.     Gill  v.  Rocliester  claim  imniuiiityfrom  the  rule  of  contrib- 

d  P.  R.  Co.  37  Hun,  109.  utory  negligence  because  he  was  drunk. 

But  the  death  of  a  person  struck  and  unless  such  negligence  or  want  of  care 
killed  by  a  str^t  car  cannot  be  presumed  upon  the  part  of  the  servants  of  the  rail- 
to  be  the  natural  and  proximate  result  road  company  appears  as  would  render 
of  the  expulsion  of  such  person  from  an-  it  liable,  notwithstanding  his  own  ncgli- 
other  car.  where  he  was  intoxicated  at  gence.  Rozitadosfskie  v.  International 
the  time,  but  not  so  drunk  as  to  be  de-  'cC-  G.  N.  R.  Co.  1  Tex.  Civ.  App.  487,  20 
prived  of  intelligence  or  unable  to  walk,  S.  W.  S72. 

and  there  was  no  reason  to  suppose  that        So,  where  a  passenger  having  delirium 

he  was  not  able  to  care  for  himself,  and  tremens  was  turned  over  by  the  carrier 

there  was  nothing  to  show  that  he  wa.s  to  the  overseer  of  the  poor  at  a  depot, the 

left   in  a  dangerous   place.     Edgcrly  v.  duty  of  the  carrier  is  fully  performed. 

Union  Street  R.  Co.   67   N.  H.  312,   36  Atcluson,  T.  &  8.  F.  R.  Co.  v.  Weher,  33 

All.  558.  Kan.  543.  52  Am.  Rep.  543,  6  Pac.  877. 

So.  in  Haley  v.  Chicago  &  N.  W.  R.        ^Louisville  &   N.  R.  Co.  v.  Johnson, 

Co.  21  Iowa,  15,  it  was  held  that  a  rail-  108   Ala.   02,   31   L.   R.   A.   372,    19   So. 

road    company    was   not   liable    for   the  51;    Gill  v.   Rochester  d  P.  R:   Co.   37 

death  of  a  man,  caused  by  a  subsequent  Hun,  109. 

train,  where  he  was  put  off  of  a  train  at  And  a  conductor  is  not  bound  to  act 
a  flag  station  where  there  were  only  upon  the  volunteered  opinio"n  of  a  pas- 
three  houses,  and  left  alone  on  a  dark  senger  as  to  the  physical  or  mental 
night,  although  he  was  in  such  a  condi-  state  of  a  drunken  man  who  has  been  ex- 
tion  from  intoxication  that  he  seemed  to  pelled  from  the  train,  where  he  has  no 
know  nothing;  the  death  having  hap-  reasonable  ground  to  believe  that  the 
pened  six  hours  later;  since  it  did  not  man  was  unable  to  find  a  place  where  he 
appear  that  the  expulsion  was  the  proxi-  would  be  safe.  Roseman  v.  Carolina  C. 
mate  cause  of  his  death.  R.  Co.  112  N.  C.  709,  19  L.  R.  A.  327,  34 

^"•Johnson  v.    Louisville  d   N.   R.    Co.  Am.  St.  Rep.  524,  16  S.  E.  766. 
104  Ala.  242,  53  Am.  St.  Rep.  39,  16  So.        Rut   evidence   that   a   passenger   in   a 

75;   Ham  v.  Delaivare  d  H.  Canal  Co.  railway  train  refused  in   a  nonsensical 

142  Pa.  617,  21  Atl.   1012;   Roseman  v.  way  to  pay  his  fare,  and  used  rude  and 

Carolina  C.  R.  Co.  112  N.  C.  709,  19  L.  obscene  language  to  the  conductor,  such 

R.  A.  327,  34  Am.  St.  Rep.  524,  10  S.  E.  as  no  one  but  a  crazy  or  drunken  man 

760;  Weeks  v.  New  Orleans  d  C.  R.  Co.  would  employ,   at  which  the  latter  did 

32  La.  Ann.  615;   Missouri  P.  R.  Co.  v.  not  become  angry,  tends  to  show  in  an 

Evans,  71   Tex.  361,   1   L.  R.   A.  476,  9  action  against  the  railroad  company  for 

S.  W.  325.   And  see  McClelland  v.  Lovis-  the  death  of  such  person,  alleged  to  have 

ville,   N.  A.  d  C.  R.   Co.   94   Ind.   276;  been    caused    by   his    ejection    from    the 

Louisville  d  N.  R.  Co.  v.  Logan,  88  Ky.  train,  that  the  conductor  had  knowledge 

232,  3  L.  R.  A.  80,  21  Am.  St.  Rep.  332,  of  his  intoxicated  condition.     Louisville 

10  S.  W.  655.  d  N.  R.  Co.  v.  Johnson,  108  Ala.  62,  31 

Where   a   passenger   upon   a   railroad  L.  R.  A.  372,  19  So.  51. 
train    arrives    at    his     destination    and        "Cramer  v.  Burlington,  42  lown,  Z15; 

leaves   the   train    and    returns    and    lies  Stuart   v.    Machias   Port,   48   Me.   477; 

down  in  such  proximity  to  the  railway  Thorp    v.     Brool-fteld,     36     Conn.     320; 

track  as  to  endanger  his  life  from  mov-  Hums  v.   Elba,   32  Wis.  005;   Ridley  V. 

ing  trains,   and   is   injured,    he    cannot  Lamh,  10  U.  C.  Q.  B.  354. 


§  272]  TORTS.  287 

wlietlier  or  not  the  intoxicated  person  was  disqualified  to  exercise  ordi- 
nary care.'*''  And  tlie  question  as  to  what  constitutes  ordinary  care 
is  one  for  the  determination  of  tlie  jury.^^  But  one  who  receives  au 
injury  on  a  highway  while  so  intoxicated  as  to  be  unable  to  manage 
himself  with  prudence  cannot  be  said  to  be  in  the  use  of  ordinary 
care;  and  if  the  absence  of  ordinary  care  contributed  to  his  injury, 
he  cannot  recover.®^  So,  neglig'ence  will  not  be  imputed  to  a  person 
injured  by  reason  of  negligent  driving,  while  voluntarily  riding  in  a 
conveyance  having  an  intoxicated  driver,  over  whom  he  had  no  con- 
trol.^^  But  where  the  drunkenness  of  a  person  injured  on  account 
of  existing  defects  in  a  sidewalk  in  any  way  contributes  to  his  injury, 
he  cannot  recover  therefor.^^ 

273.  Application  of  last  clear  chance  doctrine. —  The  rule  that  he 
who  has  the  last  clear  chance,  notwithstanding  the  negligence  of  the 
adverse  party,  is  deemed  solely  rosponsible  for  injuries  resulting 
from  his  failure  to  exercise  reasonable  care,  has  been  applied  to  cases 
of  contributory  negligence  through  intoxication.^^  Under  this  doc- 
trine, where  tlie  negligence  of  the  defendant  in  an  action  for  a  per- 
sonal injury,  M'hich  contributed  directly  to  the  injury,  occurred  after 
the  danger  in  which  the  injured  party  had  placed  himself  by  his  o^^^^ 
negligence  was,  or  by  tlie  exercise  of  reasonable  care  might  have  been, 
discovered  in  time  to  have  averted  the  injuiy,  he  is  liable,  however 
gross  the  negligence  of  the  injured  party  may  have  been  in  placing 
himself  in  such  a  position  of  danger. "^^     And  the  failure  of  a  railway 

^O'Hagan   v.   Dillon,    10   Jones   &    S.  from  the  to\\Tisliip  for  injuries  sustained 

458.  by   the    overturning    of   the   wagon   and 

^''Stuart  V.  Machias  Port,  48  Me.  477.  his     precipitation     down     an     unfenced 

*^Cassedy  v.  Stockiridge,  21  Va.  391.  bank.       Ilershey    v.     Mill    Creek     Tiop. 

And  intoxication  is  a  material   ques-  Road    (Pa.)     8    Cent.    Rep.    252,    9    Atl. 

tion  tending  to  show  want  of  ordinary  452. 

care.     Aurora  v.  Hillman,  90  111.  Gl.  And  a  city  is  not  liable  for  an  injury 

And  one  who  is  injured  while  intoxi-  to  a  woman  caused  by  her  being  thrown 
cated,  in  an  attempt  to  drive  over  a  from  a  wagon  driven  over  a  defective 
washout  extending  over  the  roadway,  crosswalk,  where  the  husband,  who  Avas 
cannot  recover  of  the  company,  where,  driving,  was  drunk  and  drove  too  fast, 
had  he  been  sober,  he  would  have  seen  the  crosswalk  not  being  so  out  of  re- 
it  and  escaped  injury;  since  in  such  pair  as  to  render  it  unsafe  to  careful  and 
casQ  voluntary  intoxication  is  negli-  sober  people.  Rock  Island  v.  Vanland- 
gence.  Woods  v.  Tipton  County,  128  schoot,  78  111.  485. 
ind.  298,  27  N.  E.  611.  «-/7ea/.i/  v.  Neio  York,  3  Hun,  708. 

"^Brannen  v.  Kokomo,  G.  d-  J.  Gravel  *'See  Pickett  v.  Wilmington  tG  W.  R. 

Road  Co.  115  Ind.   115,  7  Am.  St.  Rep.  Co.   117  N.  C.  616,  30  L.  R.  A.  257,  53 

411,  17  N.  E.  202.  Am.  St.  Rep.  611,  23  S.  £.  264:  Lloyd  v. 

But  one  who  travels  by  night  along  Albemarle  &  R.  R.  Co.   118  N.  C.   1010, 

a    country    road    in    a    wagon,    knowing  54    Am.    St.    Rep.    764,    24    S.    E.    805; 

the   driver   to   be   intoxicated   and   unfit  Werner  v.  Citizens'  R.  Co.  81  Mo.  308. 

to  drive,  is  guilty  of  contributory  neg-  "'TVcnier   v.    Citizens'   R.    Co.    81    Mo. 

Ugence,    and    cannot    recover    damages  308;    Lloyd   v.   Albemarle  d   R.    R.   Co. 


288 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  273 


engineer  to  maintain  a  reasonable  and  vigilant  lookout  along  \he  track 
renders  the  railway  company  liable  for  killing  a  human  being  upon 
the  track,  apparently  helpless  from  intoxication,  where  he  could  have 
seen  him  by  the  exercise  of  ordinary  care.^^  Even  under  this  rule, 
however,  the  negligence  of  the  intoxicated  person  Avill  be  deemed  the 
proximate  cause  of  the  injury,  unless  it  can  be  reasonably  inferred 
that  the  engineer  saw,  or  could,  by  the  exercise  of  ordinary  care,  have 
seen,  the  other's  perilous  condition.^*^ 

274.  Question  for  jury. —  Whether  the  intoxication  of  a  person  in- 
jured was  such  as  to  have  contributed  to  the  injury  is  a  question  of 
fact  for  tlie  jury;^'^  and  so  is  the  question  whether  the  removal  of 


118  N.  C.  1010,  54  Am.  St.  Rep.  764, 
24   S.  E.   805. 

Failure  of  a  street  car  driver  to  stop 
a  car  in  the  night,  when  he  could  see 
an  object  on  the  track  as  large  as  a 
sack  of  oats,  and  which  he  thought  re- 
sembled one,  or  a  bundle  of  hay,  is  such 
negligence  as  will  render  the  street  car 
company  liable  for  running  over  the  ob- 
ject, which  proved  to  be  a  man  who 
had  lain  or  fallen  there  in  a  state  of 
intoxication.  Werner  v.  Citizens'  R.  Go. 
81  Mo.  368. 

'^Pickett  V.  Wilmington  &  W.  R.  Co. 

117  N.  C.  616,  30  L.  R.  A.  257,  53  Am. 
St.  Rep.  611,  23  S.  E.  264;  Deans  v. 
Wilmington  d  W.  R.  Co.  107  N.  C.  686, 
22  Am.  St.  Rep.  902,  12  S.  E.  77; 
Werner  v.  Citizens'  R.  Co.  81  Mo.  368. 

And  the  evidence  of  a  railway  en- 
gineer whose  train  ran  over  and  killed 
a  man  lying  upon  the  track,  alleged  to 
have  been  drunk,  that  he  could  not  have 
seen  him  in  time  to  stop  the  train  be- 
fore reaching  him,  does  not  authorize 
the  court,  in  an  action  for  the  killing, 
to  take  from  the  jury  the  question  as 
to  whether  he  was  negligent  or  not  in 
not  stopping  the  train.  Fulp  v.  Roanoke 
&  8.  R.  Co.  120  N.  0.  525,  27  S.  E.  74. 

Though  a  person  lying  insensible  on 
a  railroad  track  is  drunk,  his  negli- 
gence is  not  deemed  concurrent,  wliere 
the  railroad  company's  servants,  by  the 
exercise  of  ordinary  care,  could  have 
seen  him  in  time  to  have  prevented  tlie 
injury.    Lloyd  v.  Albemarle  d  R.  R.  Co. 

118  N.  C.  1010,  54  Am.  St.  Rep.  764, 
24  S.  E.  805.  And  see  Yarnall  v.  St. 
Louis,  K.  C.  d  N.  R.  Co.  75  Mo.  575; 
Fulp  V.  Roanoke  d  8.  R.  Co.  120  N.  C. 
525,  27   S.   E.   74. 

"Norwood  V.  Raleigh  d  O.  R.  Co.  Ill 
N.  C.  236.  16  S.  E.  4. 

It   IB    incumbent    upon   the    plaintiff. 


under  this  rule,  in  an  action  for  the 
death  of  a  man  killed  while  lying  un- 
conscious from  intoxication  upon  a  rail- 
road track,  to  avoid  the  efTect  of  such 
act,  to  show  that  when  the  engineer 
could  first  have  seen  him  he  was  not 
only  on  the  track,  but  in  such  a  con- 
dition that  he  could  not  possibly  es- 
cape if  the  train  continued  on.  Ibid. 
"Houston  d  T.  C.  R.  Co.  v.  8ympkins, 
54  Tex.  615,  38  Am.  Rep.  632;  Cramer 
V.  Burlington,  42  Iowa,  315;  Stuart  v. 
Machias  Port,  48  Me.  477;  Baltimore  d 
0.  R.  Co.  V.  Botcler,  38  Md.  568 ;  Healey 
v.  New  York,  6  Thomp.  &  C.  92 ;  Newton 
V.  Central  Vermont  R.  Co.  80  Hun,  491, 
30  N.  Y.  Supp.  488;  Tompkins  v.  Os- 
u-ego,  40  N.  Y.  S.  R.  4,  15  N.  Y.  Supp. 
371;  Ditchett  v.  Spuytcn  Duyvil  d  P. 
M.  R.  Co.  5  Hun,  165;  O'Uagan  v.  Dil- 
lon,  10  Jones  &  S.  456 ;  Burns  v.  Elba, 

32  Wis.  605 ;  Maio  v.  King  Twp.  8  Ont. 
App.  Rep.  248. 

And  a  verdict  of  a  jury  in  an  action 
for  damages  for  negligence,  upon  the 
question  of  contributory  negligence  and 
drunkenness  of  the  plaintiff,  is  conclu- 
sive upon  appeal,  where  the  evidence 
was  conflicting,  and  the  question  was 
properly  submitted  to  the  jury,  under 
proper  instructions.  Salina  v.  Trosper, 
27  Kan.  544;   Utiion  P.  R.  Co.  v.  Diehl. 

33  Kan.  422,  6  Pac.  566;  Southwestern 
R.  Co.  V.  Hanker  son,  72  Ga.   182. 

And  the  jury,  in  an  action  for  caus- 
ing death,  in  which  drunkenness  is  al- 
leged as  showing  contributory  negli- 
gence, should  consider  the  nature  of  the 
drunkenness  in  determining  whether  or 
not  it  was  sufficient  to  rebut  the  pre 
sumptions  arising  from  the  love  of  life 
and  natural  instinct  for  self  [n'eserva- 
tion  possessed  by  all  persons.  Illinoit 
C.  R.  Co.  V.  Cragin,  71  111.   177. 


5  274]  TORTS.  289 

a  passenger  from  one  car  to  another  by  trainmen,  while  the  train  "was 
in  motion,  was  negligent  or  wrongful,  in  view  of  his  intoxicated  con- 
dition.*^^ And  the  extent  of  the  intoxication  of  a  passenger,  and  the 
conductor's  knowledge  of  his  condition,  and  the  safety  of  the  place 
at  which  he  is  ejected,  are  also  questions  for  the  jury.^^  Likemse 
the  question  whether  a  railway  engineer  might  have  discovered  a 
person  lying  drunk  and  helpless  upon  the  track,  and  might  have  saved 
his  life  without  putting  his  passengers  in  jeopardy,  is  one  for  the 
jury;^°  and  so  is  the  question  whether  proper  care  was  exercised  in 
expelling  a  drunken  and  disorderly  passenger  from  a  street  car;^* 
as  is  also  the  question  as  to  the  neglig'ence  of  a  master  in  knowingly 
employing  a  drunken  sei"vant;^^  and  that  as  to  the  negligence  of  a 
servant  in  remaining  in  a  master's  employment  after  discovering  a 
ooemployee's  habitual  drunkenness.^^  The  question  as  to  the  legal 
effect  of  the  intoxication,  however,  is  for  the  court '^* 

275.  Sufficiency  of  evidence  to  establish  negligence. —  Where  the  evi- 
dence of  negligence  in  an  action  therefor  is  evenly  balanced,  the  fact 
of  the  drunkenness  of  one  of  the  parties  might  turn  the  scale,  since 
a  man  partially' bereft  of  his  faculties  would  be  less  careful  than  if 
sober.'^^  And  evidence  of  the  infliction  of  an  injury,  together  with 
proof  of  intoxication  and  reckless  actions  upon  the  part  of  the  person 

'"Marquette  v.  Chicago  &  N.  W.  R.  Go.  night  of  the  accident  in  question,  doea 

33  Iowa,  563;   Guy  v.  New  York,  0.  d  not  tend  to  show  the  engineer's  intoxi- 

W.  R.   Co.  30  Hun,  399.  cation  at  tlie  time  of  the  collision  caus- 

^'Louisville  &  N.  R.  Co.  v.  Johnson,  ing  injury,  so  as  to  hold  the  railroad 
108  Ala.  62,  31  L.  R.  A.  372,  19  So.  51;  company  responsible  therefor.  North- 
Johnson  V.  Louisville  d  N.  R.  Co.  104  em  P.  li.  Co.  v.  Craft,  16  C.  C.  A.  175, 
Ala.  241,  53  Am.  St.  Rep.  39,  16  So.  75.  29  U.  S.  App.  687,  69  Fed.   124. 

™Deans  v.   Wilmington  d   W.  R.   Co.  And  a  verdict  for  the  plaintiff  in  an 

107  N.  C.  686,  22  Am.  St.  Rep.  902,  12  action  for  a  personal  injury  against  a 

S.  E.  77 ;  Clark  v.  Wilmington  d  W.  R.  railroad   company,   based   upon   the   de- 

Co.  109  N.  C.  430,  14  L.  R.  A.  749,  14  fendant's  negligence,  is  not  justified  by 

>».  E.  43.  evidence   of   a   witness   who   lived   near 

'^Mvrphy  v.  Union  R.  Co.   118  Mass.  the  railroad  track  that  the  accident  oc- 

228.  curred  about  ten  o'clock  at  night,  and 

''-Gilman  V.  Eastern  R.  Corp.  10  Allen,  that  he  was  in  his  room  when  he  heard 

233,  87  Am.  Dec.  635 ;   Michigan  C.  R.  the  train  passing,  and  heard  the  scream 

Co.  V.   Oilbert,  46  Mich.   176,  9  N.  W.  of  a  man,  and  the  wheels  jumping  on 

243.  the  rails,   and  that  he  got  out  within 

"Lamngr  v.   New   York   C.  R.   Co.  49  five  minutes,  and  found  the  person  run 

.V.  Y.  521,   10  Am.  Rep.  417;   Williams  over  seriously  injured,  and  that  he  did 

V.  Missouri  P.  R.  Co.   109  Mo.  485,   18  not   hear   the  ringing  of  any  bell,  and 

S.  W.   1098.  that   the   locomotive  was  headed   south 

''*Schuenke  v.  Pine  River,  84  Wis.  669,  with  one  or  two  cars  ahead  of  it,  where 

.')4  N.  W.   1007.  there  was  evidence  from  which  it  could 

'''Wynn  v.  Allard,  5  Watts  &  S.  525.  be  inferred  that  the  person  injured  was 

But  the  testimony  of  a  witness  that  intoxicated,    and     brought    the     injury 

he    had    seen    an    engineer    occasionally  upon  himself.      Church  v.  Northern  P. 

drink    a    glass    of    beer,    and    that    he  R.  Co.  31  Fed.  529. 
thought  he  saw  him  drink  one  on  the 
Vol.  I.  Med.  Jub  —19. 


290 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  275 


inflicting  it,  is  sufficient  to  sustain  a  recovery. '^^  And  evidence  of  lia- 
bitual  drunkenness  is  sufficient  to  warrant  an  inference  of  unfitness  to 
be  entrusted  with  responsible  duties  requiring  care  in  their  perform- 
ance.""^ So,  intoxication  in  any  degree  is  proper  to  be  considered  in  an 
action  for  damages  for  an  injury,  in  determining  the  question  of  con- 
tributory negligence;"^  though  intoxication  alone  does  not  establish 
contributory  negligence,  and  only  becomes  evidence  of  it  by  reason  of 
the  fact  that  the  intoxication  contributed  to  the  injury.''^  But  con- 
tributory negligence  may  be  shown  by  evidence  of  intoxication,  to- 
gether with  negligent  acts.^°  And  the  accident  itself  happening  un- 
der circumstances  under  which  it  would  not  have  happened  to  persons 


-"'Dahj  V.  Einz,  113  CaL  366,  45  Pac. 
693 ;  Williams  v.  Missouri  P.  R.  Co. 
109  ^lo.  485,  18  S.  W.   1098. 

'"Williams  v.  Missouri  P.  R.  Co.  109 
Mo.  4S.J,  18  S.  W.  1098. 

But  intoxication  at  tlie  time  of  an  in- 
jury cannot  be  inferred  from  proof  of 
mere  intemperate  habits.  Hampson  v. 
Taylor,  15  R.  I.  83,  8  Atl.  331,  23  Atl. 
732. 

'•^Thorp  V.  Brookfield,  36  Conn.  320; 
Alger  v.  Lowell,  3  Allen,  402 ;  Htuart 
V.  Machias  Port,  48  Me.  477:  Lynch 
V.  'New  York,  47  Hun.  524;  Eankinson 
V.  Charlotle.  C.  d-  A.  R.  Co.  41  S.  C.  1, 
19  S.  E.  206;  Houston  &  T.  C.  R.  Co.  v. 
Waller,  56  Tex.  331;  Fitzgerald  v. 
Weston,  52  Wis.  354,  9  N.  W.  13; 
Northern  P.  R.  Co.  v.  Craft,  16  C.  C.  A. 
175,  29  U.  S.  App.  687,  69  Fed.  124; 
Holmes  v.  Oregon  &  C.  R.  Co.  6  Sa^\y. 
290,  5  Fed.  523.  And  see  Cramer  v. 
Burlington,  42  Iowa,  315. 

And  it  should  appear  from  the  prepon- 
derance of  the  whole  testimony  that  the 
person  injured  was  not  intoxicated  at 
the  time  of  the  injury.  Cramer  v.  Bur- 
lington, 42  Iowa,  315. 

^"Lynch  v.  New  York,  47  Hun,  524; 
Northern  P.  R.  Co.  v.  Craft,  16  C.  C.  A. 
175,  29  U.  S.  App.  687,  69  Fed.  124. 
And  see  Holmes  v.  Oregon  &  C.  R.  Co. 
G  Sawy.  290,  5  Fed.  523. 

While  intoxication  of  a  person  in- 
jured at  the  time  of  the  injury  is  a  cir- 
cumstance to  go  to  the  jury  on  the 
question  of  contributory  negligence,  it 
is  not  conclusive,  and  does  not  change 
the  burden  of  proof  unless  the  intoxica- 
tion was  of  such  a  degree  as  to  render 
him  imbecile.  Seymer  v.  Lake,  66  Wis. 
651,  29  N.  W.  554.  And  see  Ford  v. 
Umatilla  County,  15  Or.  315,  16  Pac. 
33,  to  nearly  the  same  effect. 


And  the  mere  fact  that  the  plaintiil 
in  an  action  for  damages  for  falling 
into  an  excavation  had  indulged  in  in- 
toxicating liquors  sufficiently  to  make 
the  fact  perceptible  from  his  breath 
does  not  show  intoxication  which  dis- 
qualifies him  from  the  exercise  of  ordi- 
nary care.,  and  constitutes  contributory 
negligence  upon  his  part.  O'Hagau  v. 
Dillon,   10  Jones  &  S.  458. 

Nor  does  the  fact  that  a  person  in- 
jured from  a  defective  sidewalk  was 
just  returning  from  a  saloon  where  he 
got  his  dinner  bucket  filled  with  ale 
for  his  sick  wife,  and  he  himself  had 
drunk  a  glass  of  beer  with  a  fellow 
workman  who  had  drunk  several.  Au- 
rora v.   Hillman,   90   111.   01. 

And  evidence  that  a  person  contract- 
ing for  the  transportation  of  supplies 
to  his  land  smelled  whiskey  on  the  cap- 
tain of  the  ship  on  the  morning  pre- 
ceding the  injury  thereto,  and  that  of 
two  witnesses  that  on  one  occasion  he 
was  drunk  on  a  visit  to  that  plantation, 
but  not  when  on  duty,  is  not  sufficient 
to  show  that  the  disaster  occurred  with 
the  knowledge  of  the  owner  within  the 
meaning  of  U.  S.  Rev.  Stat.  §  4283 
(U.  S.  Comp.  Stat.  1901,  p.  2943),  pro 
viding  for  the  limitation  of  liability  ol 
the  owner  to  the  value  of  his  interest  in 
the  vessel  and  her  freight  if  the  loss 
was  occasioned  or  occurred  without  his 
privity  or  knowledge,  where  all  the  wit- 
nesses spoke  as  to  the  captain's  general 
sobriety,  and  the  owner  claimed  that 
he  had  never  known  lim  to  be  drunk, 
and  that  liquor  was  forbidden  on  his 
boats,  except,  possibly,  a  small  flask 
in  bad  weather.  llie  Anna,  47  Fed. 
525. 

'» See  Holland  v.  West  End  Street  R. 
Co.   155  Mass.  387,  29  N.  E.  622;   Des 


275] 


TORTS. 


291 


exercising  ordinary  care,  together  with  intoxication,  is  sufficient.*' 
But  contributory  negligence  which  will  justify  taking  the  case  from 
the  jury  is  not  established  upon  evidence  of  intoxication,  where  the. 
testimony  on  that  point  was  conflicting.^^ 


elms  V.  Baltimore  d  0.  R.  Co.  149  Pa. 
4.32,  24  Atl.  28.3;  Monk  v.  Utrecht,  104 
N.  Y.  5,52,  11  N.  E.  268;  Bradley  v.  Sec- 
ond Ave.  R.  Co.  8  Daly,  289. 

And  evidence  that  a  person  run  over 
by  a  railroad  train  while  attempting  to 
cross  the  tracks  was  intoxicated  entitles 
the  defendant,  in  an  action  for  the  in- 
jury, to  an  instruction  that  if  the  per- 
son injured  was  guilty  of  negligence, 
and  such  negligence  contributed  to  the 
injury,  she  is  not  entitled  to  recover. 
Brand  v.  Schenectady  &  T.  R.  Co.  8 
Barb.  368. 

^^McCracken  v.  Markesan,  76  Wis. 
499,  45  N.  W.  323;  Meyer  v.  King,  72 
Miss.  1,  35  L.  R.  A,  474,  16  So.  245. 


One  who  crosses  a  stream  upon  a  foot 
bridge  which  is  defective,  and  is  injured 
by  falling  from  the  bridge,  will  be  de- 
nied a  recovery  upon  the  ground  of  con- 
tributory negligence,  where  it  appears 
that  he  was  very  much  intoxicated,  and 
was  warned  that  the  bridge  was  not 
safe,  and  there  was  another  bridge 
which  was  safe  Avithin  a  few  feet  of 
that  from  which  tlie  accident  happened. 
Wood  v.  Andes,  11  Hun,  543. 

"■Northern  P.  R.  Co.  v.  Craft,  16  C. 
C.  A.  175,  29  U.  S.  App.  687,  69  Fed. 
124. 


CHAPTER  XIL 

OFFICES  AND  PLACES  OF  TRUST. 

I.  Lunacy. 

276.  Mental  incapacity  as  a  disqualification. 
IL  Drunkenness. 

277.  Drunkenness  as  a  ground  of  incapacity. 

I.  Lunacy. 

276.  Mental  incapacity  as  a  disqualification. —  Persons  who  are  ac- 
tually insane  or  idiotic  would  probably  be  deemed  ineligible  to  hold 
public  office,  even  in  the  absence  of  statutory  provisions  on  the  sub- 
ject;^ and  they  are  made  ineligible  by  statutory  enactment  in  most 
of  the  states.  But  such  provisions  do  not  exclude  persons  whose 
minds  are  merely  enfeebled  by  age  or  disease.^  And  a  person  who 
labors  under  hallucinations  or  delusions  is  not  excluded,  where  they 
do  not  relate  to  political  matters,  and  do  not  go  to  the  extent  of  inca- 
pacitating him  to  transact  ordinary  business.^  And  the  fact  that  an 
administrator  was  sent  to  an  insane  asylum  does  not  create  an  abso- 
lute vacancy  in  the  administratorship,  so  as  to  warrant  one  who  had 
renounced  his  right  in  the  former's  favor  to  retract  the  renunciation.'* 

II.  Drunkenness. 

277.  Drunkenness  as  a  ground  of  incapacity. —  The  test  as  to  habit- 
ual drunkenness,  which  will  warrant  the  removal  of  a  public  officer, 
is  whether  he  was  habitually  intemperate  whenever  the  opportunity 
was  offered.^     Particular  instances  of  drunkenness  and  of  improper 

^Sinks   V.   Reese,    19   Ohio   St.   306,   2  Where  an  officer  is  declared  a  lunatic 

Am.  Rep.  397.  by    a    court   of    competent    jurisdiction, 

The    insanity    of    a    sheriff,    officially  and  the  county  court  declares  his  office 

ascertained,    suspends    him    from    office,  vacant   for   that   reason,   the   order   de- 

and  terminates  the  agency  of  his  depu-  daring  the  vacancy  will  not  be  declared 

ties,    and    gives    his    sureties    the    same  invalid  at  his  instance  upon  being  dis- 

rights  they  would  have  if  he  were  dead,  charged  from  the  asylum  as  cured,  upon 

.S'omers  v.  Burke  County,  123  N.  C.  583,  the  ground  that  it  was    made    without 

68  Am.  St.  Rep.  834..  31  S.  E.  873.  notice,    since,    the    judgment    declaring 

^Sinks   V.    Reese,    19   Ohio   St.   306,  2  him  a  lunatic  being  valid,  no  notice  waa 

Am.  Rep.  397.  required.      Bowen  v.   Long,    19   Ky.   L. 

^Clark  V.  Robinson,  88  111.  498.  Rep.  1881,  44  S.  W.  647. 

'/Woore  v.  Moore,  68  Cal.  281,  9  Pac.  ''Tngg  v.  State,  49  Tex.  645.     And  9^ 

l&l.  Re  Peters,   10  Kulp,  93. 

292 


9  277] 


OFFICES  AND  PLACES  OF  TRUST. 


293 


and  unlawful  acts  are  immaterial  and  out  of  place  on  a  charge  of 
habitual  drunkenness,  in  a  proceeding  for  the  removal  of  an  officer 
on  that  ground,  though  they  miglit  be  used  as  evidence  on  the  ques- 
tion of  habitual  drunkenness.^  Nor  will  habits  of  intemperance  dis- 
qualify a  person  otherwise  entitled  thereto,  from  receiving  letters  of 
administration,  unless  they  are  such  as  to  make  him  an  habitual 
drunkard.'^  And  a  person  found  by  inquisition  to  be  an  habitual 
drunkard  is  not  thereby  disqualified  to  perform  the  office  of  executor 
or  administrator.®  Habitual  drunkenness,  however,  is  a  sufficient 
cause  for  the  removal  of  an  administrator,  under  a  statute  providing 
therefor,  even  in  the  absence  of  a  showing  that  it  rendered  him 
incapable  of  discharging  his  duties.®  And  fixed  habits  of  intemper- 
ance constitute  a  sufficient  ground  for  the  removal  of  a  guardian  of 
an  insane  person,^*'  Whether  one  otherwise  entitled  to  administra- 
tion is  incompetent  by  reason  of  drunkenness  and  improvidence  is 
a  question  of  fact  for  the  trial  court,  where  the  evidence  is  con- 
flicting.-^* 


'Trigg  v.  State,  49  Tex.  645. 

The  intoxication  of  a  public  officer, 
when  not  occurring  while  in  the  dis- 
charge of  an  official  duty,  is  not  a 
ground  for  removal  from  office.  State 
V.  Welsh,  109  Iowa,   19,  79  N.  W.  369. 

And  getting  drunk  four  times  in  a 
year,  each  time  in  a  different  month  of 
the  year,  does  not  constitute  such  habit- 
ual drunkenness  as  will  justify  the  re- 
moval of  the  drinker  from  office.  Trigg 
V.  State,  49  Tex.  645. 

But  the  voluntary  intoxication  of  a 
sheriff  while  engaged  in  tlie  perform- 
ance of  his  official  duties  is  such  wilful 
misconduct  on  his  part  as  to  justify 
his  removal  from  office,  especially  where 
it  results  in  his  allowing  a  prisoner 
committed  to  his  charge  to  escape  and 
remain  at  liberty  for  some  time.  State 
V.  Welsh,  109  Iowa,   19,  79  N.  W.  369. 

''Elmer  v.  Kechele,   1  Redf.  472. 

The  appointment  of  a  person  as  ad- 
ministrator will  not  be  disturbed  under 
a  statute  providing  that  no  person  is 
competent  to  serve  as  administrator 
who,  when  appointed,  is  adjudged  by 
the  court  to  be  incompetent  to  execute 
the  duties  of  the  trust  by  reason  of 
drunkenness,  upon  evidence  that  he 
drank  to  a  considerable  extent  at  times, 
where  it  appears  that  for  several  years 


he  had  conducted  a  l?rge  business  with 
such  care,  foresight,  and  attention  as  to 
acquire  the  reputation  of  being  a  con- 
servative, successful,  and  clear-headed 
business  man,  and  that  other  business* 
men  sought  his  counsel,  and  that  he 
had  attended  to  important  business 
matters  for  others,  and  that  his  use  of 
intoxicating  liquors  was  generally  tem- 
perate. Root  v.  Davis,  10  Mont.  228, 
25  Pac.  105. 

But  evidence  that  a  person  named  in 
a  will  as  an  executor  had  used  intoxi- 
cating liquors,  and  at  times  became  in- 
toxicated, and  that  he  was  under  their 
influence  a  great  part  of  the  time,  hav- 
ing occasional  sprees  ending  in  delirium 
tremens,  and  that  he  had  become  insolv- 
ent, is  sufficient  to  warrant  the  surro- 
gate in  refusing  to  issue  letters  testa- 
mentary to  him,  and  in  removing  him 
from  the  office  of  trustee,  on  the  ground 
of  incompetency  by  reason  of  improvi- 
dence and  habitual  drunkenness,  though 
during  the  pendency  of  tlie  proceeding 
his  indulgence  had  been  less  excessive 
than  before.      Re  Cady,  36  Hun,  122. 

'Sill  V.  M'Knight,  7  AVatts  &  S.  245. 

^Gurley  v.  Butler,  83  Ind.  501. 

^"Kcttletas  v.   Gardner,   1  Paige,  488. 

''Re  Connors,  110  Cal.  408,  42  Pac. 
90G. 


CHAPTER  XIIL 

SETTLEMENT  OR  DOMICIL. 

278.  Capacity  as  affecting  power  to  choose. 

278.  Capacity  as  affecting  power  to  choose. —  Insanity  need  not 
amount  to  complete  madness  to  render  a  party  unable  to  choose  a 
settlement  or  domicil;  in  such  case  the  jury  is  to  consider  whether 
the  mind  of  the  party  was  diseased  to  such  an  extent  as  to  deprive 
him  of  volition,  free  will,  and  the  power  of  choice,  so  as  to  take 
away  his  control  over  his  mind  and  actions.^  And  a  pauper  is  pre- 
sumed to  have  sufficient  intelligence  to  exercise  a  choice  with  regard 
to  his  residence,  until  the  contrary  is  conclusively  sho^vTi.^  One  who 
has  sufficient  mental  capacity  to  form  an  intention  and  to  make  a 
choice  as  to  his  place  of  abode,  and  goes  to  live  in  the  place  of  his 
choice  without  compulsion,  and  lives  there  for  the  period  prescribed 
by  law,  without  assistance  from  any  town,  acquires  a  settlement  in 
that  place,^  though  proceedings  for  the  appointment  of  a  guardian 
were  then  pending.^  And  where  the  lunacy  of  a  person  is  merely 
temporary,  and  not  permanent,  his  maintenance  is  chargeable  to  the 
parish  of  his  selection.^  A  person  without  sufficient  capacity  to 
marry  cannot  obtain  a  settlement  by  marriage.^ 

^Townsend  v.  Pepperell,  99  Mass.  40.  and  attend  church  and  behave  with  pro- 

A  child  whose  mental  capacity  is  such  priety,  though  she  was  not  capable  of 
that  she  is  incapable  of  exercising  any  taking  care  of  herself  and  making  con- 
choice  or  intention  in  regard  to  her  tracts,  and  providing  herself  with  a 
residence  is  not  emancipated  upon  at-  place  to  live.  Ludlow  v.  Landgrove, 
taining   her    majority,    where    she    con-  42  Vt.  137. 

tinues  to  reside  in  her  father's  family,  *TaIbot  v.  Chamherlain,  149  Mass.  57, 

and  would  take,  by  derivation,  a  settle-  3  L.  R.  A.  254,  20  N.  E.  305. 

ment    subsequently    acquired    by    him.  ^Reg.    v.    Manchester,    2    Jur.    N.    S. 

Topsham  v.  Chelsea,  60  Vt.  219,  13  Atl.  1205;    Hunslet   v.   Dewsherry    Union,   2 

861.  Jur.  N.   S.    1207,  note. 

^Topsham  v.  Chelsea,  60  Vt.  219,   13  Incipient  insanity  does  not  incapaci- 

Atl.  801.  tate    one    from    gaining    a    settlement. 

^Westmore   v.    Sheffield,    56   Vt.    239;  Bucldand  v.  Charlemont,  3  Pick.  173. 

Fayette  v.   Chesterville,   77   Me.   28,   52  ^Winsloto  v.  Troy,  97  Me.  130,  53  Atl. 

Am.  Rep.  741.  1008. 

A  residence  in  a  town  for  the  requi-  And  a  marriage  by  a  female  pauper 

site  period  will  give  a  woman  a   legal  with  a  man  so  void  of  urderstanding  aa 

settlement  though  she  was  weak  of  in-  to  be  incapable  of  making  a  valid  con- 

tellect,  but  capable  of  doing  the  coarser  tract  will  not  change  the  place  of  her 

iwork  about  a  kitchen,  and  of  knitting  settlement    from    that    of   her    nativity. 

and  sewing,   and   was   handy  at  taking  Middlehorough    v.    Rochester,    12   Massu 

cure  of  small  children,  and  could  read  303 

294 


CHAPTER  XIV. 

THE   STATUTE  OF  LIMITATIONS. 

I.   LUNACT. 

279.  Degree  of  incapacity  which  will  prevent  running. 
II.  Drunkenness. 

280.  Effect  of  incapacity  to  prevent  running. 

I.  Lunacy. 

279.  Degree  of  incapacity  which  will  prevent  mnningf. — The  men- 
tal incapacity  which  will  prevent  the  running  of  the  statute  of  limi- 
tations must  be  such  as  to  render  the  party  unable  to  understand  or 
ascertain  his  rights,  and  that  his  rights  have  been  trespassed  upon, 
and  that  such  trespass  will  eventually  destroy  them.^  And  in  case 
of  fraud  it  must  be  such  as  to  prevent  him  from  realizing  the  nature 
and  consequences  of  the  fraudulent  act,  and  preclude  him  from  taking 
the  necessary  steps  required  of  him  to  remedy  it.^  Old  age,  causing 
such  imbecility  as  to  render  the  party  incapable  of  transacting  busi- 
ness, is  sufficient  to  prevent  the  statute  of  limitations  from  running 
against  him.^     But  where  one  has  ascertained  the  facts  which  con- 

^Warliek  v.   Plonk,    103   N.   C.   81,   9  L.    ed.    260;    Crotcther   v.    Rowlandson, 

S.  E.  190;  Oliver  v.  Berry,  53  Me.  206,  27  Cal.  376. 

87  Am.  Dec.  547 ;  Clark  v.  Trail,  1  Met.  And    to    prove    that    fraud    was    con- 
(Ky.)   35;  Clarke  v.  Irwin,  63  Neb.  539,  cealed  within  the  meaning  of  a  statute 

88  N.  W.  783.  providing  that  the  cause  of  action  there- 
Sufficient     mental     ability     to     know    for  shall  accrue  at  the  time  of  its  dis- 

what  one   is  doing,   and   the  nature  of  covery,  it  is  sufficient  to  show  that  the 

the  act  done,  is  not  the  test  of  insanity  person  defrauded  was  such  an  imbecile 

which    will    affect   the    running   of    the  or  in  such  a  condition  of  mind  that  it 

statute    of    limitations.       Burnham    v.  was  scarcely  possible  that  he  could  have 

Mitchell,  34  Wis.  117.  discovered  it,  though  it  would  have  been 

The  mental  incapacity  which  will  pre-  an   unconcealed  act   if  the  condition   of 

vent    the    statute    of    limitations    from  his  mind   had   not  been   that  of  actual 

running  against  a  settlement  of  a  claim  lunacy.     Manhy  v.  Beuicke,  3  Kay  &  J. 

must  be  such  as  to  render  the  party  vm-  342. 

able    to    understand    that    the    relation  ^Porter  v.  Porter,  3  Humph.  586. 

of  debtor  and  creditor  existed  between  So,  being  cross,  cranky,  freakisli,  and 

himself   and   the   other   party,   and   the  peculiar   occasionally,  either   in   private 

amount  he  was  to  receive  in  satisfaction  or  in  public,  does  not  constitute  insan- 

of  the  indebtedness,  and  to  have  a  ra-  ity  within  the  meaning  of  a  statutory 

tional  idea  as  to  aU  the  circumstances  provision  that  an  action  may  be  brought 

of  the  case,  and  as  to  the  propriety  of  within  two  years  after  the  removal  of 

the  settlement.     Ibid.  disability.      Calumet  Electric  Street  R. 

-Wright   v.   Fisher,    65   Mich.    275,    8  Co.  v.  Mabie,  66  111.  App.  235. 

Am.  St.  Eep.  886,  32  N.  W.  605.      And  It  has  been  held  that  the  word  "in- 

see  Allore  v.  Jewell,  94  U.   S.  506,  24  ?ine,"  as  used  in  the  statute  of  limita- 

295 


296 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  279 


stitute  a  fraud,  and  knows  of  its  existence,  the  statute  begins  to  run, 
irrespective  of  the  degree  of  intelligence  possessed  by  him,  though 
he  may  not  have  enough  courage  and  independence  to  resist  hostile 
influences,  and  assert  his  rights.^  And  the  disability  which  will  af- 
fect the  running  of  the  statute  must  be  an  existing  one  at  the  time 
the  cause  of  action  accrues.^  To  render  insanity  a  disability  it  is  not 
necessary  that  it  should  have  been  judicially  determined.^  And  it 
may  consist  of  insane  delusion  as  well  as  permanent  insanity.' 

11.  Drunkenness. 
280.  Effect  of  incapacity  to  prevent  running. — The  incompetency 
from  intoxication  or  otherwise  which  will  exonerate  one  from  the 
consequences  of  his  own  laches,  and  exempt  him  from  the  operation 
of  the  statute  of  limitations,  must  be  an  incapacity  preventing  him 
from  realizing  the  nature  and  consequences  of  any  fraud  that  may 
have  been  practised  upon  him,  and  from  understanding  his  rights, 
and  precluding  him  from  taking  the  necessary  steps  to  right  the 
wrong  inflicted  upon  him.^  Mere  temporary  excitement  is  not  suffi- 


tions,  is  equivalent  to  the  term  non 
compos  mentis,  or  unsound  and  de- 
ranged mind,  aa  used  in  the  statute  of 
wills;  and  if  a  person  is  so  insane  as 
to  be  incapable  of  making  a  will  he 
should  be  considered  insane  within  the 
meaning  and  intent  of  the  statute  of 
limitations.  Burnham  v.*  Mitchell,  34 
Wis.  117. 

*Piper  V.  Hoard,  107  N.  Y.  67,  1  Am. 
St.  Rep.  785,  13  N.  E.  632.  And  see 
Warlick  v.  Plonk,  103  N.  C.  81,  9  S.  E. 
190. 

Legal  liabilities  may  be  enforced 
against  idiots  and  lunatics;  and  there- 
fore, the  fact  that  they  are  not  in  all 
respects  sul  juris  is  no  reason  for  ex- 
tending the  time  allowed  by  statute  for 
commencing  actions  against  them. 
Sanford  v.  Sanford,  62  N.  Y.  553. 

And  testimony  of  witnesses  that  a 
person  was  addled,  but  sometimes  had 
pretty  good  sense,  will  not  warrant  a 
court  in  announcing  its  conclusion,  in 
tlie  presence  of  a  jury,  that  he  was  in- 
sane, and  that  the  statute  of  limita- 
tions would  not  run  against  him.  As- 
hury  V.  Fair,  HI  N.  C.  251,  16  S.  E. 
467. 

"Griswold  v.  Butler,  3  Conn.  227; 
Clark  \.  Trail,  1  Met.  (Ky.)  35;  Jones 
V.  Perkins,  5  B.  Mon.  222;  ^harp  v. 
Slc])hcns'  Committee,  21  Ky.  L.  Rep. 
087,  52  S.  W.  979;  McCutcheon  v.  Cur- 
rier, 94  Me.  362,  47  Atl.  923;   Allis  v. 


Moore,  2  Allen,  306;  Piper  v.  Hoard, 
107  N.  Y.  67,  1  Am.  St.  Rep.  785,  13 
N.  E.  632;  Asbury  v.  Fair,  111  N.  C. 
251,  16  S.  E.  467;  Adamson  v.  Smith, 
2  Mill,  Const.  269,  12  Am.  Dec.  665; 
Lincoln  v.  IStorton,  36  Vt.  679;  Oliver 
V.  Pullam,  24  Fed.  127;  Doe  ex  dem. 
Griggs  v.  Shane,  4  T.  R.  306;  Cotterell 
V.  Button,  4  Taunt.  826,  14  Revised 
Rep.  675. 

Insanity  which  did  not  develop  until 
after  the  expiration  of  six  montlis  from 
the  time  of  an  accident  alleged  to  have 
caused  it  does  not  extend  the  period 
of  limitation  applicable  to  actions  for 
personal  injuries,  under  a  statutory  pro- 
vision for  such  extension  where  the  per- 
son entitled  to  bring  the  action  is  in- 
sane at  the  time  the  cause  of  action 
accrues.  Calumet  Electric  Street  R. 
Co.  V.   Mabie,  66  111.  App.  235. 

But  the  statute  of  limitations  will 
not  run  against  a  party  who  was  beaten 
by  another  to  such  an  extent  as  to  be- 
come deranged,  so  as  to  bar  an  action 
for  the  beating.  Sasser  v.  Davis,  27 
Tex.  656. 

'Lantis  v.  Davidson,  60  Kan.  389,  56 
Pac.  745.  And  see  Bawley  v.  Griffin 
(Iowa)   92  N.  \V.  113. 

'See  Uawley  v.  Giiffin  (Iowa)  82  N. 
W.  905. 

'Wright  V.  Fisher,  65  Mich.  275,  8 
Am.  St.  Rep.  886,  32  N.  W.  605. 

The  mere  fa«t  that  a  man  spent  all 


§  280] 


THE   STATUTE   OF   LIMITATIONS. 


297 


cient,  unless  the  party  is  deprived  of  his  reason  and  understanding." 
A  drunkard  is  not  an  incompetent  like  an  idiot  or  lunatic ;  he  is  sim- 
ply incompetent  upon  proof  that  his  understanding  was  clouded,  or 
his  reason  dethroned,  by  actual  intoxication  at  the  time.^"  So  far 
as  legal  capacity  is  concerned,  however,  it  is  immaterial,  on  the  ques- 
tion of  the  running  of  the  statute,  from  what  cause  such  a  state  of 
mind  arose,  whether  by  the  act  of  Providence  or  by  the  party's  own 
imprudence.^^ 


the  money  he  could  procure  in  gratify- 
ing an  inordinate  taste  for  liquor  does 
not  vfonstitute  a  sutlicient  incompetency 
to  relieve  him  from  the  consequences 
of  his  laches  in  not  proceeding  for  relief 
within  ten  years  after  a  deed  was  fraud- 
ulently  obtained   from   him.      Ibid. 

'Bliss  V.  Connecticut  &  P.  Rivers  R. 
Go.  24  Vt.  424. 

^"Wright  v.  Fisher,  65  Mich.  275,  8 
Am.  at.  Rep.  886,  32  N.  W.  605. 

"iJZtss  V.  Connecticut  &  P.  Rivers  R. 
Co.  24  Vt.  424. 

And  certiorari  will  lie  to  review  an 
award    of    commissioners    in    assessing 


damages  for  land  taken  in  the  construc- 
tion of  a  railroad  at  a  time  when  the 
owner  was  voluntarily  intoxicated, 
though  an  appeal  was  not  taken  within 
the  time  limited  by  law.      Ibid. 

A  direction  by  a  person  judicially 
found  to  be  an  habitual  drunkard,  to  a 
holder  of  a  note  against  him,  to  send 
it  to  a  designated  person,  who  would 
pay  it,  does  not  constitute  an  acknowl- 
edgment of  an  existing  debt  more  than 
twenty  years  old,  which  will  take  it 
out  of  the  statute  of  limitations.  Han- 
num's  Appeal,  9  Pa.  471, 


CHAPTER  XV. 

ACTIONS. 
281.  Competency  to  maintain. 

281.  Competency  to  maintain. —  JSTo  question  of  competency  of  a 
defendant  arises  when  an  action  against  him  results  in  his  favor.  The 
question  as  to  his  competency  to  defend  himself  when  judgment  is 
rendered  against  him  is  elsewhere  treated  ;^  and  when  a  guardian  or 
committee  has  been  appointed  for  him,  such  guardian  or  committee 
can  enforce  his  rights  under  the  direction  of  the  court;  but  when  no 
such  guardian  or  committee  has  been  appointed,  and  his  rights  are 
infringed,  there  is  a  question  as  to  his  competency  to  pursue  the  rem- 
edy prescribed  by  law,  though  it  has  been  but  slightly  considered  by 
the  courts.  The  rule  governing  it,  however,  seems  to  be  furnished 
by  a  recent  Georgia  case,^  holding  that  whether  one  absolutely  non 
compos  mentis  can  or  cannot,  in  his  own  name,  bring  and  maintain 
an  action,  one  who,  though  very  weak  in  mind,  has  enough  capacity 
to  understand  the  nature  of  a  particular  cause  of  action,  and  will 
enough  to  desire  to  bring  suit  thereon,  may  do  so  without  a  next 
friend  or  guardian. 

^Post,  chapter  xvi.,  Judgments.  without  a  nexb  friend  or  guardian,  if 

^Calhoun  V.   Mosly,    114   Ga.   641,   40  he  had  enough  mental  capacity  to  nn- 

S.  E.  714.  derstand  the  nature  of  his  cause  of  ac- 

The   facts   that   a   grantor    was   very  tion,    and    sufficient    will   to   desire    to 

old  and  feeble,  and  that  his  mind  was  bring  suit  thereon.      Ihid. 

affected   by   old    age,    that   he   had   not        But  a  woman  who  is  an  imbecile  and 

sufficient    mental    capacity    to    transact  incompetent  to  testify  cannot  institute 

business   or   make   valid   contracts,   and  and  prosecute  a  proceeding  in  bastardy. 

that  his  mind  had  been  so  affected  for  Btate  ex  rel.   Yilek  v.  Jehlik,  6G  Kan. 

years,  do  not  prevent  him  from  bringing  301,  61  L.  R.  A.  265,  71  Pac.  572. 

Buit  to  set  aside  a  deed  made  by  him, 

298 


CHAPTER  XVL 

JUDGMENTS. 


282.  Effect  of  incapacity  upon,  generally. 

283.  Effect  as  to  purchasers. 

284.  Degree  of  insanity  which  will  affect. 

285.  When  and  how  relieved  against. 


282.  Effect  of  incapacity  upon,  generally. —  A  judgment  against  a 
party  is  neither  void  nor  voidable  nor  impeachable  collaterally,  where 
jurisdiction  was  obtained,  merely  because  the  person  against  whom 
it  was  rendered  was  insane.-'  Judgments  at  law  and  decrees  in  equity 
may  be  properly  entered  against  persons  who  are  non  compos  mentis, 
when  they  are  properly  represented.^    And  they  are  as  binding  upon 


^Walker  v.  Clay,  21  Ala.  807;  Sacra- 
mento Sav.  Bank  v.  Spencer,  53  Cal. 
737;  Dtmn  v.  Dunn,  114  Cal.  210,  46 
Pac.  5;  Newell  v.  S7nith,  23  Ga.  170; 
Foster  V.  Jones,  23  Ga.  168;  Noel  v. 
Modern  Woodmen,  61  111.  App.  597; 
Maloney  v.  Dewey,  127  111.  395,  11  Am. 
St.  Rep.  131,  19  N.  E.  848;  Speck  v. 
Pullman  Palace  Car  Co.  121  111.  33,  12 
N.  E.  213;  Boyer  v.  Berry  man,  123  Ind. 
451,  24  N.  E.  249;  Dickerson  v.  Davis, 
111  Ind.  433,  12  N.  E.  145;  Woods  v. 
Brown,  93  Ind.  164,  47  Am.  Rep.  369; 
Allison  V.  Taylor,  6  Dana,  87,  32  Am. 
Dec.  68;  King  v.  Robinson,  33  Me.  114, 
54  Am.  Dec.  614;  Stigers  v.  Brent,  50 
Md.  214,  33  Am.  Rep.  317;  Heard  v. 
Sack,  81  Mo.  610;  Crow  v.  Meyersieck, 
88  Mo.  411;  Lamprey  v.  Nudd,  29  N.  H. 
299;  Weher  v.  Weitling,  18  N.  J.  Eq. 
441;  Crippen  v.  Culver,  13  Barb.  428; 
Sternhergn  v.  Schoolcraft,  2  Barb.  153: 
Robertson  v.  Lain,  19  Wend.  649 ;  Brit- 
tain  V.  Mull,  99  N.  C.  483,  6  S.  E.  382 : 
Johnson  v.  Pomeroy,  31  Ohio  St.  247: 
Henry  v.  Brothers,  48  Pa.  70;  Wood  v. 
Bayard,  63  Pa.  320;  Re  Eckstein,  1 
Clark  (Pa.)  224,  1  Pars.  Sel.  Gas.  59; 
Denni  v.  Elliott,  60  Tex.  337;  Ewing  v. 
Wilson,  63  Tex.  88;  Wynne  v.  Newman, 
75  Va.  816;  Pollock  v.  Horn,  13  Wash. 
626,  52  Am.  St.  Rep.  66,  43  Pac.  885; 
Wait  V.  Brookover.  35  W.  Va.  323,  29 
Am.  St.  Rep.  811,  13  S.  E.  1007;  Wiih- 
row    V.    Smithson,    37    W.    Va.    757,    19 


299 


L.  R.  A.  762,  17  S.  E.  316;  White  v. 
Hint  on,  3  Wyo.  753,  17  L.  R.  A.  66, 
30  Pac.  953 ;  Bramhall  v.  United  States, 
6  Ct.  CI.  238;  Beverletj's  Case,  4  Coke, 
123;   Mansfield's  Case,   12   Coke,   124. 

A  judgment  obtained  against  a  luna- 
tic is  merely  irregular,  and  not  void, 
though  obtained  by  one  who  had  knowl- 
edge of  the  insanity,  without  interpo- 
sition of  a  guardian.  Johnson  v.  Pom- 
eroy, 31  Ohio  St.  247;  McAlister  v.  Layi- 
caster  County  Bank,  15  Neb.  295,  18 
N.  W.  57. 

But  the  making  of  a  deed  to  bar  an 
entail  is  a  matter  in  pais,  and  does  not 
stand  on  the  same  footing  as  tlie  enter- 
ing of  judgments  in  a  court  of  record, 
and  evidence  is  admissible  to  show  that 
the  grantor  was  non  compos  mentis,  or 
that,  being  of  a  weak  mind,  he  was  im- 
posed upon,  for  the  purpose  of  avoiding 
sucli  deed.  Wood  v.  Bayard,  63  Pa. 
320. 

"King  v.  Robinson,  33  Me.  114,  54 
Am.  Dec.  614;  Ex  parte  Leighton,  14 
Mass.  207;  Foster  v.  Jones,  23^  Ga.  163; 
^[c\ees  V.  Thompson,  5  Bush,  686. 

Judgment  in  a'  suit  against  a  lunatic 
is  properly  rendered  against  the  lunatic 
himself,  and  not  against  his  guardian. 
Walker  v.  Clay,  21  Ala.  797. 

Where  no  guardian  has  been  ap- 
pointed for  an  adult  non  compos,  suit 
for  necessaries  must  be  prosecute'' 
against  him,   and   his   estate  riu^t  paj 


300 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


282 


them  and  tlieir  property,  where  jurisdiction  was  ol.iiained,  as  similar 
judgments  would  be  upon  a  sane  person.^  And  subsequent  insanity 
of  a  defendant  will  not  render  a  judgment  against  him  void  in  sucli 
case.*  Such  judgment  is,  nevertheless,  a  lien  upon  land.^  And  the 
property  of  a  lunatic  is  not  exempt  from  execution  issued  upon  a 
judgment  rendered  subsequent  to  the  establishment  of  his  sanity.^ 
iSTor  does  the  insanity  of  a  defendant,  either  present  or  subsequent, 
affect  the  right  to  enter  a  judgment  against  him  upon  a  po^^er  of 
attorney  to  confess  judgment,  a  power  thus  conferred  not  being  rev- 


any  judgment  that  may  be  recovered. 
Ex  parte  Northington,  37  Ala.  496,  79 
Am.  Dec.  67. 

And  the  fact  that  a  guardian  failed 
to  obtain  leave  from  a  court  of  equity 
to  institute  a  suit  against  his  lunatic 
debtor  renders  the  judgment  obtained 
neither  void  nor  -.oidable;  and  a  party 
acting  under  it  is  not  a  trespasser. 
Crippen  v.  Culver,  13  Barb.  428. 

^Bensieck  v.  Cook,  110  Mo.  173,  33 
Am.  St.  Rep.  422.  19  S.  W.  642;  King 
V.  Robinson,  33  Me.  114,  54  Am.  Dec. 
614.  And  see  Lamprey  v.  Nudd,  29 
N.  H.  299. 

And  a  judgment  against  a  lunatic 
cannot  '»e  set  aside  upon  the  ground  of 
absence  of  jurisdiction  of  the  person  of 
the  defendant,  because  at  the  time  he 
and  his  property  were  in  charge  of  a 
committee,  duly  appointed  by  the  court 
of  chancery.  Hiernbergh  v.  Schoolcraft, 
2  Barb.  153. 

But  before  a  lunatic  can  be  person- 
ally affected  by  a  judgment  upon  a  con- 
tract made  by  him,  it  is  necessary  that 
process  should  be  prayed  for  and  issued 
against  him,  and  served  upon  him;  and 
such  a  judgment  is  invalid  when  process 
was  prayed  for  and  issued  against,  and 
service  was  made  upon,  his  guardian 
only.  Scott  v.  Winningham,  79  Ga. 
492,  4  S.  E.  390. 

^Yeber  v.  Weitling,  18  N.  J.  Eq.  441; 
Crippen  v.  Culver,  13  Barb.  428;  Rob- 
ertson V.  Lain,  19  Werid.  649;  Fleming 
V.  Seeligson,  57  Tex.  524.  And  see 
Weaver  v.  Brenner,  145  Pa.  299,  21  Atl. 
1010. 

And  an  action  brought  by  a  guardian 
against  a  debtor,  pending  which  the 
debtor  is  adjudged  an  habitual  drunk- 
ard and  a  committee  is  appointed  for 
his  estate  by  proceedings  previously 
commenced  in  another  court,  will  not  be 
dismissed;  but  proceedings  therein  will 
be  stayed  until  the  reformation  of  the 


defendant,  and  the  discharge  of  his 
committee,  if  such  event  should  occur, 
so  as  to  permit  the  plaintiff  to  retain 
the  advantage  obtained.  Niblo  v.  Har- 
rison, 9  Bosw.  668. 

And  a  judgment  rendered  against  a 
person  who  is  subsequently  found  to  be 
of  unsoimd  mind  may  be  revived  by 
action  against  the  judgment  debtor  and 
his  committee.  McXees  v.  Thompson, 
5  Bush,  686. 

But  judgment  will  not  be  permitted 
to  be  entered  upon  a  warrant  of  attor- 
ney to  secure  a  retransfer,  upon  de- 
mand, of  stock  loaned,  after  which  the 
person  giving  the  warrant  becomes  and 
continues  to  be  insane,  and  was  so  when 
the  formal  demand  was  made  upon  him, 
as  such  a  demand  must  be  made  of  a 
person  capable  of  understanding  it. 
Capper  v.  Dando,  4  Nev.  &  M.  335,  2 
Ad.  &  El.  458.  1  H.  &  W.  11,  4  L.  J. 
K.  B.  N.  S.  97. 

=U'i77iroiu  V.  Smithson,  37  W.  Va.  757, 
19  L.  R.  A.  762,  17  S.  E.  316. 

But  the  general  rule  that  "judgments 
of  a  court  of  general  jurisdiction  are 
not  subject  to  collateral  attack  does  not 
apply  to  an  action  for  divorce,  brought 
against  a  wife  who  had  been  taken  by 
her  husband  to  another  state  and  con- 
fined in  an  asylum  therein,  and  sued 
by  him  while  thus  absent,  in  which 
judgment  was  obtained  upon  construc- 
tive service,  from  which  there  was  no 
appeal  or  means  by  which  it  might  be 
modified  or  vacated.  Newcomb  v.  New- 
comb,  13  Bush,  544,  26  Am.  Rep.  222. 

^Pollock  v.  Horn,  13  Wash.  626,  52 
Am.  St.  Rep.  66,  43  Pac.  885;  Ex  parte 
Lciqhton,  14  Mass.  207.  Contra,  Buck- 
Icr'v.  Reese,  100  Ky.  330,  Sd  S.  W.  492. 

And  knowledge  on  the  part  of  a  sher- 
iff having  an  execution  in  his  hands, 
lliat  proceedings  had  been  instituted  tc 
have  the  execution  debtor  interdicted, 
docs  not  warrant  him  in  staying  a  sale 


S  282] 


JUDGMENTS. 


301 


ocable.'^  The  rule  is  different,  however,  after  inquisition,  when  the 
statute  vests  the  effects  of  the  lunatic  absolutely  in  the  committee.* 
283.  Effect  as  to  purchasers. —  Title  to  land  sold  passes  upon  a  judg- 
ment and  execution  and  sale  thereunder,  though  the  judgment  debtor 
was  insane  at  the  time  of  its  rendition.^  A  sheriff's  deed  in  such 
case  is  not  void,  but  voidable  only.^"  And  in  a  proper  case  the  pur- 
chaser would  be  protected. ^^     Public  policy  forbids  that  a  judgment 


of  the  property  seized;  parties  desiring 
to  stop  the  sale  must  enjoin  it.  Ran  v. 
Katz,  20  La.  Ann.  4G3. 

So,  at  common  law  a  defendant  can- 
not be  discharged  from  arrest  or  impris- 
onment under  body  execution  issued  on 
a  demand  in  a  civil  suit,  on  the  ground 
that  he  was  insane  at  the  time  of  the 
arrest,  or  became  so  afterwards;  and 
under  a  statute  authorizing  the  dis- 
charge of  such  a  person  when  sent  to  an 
insane  asylum,  he  may,  on  being  restored 
to  sanity,  be  again  arrested  by  his 
guardian.  Bitslu  v.  Pettibone,  4  N.  Y. 
300. 

It  has  been  held,  however,  that  a  judg- 
ment creditor^  under  a  judgment  ren- 
dered against  an  insane  person,  will  not 
be  allowed  to  attach  either  the  person 
or  the  estate  of  the  judgment  debtor,  but 
will  be  obliged  to  apply  to  the  committee 
or  to  a  court  of  chancery  for  the  pay- 
ment of  his  debt;  and,  as  a  general  rule, 
will  then  be  required  to  establish  the 
justice  of  his  demand.  Robertson  v. 
Lain,  19  Wend.  650;  Brasher  v.  Cort- 
landt,  2  Johns.  Ch.  400;  Niblo  v.  Har- 
rison, 9  Bosw.  &68',  Re  Hopper,  5  Paige, 
490;  Re  Eckstein/ 1  Clark  (Pa.)  224,  1 
Pars.  Sel.  Eq.  Cas.  59;  WriglU's  Appeal, 
8  Pa.  57;  Melees  v.  Thompson,  5  Bush, 
686. 

And  that  an  attachment  issued  on  a 
judgment  will  be  dissolved  where  the  de- 
fendant had  been  reported  as  insane, 
without  lucid  intervals,  by  inquisition 
covering  the  date  of  the  judgment. 
Hnrmsiead  v.  Kingsley,  3  W.  N.  C.  64. 

^f>pencer  v.  Reynolds,  9  Pa.  Co.  Ct. 
249;  Hageman  v.  Salisberry,  74  Pa.  280; 
Person  v.  Warren,  14  Barb.  488;  Piggot 
V.  Killick,  4  Dowl.  P.  C.  287,  1  H.  &  W. 
518. 

But  a  bond  and  warrant  of  attorney 
executed  b^'  a  person  subsequently  found 
by  inquisition  to  have  been  at  the  time 
of  unsound  mind  and  incapable  of  gov- 
erning himself  or  managing  his  affairs, 
and  a  judgment  entered  thereon  by  con- 
fession, may  be  set  aside  upon  terms,  in 
the  discretion  of  the  court;  but  they  are 


not  absolutely  void,  and  will  not  be  set 
aside  unconditionally,  where  it  appear.s 
that,  for  several  years  prior  thereto,  the 
alleged  lunatic  had  been  permitted  to 
carry  on  business.  Person  v.  Warren, 
14  Barb.  488.  And  see  Crawford  v. 
Thomson,  161  111.  IGl,  43  N.  E.  617. 

And  the  committee  of  a  lunatic  is  not 
estopped,  by  a  judgment  rendered  upon 
a  note  containing  a  warrant  of  attorney 
to  confess  judgment  and  a  waiver  of  in- 
quisition, from  denying  the  validity  of 
the  title  of  a  purcliaser  thereunder, 
where  the  waiver  of  the  inquisition  was 
not  contained  in  the  warranty  or  made 
part  of  it,  and  was  the  act  of  the  de- 
fendant himself  when  he  was  incapable 
of  executing  a  valid  contract,  and  the 
purchaser  was  aware  of  his  incapacity, 
Hope  V.  Everhart,  70  Pa.  231. 

If  a  waiver  of  inquisition  as  to  exemp- 
tion is  a  part  of  a  judgment  rendered 
upon  a  note  containing  a  warrant  of  at- 
torney to  confess  judgment,  however,  the 
defendant,  though  a  lunatic,  is  bound  by 
it,  and  his  committee  cannot  question  ita 
validity  in  a  subsequent  action;  but  if 
it  was  not  a  part  of  the  judgment,  the 
defendant  is  not  bound,  and  the  com- 
mittee are  not  estopped  from  denying 
the  validity  of  a  purchaser's  title.    Ibid. 

"See  ante,  §  150. 

"Tomlinson  v.  Devore,  1  Gill,  348; 
Hageman  v.  Salisberry,  74  Pa.  280.   . 

A  judgment  in  partition  is  not  in- 
validated so  as  tf>  affect  the  title  of  a 
purchaser  thereunder,  by  the  fact  that 
one  of  the  parties  in  interest  Avas  insane 
and  resided  in  a  foreign  country^  and 
that  a  tutor  had  been  appointed,  who 
appointed  an  attorney  in  fact  to  repre- 
sent him  in  the  state,  since  the  tutor 
may  exercise  his  office  by  agent.  Vide 
V.  Volz,  47  La.  Ann.  42,  16  So.  568. 

^"Thomas  v.  HunsucJcer,  108  N.  C.  720, 
13  S.  E.  221. 

"Foster  v.  Jones,  23  Ga.  168. 

A  title  derived  from  a  purchase  under 
a  judgment  against  one  who  was  non 
compos  mentis  camiot  be  attacked  in  an 
action    of    trespass    to   try    title,    until 


302 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  283 


shall  be  questioned  on  account  of  the  insanity  of  the  judgment  debtor, 
as  against  an  innocent  purchaser  who  has  acquired  rights  under  it.^^ 
x\nd  he  will  be  held  to  have  acquired  title  thereunder,  in  the  absence 
of  anything  to  indicate  fraud  or  an  attempt  to  take  advantage  of  the 
situation. ^^  A  sale  of  land  of  a  lunatic  on  execution  issued  on  a  con- 
fessed judgment  is  properly  vacated  and  set  aside,  however,  where  the 
judgment  creditor  became  the  purchaser,  and  knew  the  debtor  was 
instme  and  unfit  to  transact  ordinary  business  when  he  secured  the 
confession. -^^ 

284.  Degree  of  insanity  which  will  affect. —  Unsoundness  of  mind 
amounting  to  incapacity  to  judge  or  understand  business  is  a  good 
cause  for  opening  a  default  and  setting  aside  a  judgment  rendered 
thereon.^'  And  the  court  will  not  proceed  to  render  judgment 
against  a  man  or  his  estate  where  it  is  certain  that  he  has  no  capacity 
to  care  for  himself  or  to  employ  someone  else  to  do  it  for  him.^^  But 
mere  eccentricity  or  extravagant  and  unreasonable  notions  upon  the 
part  of  the  judgment  debtor  will  not  affect  the  validity  of  a  judg- 


such  judgment  is  reversed  or  set  aside 
by  some  direct  proceeding  instituted  for 
that  purpose.  Ewing  v.  Wilson,  63  Tex. 
88. 

"Dun7i  V.  Dunn,  114  Cal.  210,  46  Pac. 
5;  Crawford  v.  Thomson,  161  111.  161,  43 
N.  E.  617;  Heard  v.  Sack,  81  Mo.  610. 

^'Rau  V.  Katz,  26  La.  Ann.  463. 

^*Cran-ford  v.  Thomson,  161  111.  161, 
43  N.  E.  617. 

But  knowledge  upon  the  part  of  a  pur- 
cha-ser  under  a  judgment  entered  upon  a 
note  containing  a  warrant  to  confess 
judgment,  and  waiver  of  inquisition,  of 
facts  showing  that  the  judgment  debtor 
was  insane  and  incapable  of  executing  a 
valid  waiver,  must  be  clearly  established 
by  evidence  before  his  title  is  declared 
void.     Hope  v.  Everhart,  70  Pa.  231. 

'^McClain  v.  Davis,  77  Ind.  419;  Gar- 
retson  v.  Hubbard,  110  Iowa,  7,  81  N.  W. 
174;  Litchfield's  Appeal,  28  Conn.  127, 
73  Am.  Dec.  662 ;  Speck  v.  Pullman  Pal- 
ace Car  Co.  121  111.  33,  12  N.  E.  213; 
Wynne  v.  Neuman,  75  Va.  816. 

An  elderly  woman  having  but  little 
knowledge  of  the  world  or  of  business, 
who  could  neither  read  nor  write,  should 
be  relieved  from  a  judgment  against  her 
upon  default  in  foreclosure,  where  she 
did  not  understand  the  summons  when 
it  was  read  to  her  or  know  what  it 
meant,  or  that  she  had  any  interest  in 
the  matter,  when  she   had  a  good   and 


valid  defense.  Adams  v.  Citizens'  State 
Bank,  70  Ind.  89. 

^''Leach  v.  Marsh,  47  Me.  548,  78  Am. 
Dec.  503;  Litchfield's  Appeal,  28  Conn. 
127,  73  Am.  Dec.  662. 

Melancholy  under  which  a  person 
labors  will  excuse  inattention  to  his  af- 
fairs, and  authorize  relief  against  judg- 
ments obtained  against  him  during  such 
a  state  of  mind,  though  he  may  not  be 
so  absolutely  insane  as  to  avoid  his  con- 
tracts.    Tabb  V.  Gist,  6  Call   (Va.)   279. 

And  a  man  who  was  eccentric,  erratic, 
and  peculiar  in  his  behavior,  and  who 
entertained  a  fixed  idea  that  there  was 
no  power  to  tax  his  property,  and  that 
his  title  could  not  be  lost,  pursuant  to 
which  he  made  no  effort  to  pay  taxes,  is 
so  incapacitated  as  to  warrant  the  set- 
ting aside  of  a  judgment  for  taxes  and 
tax  deeds  of  his  propertj%  and  the  giv- 
ing of  permission  to  his  heirs  to  redeem 
it.  Hawley  v.  Griffm  (Iowa)  92  N.  W. 
113. 

And  a  proceeding  for  the  condemna- 
tion of  land  will  not  be  sustained  where 
it  appears  that  the  owner  was  of  un- 
sound mind,  and  not  competent  to  elect 
whether  the  condemnation  should  be  for 
twenty  years  or  in  fee,  under  a  statute 
authorizing  such  election,  where  such 
election  was  not  made  by  his  committee. 
Sullivan  v.  Wilson,  101  Kv.  427,  41  S. 
W.  260. 


284] 


JUDGMENTS. 


303 


ment  against  him;^'^  nor  will  feeble  health,  though  the  mind  is 
affected  by  it;^^  nor  will  delusions  and  hallucinations/ °  or  partial  in- 
sanity with  respect  to  particular  matters  ;^*^  though  the  rule  is  dif- 
ferent where  the  partial  derangement  relates  to  the  subject-matter  of 
the  judgmenc.^^  The  test  is  capacity  to  understand  and  comprehend 
the  fact  and  result  of  the  legal  proceedings.^^  And  to  annul  a  judg- 
ment upon  the  ground  of  insanity,  the  evidence  should  be  as  con- 
(dusive  as  is  required  to  justify  a  decree  of  interdiction.^"^  And  to 
affect  the  proceedings  or  judgment,  it  must  have  existed  during  the 
continuance  of  the  trial.^^ 

285.  When  and  how  relieved  against. —  A  judgment  or  decree  ren- 
dered against  a  lunatic  may  be  opened  within  the  time  limited  by 
law,  to  admit  a  valid  defense."^  And  a  writ  of  error  or  an  appeal 
is  the  proper  remedy  where  the  record  of  a  judgment  shows  that 
the  judgment  debtor  was  insane  at  the  time  it  was  rendered.^^  And 
the  fact  that  a  person  against  whom  a  suit  was  commenced  was  in- 


"Covas  V.  Bertoulin,  44  La.  Ann.  683, 
11   So.  143. 

^^Wynne  v.  'Newman,  75  Va.  816. 

^^Covas  V.  Bertoulin,  44  La.  Ann.  683, 
11    So.    143. 

-"Speck  V.  Pullman  Palace  Car  Co.  121 
111.  33,  12  N.  E.  213. 

'^Horner  v.  Marshall,  5  Munf.  466. 

A  man,  though  one  of  intelligence  on 
general  subjects,  who  was  wholly  irra- 
tional and  uncontrollable  as  to  business 
transactions  connected  with  the  right  of 
the  civil  government  to  impose  taxes, 
and  the  obligation  of  the  citizen  to  sub- 
mit thereto,  deeming  it  sinful  to  pay 
tribute  to  temporal  powers,  is  entitled  to 
protection  against  a  judgment  for  taxes 
assessed  against  him.  Heard  v.  Sack,  81 
Mo.  610. 

'■^Spurlock  V.  Noe,  19  Ky.  L.  Rep. 
1321,  39  L.  R.  A.  775,  43  S.  W.  231. 

The  test  of  mental  incapacity  which 
will  warrant  setting  aside  a  judgment 
for  taxes  is  whether  the  tax  debtor  had 
a  sufficiently  sound  mind  to  understand. 
in  a  reasonable  inanner,  the  nature  and 
elTect  of  his  conduct  with  reference  to 
the  matter.  Eaioley  v.  Griffin  (lovva) 
92  N.  W.  113. 

-^Govas  V.  Bertoulin,  44  La.  Ann.  683, 
11  So.  143. 

A  judgment  against  an  insane  person, 
and  a  sale  of  real  estate  in  satisfaction 
thereof,  will  not  be  set  aside  long  after- 
wards, on  the  ground  of  his  insanity, 
where  he  was  going  at  large  and  attend- 
ing to  his  own  affairs  without  objection 
up  to  the  time  of  the  sale,  and  upon  ap- 


pointment of  a  committee  for  him,  two 
years  later,  no  steps  were  taken  to  set 
aside  the  judgment,  although  he  had  no 
other  property.  Spurlock  v.  Noe,  19  Ky. 
L.  Rep.  1321,  39  L.  R.  A.  775,  43  S.  W. 
231. 

And  permitting  one's  propertj*  to  be 
sold  und»r  a  judgment  for  taxes,  where 
they  are  high,  and  the  taxes,  with  pen- 
alties and  interest,  nearly  equal  the 
market  value  of  such  lands,  does  not 
establish  insanity  upon  the  part  of  a 
person  not  having  the  means  with  which 
to  pay  them.  Eawley  v.  Griffin  (Iowa) 
82  N.  W.  905. 

''^Butters  v.  Comyns,  81  111.  App.  418. 

■'■'Whiie  V.  Hinton,  3  Wyo.  753,  17  L. 
R.  A.  66,  30  Pac.  953;  Dickerson  v. 
Davis,  111  Ind.  433,  12  N.  E.  145;  Glass 
V.  nUberq,  1  Pa.  Dist.  R.  621;  Ash  v. 
Conyers,  2  Miles  (Pa.)  94;  Toicnsend  v. 
Price,  19  Wash.  415,  53  Pac.  668. 

The  fact  that  an  insane  person's 
guardian  redeemed  his  land  from  an  exe- 
cution sale  does  not  affect  the  right  of 
the  administrator  of  the  insane  person 
to  have  a  default  set  aside  and  judgment 
opened;  such  redemption  having  been 
made  to  save  the  property  of  the  ward. 
Dickerson  v.  Davis,  111  Ind.  433,  12  N. 
E.   145. 

■\illison  v.  Taylor,  6  Dana,  87,  32  Am. 
Dec.  68;  Lamprey  v.  Nndd,  29  N.  H. 
299;  Re  Hopper,  5  Paige,  491. 

An  appropriate  remedy  where  judg- 
ment had  been  rendered  against  an  in- 
sane person  of  wliom  the  court  acquired 
jurisdiction    but    failed    to    appoint    a 


304 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  285 


sane,  and  that  he  so  continued  until  judgment  was  rendered,  is  good 
cause  for  the  reversal  of  the  judginent,^^  or  for  a  summary  applica- 
tion for  relief  in  the  court  in  which  it  was  obtained.^®  Where  there 
is  no  remedy  at  law,  and  the  judgment  was  improperly  recovered  for 
claims  not  justly  due,  a  bill  in  equity  will  lie  for  relief  against  it  or 
to  restrain  the  proceeding.^^  In  relieving  from  a  judgment  against 
an  insane  person,  however,  equity  will  require  justice  to  be  done  by 


puardian  ad  litem  when  the  general 
guardian  failed  to  appear  is  by  proceed- 
ings in  error  and  not  by  original  action 
to  vacate  the  judgment.  McAlister  v. 
Lancaster  County  Bank,  15  Neb.  295,  IS 
X.  W.  57. 

But  a  writ  of  error  on  a  scire  facias 
to  revive  a  judgment  brings  up  only  the 
proceedings  in  the  scire  facias,  where 
the  record  of  the  first  judgment  was  not 
before  the  court,  except  so  far  as  it  was 
exhibited  in  replication  to  the  plea  of 
iiul  tiel  record.  Henry  v.  Brothers,  43 
Pa.  70. 

""Lamprey  v.  "Sudd,  29  N.  H.  299; 
Leach  v.  Marsh,  47  Me.  548,  74  Am.  Dec. 
503;  Demelt  v.  Leonard,ld  How.  Pr.  142. 

Judgments  confessed  by  an  insane  per- 
son, and  a  sale  under  execution  thereon 
to  the  person  in  whoso  favor  the  con- 
fession was  made,  are  properly  set  aside; 
but  will  be  allowed  to  stand  where  the 
sale  was  made  to  a  third  party  having 
no  knowledge  of  the  invalidity  of  the 
judgment  or  of  the  insanity  of  the  judg- 
ment debtor.  Crauford  v.  Thomson,  101 
111.  161,  43  N.  E.  G17. 

'■^Demelt  v.  Leonard,  19  How.  Pr.  142; 
Adler  v.  State,  35  Ark.  517.  37  Am.  Rep. 
48;  Allison  v.  Taylor,  6  Dana,  87,  32 
Am.  Dec.  68;  Heard  v.  Sack,  81  Mo.  610. 

A  judgment  against  an  insane  person 
may  be  set  aside  under  a  statute  provid- 
ing for  relief  from  a  judgment  taken 
throiigh  mistake  or  inadvertence,  though 
there  had  been  no  judicial  determination 
of  insanity.  Judd  v.  Gray,  156  Ind.  278, 
59  N.  E.  849. 

But  a  writ  of  error  coram  nobis  or  a 
motion  in  lieu  thereof  is  not  a  proper 
process  to  reverse  a  judgment  against  a 
person  who  was  insane  at  the  time  of  its 
rendition  where  there  was  no  suggestion 
of  his  insanity  in  the  record  of  the  judg- 
ment; the  remedy  in  such  case  is  by  ac- 
tion in  equity.  Wilhroiv  v.  Smithsoi, 
37  W.  Va.  757,19L.  R.A.762,17  S.E.31(i. 

And  the  plaintifl'  in  an  action  foreclos- 
ing a  mortgage  executed  by  a  husband 
and  wife,  in  which  the  wife  appeared 
and  answered  in  her  own  riglit  in  behalf 


of  her  insane  husband,  who  takes  issue 
on  such  answer  and  voluntarily  goes  lo 
trial  thereon  without  objection,  cannot 
raise  such  objection  by  motion  in  arrest 
of  judgment.  Yount  v.  Turnpaugh,  33 
Ind.  46. 

Andita  querela  will  lie  to  set  aside  a 
judgment  rendered  upon  a  writ  issued 
bj'  a  justice  of  the  peace  against  one  who 
was  insane  and  under  guardianship  at 
the  time^  since  such  justice  has  no  juris- 
diction, and  in  such  a  case  cannot  confer 
it.     Miller  v.  Potter,  54  Vt.  267. 

'^Demelt  v.  Leonard,  19  How.  Pr.  142; 
Re  Hopper.  5  Paige,  491 ;  Sternhergh  v. 
Schoolcraft,  2  Barb.  153;  Crippen  v. 
Culver,  13  Barb.  428;  Robertson  v.  Lain, 
19  Wend.  050;  Clarke  v.  Dunham,  4 
Denio,  262;  Maloney  v.  Dewey,  127  111. 
395,  11  Am.  St.  Rep.  131.  19  N.  E.  848; 
Dickerson  v.  Davis,  111  Ind.  433,  12  N. 
E.  145;  Re  Eckstein,  1  Clark  (Pa.)  224, 
1  Pars.  Sel.  Cas.  59;  Pollock  v.  Horn, 
13  Wash.  626,  52  Am.  St.  Rep.  66,  43 
Pac.  885.  But  see  Stigers  v.  Brent,  50 
Md.  214,  33  Am.  Rep.  317. 

Unless  a  judgment  against  a  lunatic 
is  obtained  by  the  appointment  of  a  com- 
mittee for  him,  it  is  within  the  power  of 
the  chancellor  to  restrain  the  enforce- 
ment of  the  claim  against  him.  Re  Dela- 
hunty,  28  Abb.  N.  C.  245,  18  N.  Y.  Supp. 
395. 

And  an  action  will  lie  to  set  aside  a 
tax  deed  made  under  a  judgment  for  un- 
paid taxes,  though  it  was  regular  on  the 
face  of  the  record,  where,  at  the  time 
of  the  accruing  of  the  taxes,  as  well  as 
at  the  time  of  the  service  upon  the  owner 
and  the  rendition  of  judgment  and  mak- 
ing of  the  sale,  he  was  of  unsound  mind 
and  incapable  of  transacting  business. 
Heard  v.  Sack,  81  Mo.  610. 

So,  it  is  a  sufficient  groimd  in  equity 
for  a  perpetual  injunction  against  a 
judgment  for  slander  that,  at  the  time 
of  speaking  the  defamatory  words,  and 
when  judgment  was  rendered,  the  defend- 
ant was  insane  or  deranged  on  tlie 
subject  to  which  such  words  related. 
Uorner  v.  Marshall,  5  Munf.  466. 


285] 


JUDGMENTS. 


30& 


way  of  payment  of  whatever  is  due.^'*  And  it  is  necessary  to  show 
such  fraud  or  unfairness  that,  in  equity  and  good  conscience,  the 
judgment  should  not  stand.^^  ISTor  will  relief  be  granted  unless  it 
appears  that  the  defendant  was  not  represented,'"'-  and  that  he 
was  insane  at  the  time  of  the  judgment  or  decree.*'^  It  is  optional 
with  the  court,  in  a  proceeding  to  avoid  a  judgment,  whether 
it  will  submit  issues  to  the  jury  or  not;  and  it  may  or  may  not  adopt 
the  finding  of  the  jury,^^ 


And  the  constitutional  provision  that 
insane  persons  shall  not  be  barred  of 
their  rights  of  property  by  adverse  pos- 
session of  less  than  seven  years  from  and 
after  the  removal  of  the  disability  does 
not  apply  to  an  action  to  have  a  judg- 
ment vacated  because  of  the  insanity  of 
the  judgment  debtor.  Fleming  v.  Heelig- 
son,  57  Tex.  534. 

A  judgment  and  subsequent  proceed- 
ings thereon  will  not  be  set  aside  in  a. 
court  of  law  for  irregularitj',  on  the 
ground  that  a  judgment  debtor  had  been 
found  by  inquisition  to  be  a  lunatic  or 
an  habitual  drunkard;  the  committee 
should  apply  to  a  court  of  chancery  for 
relief.    Clarke  v.  DtinJuim,  4  Denio,  2G2. 

A  court  of  chancery  has  no  power, 
however,  to  annul  a  judgment,  and  set 
aside  a  verdict  of  a  jury,  and  order  a 
new  trial,  in  an  action  at  law,  on  the 
ground  that  the  judgment  debtor  was  in- 
sane; it  may  act  on  the  parties,  but  not 
directly  on  the  judgment,  nor  on  the 
court  which  rendered  it.  Wynne  v. 
Newman,  75  Va.  81G. 

And  an  action,  cannot  be  maintained 
by  the  guardian  of  a  lunatic  for  relief 
against  a  judgin^nt  rendered  against  a 
former  guardian  of  the  lunatic,  through 
excusable  neglect,  where  the  ward  was 
not  a  necessary  party  to  the  action  in 
which  it  was  rendered.  Jones  v.  Groicell, 
143  Ind.  218,  42  N.  E.  612. 

'"hitch field's  Appeal,  28  Conn.  127,  73 
Am.  Dec.  G62;  Loomis  v.  Spencer,  2 
Paige,   153. 

One  who  sues  a  lunatic  for  a  debt,  and 
obtains  judgment  at  law.  must  give  up 
his  advantage,  and  pay  his  own  costs,  be- 
fore a  court  of  chancery  will  interfere 
for  his  relief.     Re  Heller,  3  Paige,  19f). 

The  fact  that  a  liolder  of  a  note  made 
by  an  insane  person  was  an  endorsee  for 
value,  without  notice,  does  not  affect  the 
maker's  right  to  relief  under  a  statute 
pro"^(ding  for  relief  against  mistake  or 
inf>liVertence.  Dickerson  v.  Davis,  111 
Iml  433,  12  N.  E.  145. 

Vor,.  I.  iMicD.  .luR.— 20. 


•■^Johnson  v.  Pomeroy,  31  Ohio  St. 
247;  Jones  v.  Croicell,  143  Ind.  218,  42 
N.  E.  612;  Woods  v.  Brown,  03  Ind.  164, 
47  x\m.  Rep.  3G9 :  Hawley  v.  Griffln 
(Iowa)  97  N.  W.  96;  Crippen  v.  Culver. 
13  Barb.  428;  Branihiirs  Case,  6  Ct! 
CI.  238.  See  also  L'Amoureux  v.  Crosby, 
2  Paige,  422,  22  Am.  Dec.  655. 

The  rule  that  in  a  foreclosure  suit  the 
chancellor  will  decree  a  sale  of  the  whole 
premises  when  the  defendants  stand  by 
and  do  not  suggest  that  the  mortgaged 
premises  greatly  exceed  in  value  the 
amount  of  the  mortgage  debt  does  not 
apply  where  any  of  the  defendants  were 
nan  compos  mentis,  since  in  such  case 
all  tlie  protection  will  be  extended  them 
of  which  a  sane  adult  could  avail  hiin- 
.self.  Eslava  v.  Lepretre,  21  Ala.  504,  56 
Am.  Dec.  2u6. 

''-Henderson  v.  Mitchell,  Bail.  Eq.  113, 
21  Am.  Dec.  526;  Jones  v.  CroncU,  143 
Ind.  218,  42  N.  E.  612;  Finzer  v.  Necin, 
13  Ky.  L.  Rep.  773,  18  S.  W.  367. 

^^Broicn  v.  Rent  fro,  57  Tex.  327. 

^*Heard  v.  Sack,  81  Mo.  610. 

Under  Ky.  Civil  Code,  §  520,  provid- 
ing that  in  a  proceeding  to  vacate  or 
modify  a  judgment,  proceedings  shall  be 
the  same  as  those  in  the  action  in  which 
the  judgjnent  was  rendered,  the  plaintiff 
in  an  action  to  vacate  a  judgment  ren- 
dered in  an  equity  action  is  entitled  to 
a  jury  trial  on  tlie  question  of  the  sound- 
ness of  his  mind  at  the  date  of  the  par- 
ticular transaction  involved.  Small  v. 
Reeves,  104  Ky.  289,  46  S.  W.  72G,  Re- 
versing 37  S.  W.  682. 

One  who  proceeds  with  the  enforce- 
ment of  a  judgnient  against  an  insane 
person  with  knowledge  of  proceedings  in- 
stituted by  the  detendant  to  be  relieved 
therefrom,  takes  the  chance  that,  if  the 
judgment  is  reversed  or  set  aside,  he  will 
be  compelled  to  restore  his  adversary  to 
the  situation  he  was  in  before  the 
eri'oneous  judgment  was  rendered.  Dick 
crson  V.  Davis.  Ill  Ind.  433,  12  N.  E. 
145. 


CHAPTER  XVII. 

BANiaiUPTCY. 
286    What  incapacity  affects. 

286.  What  incapacity  affects. —  A  person  wlio  is  so  insane  as  to  be 
wholly  incapable  of  managing  his  affairs  cannot,  while  in  that  condi- 
tion, commit  an  act  for  which  he  can  be  forced  into  bankruptcy  by 
his  creditors,  against  the  objection  of  his  guardian.^  But  a  lunatic 
may  be  adjudged  a  bankrupt  under  the  direction  of  his  committee, 
acting  with  the  consent  of  the  court  in  lunacy.^ 

*iJe  Marvin,  1  Dill.  178,  Fed.  Cas.  No.        The  jurisdiction  of  a  court  in  lunacy 

9^178.  over  the  property  of  a  person  found  to 

Creditors  may,  unless  restrained  by  be  a  lunatic  cannot  be  ousted  by  a  sub- 
statute,  raise  the  objection  that  their  sequent  adjudication  in  bankruptcy, 
debtor  was  noii  compos  mentis,  for  the  without  the  consent  of  the  court;  and 
purpose  of  avoiding  his  assignment  for  the  trustee  in  bankruptcy  can  take  the 
the  benefit  of  creditors.  Riley  v.  Carter,  property  only  subject  to  the  jurisdiction 
76  Md.  581,  19  L.  R.  A.  489,  35  Am.  St.  in  lunacy,  which  cannot  be  devested  by 
Rep.  443,  25  Atl.  667.  a  voluntary  settlement  so  as  to  enable 

^Re  Farnham  [1895]  2  Ch.  799,  64  L.  the  trustee  to  stand  in  the  place  of  the 

•J.  Ch.  N.  S.  717,  12  Reports,  554,  73  L.  beneficiary,  such  a  settlement  being  void 

T.  N,  S.  231,  3  Manson,  109.  for  all  purposes.    Ibid. 

306 


CHAPTER  XVIIL 

JURORS. 
287.  Insanity  as  aflfecting  capacity. 

287.  Insanity  as  affecting^  capacity. — Insanity  of  a  juror  is  a  good 
cause  for  discharging  the  jury  in  a  criminal  case,  though  it  be  with- 
out the  consent  of  the  prisoner  or  his  counsel;  and  such  discharge 
rests  in  the  discretion  of  the  court,  and  cannot  form  the  subject  of 
a  plea  in  bar  to  a  further  trial.^  And  one  whose  mind  is  so  weak 
that  he"  cannot  be  made  to  understand  the  obligations  of  an  oath,  or 
feel  religious  scruples,  is  not  competent  to  be  a  juror.^  But  mental 
defects  which  will  disqualify  a  juror  must  am'ount  to  such  imbecility 
or  to  such  gross  ignorance  as  practically  to  disqualify  him  from  per- 
forming his  duties  as  such  f  and  when  alleged  as  a  ground  for  a  new 
trial  it  must  be  proved  by  clear  and  full  evidence.*  And  the  existence 
of  an  abstract  opinion  on  the  part  of  an  individual  as  to  the  propriety 
or  impropriety  of  the  defense  of  insanity  in  a  criminal  prosecution 
does  not  disqualify  him  for  being  a  juror.^ 


^United  States  v.  HaskeU,  4  Wash.  C. 
C.  402,  Fed.  Cas.  No.  15,321. 

The  fact  that  a  constitutional  provi- 
sion makes  colored  persons  qualified 
jurors  has  no  effect  upon  mental  defects 
as  a  ground  for  disqualification,  the 
same  imbecility  or  defect  of  mental  in- 
capacity disqualifying  a  colored  person 
as  a  white  person.  Caldwell  v.  State,  41 
Tex.  86. 

^Caldwell  v.  State,  41  Tex.  86. 

^Caldioell  v.  State,  41  Tex.  86. 

^State  V.  Scott,  8  N.  C.  (1  Hawks)  24. 

Where  it  does  not  appear  that  previ- 
ous insanity  of  a  person  chosen  as  a 
juror  was  of  a  permanent  character,  its 
continuance  is  not  presumed.  State  v. 
Eov:ard,  118  Mo.  127,  24  S.  W.  41. 

^People  V.  Carpenter,  102  N.  Y.  245, 
6  N.  E.  584,  Affirmed  in  38  Hun,  490; 
Butler  V.  State,  97  Ind.  378;  Hall  v. 
Com.  (Pa.)  11  Cent.  Rep.  183,  12  Atl. 
163. 


And  the  same  rule  applies  to  a  mis- 
taken view  of  the  law  applicable  to  the 
defense  of  insanity,  where  a  willingness 
and  an  ability  to  yield  readily  to  the  law 
as  it  exists  appears,  and  there  is  no 
prejudice  against  a  genuine  defense. 
Butler  V.  State,  97  Ind.  378. 

But  a  juror,  in  a  prosecution  for  a 
crime  of  great  enormity  in  which  in- 
sanity is  alleged,  who  does  not  think  a 
man  who  commits  such  an  offense  can 
be  of  sound  mind,  is  disqualified,  where, 
to  change  his  opinion,  evidence  would  bo 
required,  since  the  law  presumes  sanity. 
Com  v.  Buccieri,  153  Pa.  535,  26  Atl. 
228. 

And  that  a  juror  considered  the  fact 
of  suicide  as  conclusive  evidence  of  in- 
sanity is  a  good  cause  for  a  challenge  in 
an  action  upon  an  insurance  policy 
where  the  assured  died  by  his  own  hand. 
Hiatt  V.  Mutual  L.  Ins.  Co.  2  Dill.  572, 
note. 


307 


CHAPTEE  XIX. 

WITNESSES. 

L  Lunacy. 

288.  General  rules  as  to  effect. 

289.  Presumption  and  burden  of  proof  as  to. 

290.  Method  of  determining  capacity. 

291.  Proof  as  to  incompetency. 

292.  Habeas  corpus  may  bring  witness. 

293.  Proof  in  case  of  subsequent  insanity  of  witness. 

294.  Effect  of  insanity  of  adverse  party. 
II.  Drunkenness. 

295.  Eflect  on   competency,  generally. 

I.  Lunacy. 

288.  General  rules  as  to  effect. —  The  rule  was  laid  down  generally, 
in  some  of  the  earlier  eases,  that  persons  who  were  non  compos 
mentis,  or  deranged  in  mind,  were  incompetent  witnesses;^  and  so 
were  persons  laboring  under  a  temporary  privation  of  memory  and 
understanding ;-  and  persons  in  whose  minds  a  delusion  existed,^  The 
modern  rule  which  is  now  prevalent,  however,  is  that  a  person  is  com- 
petent as  a  witness,  where,  at  the  time  he  is  offered  to  be  sworn,  lie 
possesses  such  understanding  as  enables  him  to  retain  in  memory, 
and  give  a  correct  account  of,  the  events  of  which  he  had  been  a  wit- 
ness,'* and  to  appreciate  the  sanctity  and  binding  force  of  the  obliga- 

^Livingston    v.    Kiersted,    10    Johns.  8  N.  W.  1G4;  Com.  v.  Reynolds,  cited  in 

362;    Pkebe   v.    Prince,    Walk.     (Miss.)  10  Allen.  64;  Gu^/me  v. /S'/ia/fer,  7  Okla. 

131;  Coleman  v.  Com.  2.5  Gratt.  865,  18  459,  54  Pac.  698;   Coleman  v.  Com.  25 

Am.  Eep.  711;   Hartford  v.  Palmer,  16  Gratt.  865,  18  Am.  Rep.  711;   Hiett  v. 

Johns.   143.  ,^hull,   36    W.   Va.    503,    15    S.    E.    146; 

^Hartford  v.  Palmer,  16  Johns.  143.  Pitishurph  &  W.  R.  Co.  v.  Thompson,  27 

\Armstrong     v.     Timmons,     3     Harr.  C.  C.  A.  333,  54  U.  S.  App.  222,  82  Fed. 

(Del.)    343.  720;  District  of  Cohnnbia  v.  Armes,  107 

There  is  no  exception  to  the  statutory  U.  S.  519,  27  L.  ed.  618.  2  Sup.  Ct.  Rep. 

rule  in  Texas  that  persons  who  are  in-  840;    Rcfj.    v.    Hill.   2    Den.    C.    C.    254, 

sane  when  they  are  offered  as  witnesses,  5  Cox  C.  C.  259.  5  Eng.  L.  &,  Eq.  547, 

or   who   were  so  when   the  events   hap-  15  Jur.  470,  Tomp.  &  M.  582.  20  L.  J. 

pened  of  which  they  are  called  to  testify,  Mag.   Gas.   N.   8.   222;   Fennell  v.   Tait, 

are    totally    incompetent    as    witnesses.  1    Cromp.  M.   &   R.   584,   5   Tyrw.   218; 

Lopez   V.    State.   30   Tex.   App.   487,   28  l^piitlc  v.  Walton.  L.  R.  11  Eq.  420,  40 

Am.  St.  Rep.  935.  17  S.  W.  1058.  L.  J.  Ch.  N.  S.  368,  24  L.  T.  N.  S.  18, 

*Wo1kcr  V.  Hlate,  97  Ala.  85,   12  So.  19  Week.  Rep.  405;   Allen  v.  State,  60 

83;  Clements  v.  McGinn   (Cal.)   33  Pac.  Ala.    19.      And    see    State   v.    Broicn,   2 

920:  Tucker  v.  Shaw,  158  111.  326,  41  N.  Marv.   (Del.)  380,  36  Atl.  458. 
E.  314;  Cannady  v.  Lynch,  27  Minn.  435.        The  reason  for  not  admitting  the  tes- 

308 


288J 


WITNESSES. 


309 


tion  of  an  oath  ;^  and  lio  is  not  competent  if  be  is  unable  to  under- 
stand such  obligation,  whatever  may  have  been  the  character  of 
his  incapacity.®  Under  this  doctrine  the  testimony  of  a  witness  who 
is  insane  or  laboring  imder  a  delusion  is  to  be  received  with  proper 
caution,  and  considered  in  connection  with  his  incapacity,  rather  than 
to  be  rejected  or  struck  outJ    And  it  is  not  an  objection  either  to  the 


timony  of  persons  non  compos  w.entis  is 
tliat  theii-  malady  involves  such  an  im- 
pairment of  the  faculties  that  facts  are 
not  correctly  impressed  on  their  minds, 
or  not  retained  in  their  memory,  or  that 
they  do  not  understand  their  responsi- 
bility as  witnesses;  and  if  such  reasons 
for  the  exclusion  of  the  witness  do  not 
exist,  he  should  be  permitted  to  testify. 
Worthinglon  v.  Mencer,  9G  Ala.  310,  17 
L.  R.  A.  407,  11  So.  72. 

And  an  allegation  in  a  complaint  that 
the  plaintiff  was  at  one  time  insane  does 
not  render  him  incompetent  to  testify 
as  a  witness  in  an  action.  Cannady  v. 
Lynch,  27  Minn.  435,  8  N.  W.  147.  And 
see  Holcomb  v.  Holcomb,  28  Conn.  177. 

But  a  man  seventy-eight  years  of  age, 
with  but  little  knowledge  of  passing 
events  and  a  feeble  memory  of  past 
transactions,  who  did  not  know  while  on 
the  stand  what  place  he  was  in,  where 
he  stayed  the  night  before,  or  where  he 
came  from  that  morning,  and  could  not 
remember  that  he  had  ever  lived  in  a 
different  place,  though  he  had  done  so 
for  the  past  four  years,  is  not  compe- 
tent as  a  witness,  and  his  testimony  is 
worthless  for  the  purpose  of  showing  a 
transfer  to  him  to  have  been  fraudu- 
lently made.  Woodhull  v.  Whittle,  G3 
Mich.  575,  30  N.  W.  3G8. 

^Walker  v.  State,  97  Ala.  85,  12  So. 
83;  Clements  v.  McGinn  (Cal.)  33  Pac. 
020;  Holcomb  v.  Holcomb,  28  Conn.  177; 
Com.  v.  Reynolds,  cited  in  10  Allen,  64; 
Cannady  v.  Lynch,  27  Minn.  435,  8  N. 
W.  164;  Coleman  v.  Com.  25  Graft.  805, 
18  Am.  Rep.  711;  Hiett  v.  Shall,  36  W. 
Va.  563,  15  S.  E.  146 ;  District  of  Colum- 
bia v.  Amies,  107  U.  S.  519,  27  L.  ed. 
618,  2  Sup.  Ct.  Rep.  840;  Reg.  v.  Hill, 
2  Den.  C.  C.  254,  5  Cox  C.  C.  259, 
5  Eng.  L.  &  Eq.  547,  Temp.  &  M.  582, 
20  L.  J.  Mug.  Cas.  N.  S.  222,  15  Jur. 
470. 

Where  a  witness  understands  that 
perjury  is  punishable  by  law,  it  is  suffi- 
cient to  qualify  him,  though  he  has  no 
conception  of  the  religious  obligation  of 
an  oath.  Snyder  v.  Nations,  5  Blackf. 
295. 


And  a  statement  by  a  witness  that  she 
did  not  know  the  consequences  or  how 
she  would  be  punished  in  case  she  testi- 
fied falsely  does  not  show  incapacity  as 
a  witness,  where  it  appeared  to  the  court 
from  her  manner  on  the  stand  and  her 
answers  that  she  had  as  much  intelli- 
gence as  ordinary  persons  of  her  class. 
State  V.  Langford,  45  La.  Ann.  1177,  40 
Am.  St.  Rep.  277,  14  So.  181. 

'^Livingston  v.  Kiersted,  10  Johns.  362; 
McKelton  v.  State,  88  Ala.  181,  7  So. 
38;  Armstrong  v.  Timmons,  3  Harr. 
(Del)  343;  State  v.  Meyers,  46  Neb. 
152,  37  L.  R.  A.  423,  64  N.  W.  697.  And 
see  Fuller  v.  Fuller,  Vi  Cal.  605;  Kil- 
btirn  V.  Mullen,  22  Iowa,  498;  Phebe  v. 
Prince,  Walk.  (Miss.)  131,  Hartford  v. 
Palmer,  16  Johns.  143;  0'-t:f)hart  v.  Shin- 
die,  15  Serg.  &  R.  235. 

Mental  deficiencies  of  an  adult  witness 
which  would  exempt  him  from  accounta- 
bility for  his  own  conduct  proximately 
contributing  to  his  personal  injury 
would  also  render  him  an  incompetent 
witness  of  the  occurrences  in  which  the 
injurv  was  received.  Worthington  v. 
Mencer,  96  Ala.  310,  17  L.  R.  A.  407,  11 
So.  72. 

''People  V.  Harper,  1  Edm.  Sel.  Cas. 
180;  Sarbach  v.  Jones,  20  Kan.  499;  Ifn- 
Cvtchen  v.  Pique,  4  Heisk.  565;  Req.  v. 
Hill,  2  Den.  C.  C.  254,  5  Cox.  C.  C.  '259, 
5  Eng.  L.  &  Eq.  547,  Temp.  &  M.  582, 
20  L.  J.  Mag.  Cas.  N.  S.  222,  15  Jur. 
470.  And  see  Clark  v.  Lopez,  75  Miss. 
932,  23  So.  648,  957. 

In  weighing  the  testimony  of  a  per- 
son who  was  of  unsound  mind  at  the 
time  of  the  occurrence  of  the  facts  in 
question,  the  distiiiotion  recognized  by 
law  between  knowledge  of  a  fact  and 
belief  in  the  existence  of  a  fact,  and 
between  an  event  which  is  objective  and 
demonstrable  and  an  incident  which  may 
be  merely  personal  and  subjective,  is  of 
special  importance.  People  ex  rel.  Nor- 
ton V.  New  York  Hospital,  3  Abb.  N.  C. 
229. 

And  a  person  upon  whom  a  criminal 
assault  was  made,  who  cannot  talk,  but 
can  make  signs,  and  has  understanding 


310  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  288 

competency  or  credibility  of  a  witness  that  he  is  subject  to  fits  of 
derangement,  if  he  was  sane  at  the  time  his  testimony  was  offered.^ 
]^or  is  it  an  objection  that  he  was  insane  shortly  before  and  shortly 
after  that  time."  Statutes  disqualifying  insane  witnesses  include 
only  such  persons  as  are  so  unsound  in  mind  as  to  render  them  in- 
competent at  common  law.-'*' 

289.  Presumption  and  burden  of  proof  as  to. — Every  person  ten- 
dered as  a  witness  is  presumed  to  be  sane  and  competent  to  testify 
until  the  contrary  is  shown.-*^  And  the  burden  rests  with  the  party 
asserting  the  contrary  to  show  not  only  the  insanity  of  the  witness, 
but  that  it  was  of  such  a  nature  and  extent  as  to  incapacitate  him  to 
give  testimony.^"  And  he  may  support  his  objection  either  by  exam- 
ination of  the  witness,^''  or  by  the  testimony  of  other  witnesses.^"* 
Where  the  general  insanity  of  the  witness  has  been  proved,  however, 
the  presumption  is  that  it  continues,  and  it  rests  with  the  party 
offering  him  to  show  that  he  has  been  so  far  restored  to  sanity  as  to 
make  him  competent  as  a  witness.-'^  The  ancient  presumption  that 
a  person  born  deaf  and  dumb  is  an  idiot  is  an  idea  which  no  longer 
exists,  at  least  in  the  United  States.-*^ 

290.  Method  of  determining  capacity. —  The  question  whether  a 
person  offered  as  a  witness  is  insane  at  the  time  goes  to  the  compe- 

enough  to  take  care  of  herself,  and  to  dence  of  other  facts.     Woodhull  v.  Whit- 

communicate    her    wants,    and    observe  tie,  63  Mich,  565,  30  N.  W.  368. 

things  occurring  about  her,  and  render  ^^Sfate  v.  Brown,  2  Marv.    (Del.)   380. 

services  to  others,   may  be  svporn  as  a  36  AtJ.  458;   Armstrong  v.  Timmons,  3 

witness  and  examined  through  the  me-  Harr.   (Del.)   342.     And  see  State  v.  De 

d:um   of  a  person  who   can   understand  Wolf,    8    Conn.    93,    20    Am.    Dec.    90: 

her,  who  is  sworn  to  interpret  her  tes-  Gainesville  v.  Calduell,  81  Ga.  76,  7  S. 

timonv  to  the  court  and  jurv.     People  E.  99;  Rohivson  v.  Dana,  16  Vt.  474. 

V.  Mcaee,  1  Denio,  19.              "  '^Staie  v.  Brown,  2  Marv.   (Del.)   380. 

"Camvhell  v.  Slate,  23  Ala.  44;  Evans  36  Atl.  458;   State  v.  Lanqford,  45  La. 

V.  Helt'ich,  7  Wheat.  453,  5  L.  ed.  496;  Ann.  1177,  40  Am.  St.  Rep.  277.  14  So. 

State  V.  Kelley,  57  N.  H.  549;  Lewio  v.  181;   State  v.   Ealloway,  8  Blackf.  45; 

Eagle  Ins.  Co.  10  Gray,  508.  Harrod  v.  IJarrod,  1  Kay  &  J.  9,  IS  Jur. 

A    defendant    in    a    prosecution     for  853. 

homicide  is  himself  competent  to  testify  ^'■'Reg.  v.  Hill,  5  Cox  C.  C.  259,  5  Eng. 

that  he  could  not  resist  the  impulse  to  L.  &  Eq.  547,  2  Den.  C.  C.  254,  Temp.  & 

kill  the  man  killed  bv  him.     Abbott  v.  ]\l.  582,  20  L.  J.  Mag.  Cas.  N.   S.  222. 

Com.  23  Ky.  L.  Rep.  226,  62  S.  W.  715.  15  Jur.  470. 

"Coleman   v.   Com.   25   Gratt.   865,   18  ^^Liringslon    v.    Kiersted,     10     Johns. 

Am.  Rep.  711.  362;  District  of  Columbia  v.  Amies,  107 

'"Cunnady  v.  Lynch,  27  Minn.  435,  8  U.  S.  519,  27  L.  ed.  618,  2  Sup.  Ct.  Rep. 

N.  W.  164.  840.      But  see  Bell  v.   Rinner,   16   Ohio 

The   suspicion    that   might   be   engen-  St.  45. 

dered  by  the  failure  of  a  party  to  pro-  ^''.Armslrong     v.     Timmons,     3     Harr. 

duce  an  aged  witness  whose  mental  ca-  (Del.)    342. 

pacity  was  alleged  to  be  such  that  his  ^"Christmas   v.   Mitchell,   38  N.   C.    (3 

evidence     would     be    entirely    worthless  Ired.   Eq.)    541:    Slate   v.   Howard,   118 

cannot  be  regarded  as  evidence  tending  JMo.  127,  24  S.  W-  41. 
to  show   fraud   or   to  overturn   the  evi- 


§  290] 


WITNESSES. 


311 


tency  of  the  witness,  and  is  a  preliminary  one,  to  be  decided  by  the 
court ;^^  and  its  decision  will  not  be  disturbed  on  appeal,  where  no 
abuse  of  discretion  appears.^*  And  where  the  court  is  evenly  divided 
as  to  the  competency  of  a  witness  alleged  to  be  insane,  his  testimony 
will  be  admitted. ^°  It  is  not  the  duty  of  the  trial  court  to  examine  a 
witness  as  to  mental  unsoundness,  however,  merely  because  one  of 
the  parties  alleges  it,  unless  it  sees  some  indication  of  unfitness  to 
testify.^*'  And  the  rule  that  insanity  affects  the  competency  of  a 
witness,  and  that  the  question  of  competency  must  be  determined 
when  the  witness  is  cslled,  and  before  he  is  sworn,  is  relaxed  where 
the  incompetency  first  appears  from  the  testimony  of  the  witness 
himself,  and,  perhaps,  in  some  cases  where  the  fact  is  shown 
aliunde.^^  And  where  the  witness  is  not  so  deficient  as  to  require 
his  exclusion  by  the  court,  it  is  for  the  jury  to  decide  what  amount 
of  credit  shall  be  given  to  his  testimony.^-    The  condition  of  mind  of 


"Clements  v.  McGinn  (Cal.)  33  Pac. 
920;  Holcomb  v.  Holcomb,  28  Conn.  177; 
State  V.  Broim,  2  Marv.  (Del.)  380,  36 
Atl.  458;  Dickson  v.  Waldron,  135  Ind. 
.507,  24  L.  R.  A.  483,  488,  41  Am.  St. 
Rep.  440,  34  N.  E.  506,  35  N.  E.  1; 
Carpenter  v.  Dame,  10  Ind.  125;  Com.  v. 
Reynolds,  cited  in  10  Allen,  64;  People 
ex  rel.  Norton  v.  New  York  Hospital,  3 
Abb.  N.  C.  229;  Guthrie  v.  Shaffer,  7 
Okla.  459,  54  Pac.  698;  Coleman  v.  Com. 
25  Gratt.  865,  18  Am.  Rep.  711;  State 
V.  Michael,  37  W.  Va.  565,  19  L.  R.  A. 
605,  16  S.  E.  803;  District  of  Columbia 
V.  Armes,  107  U.  S.  519,  27  L.  ed.  618. 
2  Sup.  Ct.  Rep.  840.  And  see  Kendall 
V.  May,  10  Allen,  59. 

^'Dickson  v.  Waldron,  135  Ind.  507, 
24  L.  R.  A.  483,  488,  41  Am.  St.  Rep. 
440,  34  N.  E.  506,  35  N.  E.  1 ;  Mills  v. 
Cook  (Tex.  Civ.  App.)   57  S.  W.  81. 

The  court  on  appeal  will  presume  that 
the  judge  in  the  court  below  was  not  in- 
Haenced  on  the  question  of  the  admis- 
sion of  evidence  of  a  witness  alleged  to 
be  insane  by  such  evidence  as  he  ought 
not  to  have  considered.  Campbell  v 
State,  23  Ala.  44. 

But  the  decision  of  the  court  in  a  pre 
liminary  examination  as  to  the  suffi 
ciency  of  the  mental  capacity  of  a  wit 
ness  to  render  him  competent  is  not  con 
elusive  in  subsequent  stages  of  the  trial 
and  the  court  may  stop  the  examina- 
tion when  satisfied  of  the  incapacity  of 
the  witness,  and  direct  the  jiiry  to  dis- 
regard his  evidence.  Queen  v.  White- 
head, L.  R.  1  C.  C.  33. 


^^State  v.  Broicn,  2  Marv.  (Del.)  380, 
36  Atl.  458. 

^^Cannady  v.  Lynch,  27  Minn.  435,  8 
N.  W.  164. 

But  the  exclusion  of  testimony  to 
prove  that  a  witness  offered  by  the  state 
in  a  criminal  prosecution  was  deranged 
is  erroneous.  Livingston  v.  Kiersted,  10 
Johns.  362. 

^^Pease  v.  Bnrroices,  86  Me.  153,  29 
Atl.   1053. 

In  Robinson  v.  Dana,  16  Vt.  474,  it 
was  held  that  whether  a  witness  is  in- 
competent because  of  unsoundness  of 
mind  is  a  fact  to  be  proved  by  evidence 
of  others,  and  not  by  the  examination  of 
the  witness  alone,  and  that  a  refusal  to 
permit  a  preliminary  examination  is  not 
error. 

-'District  of  Columbia  v.  Amies,  107 
U.  S.  519,  27  L.  ed.  618,  2  Sup.  Ct.  Rep. 
840;  Worthington  v.  Mencer,  96  Ala. 
310,  17  L.  R.  A.  407,  11  So.  72;  State  v. 
Brown,  2  Marv.  (Del.)  380,  36  Atl.  458; 
Dickson  v.  Waldron,  135  Ind.  507,  24  L. 
R.  A.  483,  488,  41  Am.  St.  Rep.  440,  31 
N.  E.  506,,  35  N.  E.  1 ;  Sarbach  v.  Jones. 
20  Kan.  499 ;  Com.  v.  Reynolds,  cited  m 
10  Allen,  64;  Coleman  v.  Con„.  25  Gratt. 
865,  18  Am.  Rep.  711. 

In  Carpenter  v.  State,  10  Ind.  125,  the 
question  whether,  if  the  court  should 
hold  a  witness  alleged  to  be  insane  to 
be  competent,  and  he  should  testify,  the 
opposite  party  might  be  permitted  to 
prove  actual  incompetency  or  weakness 
of  the  faculties,  to  affect  his  credibility, 
though  it  did  not  exist  in  a  sufficient  de- 


S12 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  290 


a  witness  claimed  to  be  insane,  if  incapable  of  appreciating  the  truth, 
must  go  to  the  question  of  credibility,  and  be  submitted  to  the  jury.-" 
And  the  question  as  to  the  sanity  or  insanity  of  a  witness  at  the 
time  of  the  transaction  about  which  he  is  called  upon  to  testify,  when 
he  is  sane  at  the  time  of  the  trial,  affects  his  credibility,  and  not  his 
competency,  and  is  one  for  the  jury.^'*  And  the  force  of  such  testi- 
mony rests  wholly  upon  corroborating  circumstances.^^  An  officer 
who  takes  a  deposition  does  not  take  the  place  of  the  court,  and  has 
no  right  to  decide  upon  a  question  of  competency  of  an  alleged  insane 
witness  making  it."*^ 

291.  Proof  as  to  incompetency. —  The  insanity  of  a  witness  at  the 
time  of  a  transaction  concerning  which  he  is  called  upon  to  testify 
is  to  be  proved  in  the  same  manner  as  insanity  in  any  other  case.^' 
And  evidence  of  previous  and  subsequent  insanity  may  be  given  for 
that  purpose.^^      And   a  witness's  credibility  may  be  attacked   by 


gree  to  exclude  him  as  a  witness,  was 
raised  but  not  decided,  but  it  was  stated 
that  the  rule  that  it  might  be  done 
would  seem  to  be  inferable  from  tho 
statute. 

^Pense  v.  Biirroues,  86  I\Ie.  153,  29 
Atl.  1053;  Walker  v.  State,  97  Ala.  85, 
12  So.  83;  State  v.  Moats,  108  Iowa,  13, 
78  N.  W.  701. 

Cross-examination  of  a  witness,  the 
incredibilitj'  of  whose  story  rests  on  in- 
ference that  her  mind  imagines  fanciful 
occurrences  with  relation  to  the  subject- 
matter  of  her  direct  examination  as  real, 
is  competent  for  the  consideration  of  the 
jury  on  the  question  of  the  weight  to  be 
given  her  direct  evidence,  though  it  in- 
cludes other  matters  which  would  be  in- 
admissible if  considered  independently, 
but  it  will  not  be  evidence  of  the  facts 
thus  stated.  Pease  v.  Bvrrowes,  86  Me. 
153,  29  Atl.  1053. 

^'Holcomh  V.  Holcomb,  28  Conn.  177; 
Guthrie  v.  Shaffer,  7  Okla.  459,  54  Pac. 
698.  And  see  Gainesville  v.  Caldwell, 
81  Ga.  76,  7  S.  E.  99. 

The  court,  in  a  criminal  prosecution, 
should,  upon  special  request,  instruct 
the  jury  as  to  the  sanity  or  insanity  of 
a  witness  whose  testimony  is  attacked 
on  that  ground,  though  the  testimony 
as  to  his  insanity  is  very  slight,  so  that 
thf  jury  may  consider  it  in  weighing  his 
credibility.  Territory  v.  Padilla,  8  N. 
M.  510,  46  Pac.  346. 

But  refusal  to  permit  the  mental  ca- 
pacity of  a  witness  to  be  impeached  rests 
within  the  wise  discretion  of  the  court. 


where  his  deposition  had  been  taken  at 
a  previous  indecisive  trial,  and  was  used 
again  in  the  trial  resulting  in  the  judg- 
ment appealed  from,  and  no  objection 
was  raised  to  it,  and  the  witness  was  in 
another  state,  and  evidence  to  sustain 
his  mental  capacity  could  not  be  pro- 
duced during  the  progi-ess  of  the  trial. 
Carpenter  v.  Dame,  10  Ind.  125. 

-'^People  ex  rcl.  Norton  v.  New  York 
Hospital,  3  Abb.  N.  C.  229. 

-'^Carpenter  v.  Dame,  10  Ind.  125. 

It  is  the  duty  of  an  officer  taking  a 
deposition  of  a  witness,  though  alleged 
to  be  insane,  to  take  down  all  the  testi- 
mony, and  forward  it  to  the  court  in 
which  it  is  intended  to  be  used,  and  all 
objections  are  to  be  raised,  weighed,  and 
decided  in  that  court.  Carpenter  v. 
Dame,  10  Ind.   125. 

-llolcomh  v.  Holcomb,  28  Conn.  177; 
Guthrie  v.  Shaffer,  7  Okla.  459,  54  Pac. 
098. 

"^Holcomb  V.  Holcomb,  28  Conn.  177 ; 
State  V.  Kelley,  57  N.  H.  549 ;  Hoard  v. 
State,  15  Lea,  318;  Fairchild  v.  Bas- 
comb,  35  Vt.  398. 

But  evidence  of  prior  temporary  de- 
lusions or  mental  aberrations  of  ances- 
tors and  relatives  is  not  sufficient,  tvith- 
out  more,  to  go  to  the  jury  on  the  ques- 
tion of  the  unsoundness  of  mind,  when 
insanity  is  merely  a  collateral  issue,  as 
where  an  attempt  is  made  to  impeach 
the  competency  or  credibility  of  a  wit- 
ness by  proving  that  he  was  insane. 
State  V.  Hayicard,  62  Minn.  474,  65  N. 
W,  63. 


291] 


WITNESSES. 


313 


evidence  that  his  mind  and  memory  had  become  impaired  by  dis- 
ease,^® or  by  evidence  of  stupid  conduct  and  irrational  talk.^^  So, 
evidence  that  a  witness  who  had  been  examined  was  of  imbecile  mind 
and  memory  is  admissible  to  affect  his  credibility,  though  it  was  not 
offered  as  an  objection  to  his  competency.^^  And  opinions  of  medical 
men  are  antitled  to  peculiar  weight  on  the  question  of  the  competency 
of  a  witness  alleged  to  be  insane,  where  they  had  good  opportunity 
to  observe/""  And  an  inquisition  of  lunacy  against  a  witness  is  prima 
facie,  though  not  conclusive,  evidence  of  his  incompetency  to  testify, 
though  his  evidence  was  offered  against  one  not  a  party  to  the  pro- 
ceeding in  lunacy.^^  A  statute  providing  that  persons  of  unsound 
mind  cannot  be  witnesses  refers  to  a  mind  that  is  insane  in  fact,  in 
contradistinction  to  one  that  had  been  judicially  declared  unsound,'^"* 
And  a  witness  who  had  been  declared  insane,  and  placed  under  guar- 
dianship, is  competent,  after  recovery,  to  testify  respecting  facts 
which  occurred  during  the  time  he  was  under  guardianship.^^     And 


''AUeman  v.  Stepp,  52  Iowa,  626,  35 
Am.  Rep.  288,  3  N.  W.  636;  Fairchild 
V.  Bascomb,  35  Vt.  398.  And  see  Car- 
penter V.  Dame,  10  Ind.  129. 

^"Territory  v.  Padilla,  8  N.  M.  510,  46 
Pac.  34(). 

'Ulivara  v.  Ohio,  3  E.  D.  Smith,  234. 
And  see  Livingston  v.  Kiersted,  10 
Johns.  302. 

So,  an  alleged  lunatic,  called  as  a  wit- 
ness, may  examine  and  cross-examine 
witnesses  called  on  either  side,  to  de- 
termine the  question  of  his  competency. 
Reg.  V.  Hill,  2  Den.  C.  C.  254,  5  Cox  C. 
C.  259,  5  Eng.  L.  &  Eq.  547,  Temp.  &  M. 
582,  20  L.  J.  Mag.  Cas.  N.  S.  222,  15 
Jur.  470. 

^'Armstrcng  v.  Timmons,  3  Harr. 
(Del.)   312. 

Where  there  is  a  direct  conflict  in  the 
testimony  of  two  witnesses,  and  one  of 
them  is  aged,  and  has  had  an  attack  of 
paralysis,  an  expert  witness  may  be 
asked  if  paralysis  does  not  have  a  ten- 
dency to  impair  the  mind  of  aged  per- 
sons.    Lord  V.  Beard.  79  N.  C.  5. 

And  where  the  testimony  of  a  witness 
is  assailed  by  the  opposite  party  on  the 
ground  of  her  mental  incapacity,  by 
calling  witnesses  to  detail  the  facts  and 
express  opinions  tliereon,  the  witnesses 
of  such  party  may  be  asked  questions  on 
cross-examination,  the  object  of  which 
is  to  draw  from  them  an  opinion  as  to 
the  competency  of  such  witness.  Bricker 
V.  LiiyTitner,  40  Pa.  199. 

^Hoyt  V.  Adee,  3  Lans.  173;  Kendall, 
V.  May,  10  Allen,  59;  Piitshurph  d  W. 


R.  Co.  V.  Thompson,  27  C.  C.  A.  333: 
54  U.  S.  App.  222,  82  Fed.  720.  And 
see  Spittle  v.  Walton,  L.  R.  11  Eq.  420. 
40  L.  J.  Ch.  N.  S.  368,  24  L.  T.  N.  S.  IS. 
19  Week.  Rep.  405. 

It  is  a  question  for  the  jury,  undci 
proper  instructions,  whether  a  witness 
was  competent  to  testify,  where,  after 
being  examined  on  interrogatories,  hf 
was  found  to  be  a  lunatic  and  confined 
in  a  huiatic  asylum,  and  evidence  had 
been  given  by  other  witnesses  pro  and 
con  on  the  question  of  his  sanity. 
Gainesville  v.  Caldwell,  81  Ga.  76,  7  S. 
E.  99. 

Where  a  petition  or  affidavit  is  sworn 
to  by  a  person  wlio  had  been  found  by 
inquisition  to  be  a  Kinatic,  the  officer 
before  whom  it  is  sworn  should  state  in 
the  jurat  that  he  has  swora  the  de 
ponent  for  the  purpose  of  ascertaining 
thfi  state  of  his  mind,  and  that  he  was 
apparently  of  sound  mind  and  capable 
of  understanding  the  nature  and  con- 
tents of  the  instrument.  Re  Christie, 
5  Paige,  242. 

"^Clements  v.  McGinn  (Cal.)  33  Pac. 
920. 

'''Sa7-hach  v.  Jones,  20  Kan.  499.  And 
see  Tucker  v.  SMu-,  158  111.  326,  41  N. 
E.  914. 

But  one  who  hns  been  adjudged  in- 
sane, and  is  under  guardianship,  and 
whose  condition  is  not  improved,  is  held 
not  to  be  a  competent  witness,  in  Hull 
V.  Louth,  109  Ind.  315,  58  Am.  Rep.  405, 
10  N.  E.  270. 


314 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  291 


a  lunatic  under  confinement  in  an  asyhun  may  be  a  witness,  if  the 
judge  considers  him  competent  in  point  of  understanding,  and  he  is 
aware  of  the  nature  and  consequences  of  an  oath.^°  But  an  affidavit 
of  a  person  suffering  from  mental  delusion,  made  while  confined  in 
an  asylum,  cannot  be  received  in  evidence  unless  his  mental  capacity 
is  first  ascertained  by  a  proper  preliminary  inquiry.^'^ 

292.  Habeas  corpus  may  bring  witness. —  A  habeas  corpus  ad  testi- 
ficandum may  be  issued  to  bring  into  court  a  witness  from  an  insane 
asylum,^®  upon  affidavit  that  he  is  not  dangerous,  and  is  in  a  fit 
state  to  be  brought  into  court.^^  An  order  for  tlie  examination  of  a 
party  before  trial  will  not  be  granted,  however,  when  he  is  alleged 
to  be  partially  insane;  in  such  case  he  should  be  examined  on  the 
trial,  so  that  the  court  may  judge  of  his  sanity.*"  The  testimony  of 
a  deaf  and  dumb  witness  may  be  elicited  by  any  means  necessary  to 
the  end.'*^ 

293.  Proof  in  case  of  subsequent  insanity  of  witness. — An  instru- 
ment may  be  established  by  proof  of  the  handwriting  of  the  attesting 
witness  where  he  has  become  insane  after  its  execution.'*^  And  a 
book  of  accounts  kept  by  one  who  has  since  become  insane  may  be 
used  in  evidence  upon  being  verified,  when  material  to  the  issue.*^ 


"i?e.9.  V.  Bill,  5  Eng.  L.  &  Eq.  547,  2 
Den.  C.  C.  254,  5  Cox  C.  C.  259,  Temp.  & 
M.  582,  20  L.  J.  Mag.  Cas.  N.  S.  222,  15 
Jur.  470;  t^tate  v.  Broken,  2  Marv. 
(Del.)  380,  36  y^tl.  458;  Tucker  \.  Shaw, 
158  111.  32G,  41  N.  E.  914.  And  see  State 
V.  Brown,  2  Marv.  (Del.)  380.  3G  Atl. 
458;  Keiidall  v.  May,  10  Allen,  59; 
Cannady  v.  Lynch,  27  Minn.  435.  8  N. 
W.  1G4.  ' 

A  record  of  justices,  finding  a  person 
to  be  insane  and  a  proper  person  to  be 
admitted  to  the  insane  hospital  for  the 
curable  insane,  is  not  evidence  to  prove 
that  the  same  person  was  insane  nine 
years  afterwards,  when  she  appeared  as 
a  witness  in  a  case.  Breedlove  v. 
Eundy,  96  Ind.  319. 

'''Spittle  V.  Walton,  L.  R.  11  Eq.  42C, 
40  L.  J.  Ch.  N.  S.  368,  24  L.  T,  N.  S. 
18,  19  Week.  Rep.  405;  Hand  v.  Bur- 
rows, 23  Hun,  330;  State  v.  Smith,  26 
Wash.  354,  67  Pac.  70. 

Discharge  of  a  witness  from  an  asy- 
lum is  prima  facie  evidence  of  restora- 
tion to  sound  mind,  or  of  improper 
commitment,  where,  under  the  statutes, 
the  only  grounds  for  discharge  are  re- 
covery  or  improper  commitment.  Clem- 
ents  V.    McGinn    (Cal.)    33    Pac.   920. 

"Spittle  V.  Walton,  L.  R.  11  Eq.  420, 


40  L.  J.  Ch.  N.  S.  368,  24  L.  T.  N.  S. 
18,  19  Week.  Rep.  405;  Fennell  v.  Tait, 
1  Cromp.  M.  &  K.  584,  5  Tyrw.  218. 

A  commission  may  issue  to  take  the 
testimony  of  a  person  committed  to  a 
lunatic  asylum  in  anotlier  state,  but  the 
return  must  be  submitted  to  the  presid- 
ing justice  upon  the  trial  in  which  the 
evidence  is  intended  for  use,  and  the 
court  must  institute  an  investigation  as 
to  the  competency  of  the  witness.  Hand 
v.  Burrows,  23  Hun,  330;  Carpenter  v. 
Dame,    10   Ind.    125. 

^"Fennell  v.  Tait,  1  Cromp.  M.  &  R. 
584,  5  Tyrw.  218. 

"il/oson  v.  Libhey,  2  Abb.  N.  C.  137. 

*' State  V.  Eoivard,  118  Mo.  127,  24 
S.   W.  41. 

*-Currie  v.  Child,  3  Campb.  283;  Ber- 
nett  V.  Taylor,  9  Ves.  Jr.  381. 

"^Eolhrook  v.  Gay,  6  Cush,  215. 

The  temporary  insanity  of  a  person 
whose  book  of  accounts  is  material  evi- 
dence in  an  action  should  only  operate 
as  a  postponement  of  the  trial  until 
sufficient  time  has  elapsed  for  his  res- 
toration; but  when  no  such  restoration 
can  be  reasonat)ly  anticipated,  the  book 
should  bo  admitted  upon  ]>roof  of  his 
handwriting  and  verification  by  the 
oath  of  his  guardian,  and  the  effect  of 


§  293] 


WITNESSES. 


315 


Likewise  tlie  reasons  for  admitting  the  testimony  of  deceased  wit- 
nesses, taken  on  a  former  trial,  apply  with  equal  force  in  the  case 
of  witnesses  mentally  dead  or  incapacitated  by  insanity  or  loss  of 
raind.^*  And  the  testimony  of  a  witness,  formerly  taken  in  the  same 
case,  may  be  read  in  evidence  upon  a  subsequent  trial,  upon  a  show- 
ing that  he  has  become  incompetent.'*^  And  depositions  taken  at  a 
former  trial  may  be  read  in  evidence,  where  the  witness  has  become 
insane  or  lost  his  memory  of  the  past."*^  Failure  of  a  witness  to 
recollect  particular  facts,  however,  will  not  justify  proving  his  tes- 
timony on  a  former  trial,  where  such  forgetfulness  does  not  amount 
to  inental  imbecility.'*"  And  evidence  of  a  witness  who  is  merely 
shown  to  have  run  away  cannot  be  given  under  a  statute  authorizing 
the  use  of  the  testimony  of  witnesses  who  have  become  insane.'*^ 

294.  Effect  of  insanity  of  adverse  party. — A  decree  upon  an  inqui- 
sition establishing  the  fact  of  insanity  of  a  party  to  an  action  is  not 


his  insanity  is  one  for  the  exercise  of 
the  sound  discretion  of  the  presiding 
judge.      Ibid. 

**Whitaker  v.  Marsh,  62  N.  H.  477; 
Marler  v.  State,  67  Ala.  55,  42  Am. 
Rep.  95. 

Where  a  witness,  sane  at  the  time  of 
testifying,  afterwards  becomes  tempora- 
rily insane,  and  the  case  again  comes  up 
for  trial,  the  court  will  direct  an  ad- 
journment, in  a  proper  case,  to  await 
recovery.  Coleman  v.  Com.  25  Gratt. 
1^65,  18  Am.  Rep.  711. 

If  a  witness  is  actually  insane  at  the 
time  of  the  trial  of  an  indictment,  how- 
ever, his  deposition,  taken  before  the 
committing  magistrate,  is  receivable 
in  evidence  the  same  as  if  he  were  dead, 
although  the  insanity  may  be  only  tem- 
porary; but  if  it  appears  that  he  is  not 
insane,  but  merely  sufTering  from  de- 
pression of  spirits  in  consequence  of  the 
injury,  which  affected  his  intellect,  from 
which  he  will  probably  eventually  re- 
cover, his  deposition,  taken  before  the 
committing  magistrate,  is  not  receiva- 
ble.    Reg.  v.  Marshall,  Car.  &  M.  147. 

*^Emig  v.  Diehl,  76  Pa.  359;  Rothrock 
V.  Gallaher.  91  Pa.  108;  Howard  v.  Pat- 
rick, 38  Mich.  795. 

^''Gainesville  v.  Caldicell,  81  Ga.  76, 
7  S.  E.  99;  Murley  v.  Templeman,  cited 
in  Shelford  on  Lmiatics,  495;  Htnle  v. 
Broun,  2  Marv.   (Del.)   380,  36  Atl.  458. 

A  deposition  previously  made  may  be 
admitted  in  evidence  where  the  witness 
had  become  insane  at  the  time  of  the 
trial,  though  it  was  not  taken  de  heiic 
esse.      Reg.  v.  Marshall,  Car.  &  M.  147. 


And  see  Jones  v.  Jones,  1  Cox  C.  C. 
184;  Murley  v.  Templeman,  cited  in 
Shelford  on  Lunatics,  495. 

When  a  deposition  of  a  witness  al- 
leged to  be  incompetent  is  offered  in 
evidence,  it  is  within  the  discretion  of 
the  court  to  refuse  to  permit  it  to  be 
impeached  on  that  ground,  where  the 
evidence  to  sustain  mental  capacity 
would  have  to  be  sought  in  another 
state,  and  it  could  not  he  produced  in 
season  for  use  in  the  trial  in  progress. 
Carpenter  v.  Dame,  10  Ind.   125. 

And  secondary  evidence  of  what  a 
witness  testified  to  on  a  preliminary  in- 
vestigation before  a  committing  magis- 
trate may  be  given  on  the  trial  of  the 
accused  for  the  same  offense,  when  his 
testimony  was  not  reduced  to  writing, 
and  he  has  since  become  insane,  and 
the  precise  words  of  the  witness  need 
not  be  given.  Marler  v.  State,  67  Ala. 
55,  42  Am.  Rep.  95. 

In  Drayton  v.  Wells,  1  Nott  &  M'C. 
409,  9  Am.  Dec.  718,  however,  it  was 
held  that  the  testimony  of  a  witness 
who  had  been  examined  on  a  former 
trial  between  the  same  parties,  where 
the  point  in  issue  was  the  same,  may 
be  given  in  evidence  on  a  second  trial 
by  persons  who  hoard  it,  only  when  the 
witness  is  dead,  insane,  beyond  the  ju- 
risdiction, or  where  the  court  is  satis- 
tied  tliat  he  has  been  kept  away  by  the 
contiivance  of  the  opposite  party. 

"Stein  V.  Sifoiscn,  40  Minn.  300,  24 
Am.  St.  Rep.  234,  49  N.  W.  55. 

*' State  V.  King,  86  N.  C.  00-6. 


3i6 


MENTAL  UNSOUNDNESS  m  ITS  LEGAL  RELATIONS. 


[§  294 


necessary,  under  statutes  prohibiting  the  otlier  party  to  an  action 
from  testifying  therein  where  the  adverse  party  is  insane,  in  order 
to  exclude  the  sane  party's  testimony  as  to  transactions  concerning 
which  the  other  party,  if  sane,  could  have  contradicted  him.^^  And 
an  error  in  the  admission  of  testimony  which  is  not  competent,  be- 
cause offered  against  an  insane  party,  is  not  corrected  by  permitting 
the  insane  defendant  to  testify.^^  But  though  a  party  to  a  case  is 
insane,  yet,  if  he  is  competent  to  testify,  the  other  party  may  be  per- 
mitted to  testify  in  his  own  favor.^^ 

II.  Dkunkenitess. 
295.  Effect  on  competency,  generally. — The  question  whether  an  in- 
toxicated witness  is  competent  rests  in  the  sound  discretion  of  the 
trial  court.^^  And  it  is  not  error  to  refuse  to  administer  tlie  oath  to 
a  person  tendered  as  a  witness,  who  is  so  drunk  as  not  to  understand 
its  obligation,  where  opportunity  is  offered  to  recall  him  when  he 
becomes  sober.^"  But  when  a  witness  is  sworn,  the  question  whether 
he  is  drunk  or  not,  and  whether  his  evidence  is  material  or  not. 
is  one  of  fact  for  the  jury.^^    And  evidence  that  a  witness  was  drunk 


^Bailey  v.  Harvey,  60  N.  H.  152. 

A  party  to  an  action,  seventy  years 
old,  who  had  paralysis,  and  was  of 
weak  mental  capacity  and  memory,  and 
could  not  tell"  how  old  he  was,  or  un- 
derstand an  inquiry  whether  he  recol- 
lected giving  a  designated  note,  and  was 
unable  to  move  or  dress  himself  alone, 
and  did  not  seem  to  understand  any- 
thing about  his  business,  is  not  insane, 
within  the  meaning  of  ]\Iass.  Gen.  Stat. 
chap.  131,  §  14,  providing  that,  where 
one  of  the  original  parties  to  an  action 
is  shown  to  be  insane,  the  otlier  party 
fihall  not  be  permitted  to  testify  in  his 
own  favor.      Doud  v.  Hall,  8  Alien,  410. 

But  the  fact  that  a  plaintifl'  in  an 
action  for  a  personal  injury  alleged  that 
his  mind  had  been  impaired  by  reason 
of  his  injuries,  and  that  evidence  in 
support  of  that  allegation  had  been  re- 
ceived, does  not  prevent  him  from  being 
called  upon  to  testify  as  a  witness ; 
whether  he  was  in  fact  competent  to 
testify  is  a  question  to  be  decided  by 
the  court,  resting  within  its  sound  dis- 
cretion, and  it  is  for  the  jury  to  give 
such  credit  to  the  testimony  offered  as 
it  is  entitled  to  receive.  Dickson  v. 
Waldron,  1.35  Ind.  507,  24  L.  R.  A.  4S3. 
48S,  41  Am.  St.  Rep.  440,  34  N.  E.  50G, 
35  N.  E.    1. 


^"Huling  v.  Hxiling,  32  111.  App.  519. 

^'Kendall  v.  May,  10  Allen,  59. 

"-Gould  v.  Crawford,  2  Pa.  St.  89. 

'•^State  V.  Undericood,  28  N.  C.  ((J 
Ired.  L.)    9G. 

The  testimony  of  a  person  accused 
of  crime  committed  when  he  was  so 
drunk  as  to  be  unconscious  and  irre 
sponsible,  as  to  what  took  place  while 
he  was  in  that  condition,  is  of  little  or 
no  value  on  a  prosecution  for  the  crime. 
Territory  v.  Franklin,  2  N.  M.  307. 

And  the  exclusion  of  a  witness  from 
the  court  room  and  from  tcstifjnng  in 
a  criminal  case  because  he  wa.s  intoxi 
cated  is  not  reversible  error,  wliere  it 
does  not  appear  tliat  any  objection  was 
made  to  the  exclusion,  or  that  the  court 
was  informed  of  the  importance  of  his 
testimony,  and  an  adjournment  asked 
imtil  he  became  competent  to  testify. 
Fox  v.  Territory,  2  Wash.  Terr.  297,  5 
Pac.  003. 

"•^State  V.  McNinch,  12  S.  C.  89. 

Neither  the  fact  that  a  witness  was 
discharged  from  the  police  force  for  al- 
leged drunkenness,  nor  that  he  was  un- 
justly accused  thereof,  can  legally  affect 
his  credibility  as  a  witness.  Barker 
V.  Havafjr,  1  Sweeny,  288. 


§  295] 


WITNESSES. 


317 


at  the  time  of  the  transaction  concerning  which  he  attempts 
to  testify  is  admissible  to  discredit  him,^^  and  as  tending  to 
show  that  his  faculties  for  observation  were  either  gone  or  im- 
paired.^**  But  the  verdict  of  a  jury  should  not  be  interfered  with 
because  based  in  part  upon  the  testimony  of  a  witness  who  was 
drunk,  when  it  was  also  supported  by  other  evidence.^^  And  intoxi- 
cation not  reaching  the  degree  of  stupefaction  at  the  time  of  the 
happening  of  the  events  concerning  which  the  witness  is  called  upon 
to  testify,  though  it  impairs  credibility,  does  not  destroy  it;  and  his 
testimony  is  entitled  to  belief  when  corroborated.^^  The  general 
character  of  a  witness  for  drunkenness,  however,  is  not  admissible  in 
evidence  to  affect  his  credibility.^^  And  a  finding  that  a  person  was 
an  habitual  drunkard  furnishes  no  objection  to  his  competency  as 
a  witness. '^'^ 


^''Fleming  v.  State,  5  Humph.  5C4. 

^Mace  V.  Reed,  89  Wis.  440,  62  N.  W. 
186;  Sisson  v.  Conger,  1  Thomp.  &  C. 
.564. 

Where  a  witness  testifies  that  he  did 
not  know  that  certain  conversations 
took  place  at  a  specified  time  and  place, 
which  were  supposed  to  relate  to  the 
testimony  he  was  expected  to  give,  he 
may  be  asked  whether  or  not  he  was 
drunk  at  the  time,  for  the  purpose  of 
impeaching  him.  Strang  v.  People,  24 
Mich.  1. 

"Mercer  v.  State,  17  Ga.  146. 

So,  a  party  cannot  stand  by  arid  per- 
mit a  witness  to  be  examined,  and  cross- 
examine  him  himself,  and  permit  his 
evidence  to  go  to  the  jury,  and  then, 
for  the  first  time,  after  verdict,  object 
that  he  was  intoxicated.  Dickinson  v. 
Buskie,  59  Wis.  136,  17  N.  W.  685. 

'^State  V.  Castello,  62  Iowa,  404,  17 
N.  W.  605.  And  see  Megcrs  v.  State, 
37  Tex.  Crim.  Rep.  208,  39  S.  W.   HI. 

So,  an  opium  consumer  is  not  incom- 
petent as  a  witness,  though  the  testi- 
mony of  such  a  person  is  unreliable,  and 
the  jury  should  be  carefully  cautioned 
as  to  the  credence  to  be  given  it.  State 
V.  White,  10  Wash.  Gil,  39  Pac.  160, 
41  Pac  442. 


And  proof  that  a  witness  was  in  the 
habit  of  using  laudanum  is  not  suffi- 
cient to  discredit  or  weaken  his  testi- 
mony unless  it  also  establishes  either 
that  his  mind  is  impaired  generally 
thereby,  or  that  he  was  under  the  infh;- 
ence  of  the  opiate  at  the  time  of  giving 
testimony.  McDoivell  v.  Preston,  26 
Ga.  528. 

And  a  person  so  stupefied  by  drugs 
that  he  did  not  know  what  was  done! 
to  him  is  not  an  incompetent  witness 
within  the  provisions  of  a  statute  de- 
claring persons  incompetent  who  were 
insane  when  the  events  happened  of 
which  they  were  called  to  testify. 
Pones  V.  State,  43  Tex.  Crim.  Rep.  201, 
63  S.  W.  1021. 

And  a  statute  providing  that  persons 
who  are  intoxicated  at  the  time  of  their 
production  for  examination  as  witnesses 
are  not  competent  to  testify  is  intended 
to  exclude  persons  only  when  intoxi- 
cated to  a  degree  which  would  exclude 
them  at  common  law.  Cannady  v. 
Lynch,  27  Minn.  435,  8  N.  W.  164. 

'^'^Brindle  v.  M'llvaine,  10  Serg.  &  R. 
282;    Thayer  v.  Boyle,  30  Me.  475. 

""GehMrt  v.  Shindle,  15  Serg.  &  R 
235. 


CHAPTEE  XX. 

EVIDENCE. 

I,    PEESUirPTION  AND  BUBDEN  AXD  MEASURE  OF  PROOF. 

a.  With  reference  to  lunacy. 

296.  Presumption    of    sanity. 
'297.  Burden  of  proof  generally  in  miscellaneous  matters. 

298.  Burden  of  proof  in  criminal  cases. 

299.  Conflicting  rules  as  to  burden  of  proof  in  will  cases. 

300.  Shifting  of  the  burden  resting  with  the  proponent. 

301.  Sufficiency  of  evidence  to  satisfy  or  shift  the  burden. 

302.  Burden  of  proof  after  probate. 

303.  Insurance  cases;   burden  of  proof  in  case  of  suicide. 

304.  Presumption  and  burden  of  proof  of  continuance  as 

to  habitual  insanity. 

305.  Temporary  insanity. 

306.  Habitual  and  temporary  insanity  distinguished. 

307.  Presumption  as  to  continuance  of  lucid  intervals. 

308.  Nature  of  presumption  of  continuance. 

309.  Measure  of  proof;   civil   cases. 

310.  Criminal  cases;  beyond  a  reasonable  doubt. 

311.  To  the  satisfaction  of  the  jury. 

312.  By  a  preponderance  of  the  evidence. 
813.  What  is  a  sufficient  preponderance. 

314.  Clearly  proved,  reasonable  certainty 

315.  Reasonable  doubt  of  insanity. 

316.  What  constitutes  reasonable  doubt. 

317.  Summary  as  to  measure  of  proof. 
6.  Drunkenness. 

318.  Presumptions  and  burden  of  proof. 

319.  Presumption  of  continuance. 

320.  IMeasure  of  proof. 
II.  Competency  and  admlssibili-y. 

a.  With  reference  to  lunacy. 

321.  Previous  and  subsequent  condition. 

322.  The  act  itself. 

323.  Declarations  and  admissions  of  the  party. 

324.  Declarations,  admissions,  and  acts  of  third  persons. 

325.  Letters,  private  writings,  deeds,  wilLs,  etc. 

326.  Acts  and  conduct. 

327.  Surrounding  circumstances. 

328.  Relationship   between   parties. 

329.  Physical  and  mental  condition. 

330.  Hereditary  insanity. 
3.31.  Reputation  and  hearsay. 

3:52.  Adjudications  and  certificates  of  lunacy. 
318 


EVIDENCE.  819 

6.  With  reference  to  drunkenness. 

333.  The  fact  of  intoxication. 

334.  General  character  and  habits. 

335.  Previous  and  subsevjuent  intoxication. 

336.  Acts  and  conduct. 

337.  Confessions,  admissions,  and  declarations. 
IIL  Opinion  evidence. 

0.  With  reference  to  lunacy. 

1.  Experts. 

338.  Admissibility  generally. 

339.  Application  of  doctrine  as  to  privilege  of  witnesses. 

340.  Opinions  formed  from  observation  or  examination. 

341.  Opinions  based  on  evidence. 

342.  Opinions  upon  hypothetical  questions  or  statements. 

343.  Qualifications  of  experts. 

344.  Basis  of  facts  or  reasons  for  the  opinions. 

345.  Scope  generally. 

^  346.  Scope  as  to  time. 

347.  Cross-examination  of  experts. 

348.  Weight  generally. 

349.  As  afi'ected  by  facts,  opportunity  to  observe,  charac- 

ter, etc. 

350.  As  compared  with  other  opinions. 

351.  A  question  for  the  jury. 

2.  Nonexperts. 

352.  Admissibility  generally. 

353.  Grounds  of  admissibility. 

354.  Effect  of  rules  as  to  privilege  of  witnesses. 

355.  Who  may  give. 

356.  The  acquaintance  and  observation  necessary. 

357.  Facts  and  reasons  as  a  basis  of  an  opinion. 

358.  Scope  generally. 

359.  Limitation  of  scope  in  particular  states. 
300.  Scope  as  to  time. 

361.  Cross-examination,  rebuttal,  and  impeachment. 

362.  Weight  generally. 

363.  As  affected  by  character,  capacity,  and  opportunity. 

364.  As  affected  by  facts  and  reasons  stated. 

3.  Subscribing  witnesses. 

365.  Admissibility  generally. 

366.  Necessity  of  giving. 

367.  Scope. 
3G8.  Weight. 

4.  Opinions  covering  the  issue. 

369.  General  and  prevailing  rule. 

370.  Application  to  particular  classes  of  cases. 

371.  The  contrary  rule. 
h.  With  reference  to  drunkenness. 

372.  Wlio  may  give;  nature  of. 
rV.  Books. 

373.  Adinissibilitj'  generally. 


320  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  298 

I.  Presumption  and  bueden  and  measure  of  proof. 

a.    With  reference  to  lunacy. 

296.  Presumption  of  sanity. —  It  is  a  universal  rule  that  everyone  is 
presumed  to  be  sane  and  of  sound  mind  until  the  contrary  appears.^ 
It  applies  to  criminal  prosecutions,  in  which  every  person  is  pre- 
sumed to  possess  a  sufficient  degree  of  reason  to  be  responsible  for 
his  criminal  acts.^      And  sufficient  capacity  to  contract,  of  parties 

'  This     is     supported     by     numerous  Idaho,  386 ;  Jamison  v.  People,  145  111. 

cases,  among  wliich  are:      Dominick  v.  357,  34  N.  E.  486;   Guetig  v.  State,  66 

Randolph,  124  Ala.  557,  27  So.  481;  Re  Ind.  94,  32  Am.  Rep.  99;  Moore  v.  Com. 

Nchon,  132  Cal.  182,  64  Pac.  294;  Duf-  92    Ky.    630,    18    S.    W.    833;    State   v. 

field  V.    Robeson,   2   Harr.    (Del.)    375;  Scott,  49  La.  Ann.  253,  36  L.  R.  A.  721, 

Ethridge   v.    Bennett,    9    Houst.    (Del.)  21  So.  271;   State  v.  Lawrence,  57  Me. 

295,   31   Atl.   813;    Brown   v.   State,  40  574;  Com.  v.  Heath,  11  Gray,  303;  Peo- 

Fla.    459,    25    So.    63;     Humphreys    v.  pie  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec. 

State,  45  Ga.  190;  Menkins  v.  Lightner,  162;   Neiccomb  v.  State,  37  Miss.  383; 

18  111.  282;  Argo  v.  Coffin,  142  111.  368,  State  v.    McCoy,    34   Mo.    536,    86   Am. 

32  N.  E.  679;   Rush  v.  Megee,  36  Ind.  Dec.    121;    State    v.    Palmer,    161    Mo 

69;  Wallis  v.  Luhring,  134  Ind.  447,  34  152,   61    S.   W.   651;    State  v.   Hartley, 

N.  E.  231;  Dinkelspiel  v.  Central  Ken-  22   Nev.   342.   28   L.   R.   A.   33,  40   Pac. 

tucky  Asylum,  24  Ky.  L.  Rep.  2240,  73  372;    State   v.    Martin,    4    N.    J.    L.    J. 

S.  W.  771;   Chandler  v.  Barrett,  21  La.  252,  3  Grim.  L.  Mag.  44;  State  v.  Hill, 

Ann.  58,  99  Am.  Dec.   701;   Higgins  v.  65  N.  J.  L.  626,  47  Atl.  814;   O'Connell 

Carlton,  28  Md.   115,  92  Am.  Dec.  666;  v.   People,  87   N.   Y.   377,  41  Am.   Rep. 

Ricketts  v.  Jolliff,  62  Miss.  440;  Jack-  379;    State    v.    Starling,    51    N.    C.    (6 

son  V.  Hardin,  83  Mo.   175;   Perkins  v.  Jones    L.)    366;    Loeffner   v.    State,    10 

Perkins,   3S   N.    H.    163;    State   ex  rel.  Ohio   St.   598;    State  v.   Tyler,    7    Ohio 

Board   of  Health  v.   Lederer,  52   N.   J.  N.  P.  443,  5  Ohio  S.  &  C.  P.  Dec.  588; 

Eq.  675,  29  Atl.  444;  Jackson  ex  dem.  Maas    v.    Territory,    10    Okla.    714,    53 

Cadicell  v.  King,  4   Cow.   207,    15   Am.  L.  R.  A.  814,  63  Pac.  960;  Coijle  v.  Com. 

Dec.  354;   Odom  v.  Rtddick,   104  N.  C.  100  Pa.  573,  45  Am.  Rep.  397;  Com.  v. 

515,   7   L.  R.  A.   118,   17   Am.   St.  Rep.  Barner,   199  Pa.  335.  49  Atl.  60;   King 

686,  10  S.  E.  009;  Re  Shelleig,  11  Ohio  v.  State,  91  Tenn.  617,  20  S.   VV.   169; 

S.  &  C.  P.  Dec.  81;  Pennypacker  v.  Pen-  Carter  v.   State,    12   Tex.   500,   62   Am. 

nypacker  (Pa.)   7  Cent.  Rep.  532,  8  Atl.  Dec.  539;  Hurst  v.  State,  40  Te.K.  Crim. 

634;    Miller   v.    RutUdge,    82    Va.    863,  Rep.  378,  46  S.  W.  635,  50  S.  W.  719; 

1  S.  E.  202;  Hiett  v.  Shidl,  36  VV.  Va.  People  v.   Dillon,   8   Utah,   92,   30   Pac. 

.563,  15  S.  E.   140;  Long  v.  Long,  4  Ir.  150;     Guiteau's      Case,     10     Fed.    101; 

Ch.    Rep.     106;    Groom    v.    Thomas,    2  M'lSiaghten's  Case,  10  Clark  &  F.  200,  8 

Haag.  Eccl.  Rep.  433.  Scott  N.  R.  595,   1  Car.  &  K.   130. 

^A   great   number   of   cases   also   sup-        A  criminal  act  does  not  of  itself  raise 

port  this  rule,  among  which  are:     Por-  a  presumption  of  insanity.      Beasley  v. 

ter  V.  State,   135  Ala.  51,   33   So.   694;  State,  50  Ala.   149,  20  Am.  Rep.  292, 
McKenzie  v.  State,  26  Ark.  334 ;  People       And   the   presumption   of   sanity   and 

V.   McNulty,  93   Cal.  427,   26   Pac.  597,  responsibility  for  criminal  acts  applies 

29    Pac.    61;    State    v.    Draper,    Houst.  though  the  accused  was  born  deaf  and 

Grim.  Rep.    (Del.)    291;    State  v.  Har-  dumb,    and   had   never   received   special 

rigan,    9    Houst.     (Del.)     369,    31    Atl.  religious   or   moral   instruction.      State 

1052;    Danforth   v.   State,    75   Ga.   614,  v.    Draper,    Houst.    Crim.    Rep.     (Del.) 

58  Am.  Rep.  480;  People  v.  Walter,  1  291. 


§  296]  EVIDENCE.  32i 

to  a  contract,  regularly  made,  is  also  presumed.'  And  a  grantor  in 
a  deed  is  presumed  to  be  sane  and  competent  at  the  time  of  its  execu- 
tion.'* And  old  age  or  physical  infirmity  raises  no  presumption  of 
incapacity  to  make  a  deed  or  contract.^  Likewise,  a  testator  is  jjre- 
sumed  to  have  been  possessed  of  a  sound  and  disposing  mind  at  the 
time  of  making  his  will.®      But  the  presumption  in  the  case  of  wills 

And    an    instruction    in    a    criminal  consideration.       Odom    v.    Riddick,    104 

prosecution  that  every  man  is  supposed  N.  C.  515,  7  L.  E,.  A.   118,   17  Am.  St. 

to  be  sane  and  responsible  for  his  crim-  Rtp.  686,  10  S.  E.  009. 

inal   acts  until   the  contrary  is   shown,  And    evidence    of    the    sanity    of    a 

together  with  one  as  to  the  burden  of  grantor  is  not  admissible  in  an  action 

proof,    is   not   objectionable   as   making  brought  to  set  aside  his  deed,  where  no 

the  presumption  of  sanity,  and  the  bur-  evidence    as    to    his   insanity    had   been 

den  of  proving  insanity,  too  prominent,  given.     Dearmond  v.  Dcarmond,  12  Ind. 

Massengale  v.  State,  24  Tex.  App.   181,  455. 

5  S.  W.  650,  6  S.  W.  35.  But   a   bargain   between   a   person   of 

The    presumption    that   every    one    is  unsound  mind  and  another  standing  in 

sane  until  the  contrary  is  made  to  ap-  a    fiduciary   or   confidential    relation   to 

pear,   however,   does   not  apply  in   case  him,  is  presumed  to  be  against  justice, 

of    a    person    accused    of    crime,    who  and     necessitates    proof    of    knowledge 

pleads  guilty;    in   such   case  his   sanity  and  fairness.     Jacox  v.  Jacox,  40  Micii. 

must  be  made  plainly  to  appear.      San-  473,  29  Am.  Rep.  547;  Haydock  v.  Hay- 

ders  V.  State,  18  Tex.  App.  372.  dock,  34  N.  J.  Eq.  570,  38  Am.  Rep.  385 

^Killian    v.    Badgett,    27    Ark.     166;  ''^Yilliams  v.  Raid,  118  N.  C.  481,  24 

State  V.  Geddis,  42  Iowa,  268;   Fay  v.  S.  E.  217;   Cowee  v.  Cornell,  75  N.  Y. 

Burditt,  81  Ind.  433,  42  Am.  Rep.  142;  91,  31  Am.  Rep.  428;  Lewis  v.  Bead,  1 

Dorchester  v.  Dorchester,  18  N.  Y.  S.  R.  Ves.  Jr.  19. 

402,   3   N.   Y.    Supp.   238,   Reversed   on  But  a  finding  of  incompetency  on  an 

other  grounds  in  121  N.  Y.  156,  23  N.  E.  inquisition   of   lunacy   overreaching   the 

1043;   Tuite  v.  Hart,  71  App.  Div.  619,  time  of  the  execution  of  a  deed  affords 

75   N.  Y.  Supp.    1098;    Hall  v.   Mutual  a   presumption,   in   an   action   to   set   it 

L.   Ins.    Co.    19   Ky.   L.   Rep.    1240,   43  aside,  that  the  grantor  was  insane;  ani 

S.  W.  194.  if  there  is   evidence  of  unsoundness   of 

*Killian  v.  Badgett,  27  Ark.  166;  Doe  mind  after  the  time  of  the  commence- 

ex    dem.    Guest    v.    Beeson,    2    Houst.  ment  of   the   unsoundness  as   stated   in 

(Del.)   246;   English  v.  Porter,  109  111.  the    inquisition,    an    issue    may    be    di- 

285;    Titcomb  v.    Vantyle,   84   111.  371;  rected  to  inquire  whether  he  was  of  un- 

Dearmond   v.   Dearmond,    12   Ind.   455;  sound  mind  at  the  time  of  the  execution 

Achey  v.  Stephens,  8  Ind.  411;  Buckey  of  the  deed.      Frank  v.  Mamioaring,  2 

V.  Buckey,  38  W.  Va.  168,  18  S.  E.  383;  Beav.   115. 

Jarrett  v.  Jarrett,  11  W.  Va.  584;  An-  "This  rule  is  also  supported  by  a  great 

derson    v.    Cranmer,    1 1    W.    Va.    562 ;  number    of    cases,    among    which    are : 

Snodgrass   v.    Knight,   43   W.   Va.   294,  O'Donnell  v.   Rodiger,   76   Ala.   222,   52 

27   S.   E.   233;    Delaplain  v.    Grubb,   44  Am.  Rep.  322;  Re  Nelson,  132  Cal.  182, 

W.  Va.   612,  67   Am.   St.   Rep.   788,   30  64    Pac.    294;    Jamison    v.    Jamison,    3 

tS.    E.    201;    Farnsworth   v.    Noffsinger,  Houst.    (Del.)    108;    Wilbur  v.   Wilbur, 

46  W.  Va.  410,  33  S.  E.  246;  Eakin  v.  129  111.  392,  21  N.  E.  1076;  Herbert  v. 

Hawkins,  48  W.  Va.  364,  37  S.  E.  622;  Berricr,  81  Ind.  1;  Boone  v.  Ritchie,  21 

Eakin  v.  Hatokins,  52   W.  Va.    124,  43  Ky.  L.  Rep.  864,  53  S.  W.  51S -.Broicn  v. 

S.  E.  211;  Hoge  v.  Fisher,  1  Pet.  C.  C.  Ward,   53   Md.   393,   36  Am.   Rep.   422; 

163,  Fed.  Cas.  No.  6,585.  Richardson  v.  Bly,  181  Mass.  97,  63  N. 

Where   a    purchaser    finds    a    regular  E.   3 ;    Payne  v.   Banks,   32   Miss.   292 ; 

chain  of  title,  formal   in  all   its  parts,  Jackson  v.  Hardin,  83  Mo.   175;  Pettes 

upon    the    registration    books,    executed  v.  Bingham,   10  N.  H.  515;  Elkinton  v. 

by  grantors  of  full  age,  he  has  a  right  Brick,  44  N.  J.  Eq.  154,  1  L.  R.  A.  161, 

to  rely  upon  the  presumption  of  sanity,  15  Atl.  391;   Delafield  v.  Parish,  25  N. 

and   will   be  protected   if   he   purchases  Y.   9 ;   Jones  v.  Jones,  43   N.   Y.   S.   R. 

without   notice   of   insanity,   for  a   fair  434,  17  N.  Y.  Supp.  905;  Mayo  v.  Jones, 
Vote  I.  Med,  Jur. — 21. 


322 


MEXTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


r§  -296 


is  not  usually  so  strong  as  in  the  case  of  deeds  and  contracts;^  thougb 
it  extends  through  life,  no  matter  to  what  age  tlie  testator  lives.'* 
So,  everyone  is  presumed  to  have  capacity  to  conti'act  marriage.^ 
And  a  pauper  is  presumed  to  have  sufficient  intelligence  to  exercise 
a  choice  with  regard  to  her  residence  until  the  contrary  appears.^^ 
And  sanity  is  presumed  on  habeas  corpus  for  discharge  from  an 
asylum.^* 

So,  no  presumption  of  insanity  arises  in  an  action  upon  an  insur- 
ance policy,  from  the  mere  fact  of  the  death  of  the  insured,  caused 
by  his  own  physical  act.-^^  The  presumption  of  sanity  is  not  one  of 
law,  however,  but  one  of  fact,  or,  at  least,  a  mixed  presumption  of 


78  N.  C.  402;  Grnbill  v.  Barr.  5  Pa. 
441,  47  Am.  Dec.  418;  Messner  v.  Elliott, 
184  Pa.  41,  39  Atl.  46:  Lee  v.  Lee,  4 
MTord  L.  183,  17  Am.  Dec.  722;  Denni) 
V.  Pinncy,  60  Vt.  524.  12  Atl.  108:  Bur- 
ton V.  Hcott,  3  Rand.'  (Va.)  399;  CoZe'.s- 
Will,  49  Wis.  179,  5  N.  W.  346;  Broicn 
V.  Bruce,  19  U.  C.  Q.  B.  35. 

So,  a  testator  sane  at  the  time  of 
making  his  will  is  presumed  to  be  still 
sane  at  a  subsequent  time,  when  he 
makes  alterations  in  the  will.  Hawkins 
V.  firimes,  13  B.  Mon.  257. 

And  no  presumption  of  insanity  arises 
from  a  disposition  in  a  will  different 
from  what  a  jury  would  make  or  from 
what  the  law  would  make  in  case  of  in- 
testacy. Henry  v.  Hall,  106  Ala.  84, 
54  Am.  St.  Rep.  22.  17  So.  187. 

^Beaiihien  v.  Cicotte,  8  Mich.  9.  And 
see  Turner  v.  Turner,  1  Litt.   (Ky.)    102. 

And  refusal  to  instruct  the  jury  in  a 
will  contest  that  every  one  is  presumed 
to  be  sane  until  the  contrary  is  proved 
is  not  error,  where  they  were  told  that 
they  should  find  in  favor  of  the  will 
on  the  question  of  testamentary'  capacity 
unless  it  appeared  that  the  testator  was 
so  unsound  in  mind  at  the  time  as  to  be 
incapable  of  manajring  his  afifairs.  El- 
liott V.  Welby,  13  Mo.  App.  19. 

"Hiyrjins  v.  Carlton,  28  Md.  115,  92 
Am.  Dec.  666. 

No  presumption  of  incompetency  to 
make  a  will  or  gift  arises  from  the  mere 
fact  of  advanced  age  and  increasing 
physical  disease  which  had  weakened 
the  testator's  or  donor's  mind,  and 
which,  within  three  months  afterwards, 
resulted  in  his  death.  Williams  v.  Haid, 
118  N.  C.  481.  24  S.  E.  217;  Re  Wheeler, 
5  Misc.  279,  25  N.  Y.  Supp.  313. 

'Harrod  v.  Harrod,  1  Kay||:,  J.  4,  18 
Jur.  853.  2  Week,  Rep,  612;  TZaitdon  v. 


Rawdon,  28  Ala.  565 :  Baughman  v. 
Baiighvian,  32  Kan.  538,  4  Pac.  1003; 
Nonneinacher  v.  Nonnemacher,  159  Pa, 
6.34,  28  Atl.  439. 

One  who  is  competent  tc  make  a  con- 
tract is  presumed  to  have  sufficient  men- 
tal capacity  to  enter  into  the  contract 
of  marriage.  Powell  v.  Powell,  27  Miss. 
783. 

And  a  marriage  ceremony  performed 
while  the  husband  was  upon  his  death 
bed  and  helpless,  surrounded  by  the 
woman  he  married  and  her  friends, 
when  he  was  apparently  oblivious  not 
only  of  his  former  wife,  but  of  his  chil- 
dren also,  affords  no  presumption 
against  the  validity  of  the  previous  mar- 
riage.    Christy  v.  Clarke,  45  Barb.  529. 

A  person  asserting  the  validity  of  a 
marriage  entered  into  by  one  who  had 
previously  been  adjudged  a  lunatic,  how- 
ever, has  the  burden  of  proving  a  lucid 
interval  or  a  ratification.  Goodheart 
V.  Ranslcv,  28  Ohio  L.  J.  227. 

-"Topsham  v,  Chelsea,  60  Vt.  219,  13 
Atl.  861. 

"Com.  ex  rel.  Helmbold  v.  Kirkbride, 
11  Phila.  427. 

And  the  discharge  of  a  person  from 
an  insane  asylum  to  which  he  had  been 
transferred  from  the  penitentiary 
creates  a  presumption  in  favor  of  his 
recovery.  Lanqdon  v.  People,  133  111. 
382,  24  N.  E.  874. 

And  the  facts  that  a  woman  is  in 
her  one  hundredth  year,  and  that  her 
sight  is  very  much  impaired,  and  that 
she  is  somewhat  deaf,  do  not  raise  a 
presumption  against  her  soundness  of 
mind,  upon  the  execution  of  a  commis- 
sion of  lunacy.  Re  Collins,  18  N.  J.  Eq, 
253. 

^'Coffey  V.  Home  L.  Ins.  Co.  44  How. 
Pr.   481;    Dufjield  v.   Robeson,   2   Harr. 


§  296]  EVIDENCE.  323 

law  and  fact;^^  and  whatever  force  it  has  is  given  it,  not  because  ol 
its  intrinsic  weight  as  an  item  of  proof,  but  by  reason  of  its  opera- 
tion in  some  degree  in  rendering  the  circumstances  adduced  to  prove 
sanity  more  persuasive  ;^^  and  where,  upon  the  whole  evidence,  it  is 
doubtful  whether  the  person  in  question  was  sane  or  insane,  the  pre- 
sumption in  favor  of  sanity  may  operate  to  decide  the  question.^  ^ 
The  doctrine  that  a  person  born  deaf  and  dumb  is  presumed  to  be 
an  idiot  has  been  abandoned,  and  the  question  of  such  person's 
capacity  or  responsibility  now  rests  upon  his  actual  mental  capacity.^  ^ 
297.  Burden  of  proof  generally  in  miscellaneous  matters. — In  accord- 
ance with  the  general  rule  that  all  persons  are  presumed  to  be  sane 
until  the  contrary  is  made  to  appear,  it  is  also  a  general  inile  that  the 
burden  of  proof  to  establish  insanity  or  unsoundness  of  mind  rests 
with  him  who  alleges  it.^^  And  he  who  seeks  to  avoid  a  contract 
upon  the  ground  of  incapacity  must  establish  such  incapacity,^ ^  the 
rule  being  the  same  whether  the  insanity  was  general,  or  partial,  or 

(Del.)    375;    Phadenhauer  v.    Germnnia  368,  34  Am.  St.  Rep.  86,  32  N.  E.  679; 

L.  Ins.   Co.  7  fleisk.  567,   19  Am.  Rep.  Menkins  v.  Lifjhtner,  18  111.  282;   (Jluild 

623;  Moore  v.  Connecticut  Mut.  L.  Ins.  v.  Hull,  127  IH.  523,  20  N.  E.  665;  Mc- 

Co.  1  Flipp,  363,  Fed.  Cas.  No.  9,755.  Cormick  v.   McCormick,   109  Iowa,  700, 

A  condition  in  a  life  insurance  policy,  81    N.    W.    172;    Ricketts  v.  Jolliff,  62 

making    it    void    in    case    the    insured  Miss.  440;  Jackson  ex  dem.  Cadwell  v. 

should  die  by  his  own   hand,   is   in  the  King,   4  Cow.    207,    15    Am.    Dec.  354; 

nature  of  a  penalty  or  forfeiture.     John  Delafield     v.     Parish,     25     N.     Y.     9; 

Hancock  Mut.  L.  Ins.  Co.  v.  Moore,  34  Jackson    ex    dem.    Van    Dusen  v.   Van 

Mich.  41.  Dusen,     5     Johns.     144,     4     Am.     Dec. 

^^^utton  V.  Sadler,  3  C.  B.  N.   S.   87,  330;  Ban  v.  Snyder,  46  Barb.  230;  Gin- 

26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  S.  cinnati  Street  R.  Co.  v.  Wright,  54  Ohio 

1150,  5  Week.  Rep.  880.  St.  181,  32  L.  R.  A.  .340,  43  N.  E.  688; 

"McGinnis  v.  Kenipsei/,  27  Mich.  363.  Com.    ex    rel.    Haskell    v.     Haskell,    2 

The  jury  is  not  absolutely  controlled,  Brewst.  (Pa.)  491;  Pennypacker  v.  Pen- 
in  a  criminal  prosecution,  by  the  pre-  nypacker  (Pa.)  7  Cent.  Rep.  532,  8  Atl. 
sumption  of  sanity.  Davis  v.  United  634;  Burton  v.  Scott,  3  Rand.  (Va. ) 
States,  160  U.  S.  469,  40  L.  ed.  499,  16  399;  Hall  v.  Unger,  2  Abb.  U.  S.  507, 
Sup.  Ct.  Rep.  353.  Fed.  Cas.  No.  5,949;  Atty.  Gen.  v.  Parn- 

^^Hairkins  v.  Grimes,  13  B.  Mon.  257,  ther,  3  Bro.  Ch.  441.     And  see  Smith  v. 

and  see  Myatt  v.   Walker,   44   111.  485;  McClure,  146  Ind.  12.3,  44  N.  E.  1004. 
Lilly  V.  Waggoner,  27  111.  395;  Wall  v.        'nvhite  v.  Farley,  81  Ala.  563,  8  So. 

Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578.  215;    Fay   v.    Burditt,    81    Ind.   43.3,   42 

^"Barnett    v.    Barnett,    54    N.    C.     (1  Am.  Rep.  142;  State  v.  Geddis,  42  Iowa, 

Jones   Eq.)    221;    Broicer   v.    Fisher,   4  268;  Hall  v.  Mutual  L.  Ins.  Co.  19  Ky. 

Johns.  Ch.  441.     And  see  State  v.  Dra-  L.  Rep.  1240,    43    S.    W.    194;    Day    v. 

per,  Houst.  Crim.  Rep.  (Del.)  291;  King  Seeley,   17   Vt.   542;   Hiett  v.   Shull,  36 

V.  Steel,  1  Leach  C.  L.  451.  W.  Va.  563,   15  S.  E.   146;   Menkins  v. 

At   common    law   a   person   who   was  Lightner,  18  111.  282;  Tuite  v.  Hart,  71 

deaf  and  dumb  from  birtl)  was  presumed  App.  Div.  619,  75  N.  Y.  Supp.  1098. 
to  be  non  compos  mentis;  but   the    rule        This  rule  applies  to  releases.    Sicayze 

was  diffeient  where  he  became  so  from  v.   Sicayze,   37    N.   J.   Eq.    18U;    Chicago 

accident.     Yong  v.  Sant,  1  Dyer,  56a.  West   Div.   R.   Co.  v.   Mills,   91    111.   39. 

^''Worthington  v.  Mencer,  96  Ala.  310,  And  to  assignments.    Dorchester  v.  Dor- 

17   L.   R.   A.  407,    11   So.   72;   Reeve  v.  Chester,    18   N.   Y.   S.   R.   402,   3   N.   Y. 

Bonivill,  5  Del.  Ch.  1 ;  Frazer  v.  Frazer,  Supp.    238,   Reversed   on    other   grounds 

2  Del.  Ch.  260;  Argo  v.  Coffin,  142  111.  in  121  N.  Y.  156,  23  N.  E.  1043. 


324  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         tS  297 

temporary.^^  And  the  burden  of  showing  incompetency  to  make  fi 
deed  devolves  upon  the  party  alleging  its  invalidity,^^  unless  a  pre- 
vious condition  of  insanity  has  been  established.^^  Likewise,  insan- 
ity must  be  established  by  the  conservator  of  an  alleged  insane  person, 
who  brings  an  action  to  set  aside  a  conveyance  made  by  his  ward.^^ 
But  one  who  deals  with  a  man  known  to  be  of  weak  intellect  has  the 
l>urden  of  showing  tliat  no  undue  advantage  was  taken  of  his  weak- 
ness, and  that  the  dealings  were  had  deliberately,  and  with  knowledge 
of  all  the  circumstances  connected  with  them.^^      And  the  burden 

"Wraij  V.  Wrai/,  32  Ind.  126;  Chicago  18  S.  E.  383.     And  see  Cropp  v.  Cropp, 

West  Div.  R.  Co.  V.  Mills,  91  111.  39.  88  Va.  753,  14  S.  E.  529. 

-"Harrison  v.  Harrison,  126  Ala.  323,  The  presumption  of  business  capacity 
28  So.  586;  Pike  v.  Pike,  104  Ala.  642,  at  the  time  a  deed  was  made  is  not 
l(j  So.  689 ;  Doe  ex  don.  Guest  v.  Beeson,  changed  by  the  fact  that  on  that  day  an 
2  Houst.  (Del.)  246;  Cliancellor  v.  Don-  application  to  the  probate  court  vvaa 
>ieU,  95  Ala.  342,  10  So.  910;  Dicken  v.  made  for  the  appointment  of  a  guardian 
Johnson,  7  Ga.  484;  Guildv.Warne,  149  for  the  grantor,  and  that  one  was  sub- 
til. 105,  36  N.  E.  635;  Kimball  v.  Cuddy,  sequentlv  appointed.  Doty  v.  Hubbard, 
117   111.   213,   7   N.   E.   589;    English   v.  55  Vt.  278. 

Porter,  109  111.  285;   Titcomb    v.    Van-  ^-Pickerell  v.   Morss,  97   111.   220;   Re 

tyle,  84  111.  371;   Achey  v.  Stephens,  8  Shelleig,  11  Ohio  S.  &  C.  P.  Dec.  81. 

Ind.  411;  Paulu^  v.  Reed  (Iowa)   96  N.  -^Gates  v.   Cornett,   72  Mich.   435,  40 

VV.  757;   Howe  v.  Howe,  99  Mass.   88;  N.  W.  740;   Warteinberg  v.  Spiegel,  31 

Gibbons   v.    Dunn,   46   Mich.    146,    9    N.  Mich.    402;    Duncombe   v.    Richards,   46 

W.  UO:  Brown  V.  Broivn,  39  Mieh.  792;  Mich.    166,   9   N.    W.    149;    Crawford  v. 

Hoey  V.  Hoey,  53  App.  Div.  208,  65  N.  Hoeft,  58  Mich.   1,  23  N.  W.  27,  24  N. 

Y.  Supp.  778;  Ballcw  v.  Clark,  24  N.  C.  W.  645,  25  N.  W.  507,  26  N.  W.  870; 

(2  Ired.  L.)   23;  Cropp  v.  Cropp,  88  Va.  Van  Pelt   v.    Van  Pelt,   30   Barb.    134; 

753,  14  3.  E.  529;  Jarrett  v.  Jarrett,  11  Miskey's  Appeal,  107  Pa.  611  ;   Clark  v. 

W.  Va.  584;   Anderson  v.   Cranmer,   11  Malpas,  31   Beav.   80,  4  De  G.   F.  &  J. 

VV.  Va.  562;  Jones  v.  Rice,  99  Wis.  429,  401,   8  Jur.   N.   S.   734,    10   Week.   Rep. 

75  N.  W.  64:  Hoge  v.  Fisher,  1  Pet.  C.  676;  Lins  v.  Lenhurdt,  127  Mo.  271,  29 

C.  163,  Fed.  Cas.  No.  0,585;   Greenslade  S.  W.   1025;  Jones  v.  Thompson,  5  Del. 

V.  Dare,  20  Beav.  284,  24  L.  J.  Ch.  N.  S.  Ch.  374.     And  see  Weir  v.  Fitzgerald,  2 

490,  1  Jur.  N.  S.  294,  3  Week.  Rep.  220.  Bradf.   42 ;    Moivry  v.   Silbcr,   2    Bradf. 

So,    the    burden    of    proof    of    inconi-  133;    Hyer  v.  Little,  20  N.  J.  Eq.  443; 

petency  of  a  mortgagor  rests  with  the  Morton  v.  Morton    (N.  J.  Eq.)    7  Cent, 

party   bringing   an   action   to   set   aside  Rep.  134,  8  Atl.  807;  Ellis  v.  Mathews, 

the  mortgage  on  that  ground.     Gates  v.  19  Tex.  390,  70  Am.    Dec.    353;    Fish- 

Cornett,  72  Mich.  435,  40  N.  W.  740.  burne  v.  Ferguson,  84  Va.  87,  4  S.  E. 

And  the  burden   of   proving   insanity  575;  Smith  v.  Smith,  00  Wis.  329,  19  N. 

or  undue  influence  rests  with  the  party  W.  47  :  Jacox  v.  Jacox,  40  Mich.  473,  29 

alleging  it,  on  an  issue  as  to  whether  a  Am.  Rep.  547. 

deed   was   procured  by   undue   influence  And  an  instrument  evidencing  a  sale, 

or  while  the  grantor  was  insane.     Howe  in    the    handwriting    of    the    purchaser, 

V.  Howe,  99  Mass.  88.  which    bears     the    marks    of    illite-^acy, 

And   an   instruction   in   an   action   to  coupled   with    evidence   of   an   excessive 

set  aside  a  deed,  to  the  effect  that  if  the  price,  is  of  great  weight  as  tending  to 

grantor  was  a  person  of  weak  mind  it  show   fraud,    though    no    imputation    is 

would  be  sufficient  to  avoid  it  unless  the  cast     upon     his    capacity.       Cockell    v. 

defendant    could    show    that,    notwith-  Taylor,  15  Beav.  115,  21  L.  J.  Ch.  N.  S. 

standing    such    weakness,    he    had    sufR-  545. 

cient  capacity  to  understand  the  nature  And   where   one   who   has  the  burden 

of   his   act,   is  erroneous   as    iiti;.i()porly  of   i)roof   of   the   fairness   of   a    transfer 

shifting  the  biirden  of  proof.    Somcrs  v.  made  to  him  by  an  old  uncle  within  a 

Pvmphrey,  24  Ind.  231.  few  days  of  his  death   is  evasive  in  his 

**Buckey  v.  Buckey,    38    W.    Va.  168,  testimony,  the  burden  is  increased,  and 


§  297] 


EVIDENCE. 


a2C 


also  rests  with  a  grantee  taking  a  conveyance  from  a  person  of  un- 
sound mind,  to  show  that  he  accepted  it  in  ignorance  of  such  unsound- 
ness.^* So,  the  burden  of  proof  in  an  action  to  set  aside  a  gift  upon 
the  ground  of  mental  weakness  of  the  donor  rests  with  the  complain- 
ant.^^ And  a  party  seeking  to  impeach  the  validity  of  a  marriage 
on  the  ground  of  incapacity  of  a  party  to  understand  its  nature  must 
prove  it.^^  And  capacity  rendering  suicide  an  avoidance  of  insur- 
ance must  be  proved  by  the  one  alleging  it.^^ 

298.  Burden  of  proof  in  criminal  cases. —  While  there  is  some  con- 
flict of  opinion  as  to  the  burden  of  proof  in  criminal  cases,  a  large 
number  of  them  proceed  upon  the  theory  that  the  plea  of  insanity  is 
an  afBi-mative  defense,  and  hold  that  it  devolves  upon  the  accused  to 
prove  that  he  was  insane  and  incapable  of  rational  acts,  to  such  an 
extent  as  to  render  him  criminally  irresponsible  at  the  time  of  the 
act  in  Question^-^  or  that  he  had  not  the  moral  power  to  resist  the 


it  is  no  excuse  that  he  was  afraid  of 
being  entrapped  by  counsel.  Buncombe 
V.  Richards,  46  Mich.  166,  9  N.  W.  149. 

But  the  burden  of  proving  affirmative- 
ly that  no  deception  was  practised  or 
undue  influence  used  is  not  imposed 
upon  a  party  to  a  contract  by  tlie  fact 
that  the  otlier  party  was  old  and  his 
grandfather  and  employer.  Cowee  v. 
Cornell,  75  N.  Y.  91,  31  Am.  Rep.  428. 

^Hull  V.  Louth,  109  Ind.  315,  58  Am. 
Rep.  405,  10  N.  E.  270. 

A  man  executing  a  deed  in  extremis 
cannot  be  supposed  to  have  a  mind  ade- 
quate to  the  business  in  hand,  and  may 
be  deemed  to  be  more  easily  imposed 
upon,  though  there  is  no  direct  proof 
that  he  was  non  compos  mentis  or  delir- 
ious. Fane  v.  Devonshire,  6  Bro.  P.  C. 
137. 

'^Kimball  v.  Cuddy,  117  111.  213,  7  N. 
E.  589;  Teegarden  v.  Lewis,  145  Ind. 
98,  40  N.  E.  1047,  44  N.  E.  9. 

^Cannon  v.  Smalley,  L.  R.  10  Prob. 
Div.  96 ;  IJarrod  v.  Earrod,  1  Kay  &  J. 
4,  18  Jur.  853,  2  Week.  Rep.  612; 
Broicning  v.  Reane,  2  Phillim.  Eccl. 
Rep.  69;  Rawdon  v.  Rawdon,  28  Ala. 
565;  Baughman  v.  Baughman,  32  Kan. 
538,  4  Pac.  1003;  Nonnemachcr  v.  Non- 
nemacher,  159  Pa.  634,  28  Atl.  439. 

"SchuUs  V.  Insurance  Co.  40  Ohio  St. 
217,  48  Am.  Rep.  676. 

So,  the  burden  rests  with  the  plain- 
tiff in  an  action  to  vacate  a  judgment 
and  decree  upon  tlie  ground  that  she  was 
of  unsound  mind  and  incapable  of  man- 
aging her  business  at  the  time  the  ac- 
tion   was    commenced    and    until    after 


judgment,  to  establish  such  facts. 
Smith  V.  McGlure,  146  Ind.  123,  44  N. 
E.  1004. 

^  Among  other  cases  supporting  this 
rule  are:    Porter  v.  State,  135  Ala.  51, 

33  So.  694;  Boiling  v.  State,  54  Ark. 
588,  16  S.  W.  658;  People  v.  Myers,  20 
Cal.  518;  People  v.  McCarthy,  115  Cal. 
25-5,  46  Pac.  1073;  State  v.  Eoijt,  47 
Conn.  518,  36  Am.  Rep.  89;  State  v. 
Danby,  Houst.  Crim.  Rep.  (I)el.)  166: 
State  V.  Cole,  2  Penn.  (Del.)  344,  45 
Atl.  391;  Brovm  v.  State,  40  Fla.  459, 
25  So.  63;  Ryder  v.  State,  100  Ga.  528. 

38  L.  R.  A.  721,  62  Am.  St.  Rep.  334,  28 
S.  E.  246;  People  v.  Walter,  1  Idaho, 
386;  Sanders  v.  State,  94  Ind.  147: 
State  V.  Robbins,  109  Iowa,  650,  80  N. 
W.  1061;  State  v.  Scott,  49  La.  Ann. 
253,  36  L.  R.  A.  721,  21  So.  271;  Stat,- 
V.  Parks,  93  Me.  208,  44  Atl.  899;  Com. 
V.  Eddy,  7  Gray,  583;  State  v.  Brown. 
12  Minn.  538,  Gil.  448;  State  v.  McCoy. 

34  Mo.  536,  86  Am.  Dec.  121;  State  v. 
Palmer,  161  Mo.  152,  61  S.  W.  651; 
State  V.  Lewis,  20  Nev.  333,  22  Pac. 
241;  Graves  v.  State,  45  N.  J.  L.  347, 
46  Am.  Rep.  778;  State  v.  Bill,  65  N. 
J.  L.  626,  47  Atl.  814;  Faulkner  v.  Ter- 
ritory, 6  N.  M.  464,  30  Pac.  905;  State 
V.  Starling,  51  N.  C.  (6  Jones  L.)  360; 
State  V.  Spivey,  132  N.  C.  989,  43  S.  E. 
475;  Bergin  v.  State,  31  Ohio  St.  Ill; 
Coyle  V.  Com.  100  Pa.  573,  45  Am.  Rep. 
397;  Com.  v.  Kilpatrick,  204  Pa.  218, 
53  Atl.  774;  State  v.  Mcintosh,  39  S.  C. 
97,  17  S.  E.  440;  Kim/  v.  State,  91 
Tenn.  617,  20  S.  W.  109;  Carter  v.  State, 

39  Tex.  Crim.  Rep.  345,  46  S.  W.  236,  45 


326  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS  [§  298 

impulse  to  commit  the  crime,-^  unless  such  incapacity  aj^pears  from 
evidence  offered  by  the  prosecution.^*'  And  where  the  accused  offers 
no  testimony  tending  to  show  insanity,  the  presumption  in  favor  of 
sanity  prevails.'"^^  So,  under  this  rule  the  burden  also  rests  with 
the  accused  to  show  his  insanity  upon  an  inquiry  as  to  his  sanity  at 
the  time  h»  is  brought  up  to  plead  to  the  indictment  or  for  trial.^^ 

Quite  a  number  of  autliorities  of  great  weight,  however,  have 
adopted  the  theory  that  sanity  is  an  ingredient  in  the  crime,  as  essen- 
tial as  the  overt  act,  and  that  the  plea  of  insanity  is  merely  the  denial 
of  one  of  the  essential  allegations  against  the  accused,  and  that  the 
burden  of  proof  rests  with  the  prosecution  to  show  sanity  as  a  part  of 
its  case."^      But  even  under  this  rule,  in  the  absence  of  evidence  indi- 

S.  W.  508 ;  People  v.  Dillon,  8  Utah,  92,  A  statute  imposing  upon  the  clefend- 

30  Pac.   150;   People  v.  Calton,  5  Utah,  ant    in   a   criminal    case   the   burden   of 

451,   16  Pac.  902;    Baceigalupo  v.  Ooto.  proving  a  plea  of  insanity  does  not  in- 

33  Gratt.  807,  36  Am.  Rep.  795;    Davis  vade   any   of    his   constitutional   rights. 

V.  United  States,  160  U.  S.  469,  40  L.  Martin  v.  State,  119  Ala.  1,  25  So.  255. 

ed.  499,  16  Sup.  Ct.  Rep.  353 ;  Einloch's  Though  the  burden  of  proving  insan- 

Case,  25  How.  St.  Tr.  981,  997 ;  Reg.  v.  ity  rests  with  him  who  alleges  it,  how- 

Layton,  4  Cox  C.  C.  149.  ever,  the  plea  of  insanity  does  not  re- 

This  rule  seems  to  have  been  affirmed  lieve  the   state,   in  a   criminal   prosecu- 

in  several  New  York  cases.     See  People  tion,   from  proving  every  fact  essential 

V.  Pine,  2  Barb.  566;   People  v.  O'Con-  to  make  out  the  crime;   and  the  state, 

nell,  62  How.  Pr.  436;  People  v.  Casey,  therefore,  retains  the  right  to  open  apd 

2    N.    Y.    Grim.    Rep.    187;    Walker    v.  close.     State  v.  Robbins.  109  Iowa,  650, 

People,  1  N.  Y.  Grim.  Rep.  7;  People  v.  80  N.  W.  1061;  State  v.Felter,  32  Iowa, 

Coleman,  1  N.  Y.  Grim.  Rep.  1 ;  People  49. 

V.  Robinson,   1     Park.    Grim.  Rep.   649,  '^MeKen~ie    v.    State,    26    Ark.    334; 

Affirmed  in  2    Park.    Grim.    Rep.  235;  State  v.   Hagt,   47   Conn.   518,   36   Am. 

Lake  v.  People,  1  Park.  Grim.  Rop.  495.  Rep.  89;  Sanders  v.  State,  94  Ind.  147; 

But  the  contrary  rule  seems  to  have  State  v.  Xorwood,  115  N.  C.  791,  44 
obtained,  and  the  apparent  inconsistency  Am.  St.  Rep.  498,  20  S.  E.  712;  Lake  v. 
would  seem  to  be  the  result  of  the  doc-  People,  1  Park.  Crim.  Rep.  495 ;  Nev- 
trine  that  sanity  need  not  be  proved  un-  ling  v.  Com.  98  Pa.  323;  Com.  v.  Wire- 
less insanity  is  asserted.  See  line  of  baek,  190  Pa.  138,  70  Am.  St.  Rep.  625^ 
contrary  cases  cited  below,  note  33  et  42  Atl.  542;  Com.  v.  Eeidler,  191  Pa. 
seq.  375,  43  Atl.  211;  United  States  v.  Laio- 

So,  the  burden  rests  with  the  defend-  rence,  4  Granch  G.  C.  514,  Fed.  Gas.  No. 

ant  in  an  appellate  court,  upon  appeal  15,576;  McDougal  v.  State,  88  Ind.  24: 

from    a   conviction    in    a    criminal    case  Reg.  v.  Stokes,  3  Car.  &  K.   185;   King 

in  which  the  court  below  had  found  that  v.  State,  9  Tex.  App.  558. 

he  was  not  insane,  to  show  that  theie  And    no    instruction    as    to    insanity 

was  sufficient  evidence  in   favor  of  the  need  be  given  in  the  absence  of  evidcncf 

defense    of    insanity.      Hoard    v.    State,  tending  to  show  it.     Bishop  v.  Com.  22 

15  Lea,  318.             '  Ky.  L.  Rep.  760,  58  S.  W.  817. 

-Wroion  v.  Com.  78  Pa.  122;  State  v.  '"-State  v.  O'Oradij,  3  Ohio  Legal  News. 

Reidell,   9    Iloust.    (Del.)    470,    14   Atl.  137;  U^iitcd  Stales  v.  Lancaster,  7  Biss. 

550;  Slate  v.  Coleman,  27  La.  Ann.  691.  440,  Fed.  Gas.  No.  15,555:  Reg.  v.  Tur- 

This  rule  applies  particularly  to  par-  ton,  6  Cox  G.  G.  385. 

tial    or    temporary    insanity.     State    v.  "^Montag  v.  People,  141  111.  75.  30  N. 

Pratt,   Iloust.   Crim.    Rep.    (Del.)    249;  E.  337;  Ilopj^s  v.  People,  31  111.  385,  83 

Kinloch's  Trial.  25  How.  St.  Tr.  997.  Am.  Dec.  231;  Russell  v.  State,  53  Miss. 

'^Sfate  V.   Danby,   Iloust.   Crim.   Rep.  367:  Ford  v.  State,  73  Miss.  734,  35  L. 

(Del.)    166;   People  v.  Calton,  5   Utah,  R.  A.  117,  19  vSo.  665;  Ballard  v.  State, 

451,  16  Pac.  902.  19  Neb.  610,  28  N.  W.  271;   Wright  v. 


§  298]  EVIDENCE.  327 

eating  insanity,  both  the  court  and  the  jiny  are  justified  in  acting 
upon  the  presumption  of  sanity;  and  when  the  evidence  establishes 
the  criminal  act,  and  indicates  nothing  as  to  the  mental  capacity  of 
the  accused,  a  conviction  is  autliorized,^^  though  whenever  the  ques- 
tion of  sanity  is  put  in  issue  by  facts  coming  from  eithei*  aide,  it 
devolves  upon  the  prosecution  to  establish  it.^^  And  the  general  rule 
is  that  the  burden  of  proof  is  regarded  as  remaining  with  the  govern- 
ment throughout  the  entire  case,^^  though  the  courts  of  a  few  of  the 
states  regard  the  burden  as  a  shifting  one  and  hold  that  where  evi- 
dence is  produced  sufficient  to  raise  a  reasonable  doubt  of  the  defend- 
ant's sanity,  the  presumption  of  sanity  ceases,  and  the  burden  shifts 

People,  4  Neb.  407 ;  Moett  v.  People,  85    son  v.  People,  145  111.  357,  34  N.  E.  4<S6 ; 
N.  Y.  373;  Brotherton  v.  People,  75  N.    State  v.  Morphy,  33  Iowa,  270,  11  Am. 
Y.   159;   O'Conncll  v.  People,  87   N.  Y.    Rep.  122. 
377,  41  Am.  Rep.  379.  But  the  evidence  need  not  be  sufficient 

^*Armstrong  v.  State,  30  Fla.  170,  17  to  raise  a  reasonable  doubt  of  sanity. 
L.  R.  A.  484,  11  So.  618;  State  v.  Craw-  Snider  v.  State,  56  Neb.  309,  76  N.  VV. 
furd,    11    Kan.    32;    Ford   v.    State,    73    574. 

Miss.  734,  35  L.  R.  A.  117,  19  So.  665;  The  legal  presumption  of  sanity  under 
O'Conncll  v.  People,  87  N.  Y.  377,  41  this  rule  is  regarded  as  merely  a  matter 
Am.  Rep.  379;  Brotherton  v.  People,  75  of  evidence,  standing  upon  the  same 
N.  Y.  159;  Walter  v.  People,  32  N.  Y.  ground  as  the  testimony  of  the  wit- 
147;  Com.  v.  Eddy,  7  Gray,  583.  nesses;  not  shifting  the  burden  of  proof 

But  an  instruction  as  to  reasonable  in  the  sense  of  changing  the  rule  as  to 
doubt,  making  no  reference  to  the  de-  the  quantity  of  evidence  required,  but 
fense  of  insanity,  is  not  objectionable  being  merely  prima  facie  proof  of  san- 
as  authorizing  a  conviction  in  the  ab-  ity.  upon  which  the  jury  can  find  a  ver- 
sence  of  proof  of  the  defendant's  sanity,  diet  though  it  cannot  be  weighed  against 
Schwartz  v.  State  (Neb.)   91  N.  W.  190.    any    measurable    amount    of    evidence. 

And  an  instruction  that  the  defendant  State  v.  Bartlett,  43  N.  H.  224,  80  Am. 
is  presumed  to  be  sane  until  he  convinces  Dec.  154 ;  State  v.  Jones,  64  Iowa,  356, 
the  jury  by  the  evidence  that  he  is  in-  17  N.  W.  911,  20  N.  W.  470;  and  see 
sane  is  not  error,  where  he  has  been  Barber's  Appeal,  63  Conn.  393,  22  L.  R. 
tried  upon  the  theory  that  the  burden  A.  90,  27  Atl.  973;  McAllister  v.  Terri- 
rests  with  the  prosecution  to  maintain  to7-y,  1  Wash.  Terr.  360. 
his  sanity.  O'Conneli  v.  People,  87  N.  And  an  instruction  in  a  criminal 
Y.  377,  41  Am.  Rep.  379.  prosecution,    that   to    establish    the    de- 

^'^Montag.v.  People,  141  111.  75,  30  N.  fense  of  insanity  it  must  be  clearly 
E.  337 ;  Fisher  v.  People,  23  111.  293 ;  proved,  is  not  error,  where  the  court 
Barber's  Appeal,  63  Conn.  393,  22  L.  R.  elsewhere  charged  the  jury  that  the  bur- 
A.  90,  27  Atl.  973;  State  v.  Crawford,  11  den  of  establishing  beyond  a  reasonable 
Kan.  32;  People  v.  Garbutt,  17  Mich.  9,  doubt,  as  one  of  the  elements  of  guilt, 
97  Am.  Dec.  162;  Ford  v.  State,  73  Miss,  that  the  accused  was  not  insane,  is  cast 
734,  35  L.  R.  A.  117,  19  So.  665;  Cun-  upon  the  prosecution.  Walker  v. 
ningham  v.  State,  56  Miss.  269.  31  Am.  People,  88  N.  Y.  86,  Affirming  26  Hun, 
Rep.  360;  Furst  v.  State,  31  Neb.  403,  67,  1  N.  Y.  Crim.  Rep.  7. 
47  N.  W.  1116;  Snider  v.  State,  5(>  ^"Davis  v.  United  States,  160  U.  S. 
Neb.  309,  76  N.  W.  574;  Knights  v.  469,  40  L.  ed.  499,  16  Sup.  Ct.  Rep.  353 ; 
mate,  58  Neb.  225,  76  Am.  St.  Rep.  78.  Com.  v.  McKie,  1  Gray,  61,  61  Am.  Dec. 
78  N.  W.  508;  Com.  v.  Heath,  11  Grav.  410;  People  v.  Garbutt,  17  Mich.  9,  97 
303;  O'Conneli  v.  People,  87  N.  Y.  377,  Am.  Dec.  162;  Snider  v.  State,  56  Neb. 
41  Am.  Rep.  379;  People  v.  Barheri,  12  309,  76  N.  W.  574;  Knights  v.  State,  58 
N.  Y.  Crim.  Rep.  89,  47  N.  Y.  Supp.  168 :  Neb.  225,  76  Am.  St.  Rep.  78,  78  N.  VV. 
Maas  V.  Territori/,  10  Okla.  714,  53  L.  508;  State  v.  Bartlett,  43  N.  H.  224,  80 
R.  A.  814,  63  Pac.  960.  And  see  Lilly  v.  Am.  Dec.  154;  McAllister  v.  Territory, 
People,  148  111.  467,  36  N.  E.  95;  Jami-   1  Wash.  Terr.  360. 


328 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONE. 


[§  298 


to  the  prosecution,  which  is  then  required  to  prove  sanity  as  a  con- 
stituent element  of  the  crime.^'^ 

299.  Conflicting  rules  as  to  burden  of  proof  in  will  cases. — 
The  question  of  burden  of  proof  in  will  cases  has  given  rise  to  a 
hopeless  conflict  of  authority,  in  some  instances  directly  contrary 
rules  having  been  asserted  in  the  same  jurisdiction.  Upon  the  one 
hand,  the  rule  is  laid  down  by  a  large  number  of  cases  that  the  bur- 
den of  proof  of  unsoundness  of  mind,  or  testamentaiy  incapacity, 
rests  %vith  those  who  contest  the  will.^^  And  they  have  the  right  to 
open  and  close.^^  And  the  burden  of  proving  an  insane  delusion 
which  will  affect  the  validity  of  a  testator's  will  also  rests  with  the 
party  affirming  or  setting  it  up."^"  Within  this  rule  express  proof  of 
a  testator's  capacity  is  not  required,  in  the  absence  of  a  contest,  as  in 


"Jamison  v.  People,  145  111.  357,  34 
N.  E.  486 ;  Lilly  v.  People,  148  111.  467, 
36  N,  E.  95;  Bradley  v.  State,  31  Ind. 
492. 

But  evidence  tending  to  show  the  in- 
sanity of  the  accused  in  a  criminal 
prosecution  does  not  shift  the  burden  of 
proof  upon  the  accused,  unless  it  is  svif- 
iicient  to  create  a  reasonable  doubt  as  to 
his  sanity.  People  v.  Finley,  38  Mich. 
482;  Jamison  v.  People,  145  111.  357,  34 
N.  E.  486. 

And  proof  of  insensibility  to  the  con- 
sequences of  his  acts  on  the  part  of  a 
person  accused  of  homicide,  and  of  ab- 
sence of  apparent  motive,  is  not  such 
evidence  of  insanity  as  will  cast  the 
burden  upon  the  state  of  affirmatively 
proving  sanity.  State  v.  liedemeier,  8 
Mo.  App.  1. 

^  Among  the  cases  supporting  this 
rule  are:  Murphree  v.  Senn,  107  Ala. 
424,  18  So.  264;  Cotton  v.  Uliner,  45 
Ala.  378,  6  Am.  Rep.  703 ;  McCulloch  v. 
Campbell,  49  Ark.  367,  5  S.  W.  590;  Re 
Motz,  136  Cal.  558,  69  Pac.  294 ;  Sturdc- 
vanVs  Appeal,  71  Conn.  392,  42  Atl.  70; 
Dufjleld  V.  Robeson,  2  Harr.  (Del.)  875; 
Steele  v.  Helm,  2  Marv.  (Del.)  237,  43 
Atl.  153;  Teeqarden  v.  Lewis,  145  Ind. 
98,  40  N.  E.  1047,  44  N.  E.  9;  Stephen- 
son v.  Stephenson,  62  Iowa,  163,  17  N. 
W.  456 ;  Broiim  v.  Ward,  53  Md.  303,  30 
Am.  Rep.  422;  Whitenack  v.  Strykcr,  2 
N.  J.  Eq.  8;  Elkinton  v.  Brick,  44  N. 
J.  Eq.  154,  1  L.  R.  A.  101.  15  At).  391; 
Re  Burns,  121  N.  C.  336,  28  S.  E.  519; 
JJfihe:  t  V.  Eqbert.  78  Pa.  320;  Lee  v.  Lee, 
4  M'Cord,  L.  183,  17  Am.  Dec.  722;  Bar- 
tee  v.  Thompson,  8  Baxt.  508;  Cole's 
Will,  49  Wis.  179,  5  N.  W.  34<i :  Allen 
y.  Griffin,  69   Wis.   529,  35   N.  W.   21; 


ignoring  the  contrary  opinion  of  Lyon, 
J.,  in  Silverthorn's  Will,  68  Wis.  372, 
32  N.  W.  287;  Cartwright  v.  Cart- 
icright,  1  Phillim.  Eccl.  Rep.  90;  Dew 
V.  Clark,  3  Addams  Eccl.  Rep.  79; 
Groom  v.  Thomas,  2  Hagg.  Eccl.  Rep. 
433.     But  see  later  English  cases,  infra. 

Under  this  rule  the  presumption  of 
sanity  in  a  will  contest  stands  until 
overcome  by  the  weight  of  the  testimony 
impeaching  it.  Newhard  v.  Yundt,  132 
Pa.  324,  19  Atl.  288;  Chrisman  v.  Chris 
man,  16  Or.  127.  18  Pac.  6;  Burton  v. 
Scott,  3  Rand.   (Va.)  399. 

And  the  burden  of  proving  the  proper 
execution  of  a  will  rests  with  the  de- 
fendant in  ejectment  claiming  under  it, 
and  for  that  purpose  he  must  call  the 
subscribing  witnesses,  making  them  his 
own,  to  testify  to  the  fact  of  execution 
and  mental  capacity  of  the  testator  at 
the  time,  leaving  the  other  party  the 
benefit  of  cross-examining  the  witnesses. 
Waters  v.  Waters,  35  Md.  531. 

And  an  instruction  in  an  sr+ion  to 
contest  a  will,  that  the  plaintiff  must, 
prove  that  the  testator  was  not  of  sound 
mind  and  disposing  memory,  is  erron- 
eous where  the  statute  only  requires  the 
party  contesting  to  show  that  the  party 
was  of  unsound  mind.  Kenworthy  v. 
WiUi'ims,  5  Ind.  375. 

^^Chandler  v.  Ferris,  1  Harr.  (Dol.^ 
454;  Bell  v.  Buckmaster,  1  Harr.  (Del.) 
460,  note. 

*''Dew  V.  Clark,  3  Addams  Eccl.  Rep. 
79:  Smce  v.  Smee.  L.  R.  5  Prob.  Div.  84, 
28  Week.  Rep.  703,  44  J.  P.  220,  49  L. 
J.  Prob.  N.  S.  8;  Allen  v.  Public  Ad- 
ministrator, 1  Bradf.  378;  Keeler  v. 
Keclcr,  20  N.  Y.  S.  R.  439,  3  N.  \. 
Supp.   629;    Re  Scott,    128   Cal.   57,   60 


S  299] 


EVIDENCE. 


329 


sucli  case  the  presumption  of  competency  will  prcvail.^^  And  where 
a  will  is  contested  on  the  gTound  of  insanity,  the  proponent  is  only 
required  to  prove  the  fact  of  fonnal  execution,  when  the  burden  of 
overturning  the  presumption  of  sanity  is  cast  upon  the  contestants."*^ 
Upon  tlie  other  hand,  however,  the  contrary  rule  is  laid  down  by 
authorities  of  gi-eat  weight,  that  the  burden  of  proof  rests  with  the 
proponents  of  a  will  to  show  all  the  facts  necessary  to  make  a  valid 
will,  including  the  fact  that  it  was  the  free  act  of  a  man  competent 
under  the  law  to  make  a  will.^^  And  they  are  entitled  to  open  and 
close  the  argument  before  the  jury.^**     And  tlie  presumption  of  sanity 


Pac.  527;  Hemingivay's  Estate,  195  Pa. 
291,  78  Am.  St.  Rep.  81.5,  45  Atl.  726, 
Affirming  7  Northampton  Co.  Rep.  93; 
Scarborough  v.  Baskin,  65  S.  C.  558,  44 
S.  E.  63. 

*^ Herbert  v.  Berrier,  81  Ind.  1 ;  Per- 
kins V.  Perkins,  39  N.  H.  163 ;  Smith  v. 
Smith,  4  Baxt.  293;  Haukins  v.  Grimes, 
13  B.  Mon.  257;  Bartee  v.  Thompson,  8 
P>axt.  508. 

*-Titlow  V.  Titlow,  54  Pa.  216,  93  Am. 
Dec.  691;  Werstler  v.  Custer,  46  Pa. 
502;  Key  v.  EoUoway,  7  Baxt.  575; 
Frear  v.  Williayns,  7  Baxt.  550 ;  Smith 
V.  Smith,  4  Baxt.  293;  Woodford  v. 
Buckner,  23  Ky.  L.  Rep.  627,  63  S.  W. 
617;  Bramel  v.  Bramel,  101  Ky.  64,  39 
S.  W.  520. 

**Among  the  cases  supporting  this 
rule  are:  Comstock  v.  Hadltjme  Eccle- 
siastical Soc.  8  Conn.  261,  20  Am.  Dec. 
100;  Evans  v.  Arnold,  52  Ga.  169;  Riga 
V.  Wilton,  13  111.  15,  54  Am.  Dec.  4:19 ; 
Baker  v.  Baker,  202  111.  595,  67  N.  E. 
410;  Bramel  v.  Bramel,  101  Ky.  64,  39 
S.  W.  520;  Gerrish  v.  Nason,  22  Me. 
438,  39  Am.  Dec.  589;  Re  Thomson,  92 
Me.  563^  43  Atl.  511;  Crowninshield  v. 
Crowninshield,  2  Gray,  524 ;  RicJiard- 
son  V.  Bly,  181  Mass.'  97,  63  N.  E.  3; 
Prcntis  v.  Bates,  93  Mich.  234,  17  L.  R. 
A.  494,  53  N.  W.  153:  Re  Layman,  40 
Minn.  371,  42  N.  W.  286;  Sheehan  v. 
Kearney  (Miss.)  35  L.  R.  A.  102,  21  So. 
41;  Tinqlcy  v.  Cowgill,  48  Mo.  291;  Cai-l 
V.  Gabel,  120  Mo.  283,  25  S.  W.  214: 
Murry  v.  Hennessey,  48  Neb.  608,  67 
N.  W.  470;  Hardy  v.  Merrill,  50  N.  H. 
227,  22  Am.  Rep.  441;  Dela field  v.  Par- 
ish, 25  N.  Y.  9;  Ramsdcll  v.  Viele,  6 
Dem.  244,  16  N.  Y.  S.  R.  281.  Affirmed 
in  20  N.  Y.  S.  R.  446,  3  N.  Y.  Supp. 
499,  117  N.  Y.  636,  22  N.  E.  1130;  Chris- 
man  V.  Chrisman,  16  Or.  127,  18  Pae. 
6 ;  Vance  v.  Upson,  66  Tex.  476,  1  S.  W. 
179;  Re  Van  Alstine  (Utah)  72  Pac. 
942;  Williams  v.  Robinson,  42  Vt.  658, 


1  Am.  Rep.  359;  distinguishing  and  ex- 
plaining Dean  v.  Dean,  27  Vt.  746; 
Demiy  v.  Pinnei/,  60  Vt.  524,  12  Atl. 
108;  ^Riddell  v.  Johnson,  26  Gratt.  152; 
Gray  v.  Rumrill  (Va.)  44  S.  E.  697, 
overruling,  though  without  mentioning, 
Bxirton  v.  Scott,  3  Rand.  (Va.)  399; 
McMechen  v.  McMechen,  17  W.  Va.  683, 
41  Am.  Rep.  682;  Banks  v.  Good  fellow, 
22  L.  T.  N.  S.  813,  L.  R.  5  Q.  B.  549,  .39 
L.  J.  Q.  B.  N.  S.  237;  Smee  v.  Smee,  L. 
R.  5  Prob.  Div.  84,  28  Week.  Rep.  703, 
44  J.  P.  220,  49    L.    J.    Prob.    N.    S.    8. 

iUillins  V.  Cottrell,  41  Miss.  291,  and 
Payne  v.  Banks,  32  Miss.  292,  seem  to 
announce  the  opposite  rule,  but  the  de- 
cision in  those  cases  probably  turned 
upon  the  question  as  to  the  weight  and 
sufficiency  of  evidence  rather  than  upon 
that  of  burden  of  proof.  And  Brown  v. 
Torrey,  24  Barb.  583;  Legg  v.  Myer,  5 
Redf.  628 ;  Harper  v.  Harper,  1  Thomp. 
&  C.  351;  Miller  v.  White,  5  Redf.  320; 
Potter  V.  McAlpine,  3  Dem.  108,  are 
probably  open  to  the  same  explanation. 

And  under  this  rule  an  averment  on 
the  part  of  the  proponents  of  a  will, 
for  the  purpose  of  forming  an  issue, 
should  include  everything  necessary  to 
constitute  a  valid  will,  including  sound- 
ness of  mind ;  though  where  the  require- 
ment of  soimdnoss  rest.«  upon  implica- 
tion only,  the  presumption  of  sanity  ia 
sufficient  to  satisfy  the  implication 
witliout  averment.  Beaiibicn  v.  Cicotte, 
8  Mich.  9 ;  and  see  Haickins  v.  Grimes, 
13  B.  Mon.  257. 

But  the  burden  of  proof  in  a  will 
contest  rests  with  the  proponents  to 
show  general  sanity  or  testamentary 
capacity  only;  and  a  charge  submitting 
to  the  jury  the  question  whether 
the  testatrix  was  entirely  free  from  in- 
sanity of  any  kind  is  improper.  Wetter 
V.  Habersham,  00  Ga.  194. 

*^Comstock  V.  Hadlyme  Ecclesiastical 
Soc.  8  Conn.  261.  20  Am.  Dec.  100;  Rigg 


330 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  2ii9 


does  not  apply  in  a  will  contest,  where  tlie  statute  requires  the  testaixjt 
to  be  of  sound  mind  to  make  a  valid  will,  such  soimdness  of  mind 
being  required  to  be  proved  l)y  the  proponent.^" 

300.  Shifting  of  the  burden  resting  with  the  proponent. — Within 
the  doctrine  above  stated  many  of  the  cases  hold  that  the  burden  of 
proof  resting  with  tlie  proponent  of  a  will  to  show  sanity  continues 
throughout  the  trial,  and  does  not  shift  upon  the  giving  of  evidence 
of  insanity.'*®  And  he  must  produce  sufficient  evidence  to  outweigh 
that  offered  by  the  contestants,  so  as  to  satisfy  the  jury,  upon  the 
whole  case,  that  the  testator  was  of  sound  mind.^^  But  when  a 
prima  facie  case  has  been  established  by  the  proponent,  the  cas(^ 
stands  the  same  as  if  the  burden  of  proof  throughout  rested  with  the 
contestants ;  and  they  are  bound  by  rules  applicable  to  tlie  party  hav- 
ing the  affirmative  as  to  the  order  of  tlieir  proof. '*^  In  a  number  of 
the  states,  however,  the  rule  is  that  while  the  burden  rests  with  the 
proponent  of  a  will  to  show  that  the  testator  was  of  sound  mind,  when 
this  is  done  the  burden  shifts  to  the  contestant,  not  only  to  neutralize 


V.  Wilton,  13  111.  15,  54  Am.  Dec.  419; 
Brooks  V.  Barrett,  7  Pick.  94;  Phelps  v. 
Bartivell,  1  Mass.  71;  Robinson  v. 
Adams,  62  Me.  369,  16  Am.  Rep.  473; 
Hardy  v.  Merrill,  56  N.  H.  227.  22  Am. 
Rep.  441;  Re  Van  Alsti^ie  (Utah)  72 
Pae.  942. 

But  the  question  as  to  Avho  shall  go 
forward  is  within  the  discretion  of  the 
court;  and  an  error  in  the  exercise  of 
such  discretion  is  not  a  ground  for  a 
new  trial.  Comsfock  v.  Hadlyme  Ec- 
clesiastical 8oc.  8  Conn.  254,  20  Am.  Dec. 
100. 

*^RoUnson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473 ;  Barnes  v.  Barnes,  66  Me. 
286 ;  alley  v.  Cilley,  34  Me.  162 ;  Ger- 
rish  V.  Nnson,  22  Me.  438,  39  Am.  Dec. 
589 ;  Crowninshield  v.  Crowninshield, 
2  Gray,  524;  BeauMen  v.  Cicotte,  8 
Mich.  9;  Re  Layman,  40  Minn.  371,  42 
N.  W.  286;  Martin  v.  Perkins,  56  Miss. 
204;  Beazley  v.  Denson,  40  Tex.  416; 
Nicholas  v.  Kershner,  20  W.  Va.  251; 
McMechen  v.  McMechen,  17  W.  Va.  683. 
41  Am,  Rep.  082. 

In  an  action  by  executors  to  determine 
the  validity  of  a  will  under  the  provis- 
ions of  N.  Y.  Code  Civ.  Proc.  §  2653a, 
however,  the  burden  of  establishing  in- 
competency rests  with  the  contestants. 
Dobie  V.  Armstrong,  27  App.  Div.  520, 
50  N.  Y.  Supp.  801. 

"Crowninshield  v.  Crowninshield,  2 
Grav,  524;  Barker  v.  Comins,  110  Mass. 
477;  Norton  v.  Paxton,  110  Mo.  456,  19 


S.  W.  807;  Baxter  v.  Abbott,  7  Gray, 
71;  Sheehan  v.  Kearney  (Miss.)  35  L. 
R.  A.  102,  21  So.  41;  Elliott  v.  Welby, 
13  Mo.  App.  19;  Prentis  v.  Bates,  93 
Mich.  234,  17  L.  R.  A.  494,  53  N.  W. 
153;  Aikin  v.  Weckerly,  19  Mich.  482: 
Perkins  v.  Perkins,  39  N.  H.  163;  Dcla- 
field  V.  Parish,  25  N.  Y.  9;  Chrisman  v. 
Ghrisman,  16  Or.  127.  18  Pac.  6;  Vance 
V.  Upson,  66  Tex.  476.  1  S.  W.  179; 
Riddcll  v.  Johnson,  26  Gratt.  152;  Liv- 
ingston's  Appeal,  63  Conn.  68.  26  Atl. 
470;  Sutton  v.  Sadler,  3  C.  B.  N.  S.  87. 
26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  S. 
1150,  5  Week.  Rep.  880;  Symes  v. 
Green,  1  Swabey  &  T.  401.  5  Jur.  N.  S. 
742,  28  L.  J.  Prob.  N.  S.  83. 

"Aikin  v.  Weckerly,  19  Mich.  482; 
Chrisman  v.  Chrisman,  16  Or.  127,  IS 
Pse.  6. 

Under  this  rule  the  burden  of  proof 
does  not  shift  upon  evidence  of  sanity 
given  by  the  subscribing  witnesses. 
Croioninshield  v.  Crowninshield,  2  Gray, 
524. 

*^Kempsey  v.  McGinniss.  21  Mich.  123: 
Re  Layman,  40  Minn.  371.  42  N.  W. 
286:  Jones  v.  Jones,  43  N.  Y.  S.  R.  434. 
17  N.  Y.  Supp.  905;  Sutton  v.  Sadler,  3 
C.  B.  N.  S.  87,  26  L.  J.  C.  P.  N.  S.  284, 
3  Jur.  N.  S.  1150,  5  Week.  Rep.  880. 
And  sec  Jlodgdon  v.  Crosby,  1  Wash. 
Terr.  578;  Harrison  v.  Roican,  3  Wash. 
C.  C.  580,  Fed.  Cas.  No.  6.141;  Hoge  v. 
Fisher,  1  Pjct.  C.  C.  163,  Fed.  Cas.  No. 
6,585;  Barbers  Appeal,  63  Conn  393,  2-2. 


§  300] 


EVlDEiNCE. 


331 


the  proof  of  sanity  offered,  but  also  the  presumption  of  sanity;^* 
and  that  while  the  person  propounding  a  will  must  prove  not  only  its 
execution  and  publication,  but  also  the  mental  capacity  of  the  testator, 
one  who  sets  up  the  fact  that  the  testator  is  non  compos  mentis  must 
prove  it.^^ 

301.  Sufficiency  of  evidence  to  satisfy  or  shift  the  burden. — In  the 
absence  of  evidence  in  a  will  contest  tending  to  show  want  of  testa- 
mentary capacity,  slight  evidence  of  capacity  is  all  that  is  needed  t/> 
authorize  the  probate  of  the  will.^^  But  there  must  be  some  evidence 
other  than  the  presumption  of  sanity  to  satisfy  or  shift  the  burden 
resting  with  the  proponent.^'^  Such  burden,  however,  is  satisfied 
by  a  preponderance  of  testimony. ^^      And  a  prima  facie  case  is  made 


L.  R.  A.  90,  27  Atl.  973;  Jackson  v. 
Hardin,  83  Mo.  175 ;  Carpenter  v.  Car- 
penter, Milward,  159. 

*^Carpenter  v.  Calvert,  83  111.  62; 
Baker  v.  Baker,  202  111.  595,  67  N.  E. 
410;  Hollenbeck  v.  Cook,  180  111.  65,  54 
N.  E.  154;  Entwistle  v.  Meikle,  180  III. 
9,  54  N.  E.  217;  Wilbur  v.  Wilbur,  129 
111.  392,  21  N.  E.  1076;  Pendlay  v. 
Eaton,  130  III.  69,  22  N.  E.  853 ;  Egbers 
V.  Egbers,  177  III.  82.  52  N.  E.  285;  Hol- 
loway  V.  Galloivaij,  51  111.  160;  Barber's 
Appeal,  63  Conn.  '393.  22  L.  R.  A.  90.  27 
Atl.  973 ;  Blifflin  v.  Smedlcg,  3  Del.  Co. 
Rep.    143;    Bramel  v.   Bramel,    101   Ky. 

64,  39  S.  W.  520;  Fee  v.  Tai/lor,  83  Ky. 
259;  Milton  v.  Hunter,  13  Bush,  163; 
Woodford  v.  Biickner,  23  Ky.  L.  Rep. 
627,  63  S.  W.  617;  Boone  v.  Ritchie,  21 
Ky.  L.  Rep.  864,  53  S.  W.  518;  Chandler 
V.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec. 
701;  Jackson  v.  Hardin,  83  Mo.  175; 
Delafield  v.  Parish,  25  N.  Y.  9;  Temple 
V.  Temple,  1  Hen.  &  M.  476;  Den  ex 
dem.  Stevens  v.  Vancleve,  4  Wash.  C.  C. 
262,  Fed.  Cas.  No.  13,412;  Groom  v. 
Thomas,  2  Hagg.  Eccl.  Rep.  433. 

Though  the  burden  of  proof  rests  in 
the  first  instance  upon  the  party  seek- 
ing to  establish  a  will  to  show  that  the 
testator  was  of  sound  mind  at  the  time 
of  making  it,  when  a  prima  facie  case 
has  been  made,  the  presumption  of  san- 
ity arises.  Carpenter  v.  Calvert,  83  111. 
62;  Silverthorn's  Will,  68  Wis.  372,  32 
N.  W.  28T. 

"""Jones  V.  Jo7ies,  43  N.  Y.  S.  R.  434, 
17  N.  Y.  Supp.  905;  Sutlon  v.  Sadler, 
3  C.  B.  N.  S.  87,  26  L.  J.  C.  P.  N.  S.  284, 
3  Jur.  N.  S.  1150,  5  Week.  Rep.  880; 
Egbers  v.  Egbers,  177  111.  82,  52  N.  E. 
285;  Entu-istle  v.  Meikle,  180  111.  9,  54 
N.  E.  217;  Hollenbeck  v.  Cook,  180  111. 

65,  54  N.  E.   154;   Balcer  v.  Balccr,  202 


111.  595,  67  N.  E.  410;  King  v.  King,  19 
Ky.  L.  Rep.  868,  42  S.  W.  347;  Mc 
Fadin  v.  Catron,  138  Mo.  197,  38  S.  W 
932,  39  S.  W.  771;  Fulbright  v.  Pcrrj! 
County,  145  Mo.  432,  46  S.  W.  955: 
Sehr  V.  Lindemann,  153  Mo.  276,  54  S. 
W.  537. 

'■'Allen  V.  Grifli.n,  69  Wis.  529,  35  K. 
W.  21.  And  see  Haiokins  v.  Grimes,  1" 
B.  Mon.  257;  Cole's  Will,  49  Wis.  179. 
5  N.  W.  346. 

^'■McGinnis  v.  Kempsey,  27  Mich.  36;!; 
Aikin  v.  Weckerly,  19  Mich.  482: 
Martin  v.  Perkins,  56  Miss.  204: 
Werstler  v.  Custer,  46  Pa.  502;  Silver 
thorn's  Will,  68  Wis.  372,  32  N.  W. 
287;  SMton  v.  Sadler,  3  C.  B.  N.  S.  87. 
26  L.  J.  C.  P.  N.  S.  284,  3  Jur.  N.  8. 
1150,  5  Week.  Rep.  880.  And  see  Hig 
gins  V.  Carlton,  28  Md.  115,  92  Am. 
Dec.  666;  Hubbard  v.  Hubbard,  7  Or. 
42;  Re  Lyddy,  24  N.  Y.  S.  R.  607,  5  N. 
Y.  Supp.  636. 

In  Re  Balduin,  13  Wash.  660,  43  Pac. 
934,  it  was  held  that  sufficient  proof  to 
mnke  out  a  prima  facie  case  of  tho 
sanity  of  a  testator  at  the  time  his  will 
was  made  is  necessary  before  the  admis- 
sion of  the  will  to  probate,  as  one  of  the 
jurisdictional  facts. 

And  an  instruction  in  a  will  contest 
that  it  devolves  upon  the  person  seek- 
ing to  sustain  the  will  to  prove  that  tJie 
testator  was  of  competent  mind  and 
memory  to  make  it  at  the  time  of  its 
publication  is  erroneous,  as  excluding 
altogether  the  presumption  of  sanity, 
and  as  excluding  the  right  of  the  pro- 
ponent to  make  out  his  case  upon  the 
question  of  sanity  from  the  whole  case 
befora  the  jury.  Hawkins  v.  Grimes, 
13  B.  Mon.  257. 

'"■'Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473. 


332 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  301 


by  testimony  in  favor  of  competency  by  the  subscribing  witnesses,^^ 
or  by  proof  of  due  execution  of  a  will  rational  in  its  provisions,  and 
consistent  in  its  details,  language,  and  construction.^^  The  fact  that 
a  will  is  unreasonable,  however,  though  competent  on  the  question  of 
mental  capacity,  imposes  no  new  or  special  burden  upon  the  party 
propounding  it.*""  And  the  burden  of  proof  of  a  disposing  mind 
and  memor)'  cannot  be  satisfied  by  mere  pi  oof  that  the  testator  had 
capacity  at  some  anterior  date.^^ 

Where  the  burden  of  proof  of  incapacity  rests  with  the  contestants. 


^O'Connor  v.  Madison,  98  Mich.  183, 
57  N.  W.  105;  Uoicat  v.  Houat,  19  Ky. 
L.  Rep.  750,  41  S.  W.  771;  Taff  v.  Hos- 
mer,  14  Midi.  309;  IHggins  v.  Carlton, 
28  Md.  115,  92  Am.  Dec.  GGO;  Jackson  v. 
Hardin,  83  Mo.  175;  McFadin  v.  Catron, 
138  Mo.  197,  38  S.  W.  932,  39  S.  W.  771 ; 
Re  Forman,  54  Barb.  274;  Cordrey  v. 
Cordrey,  1  Houst.  (DeL)  2G9;  Bell  v. 
Buckmaslcr,  1  Harr.  (Del.)  460,  note; 
Werstler  v.  Custer,  46  Pa.  502. 

After  favorable  testimony  on  the  ques- 
tion of  sanity  by  the  attesting  witnesses, 
the  testimony  of  the  contestants  to  de- 
feat a  will  must  so  far  overcome  that  of 
the  proponents  as  to  neutralize  the  effect 
of  the  legal  presumption  of  sanity. 
Harber's  Appeal,  63  Conn.  393,  22  L.  R. 
A.  90,  27  Atl.  973. 

And  where  the  attesting  witnesses  to 
a  will  do  not  impeach  the  testator's 
sanitj'.  or  if,  being  absent  or  dead,  their 
handwriting  is  proved,  the  will  will  be 
regarded  as  established  unless  proof  of 
insanity  is  offered  bv  the  contestants. 
Perkins  v.  Perkins,  39  N.  H.  163. 

The  introduction  in  evidence  of  the 
various  attestations  to  a  will  before  the 
clerk  of  a  prcbate  court,  however,  does 
not  shift  the  burden  of  proof  from  tho 
proponent  to  the  contestant,  on  the 
question  of  testamentary  capacity. 
FAliott  V.  Welby,  13  Mo.  App.  19. 

'^Fee  V.  Taylor,  83  Ky.  259;  Milton  v. 
Hunter,  13  Bush,  163;  "Flood  v.  Pragoff, 
79  Ky.  607 ;  Hawkins  V.  Grimes,  1 3  B. 
Mon.  257 ;  Anderson  v.  Iricin,  101  111. 
411;  Chandler  v.  Barrett,  21  La.  Ann. 
58,  99  Am.  Dec.  701 ;  Symes  v.  Green,  1 
Swabev  &  T.  401,  5  Jur.  N.  S.  742.  23 
L.  J.  Prob.  N.  S.  83.  And  see  Cole's 
Will,  49  Wis.  179,  5  N.  W.  340. 

A  will  made  by  the  testator  himself, 
unaided  by  others,  the  provisions  and 
expressions  of  which  are  sage  and 
judicious,  raises  a  presumption,  even  in 
caise  of  a  person  habitually  insane,  that 


it  was  made  during  the  existence  of  a 
lucid  interval,  which  imposes  upon  those 
who  attack  it  the  burden  of  proving  in- 
sanity .at  the  moment  •  it  was  made. 
Kincjshiiry  v.  Whitaker,  32  La.  Ann. 
1055,  36  Am.  Rep.  278;  Bey's  Succei, 
sion,  46  La.  Ann.  773,  24  L.  K.  A.  577, 
15  So.  297. 

And  the  fact  that  a  testator  wrote  his 
will  himself  is  prima  facie  evidence  that 
he  was  in  his  right  mind  and  competent 
to  make  a  will  at  the  time,  which  will 
cast  the  burden  of  proof  to  repel  the 
presumption  of  sanity  upon  those  who 
assert  the  contrary.  Temple  v.  Temple, 
1  Hen.  &  M.  476. 

"^Barker  v.  Comins,  110  Mass.  477. 

There  is  a  presumption  against  an  un- 
finished will  materially  altering  and  con- 
trolling a  former  will  deliberately  made 
and  formally  executed,  however,  so  that 
to  establish  such  a  will  there  must  be 
the  fullest  proof  of  capacity,  volition, 
intention,  and  interruption  by  the  act 
of  God.  Bleicitt  V.  Bleioitt,  4  Hagg. 
Eccl.  Rep.  410. 

And  the  burden  of  proving  the  ca- 
pacity of  one  who,  shortly  before  his 
death,  conveyed  all  his  property  to  cer- 
tain members  of  his  family,  leaving 
others  unprovided  for,  rests  with  the 
grantees.  Lins  v.  Lenhardt,  127  Mo. 
271.  29  S.  W.  1025. 

'"''Holloway  v.  Galloicay,  51  111.  159. 

And  an  instruction  that  unless  a 
grantor  had  sufficient  capacity  to  clear- 
ly comprehend  the  nature  of  the  busi- 
ness engaged  in,  and  he  consented  of  his 
own  volition,  the  jury  must  find  for  the 
plaintiff  in  an  action  to  set  aside  a  deed, 
is  not  subject  to  the  objection  that  it 
tends  to  mislead  the  jury  into  the  I)elief 
that  the  burden  was  on  the  defendant, 
where  it  appears  that  the  grantor  was 
insane  shortly  before  the  execution  of 
the  deed.  Fishhurne  v.  Ferguson,  84 
Va.  87,  4  S.  E.  575. 


§  301] 


EVIDENCE. 


333 


it  can  on-ly  be  shifted  by  showing  prior  habitual  or  fixed  insanity. 
or  actual  incapacity  at  the  date  of  the  instrument.^^  But  it  is  shifted 
to  tlie  proponents  by  proof  of  insanity  before  and  after  the  date  of  the 
will,^^  after  which  the  proponents  must  show  that  the  will  was  exe- 
cuted during  a  lucid  interval.*^^  And  while  an  inquisition  of  lunacy 
is  not  binding  as  against  third  persons,  it  destroys  the  presumption  in 
favor  of  sanity,  and  casts  the  burden  of  establishing  it  upon  the  party 
alleging  it.^^  So,  the  fact  that  a  party  procured  the  execution  of  a 
will  casts  the  burden  upon  him  to  prove  capacity,  where  incapacity 
is  alleged.^-  And  where  a  will  is  written  or  prepared  by  a  party  to 
be  benefited  by  it,  he  or  any  other  party  seeking  to  establish  it  must 
show  capacity  and  freedom  of  will  on  the  part  of  the  testator.^^      And 


^"Eastis  V.  Moiiffjoinery,  95  Ala.  486, 
36  Am.  St.  Rep.  227,  11  So.  204;  Cropp 
V.  Cropp,  88  Va.  753,  14  S.  E.  529. 

Proof  of  monomania,  in  a  will  con- 
test, does  not  require  the  other  party  to 
show,  by  a  preponderance  of  the  evi- 
dence, that  it  did  not  enter  into  the 
will.  Young  v.  Miller,  145  Ind.  G52, 
44  N.  E.  757. 

Nor  is  mere  proof  of  delusion  suf- 
ficient to  satisfy  the  burden  of  proof  of 
incapacity.  Wait  v.  Wesifall  (Ind.) 
68  N.  E.  271. 

Nor  is  mere  weakness.  Re  Latour, 
140  Cal.  414,  73  Par.  1070. 

And  occasional  flightiness  or  wander- 
ing of  intellect  of  a  dying  testator  dur- 
ing his  last  sickness  does  not  change  the 
presumption  of  competency  to  make  a 
will,  so  that  the  contrary  must  be 
proved  before  the  jury  can  find  the  will 
invalid.  McMasters  v.  Blair,  29  Pa. 
298. 

And  evidence  that  a  testatrix,  a  year 
or  so  before  making  her  will,  had  an  at- 
tack of  pneumonia,  and  acted  strange- 
ly, and  would  lock  herself  in  her  rooms 
and  refuse  to  answer  calls,  and  that  she 
liid  her  keys  and  forgot  where  she  put 
them,  and  wandered  about  the  house  in 
the  night,  and  that  her  memory  was 
weak ,  is  insufficient  to  overcome  the 
ordinary  presmnption  in  favor  of  testa- 
jnentary  capacitv.  Lennig's  Estate,  4 
Pa.  Dist.  R.  94.  " 

^"Ford  V.  Ford.  7  Humph.  92;  Chand- 
ler V.  Barrett,  21  La.  Ann.  58,  99  Am. 
Dec.  701;  Elkinton  v.  Brick,  44  N.  J. 
Eq.  154,  1  L.  R.  A.  161,  15  Atl.  391. 

""Elkinton  v.  Brick,  44  N.  J.  Eq.  154, 
1  L.  R.  A.  161,  15  Atl.  391. 

When  a  will  is  made  upon  a  death  bed 
sliortly  before  death,  and  delirium  or 
stupor  from  drugs  is  shown,  there  is  no 


presumption  that  it  was  made  during  a 
lucid  interval,  though  such  intervals  are- 
shown  to  have  existed.  Elliott  v.  Wel- 
ly, 13  Mo.  App.  19. 

"'Snook  V.  Watts,  11  Beav.  105,  12 
Jur.  444;  Bannatyne  v.  Bannatyne,  14 
Eng.  L.  &  Eq.  Rep.  581,  16  Jur.  864,  2 
Rob.  Eccl.  Rep.  472;  Leckey  v.  Cunning- 
ham, 56  Pa.  373;  Glass  v.  Hilherg,  1  Pa. 
Dist.  R.  621;  Mifflin  v.  Smedley,  3  Del. 
Co.  Rep.  143 ;  Lewis  v.  Jones,  50  Barb. 
G45:  Re  Pendleton,  1  Connoly,  480,  5  N. 
Y.  Supp.  849;  Re  Taylor,  1  Edm.  Sel. 
Cas.  375;  Harrison  v.  Bishop,  131  Ind. 
161,  31  Am.  St.  Rep.  422,  30  N.  E.  10G9; 
Lilly  v.  Waggoner,  27  111.  395;  Breed  v. 
Pratt,  18  pick.  115;  Stone  v.  Damon,  12 
Mass.  487 ;  UamiUon  v.  Hamilton,  10  R. 
1.  538. 

So,  the  presumption  of  an  intent  to 
revoke  a  will  does  not  follow  an  act  of 
destruction  or  cancelation,  wliere  the 
testator  had  been  impc^ached  as  insane. 
Re  Jones,  2  Ohio  Dec.  409. 

But  the  preliminary  action  of  a  clerk 
of  the  coTirt  in  appointing  a  next  friend 
of  a  party  to  an  action  to  conduct  it  is 
not  such  a  finding  of  insanity  as  will 
overcome  the  presumption  of  sanity,  and 
shift  the  burden  of  proof.  Smith  v. 
Smith,  108  N.  C.  365,  12  S.  E.  1045,  13 
S.  E.  113. 

""Ciirrie  v.  Currie,  24  Can.  S.  C.  712. 
And  see  Hcgney  v.  Head,  126  Mo.  619, 
29  S.  W.  587 ;  Boyd  v.  Boyd,  66  Pa.  283; 
Wilson  V.  Mitchell,  101  Pa.  495. 

"^MeDaniel  v.  Crosby,  19  Ark.  544; 
Morrison  v.  Smith,  3  IBradf.  209 ;  Yard- 
ley  V.  Cuthherison,  108  Pa.  395.  5(i  Am. 
Rep.  218.  1  Atl.  765;  Harvey  v.  Sullens, 
46  Mo.  147,  2  Am.  Rep.  491;  Croft  V; 
Day.  1  Curt.  Eccl.  Rep.  782:  Barry  v. 
Bnllin,  1   Curt.  Eccl.  Rep.  631. 

So,  where  want  of  mental  capacity  to 


334 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  301 


weakness  of  mind,  together  with  the  fact  that  the  ^^^ll  was  unequal. 
or  that  the  party  procuring  it  received  a  benefit  under  it,  casts  the 
burden  upon  the  beneficiary  to  rebut  the  presumption  of  undue  influ- 
ence, and  of  aflirmatively  showing  mental  capacity.^*  And  where 
capacity  is  doubtful  there  must  be  proof  of  instructions  or  of  knowl- 
edge of  contents,  and  strong  proof  of  intention  ;^^  though  this  rule 
applies  with  stringency  only  where  the  instrument  is  unofficial,  and 
obtained  by  those  whom  it  proposes  to  materially  benefit.^^ 

302.  Burden  of  proof  after  probate. — Where  a  vnll  has  been  pro- 
bated and  it  is  subsequently  sought  to  set  the  probate  aside,  the  same 
conflicting  rules  exist  witli  reference  to  the  burden  of  proof  as  in  case 
of  a  contested  probate;  some  of  the  cases  holding,  on  the  one  hand, 
that  one  who  seeks  to  set  aside  a  will  upon  an  allegation  of  mental 
incapacity  assumes  the  affirmative,  and  has  the  burden  of  proof  ;^'' 


make  a  will  is  urged  as  an  objection  to 
the  probate  of  a  nuncupative  will,  the 
party  offering  such  will  must  prove  the 
existence  of  capacity  by  the  clearest 
testimony;  and,  where  it  leaves  the 
mind  in  a  state  of  doubt,  it  is  the  duty 
of  the  court  not  to  admit  the  will  to 
probate.  Dorsey  v.  Sheppard,  12  Gill 
&  J.  192,  37  Am.  Dec.  77. 

^'Wilson  V.  Mitchell,  101  Pa.  49.5; 
CaJduell  v.  Anderson.  104  Pa.  199; 
Guthbertson's  Appeal,  97  Pa.  163;  Wil- 
son's Appeal,  99  Pa.  54.5;  Phipps  v. 
Van  Kleeck,  22  Hun,  544;  Moury  v. 
Hiller,  2  Bradf.  133;  Burger  v.  Hill,  1 
Bradf.  360;  MoKnight  v.  Wright,  12 
Ricli.  L.  232. 

But  the  mere  fact  that  a  testatrix's 
legal  adviser  who  wrote  her  will  was 
made  an  executor  thereof  is  not  suf- 
ficient to  cast  the  burden  of  proving 
testamentary  capacity  upon  the  pro- 
ponent, where  probate  was  applied  for 
four  vears  after  the  testatrix's  death. 
Linton's  Appeal.  104  Pa.  228. 

And  the  fact  that  a  testratrix  whoso 
sanity  was  questioned  was  old  and  some- 
what" feeble,  and  that  her  will  gave  her 
legal  advisor,  who  had  prepared  it, 
property  amounting  to  one  eighth  of  her 
whole  estate,  and  gave  the  residue  to 
him  in  trust  for  certain  relatives,  is  not 
sufficient  proof,  in  a  proceeding  to  con- 
test the  will,  to  shift  the  burden  from 
the  party  alleging  fraud  or  undue  influ- 
ence to  the  beneficiaries,  and  furnishes 
insufficient  evidence  of  fraud  or  undue 
influence  to  warrant  a  submission  of  the 
cause  to  a  jury.  Stokes  v.  Miller,  10 
W.  N.  C.  241. 


"'BillingJnirst  v.  Vickers,  1  Phillim. 
Eccl.  Rep.  193;  Tomkins  v.  Tomkins,  1 
Bail.  L.  92,  19  Am.  Dec.  656;  Bartee  v. 
Thompson,  8  Baxt.  508;  Rutland  v. 
(Heaves,  1  Swan,  198;  Renn  v.  Samos, 
33  Tex.  760;  Mitchell  v.  Thomas,  5 
Notes  of  Cases,  600,  6  Moore  P.  C.  C. 
137. 

But  the  rule  is  different  when  the 
testator  was  merely  enfeebled  by  dis- 
ease and  unable  to  speak  articulately. 
Re  Latour,  140  Cal.  414,  73  Pac.  1070, 
74  Pac.  441. 

"^Brogden  v.  Broicn,  2  Addams  Eccl. 
Rep.  441 ;  Cramer  v.  Crumbaugh,  3  Md. 
491. 

So,  the  rule  that  a  presumption 
against  the  validity  of  a  will  arises 
where  a  stranger  prepared  it  and  re- 
ceived a  large  legacy  under  it  does  not 
apph^  to  a  case  in  which  the  person  pre- 
paring a  will  was  a  near  relative,  who 
would  have  inherited  a  large  portion  of 
the  estate  had  the  testator  died  intes- 
tate. Caldicell  v.  Aiiderson,  104  Pa. 
199. 

The  fact  that  the  beneficiaries  in  a  will 
occupied  the  house  of  the  testatrix,  and 
were  caring  for  her  in  her  illness,  does 
not  make  their  relation  to  her  a  fiduci- 
ary one,  which  will  cast  upon  them  the 
burden  of  vindicating  her  will  against 
the  imputation  that  it  was  ])rocured  by 
fraud  or  undue  influence.  McMaster  v. 
Scriven,  85  Wis.  162,  39  Am.  St.  Rep. 
828,  55  N.  W.  149. 

"Jenkins  v.  Tobin,  31  Ark.  306;  Cle- 
ments v.  McGinn  (Cal.)  33  Pac.  920; 
Moore  v.  Allen,  5  lud.  521;  Blough  v. 
Parry,  144  Ind.  463,  40  N.  E.  70,  43  N^ 


§  302]  EVIDENCE.  335 

and  be  must  first  produce  his  evidence  f'^  and  he  has  the  right  to  open 
and  close  upon  tlie  trial.*'^  And  where  the  statute  provides  that  the 
order  of  probate  shall  be  prima  facie  evidence  of  the  due  attestation, 
execution,  and  validity  of  a  will,  the  burden  of  proof  with  respect 
to  each  of  these  subjects  is  changed  from  the  propounders  to  the  con- 
testants, where  it  remains ;  the  court  and  jury  having  only  to  deter- 
mine tlie  case  upon  all  the  evidence.'^*^  Upon  the  other  hand,  how- 
over,  the  rule  is  well  supported  tliat  the  burden  of  proof  in  a  proceed- 
ing to  contest  a  will  after  its  admission  to  probate,  or  upon  appeal 
from  an  order  of  probate,  rests  with  those  seeking  to  maintain  it 
to  show  that  at  the  time  of  its  execution  the  testator  was  of  sound 
mind  and  memory  ;'^^  and  they  are  entitled  to  open  and  close  and 
go  forward  on  tlie  trial. "^  Likewise  the  burden  of  proving  the 
proper  execution  of  a  will  has  been  held  to  rest  with  the  defendant  in 
ejectment  claiming  under  it,  and  for  that  purpose  he  must  call  sub- 
scribing witnesses,  making  them  his  own,  to  testify  as  to  the  fact  of 
execution  and  mental  capacity,  leaving  the  plaintiff  the  benefit  of 
cross-examining  tliem.'^^  After  the  will  has  been  put  in  evidence, 
however,  and  proof  of  testamentary  capacity  has  been  made  by  the 
subscribing  witnesses,  the  burden  of  proof  no  longer  rests  with  the 
person  seeking  to  maintain  the  will :  it  is  tlien  the  duty  of  the  jury  to 
determine  the  question  of  testamentary  capacity  from  the  weight  of 
all  the  evidence  introduced.'^^ 

E.  560;   Turner  v.  Cook,  36    Ind.    129;  the  plaintiflF  to  show  want  of  testamen- 
Rich  V.  Boivker,  25  Kan.  7 ;  Copcland  v.  tary    capacity.     Yonnq    v.    Miller,    145 
Copeland,     32     Ala.     512;    Chrisnian  v.  Ind.  052,  44  N.  E.  757. 
(Jhrisman,  16  Or.   127,  18  Pac.  6;    Den  ^^Rich'v.  Boiiker,  25  Kan.  7. 
ex  dem.  Trumbull  v.  Gibbons,  22  N.  J.  '^^Moore  v.  Allen,  5  Ind.  521. 
L.   117,51    Am.    Dec.    253;    Boylan    v.  '"ilfm/'s  v.  il7 ears,  15  Ohio  St.  90. 
Meeker,  28  N.  J.  L.    274;    Jackson    ex  '^Trish  v.  ISfeu-ell,  62  111.  190,  14  Am. 
dem.  Van  Dusen  v.  Van  Dusen,  5  Johns.  Rep.  79;   Comstock  v.  Hadlyme  Ecclesi- 
144.  4  Am.  Dec.  330;  Jones  v.  Jones,  43  asticol  Soc.  8  Conn.  254,  20    Am.    Dec. 
N.  Y.  S.  R.  434,  17  N.  Y.    Supp.    905;  100:   Livingston's  Appeal,    63  Conn.  68, 
Ivison  V.  Ivison,  80  App.  Div.    599,    80  20  Atl.  470;  Potts  v.  House,  6  Ga.  324, 
N.  Y.  Supp.  1011;   Earjan   v.    Sone,    68  50  Am.  Dec.  329;  Jackson  v.  Eardin,  83 
App.    Div.    60,    74    N.    Y.    Supp.    109;  Mo.  175;  Be»ojs*  v.  i/wrrw?,  58  Mo.  307 ; 
Thompson  v.  Kyner,  65  Pa.    368;    Eig-  Tingley  v.  Coicgill,  48  Mo.  291;  Cravens 
(jins  V.  Nethery,  30  Wash.  239,  70  Pac.  v.    Faulconer,    28    Mo.     21;     Jones    \. 
489.  Roberts,  37  Mo.    App.    163;    Elliott    v. 
And  proof    that    a    testator    suffered  Welby,  13  Mo.  App.  19;  Norton  v.  Pax- 
from  monomania  or    from    general    un-  ton,  110  Mo.  456,   19  S.  W.    807;    /See- 
soundness  of  mind  does  not  impose  upon  brock  v.  Fedaiva,  30  Neb.  425,  46  N.  W. 
the  defendant,  in  an  action  to  set  aside  650. 

a  will,  the  burden  of  showing  that  such  ''-Comstock  v.   Eadlyme  Ecclesiastical 

monomania  did  not  enter  into  or  in  any  8oc.  8  Conn.    261,    20    Am.    Dec.    100; 

way  control  the  execution  of  the  will.  Potts  v.  Eouse,  6  Ga.  324,  50  Am.  Dec, 

or  that  the  unsoundness  was    not  of  a  329. 

character     to     affect    testamentary    ca-  ~"^Vaters  v.  Waters,  35  Md.  531. 

pacity;   the  burden  still    remains    with  ''Pendlay  \.  Eaton,  130  111.  69,  22  N. 


336  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  303 

303.  Insurance  cases;   burden  of  proof  in  case  of  suicide.  —  The 

rule  has  been  laid  down  in  some  of  the  cases  that  the  burden  of  proof 
rests  with  the  plaintiff  in  an  action  upon  a  life  insurance  policy 
containing  a  condition  against  liability  in  the  case  of  suicide,  t;» 
show  that  the  insured  was  incompetent  to  understand  tlie  moral 
character  of  his  act;  or  was  urged  to  its  commission  by  an  insane 
impidse  which  he  could  not  resist.^^  Within  this  rule  mere  proof 
tliat  the  insured  was  insane  at  times  is  not  sufficient.'^^  But  the  pre- 
sumption against  intentional  suicide  is  a  disputable  one,  standing  for 
the  fact,  only,  until  overcome  by  a  preponderance  of  evidence.^' 
And  a  large  number  of  the  cases  have  adopted  tlie  contrary  rule,  that 
the  burden  rests  with  the  insurer  to  prove  responsibility  in  case  of 
suicide,  and  not  with  the  assured  to  negative  it."^  And  it  is  entitled 
'to  open  and  close.'^ 

304.  Presumption  and  burden  of  proof  of  continuance  as  to  habitual 
insanity. —  When  habitual,  chronic,  or  continuous  insanity  is  once 
proved  to  exist,  it  is  presumed  to  continue  until  the  contrary  is 
shov.-n.*''^      And  the  burden  rests  with  the  party  asserting  it  of  prov- 

E.  8o3;  HoUonaij  v.  Gallonaij,  51  111.  SchuUz  v.  Insurance  Co.  AO  Ohio  ^t.  211 , 
159;  Rnnijan  v.  Price,  L5  Ohio  St.  1.  8(i  48  Am.  Rep.  OKi;  Stormont  v.  Water- 
Am.  Dec.  459;  NeicJiard  v.  Yundt.  132  loo  Life  tC  Casualty  Assur.  Co.  1  Fost. 
Pa.  324,  19  Atl.    288;    Cole's    Will,    49  &  F.  22. 

Wis.  179.  5  N.  W.  346;    Sutton  v.  Sad-  In  making  proof  necessary  to    estab- 

ler,  3  C.  B.  N.  S.  87,  20  L.  J.  C.  P.  N.  S.  lish  the  lialDility  of  an  insurer,    where 

284,  3  Jur.  N.  S.  1150,  5  Week.  Rep.  880.  the  insured  had  committed  suicide,  the 

Wlicre,  on  the  trial  of  an  issue  in  a  person  makincf  it  is  entitled  to  the  bene- 
suit  to  contest  the  validity  of  a  will,  the  fit  of  the  presumption  that  a  sane  man 
parties  claiming  imder  it  offer  the  will  would  not  commit  suicide,  and  of  other 
in  evidence  and  the  order  of  court  ad-  rules  of  law  for  the  guidance  of  the 
mitting  it  to  probate,  and  rest,  and  the  courts  and  juries  in  the  investigation 
contestants  offer  their  testimony  im-  and  determination  of  the  facts.  Con- 
peaching  its  validity,  the  proponents  necticut  Mut.  L.  Ins.  Co.  v.  Akens,  150 
mar  then  interpose  general  evidence  as  U.  S.  4GS,  37  L.  ed.  1148,  14  Sup.  Ct. 
to  sanity  of  the  testator,  to  sustain  the  Rep.  155. 

will.     Runyan  v.  Price,  15  Ohio  St.   1,  '^Stormont  v.  Waterloo  Life  &  Casual' 

86  Am.  Dec.  459.  ty  Assur.  Co.  1  Fost.  &  F.  22. 

"H'o/crs  V.  Connecticut    Mut.  L.  Ins.  The  burden  of  proof  resting  with  the 

Co.  2  Fed.  892;     Plmdcnhauer    v.    Ger-  insurance  company  to  establish  responsi- 

mania  L.  Ins.  Co.  7  Heisk.  567,  19  Am.  bility  in   case  of  suicide  is  not  sliifted 

Rep.  623.  by  proof  of  death,  with  a  coronor's  ver- 

™Knickerhocker  L.  Ins.  Co.  v.  Peters,  diet     showing     suicide     attached,    when 

42  Md.  414.  the  proof,  taken  as  a  whole,  contained 

^^liachmeyer  v.  Mutual  Reserve  Fund  no  concession  of  fact,    and    denied    the 

Life  Asso.  87  Wis.  328,  58  N.    W.    399;  existence  and  authenticity  of  such  ver- 

Knickeriocker  L.  Itis.  Co.  v.  Peters,  42  diet.        Goldschmidt  v.  Mutual    L.    Ins. 

Md.  414:  Gay  v.  Union  Mut.  L.  Ins.  Co.  Co.  102  N.  Y.  486.  7  N.  E.  408. 

9  Blatchf.   142,  Fed.  Cas.  No.  5,282.  ^"This  rule,  which  seems  to    be    uni- 

'"'John  Hancock  Mut.    L.    Ins.    Co.    v.  versal,    is    supported    by    many    cases, 

Moore,  34  Mich.  41;  Mutual  Ben.  L.  Ins.  among  which  are:      Pike    v.    Pike,    104 

Co.  V.  Daviess,  87  Ky.  541,  9  S.  W.  812;  Ala.   642,   16  So.  689;    Re    Nelson,    132 

Phillips  V.  Louisiana  Equitable   L.    Ins.  Cal.  182,  64  Pac.  294;  State  v.  Johnson, 

Co.  26  La.  Ann.  404,  21  Am.  Rep.  549;  40  Conn.  136;     Duffield    v.    Rolsson,    2- 


§  304]  EVIDENCE.  337 

ing  restoration  or  a  lucid  interval  at  the  very  time  of  tie  act  in  ques- 
tion.^^  These  rules  apply  to  criminal  prosecutions,  so  that  where 
general  insanity  appears,  the  prosecution  is  bound  to  prove  that  the 
criminal  act  was  committed  during  a  lucid  interval,  or  after  recov- 
ery.^^  And  whore  a  party  to  a  conti-act  is  afflicted  -with  insanity  of 
a  permanent  nature,  one  who  claims  the  performance  of  the  contract 

Marr.    (Del.)    375;   Armstrong  v.  State,  Roqers   (Neb.)   96  N.  W.  156;  Turner  v. 

30  Fla.  170,  17  L.  R.  A.  484,  11  Saw  618;  Cheesman,  15  N.  J.  Eq.  243;    Clark    v. 

Diclcen  v.  Johnson,  7  Ga.  484;  Langdon  Fisher,  1   Paige,  171,  1!)  Am.  Dec.  402, 

V.  People,  133  111.  382,  24    N.    E.    874;  Morrison  y.  Smith,  d  Bradf.  209;  Balleio 

Wallis  V.  Luhring,  134  Ind.  447,  34  N.  v.    Clark,    24    N.     C.    (2    lied.   L.)    23; 

E.  231;  Corbit  v.  Smith,  7  Iowa,  60,  71  Wilson  v.  Mitchell,  101  Pa.  495;  Lee  v. 

Am.  Dec.  431;  State  v.  Reddick,  7  Kan.  Lee,  4  M'Cord  L.  183.  17  Ain.  Dec.  722: 

143;    Carpenter  v.   Carpenter,    8    Bush,  Puryear  v.  Reese,  6  Coldw.  21;  Hunt  v. 

283;   Weston  v.  Higgins,    40    Me.    102;  State,  33  Tex.  Crim.  Kcp.  252.  26  S.  W. 

Wright  v.  Wright,  139  Mass.  177,  29  N.  206;   Fishburne  v.  Ferguson,  84  Va.  87, 

E.  380;  State  v.  Hayicard,  62  Minn.  474,  4  S.  E.  575;  Jarrett  v.  Jarrett,    11    VV. 

65  N.  W.  63;  Rieketts  v.  Jolliff,  62  Miss.  Va.  584;  Dexter  v.  Hall,  15  Wall.  9,  21 

440;    Von   I)e    Veld    v.    Judy,    143    Mo.  L.  ed.  7S;  Young  v.  Young,  \0  Grunt  Ch. 

348,   44   S.   W.    1117;    State  v.   Spencer,  (U.  C.)    365;  Atty.  Gen.  v.  Parnther,  3 

21  N.  J.  L.  196;  Cook  v.  Cook,  53  Barb.  Bro.  Ch.  441;  Smith  v.  Tebbitt,  L.  R.  I 

180;  Grahill  v.  Barr,  5  Pa.  441,  47  Am.  Prob.  &  Div.  401,  36  L.  J.  Prob.  N.   S. 

Dec.  418;  Kinloch    v.    Palmer,    1    Mill,  97,  16  L.  T.  N.  S.  841,  16  Week.  Rep.  18. 

Const.  215;  Green  v.  State,  88  Tenn.  614,  But  see  Fay  v.  Burdett,  81  Ind.  435,  42 

14  S.  W.  430;   Leache  v.  State,  22  Tex.  Am.  Rep.  142. 

App.  279,  58  Am.  Rep.  638,  3  S.  W.  539;  The  rule  that  a  person  adjudged  in- 

State  V.  Wilner,  40  Wis.  304;  Dexter  v.  sane  is  deemed  to  continue  so  until  the. 

Hall,  15  Wall.  9,  21  L.  ed.  73;    Kellogg  contrary       is     shown,    independent      of 

V.   United  States,  43  C.  C.  A.   179,   103  statute,  is  one  of  evidence,    subject    to 

Fed.    200;     Smith    v.   Tebbitt,  L.   R.    1  reasonable  change  by  the  legislative  will. 

Prob.  &  Div.  401,  36  L.  J.  Prob.    N.  S.  Hempton  v.  State,  111  Wis.  127,  86  N. 

97,  16  L.  T.  N.  S.  841,  16  Week.  Rep.  18.  W.  596. 

But  while  permanent    insanity,    once  ^People  v.  Montgomery,  13  Abb.    Pr. 

established,    will    be    presumed    to    con-  N.   S.  207;   State  v.  Johnson,  40  Conn, 

tinue,  an  objection  to  a  complaint  seek-  136;  Armstrong  v.  Slate,  30    Fla.    170, 

ing  relief  from  a  transaction  had  while  17  L.  R.  A.  484,  11   So.    618;    State    v. 

a  party  was  of  unsound  mind    will    be  Reddick,  7  Kan.  143;  Ford  v.  State,  73 

considered    waived    unless    the  want  of  Miss.  734,  35  L.  R.  A.  117,  19  So.  665; 

capacity  to  sue  was   presented    by    de-  State  v.  Schaefer,  116  Mo.  96,  22  S.  W, 

raurrer  or  answer.       Wade  v.  State,    37  447  ;  State  v.  Lou^e,  93  Mo.  547,  5  S.  W. 

Ind.  180,  10  Am.  Rep.  86.  889;  State  v.  Wade,  161  Mo.  441,  61  S. 

"  This  rule,  which  is  based  upon  and  W.  800 ;  Com.  v.  Winnemore,  1  Brewst. 

grows    out    of    the    one    last    expressed  (Pa.)     356;     Hunt    v.    State,    33    Tex. 

above,  also  seems  to  be  universal,  and  is  Crim.  Rep.  252,  26  S.  W.  206;  State  v. 

supported  by  many  cases,  among  which  Broun,  Houst.  Crim.  Rep.   (Del.)  539. 

are:        O'Donnell    v.    Rodiger,    76    Ala.  But  refusal  to  instruct,  in  a  criminal 

222,  52  Am.  Rep.  322;   Ball  v.  Kane,   1  prosecution    in  which   insanity  is  relied 

Penn.   (Del.)   90,  39  Atl.  778;  Dicken  v.  upon  as  a  defense,  that,  if  the  defendant 

Jo^inson,  7  Ga.  484;  James    White    Me-  was  insane  a  short  time  before  the  com- 

morial   Home  v.   Haeg,  204  111.  422,  68  mission  of  the  act,  he  is  presumed  to  be 

N.  E.  569;  Aehey    v.    Stephens,    8    Ind.  insane    when    he    committed   it,   is   not 

411 ;  Bcver  v.  Spangler,  93  Iowa,  576,  61  ground  for  reversal  on  appeal,  whore  the 

N.  W.  1072;  Re  Cochran,  1  T.  B.  Mon.  testimony  does  not  appear  in  the  tran- 

264,   15  Ar.i.  Dec.   116;     Hallc}/  v.  Web-  script,   and   it  cannot  be    seen    wdiether 

ster,  21  Me.  461;  Higcjins  v.  Carlton,  28  there   was   any  evidence  upon    which   to 

Md.  115.  92  Am.  Dec.'    666;    Rieketts  v.  base  it.       People  v.  Smith,  57  Cal.  130. 

Jolliff,  62  Miss.  440;   State  v.  Schaefer,  Or  where  the  bare  fact  that    the  de- 

116  Mo.  96,  22  S.  W.  447;    Gingrich  v.  fendant   had  been   transferred   from   the 
Vol.  I.  Med.   ,3ui{.— 22. 


338' 


MENTAL  U^' SOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  30* 


miist  prove  that  it  was  entered  into  during  a  lucid  interval,®^  or  that 
the  party  had  recovered.®*  Likewise,  where  general  insanity  on  the 
part  of  a  grantor  is  shown,  it  is  presumed  to  continue  to  the  time 
of  tlie  execution  of  the  deed  in  question.*^  And  the  burden  of  prov- 
ing his  sanity  at  that  time  rests  wdtli  the  person  claiming  under  it, 
or  seeking  to  proA'e  it.®^  And  w^here  permanent  insanity  of  a  testa- 
tor is  established  previous  to  the  making  of  his  will,  its  continuance 
is  presumed.®'^  Proof  of  such  insanity  casts  the  burden  of  proof  of 
restoration  to  sanity  or  a  lucid  interval  on  those  who  seek  to  support 
the  -udll.®*      And  where  the  burden  rests  yvith  ihe  contestants,  and 


penitentiary  to  the  insane  hospital  sev- 
eral years  before  is  the  only  evidence  of 
unsoundness  of  mind.  Langdon  v. 
People,  133  111.  382,  24  N.  E.  874. 

^^Emery  v.  Hoyt,  46  111.  258;  RoAvdon 
V.  Raudon,  28  Ala.  565;  Wade  v.  State, 
37  Ind.  180,  10  Am.  Rep.  86;  State  v. 
Schaefer,  116  Mo.  96,  22  S.  W.  447. 

But  an  instruction  that  a  contract 
made  by  a  person  who  was  at  times  in- 
sane, during  a  lucid  interval,  is  binding, 
is  not  erroneous  because  unaccompanied 
by  a  qualification  to  the  effect  that  if  a 
person  is  showTi  to  be  insane  he  is  pre- 
sumed to  remain  so,  and  that  a  person 
may  have  a  lucid  interval,  and  yet  not 
have  sufficient  mind  to  contract,  in  the 
absence  of  a  request  for  a  charge  to  that 
effect.  'Norman  v.  Georgia  Loan  &  T. 
Co.  92  Ga.  295,  18  S.  E.  27. 

^Russell  V.  Lef-^ancois,  8  Can.  S.  C. 
335;  Snoio  v.  Benton,  28  111.  306; 
Ricketts  v.  Jolliff,  62  Miss.  440;  State 
v.  Spencer,  21  N.  J.  L.  190. 

^^Rogers  v.  Walker,  6  Pa.  371,  47  Am. 
Dee.  470;  Aurentz  v.  Anderson,  3  Pittsb. 
310;  Dicken  v.  Johnson,  7  Ga.  484;  Ray- 
mond V.  Wathen,  142  Ind.  367,  41  N.  E. 
815. 

A  recovery  or  lucid  interval,  to  up- 
hold a  deed,  must  be  such  as  to  enable 
the  tVrantor  to  comprehend  intelligently 
the  nature  and  character  of  the  trans- 
action in  which  he  is  engaged.  Pike  v. 
Pike,  104  Ala.  042,   16  So.  689. 

So,  where  the  existence  of  insanity  is 
once  established  in  an  action  to  annul 
a  marriage,  the  burden  of  proof  is  cast 
upon  the  party  seeking  to  sustain  the 
marriage  to  prove,  by  testimony  as 
clearly  convincing  as  that  required  to 
establish  insanity,  that  tlie  particular 
contract  was  entered  into  during  a  lucid 
interval.  Rawdon  v.  Ra/wdon,  28  Ala. 
565. 

**Ballev:  v.  Clark,  24  N.  C.    (2    Ired. 


L.)  23;  Pike  v.  Pike,  104*  Ala.  642,  16 
So.  689;  Dicken  v.  Johnson,  7  Ga.  484; 
Rogers  v.  Walker,  6  Pa.  371,  47  Am. 
Dec.  470;  Aurentz  v.  Anderson,  3  Pittsb. 
310;  Jarrett  v.  Jarrett,  11  W.  Va.  584; 
Anderson  v.  Cranmer,  11  W.  Va.  562; 
Ripley  v.  Babcock,  13  Wis.  425;  Hoqe 
V.  Fisher,  Pet.  C.  C.  163,  Fed.  Gas.  No. 
0,585;  Young  v.  Young,  10  Grant  Ch. 
(U.  C.)   365. 

^^Kinloch  v.  Palmer,  1  Mill,  Const. 
216;  Boijlan  v.  Meeker,  28  N.  J.  L.  274. 
And  see  Clark  v.  Ellis,  9  Or.  128. 

If  a  testator  is  found  to  have  been  of 
unsound  mind  prior  to  the  time  of 
making  his  will,  and  such  unsoundness 
was  found  to  be  of  a  permanent  char- 
acter, the  presumption  in  favor  of  sanity 
no  longer  exists.  Turner  v.  Rusk,  53 
Md.  65. 

"^O'Donnell  v.  Rodiger,  76  Ala.  222,  52 
Am.  Rep.  322;  Cubbage  v.  Cabbage,  1 
Harr.  (Del.)  401,  note;  Duffield  v. 
Morris,  2  Harr.  (Del)  375;  Griffin  v. 
Griffin,  R.  M.  Charlt.  (Ga.)  217;  Ken- 
icorthy  v.  Williams,  a  Ind.  375;  Har- 
rison V.  Bishop,  131  Ind.  161,  31  Am. 
St.  Rep.  422,  30  N.  E.  1009;  Halley  v. 
Webster,  21  Me.  461 ;  Turner  v.  Chees- 
man,  15  N.  J.  Eq.  243;  Goble  v.  Grant, 

3  N.  J.  Eq.  629;  Whitenack  v.  Stryker, 
2  N.  J.  Eq.  8 ;  Clark  v.  Fisher,  1  Paige, 
171,  19  Am.  Dec.  402;  Jackson  ex  dem. 
Van  Ditseti  v.  Van  Dusen,  5  Johns.  144, 

4  Am.  Dec.  330;  Re  Jones,  2  Ohio  S.  & 
C.  P.  Dec.  409;  Harden  v.  Hays,  9  Pa. 
151 ;  Landis  v.  Landis,  1  Grant  Gas.  248 ; 
Lee  V.  Lee,  4  M'Cord  L.  183,  17  Am. 
Dec.  722;  Vance  v.  Upson,  66  Tex.  476, 
1  S.  W.  179;  Burton  v.  Scott,  3  Rand. 
(Va.)  399;  White  v.  Wilson,  13  Ves.  Jr. 
87;  White  v.  Driver,  1  Phillim.  Eccl. 
Rep.  84;  Clarke  v.  Cartwright,  1  Phil- 
lim. Eccl.  Rep.  90;  Groom  v.  Thom-as,  2 
Hagg.  Eccl.  Rep.  433;  Taylor  v.  Cres- 
uell,  45  Md.  422;  Higgins  v.  Ca/rlton,  28 


{  304]  EVIDENCE.  339 

previous  insanity  is  proved,  the  burden  of  proof  is  shifted,  and  rests 
with  those  who  set  up  the  will,  to  adduce  satisfactory  evidence  of 
sanity  at  the  time  of  the  act.^^  So,  the  burden  of  proving  restoration 
to  reason,  and  the  dissolution  or  abandonment  of  a  guardianship  of 
one  who  had  been  insane,  rests  with  the  person  seeking  to  enforce  a 
liability  against  which  insanity  is  pleaded.^*^  But  an  adjudication 
of  insanity,  followed  by  a  commitment  of  the  patient  to  an  insane 
asylum,  does  not  raise  a  conclusive  presumption  of  continuance  of 
insanity  a  long  time  after  the  discharge  of  the  patient. ^'^ 

305.  Temporary  insanity. — Insanity  which  is  not  shown  to  be  set- 
tled or  general,  as  distinguished  from  a  mere  temporary  aberration 
or  hallucination,  is  not  presumed  to  continue  until  the  contrary  is 
shown.^^  Fitful  and  exceptional  attacks  of  insanity  are  not  pre- 
sumed to  be  continuous.^^  And  proof  of  such  insanity  does  not 
suffice  to  change  the  burden  of  proof.®^      An  instruction  that  insanity 

Md.  115,  92  Am.  Dec.  666;  Den  ex  dem.  "People  v.  Frmicis,  38  Cal.  183; 
Stevens  v.  Vancleve,  4  Wash.  C.  C.  262,  Tvmer  v.  Rush,  53  Md.  65;  Murphree  v. 
Fed.  Cas.  No.  13,412.  Senn,  107  Ala.  424,  18  So.  264;    Lang- 

^nVhite  V.  Driver,  1  Phillim.  Eccl.  don  v. /^eopZe,  133  111.  382,  24  N.  E.  874; 
Rep.  84;  Clarke  v.  Cartmight,  1  Phil-  Menkins  v.  Lightner,  18  111.  282;  Bin- 
lim.  Eccl.  Rep.  90;  Groom  v.  Thomas,  2  yon  v.  Utiited  States  (Ind.  Terr.)  76 
Hagg.  Eccl.  Rep.  433;4c/iey  v.  Stephens,  S.  W.  265;  McMasters  v.  Blair,  29  Pa. 
8  Ind.  411;  Taylor  v.  Creswell,  45  Md.  298;  Porter  v.  State,  135  Ala.  51,  33  So. 
422;  Higgins  v.  Carlton,  28  Md.  115,  92  694;  Townshend  v.  Tonnshend,  7  Gill, 
Am.  Dec.  666;  Den  ex  dem.  Stevens  v.  10;  State  v.  Howard,  118  Mo.  127,  24  S. 
Vancleve,  4  Wash.  C.  C.  263,  Fed.  Cas.  W.  41;  Von  De  Veld  v.  Judy,  143  Mo. 
No.  13,412.  And  see  Cto-fc  v.  Ellis,  9  348,  44  S.  W.  1117;  Wright  v.  Mar- 
Or.  128.  Icet  Bank    (Tenn.   Ch.   App.)    60   S.   W. 

Sanity  at  the  time  need  not  be  proved    623;    Hempton  v.  State,   111   Wis.   127, 
by  a  preponderance  of  the  evidence;   it    86  N.   W.  596;   Levis  v.  Baird,  3  Mc- 
is    sufficient    if    the    scales    are    evenly   Lean,  56,  Fed.  Cas.  No.  8,316. 
balanced.       Roller  v.   Kling,    150    Ind.        And  an  instruction  in  an  action  to  set 
159,  49  N.  E.  948.  aside  a  deed,  that  if  the  jury  believe  that 

In  Wright  v.  Wright,  139  Mass.  177,  at  the  time  of  the  execution  of  the  deed, 
29  N.  E.  380,  however^  it  was  held  that  or  before,  the  grantor  was  incapable, 
evidence  that  a  person  whose  sanity  was  from  mental  inability  to  execute  a  valid 
in  issue  at  a  certain  date  was  insane  at  deed  or  contract,  then  the  deed  is  void, 
an  earlier  date,  and  that  the  insanity  should  not  be  given,  since  the  presump- 
was  not  of  a  temporary  character,  does  tion  of  continuance  of  insanity  does  not 
not  shift  the  burden  of  proof  to  show  apply  to  every  species  of  insanity,  with- 
sanity;  a  prima  facie  case  might  be  out  exception.  Stewart  v.  Redditt,  3 
made  out  in  that  way,  but  the  burden  Md.  67. 
does  not  shift.  ^'Leache  v.   State,  22   Tex.  App.   279, 

^FAston     V.     Jasper,     45     Tex.     409 ;    58  Am.  Rep.  638,  3  S.  W.  539 ;    Ward  v. 
Hoopes'  Estate,  174  Pa.  373,  34  Atl.  603.   State,  19  Tex.  App.  664;  Ford  v.  State, 

*^Mutual  L.  Ins.  Co.    v.    Wisivell,    56   71  Ala.  385;    Carpenter  v.  Carpenter,  8 
Kan.  765,  35  L.  R.  A.  258,  44  Pac.  996.   Bush,  283;  State  v.  Hayward,  62  Minn. 

The  presumption  of  continued  in-  474,  65  N.  W.  63;  State  v.  Wilner,  40 
sanity  of  a  man  adjudged  insane  who  Wis.  304.  And  see  Weston  v.  Biggins, 
marries  a  woman  with  whom  he  lived  40  Mo.  102;  Halley  v.  Webster,  21  Me. 
for  more  than  thirty  years  will  not  pre-  461;  Staples  v.  Wellington,  58  Me.  453; 
vail  against  the  presumption  of  the  Puryear  v.  Reese,  6  Coldw.  21. 
legality  of  the  marriage.  Castor  v.  **Hall  v.  Unger,  2  Abb.  (U.  S.)  607, 
Davis,  120  Ind.  231,  22  N.  E.  110.  Fed.  Cas.  No.  5,949;  Dexter  v.  Hall,  15 


340 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  305 


proved  is  presumed  to  continue,  however,  is  not  erroneous  as  «t) 
abstract  proposition  of  laAV,  and  is  not  subject  to  exception,  in  the 
absence  of  evidence  upon  which  to  base  it.''^  And  the  whole  burden 
of  ji roving  sanity  at  the  exact  time  in  question  is  not  thrown  on  a 
party  by  the  mere  fact  tliat  he  had  become  incompetent  at  some  previ- 
ous time  in  his  life,  no  matter  how  briefly.^^ 

306.  Habitual  and  temporary  insanity  distinguished. — Reference 
must  be  had  in  an  action  in  which  insanity  is  alleged,  to  its  character, 
— ^whether  habitual  and  frequent,  or  only  temporary,  and  not  continu- 
ous, in  deteraiining  the  existence  of  presumptions  and  the  order  of 
proof.^"  And  to  establish  the  basis  of  a  presumption  that  insanity 
once  shown  to  have  existed  continues  to  exist,  it  must  appear  to  have 
been  of  such  duration  and  character  as  to  indicate  the  probability  of 
its  continuance.*^^  Bare  proof  of  mental  unsoundness  some,  time 
after  tlie  execution  of  an  instrument,  witliout  regard  to  its  nature 
and  character,  is  not  sufficient  to  rebut  the  presumption  of  sanity, 
and  shift  the  burden  of  proof.^^    .  And  insanity  induced  by  disease 


Wall.  9,  21  L.  ed.  73;  Corbit  v.  Smith, 
7  Iowa,  60,  71  Am.  Dec.  431;  Triniho  v. 
Trimho,  47  Minn.  389,  .50  N.  W.  350; 
Cutler  V.  Zollinger,  117  Mo.  92,  22  S.  W. 
895. 

If  general  insanity  on  the  part  of  one 
charged  with  mnrder  is  shown,  the  bur- 
den of  showing  that  the  act  was  com- 
mitted during  a  lucid  interval  rests 
with  the  state;  but  if  only  temporary  or 
recurrent  insanity  is  shown,  without 
raising  a  reasonable  doubt  as  to  whether 
or  not  it  existed  at  the  time  of  the  com- 
mission of  the  act  in  question,  the  pre- 
sumption of  continuance  of  general 
sanity  may  be  relied  on  without  offer- 
ing proof  of  a  lucid  interval.  Ford  v. 
i^tate,  73  Miss.  734,  35  L.  R.  A.  117,  19 
So.  6f55. 

And  the  mere  fact  of  previous  insanity 
on  the  part  of  a  grantor  does  not  render 
it  necessary  to  give  evidence  of  sanity  at 
the  time  of  making  a  deed,  in  order  to 
uphold  it,  where  such  insanity  was  not 
habitual.  Aurentz  v.  Anderson,  3 
Pittsb.  310. 

"'■W  est  on  v.  Bigqins,  40  Me.  102;  Ful- 
icider  v.  Ingels,  87  Ind.  414. 

*'J(.eichenbach  v.  Ruddach,  127  Pa. 
5(14.  18  Atl.  432;  Staples  v.  Wellinglon, 
5«  Mo.  453;  Trimho  v.  Trimho,  47  Minn. 
380,  50  N.  W.  350. 

'"Corhit  V.  Smith,  7  Iowa,  60,  74  Am. 
Dec.  431. 

•^People  V.  Schmitt,  100  Cal.    48,    39 


Pac.  204;  People  v.  Francis,  38  Cal. 
183;  Langdon  v.  People,  133  111.  382,  24 
N.  E.  874;  Thompson  v.  Kyner,  65  Pa. 
3f)S;  Green  v.  State,  88  Tenn.  614,  14  S. 
W.  430. 

The  fact  that  insanity  had  continued 
for  a  number  of  years  is  strong,  though 
not  conclusive,  evidence  of  permanence. 
Manleij  v.  Staples,  65  Vt.  370,  26  Atl. 
630. 

But  proof  that  on  the  day  a  -will  was 
signed  the  testatrix  was  sick  and  flighty, 
and  that  during  part  of  the  time  she 
knew  what  she  was  doing  and  part  of  the 
time  she  did  not,  is  not  sufficient  to  cast 
on  the  proponent  of  the  will  the  burden 
of  showing  that  she  was  sane  at  the  par- 
ticular instant  when  the  will  was  made. 
O'Doymell  v.  Rodiger,  76  Ala.  222,  52 
Am.  Rep.  322. 

And  the  question  whether  a  testator 
could  have  recovered  possession  of  his 
mental  faculties  sufficiently  to  enable 
him  to  comprehend  the  nature  of  the  act 
he  was  engaged  in  and  make  an  intelli- 
gent disposition  of  his  estate  is  one  for 
the  jury,  under  evidence  that  the  will 
was  made  at  about  half  past  three  p. 
M.,  and  that  at  nine  o'clock  that  morn- 
ing he  was  wholh'  unconscious,  or  un- 
able to  speak,  hear,  or  see.  Re  Eeenan, 
15  Phila.  588. 

"'Taylor  v.  Cresicell,  45  Md.  422; 
Sleicart  v.  Flint,  59  Vt.  144,  8  Atl.  801. 


«  SOS] 


EVIDENCE. 


311 


is  toinporary  in  its  nature,  and  is  not  presumed  to  continue.*^** 
Where  insanity  not  due  to  violent  disease  is  established  at  a  period 
not  too  far  back,  however,  it  will  be  presumed  to  continue  unless 
there  is  evidence  to  control  the  presumption.^  And  the  presumption 
of  continuance  of  an  insane  condition  applies  to  periodical  lunacy 
as  well  as  to  permanent  derangement.^  And  the  burden  of  proof 
that  a  person  who  had  been  subject  to  delusions  had  become  freed 
from  tliem  rests  with  tliose  who  assert  his  soundness  of  mind.'^  Nor 
is  there  any  presumption  either  of  law  or  of  fact  of  recovery  from 


^'^Turner  v.  Rusk,  53  Md.  65;  Clarice 
V.  lawyer,  3  Sandf.  Ch.  351;  O'Doimell 
V.  Rodifjer,  76  Ala.  222.  52  Am.  Rep. 
322;  Trish  v.  'Newell,  02  111.  196,  14 
Am.  Rep.  79;  Achey  v.  Stephens,  8  Ind. 
411;  Blake  v.  Rourke,  74  Iowa,  519,  38 
N.  W.  392;  Kirsher  v.  Kirsher  (Iowa) 
94  JSi.  W.  846;  Hix  v.  Whiiteinore,  4 
Met.  545;  Staples  v.  Wellington,  58  Me. 
453 ;  Richardson  v.  Smart,  G5  Mo.  App. 
14;  Clark  v.  Ellis,  9  Or.  128;  Wright  v. 
Market  Bank  (Teiin.  Ch.  App.)  60  S.  W. 
623;  Webb  v.  State,  5  Tex.  App.  596; 
Kcllogn  V.  United  States,  43  C.  C.  A. 
179,  ioS  Fed.- 200. 

The  presumption  of  the  continuance 
of  an  incapacity  once  established  does 
not  apply  even  to  insanity  induced  by 
epilepsy,  where  the  paroxysms  are  peri- 
odical, the  patient  generally  recovering 
from  them  in  a  few  days.  Carpenter  v. 
Carpenter,  8  Bush,  283;  Broicn  v.  Rig- 
gin,  94  111.  560. 

But  epilepsy  together  with  an  injury 
in  childhood,  and  other  evidence  of  in- 
sanity, may  be  sufficient  to  raise  a  pre- 
sumption of  continuance.  State  v. 
RnbUns,  109  Iowa,  650,  80  N.  V/.  1061. 

And  occasional  incapacity  upon  the 
part  of  a  testator,  arising  from  nervous 
attacks,  coming  on  at  different  times, 
their  eff"ect  btjing  of  different  duration, 
during  which  he  was  incapable  of  any 
rational  act,  renders  his  capacity  con- 
flicting, and  imposes  upon  the  party 
claiming  under  his  will  the  obligation  of 
proving  that  at  other  times  he  was  ca- 
pable, and  that  the  will  was  made  during 
capacity.  Kinleside  v.  Harrison,  2 
Phillim.  Eccl.  Rep.  449. 

'Wright  v.  Wright,  139  Mass.  177,  29 
N.  E.  380. 

""Overall  v.  State,  15  Lea,  672  And 
see  Thompson  v.  Kyner,  65  Pa.  368. 

But  it  does  not  apply  to  imbecility, 
set  up  as  a  defense  in  a  criminal  prose- 
cution. State  V.  Palmer,  161  Mo.  152, 
61  S.  W.  651. 


And  refusal  to  give  a  sufficient  in- 
struction to  the  eff'ect  that  the  law  pre- 
sumes insanity  to  continue  after  it  is 
once  shown  to  exist  is  not  error  in  a 
criminal  prosecution,  in  a  case  of  re- 
current insanity.  Lcache  v.  State,  22 
Tex.  App.  279,  58  Am.  Rep.  638,  3  S.  W. 
539;  Smith  v.  State,  22  Tex.  App.  316, 
3  S.  W.  684. 

"Boughton  v.  Knight,  28  L.  T.  N.  S. 
562,  L.  R.  3  Prob.  &  Div.  64.  42  L.  J. 
Prob.  N.  S.  41 ;  Smee  v.  Smee,  L.  R.  5 
Prob.  Div.  84,  28  Week.  Rep.  703,  44  J. 
P.  220,  49  L.  J.  Prob.  N.  S.  8;  Waring 
V.  Waring,  12  Jur.  947,  6  Moore,  P.  C. 
C.  341;  Jenckes  v.  Probate  Court,  2  R. 
I.  255 ;  Foiclis  v.  Davidson,  6  Notes  of 
Cases,  461. 

Where  insanity  once  existed  in  the 
shape  of  delusion,  the  absence  of  such 
delusion  is  the  test  of  restoration ;  and 
where  the  evidence  in  a  will  contest  fails 
to  show  the  application  of  such  test,  the 
will  may  be  pronoiniced  against  on  the 
ground  of  failure  of  proof,  though  the 
testator  was  apparently  of  sovmd  mind. 
Grimani  v.  Draper,  12  Jur.  925. 

But,  wliere  there  is  proof  of  general 
rationality  and  also  of  delusion  in  a 
testator,  the  court  will  not  assume  that 
the  delusion  was  habitual,  thus  casting 
the  burden  of  proof  that  he  was  free 
from  such  delusion  at  the  time  of  mak- 
ing the  will  on  the  proponents.  Towns- 
hend  v.  Townshend,  7  Gill,  10. 

And  proof  of  an  insane  delusion  on 
the  part  of  a  party  to  a  contract  that 
his  lands  were  wearing  out,  and  his  plan- 
tation and  buildings  going  to  ruin,  and 
that  he  was  threatened  with  starvation 
and  the  poorhouse,  does  not  show  such 
a  state  of  lunacy  as  will  cast  upon  the 
other  party  to  the  contract  the  burden 
of  showing  a  lucid  interval  when  it  was 
made.  Gillespie  v.  Shuliberrier,  50  N. 
C.  (5  Jones  L.)  157;  and  see  Staples  v. 
Wellington,  58  Me.  453. 


342  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  306 

mental  weakness  resulting  from  the  infiraiities  of  old  age.^  And 
inSanitj  found  upon  an  inquisition  of  lunacy,  or  a  judicial  deter- 
mination, is  presumed  to  continue,  and  the  burden  of  proof  rests  with 
those  asserting  restoration  or  a  lucid  interval,  to  show  it.^  As  a  gen- 
eral rule,  no  presumption  of  absolute  recovery  arises  from  lapse  of 
time  alone;  something  more  is  required  to  relieve  the  person  assert- 
ing it  of  the  burden  of  proof.^  Whether  unsoundness  of  mind  is  pro- 
gressive and  permanent  is  a  question  of  fact  for  the  jury.'^ 

307.  Presumption  as  to  continuance  of  lucid  intervals. —  A  lucid 
interval,  as  distinguished  from  an  entire  recovery,  is  in  its  nature  tem- 
porary and  uncertain  in  its  duration,  and  there  is  no  legal  presump- 
tion of  its  continuance.^  And  delusions  or  unsoundness  of  mind 
proved  to  have  existed  before  and  after  a  designated  period  will  be 


*Physio- Medical  College  v.  Wilkinson, 
108  Ind.  314,  9  N.  E.  167:  Bever  v. 
Spongier,  93  Iowa,  576,  61  N.  W.  1072. 

Where  a  will  is  made  upon  a  death 
bed,  and  shortly  before  death,  and 
stupor  from  drugs,  or  delirium,  is 
shown,  there  is  no  presumption  that  it 
was  made  during  a  lucid  interval, 
though  such  intervals  are  shown  to  have 
existed.  Elliott  v.  Welby,  13  ~Mo.  App. 
19. 

^Terry  v.  Buffington,  11  Ga.  337,  50 
Am.  Dec.  423;  Harrison  v.  Bishop,  131 
Ind.  161,  30  N.  E.  1069;  Lilly  v.  Wag- 
goner, 27  111.  395;  Haynes  v.  Swann,  6 
Heisk.  560;  Herndon  V.  Vick,  18  Tex. 
Civ.  App.  583,  45  S.  W.  852;  Eakin  v. 
Hawkins,  52  W.  Va.  124,  43  S.  E.  211; 
Small  V.  Champeny,  102  Wis.  61,  78  N. 
W.  407 ;  Prinsep  v.  Dyce  Sombre,  10 
Moore,  P.  C.  C.  232.  And  see  Leckey  v. 
Cunningham,  56  Pa.  370. 

But  where  insanity  of  a  person  ac- 
cused of  crime  has  been  established  by 
the  fact  of  his  commitment  to  a  lunatic 
asylum,  it  cannot  be  said,  as  matter  of 
law,  that  it  is  presumed  to  continue  to 
exist  until  the  contrary  is  shown  by 
proof  of  a  final  discharge;  such  pre- 
sumption may  be  rebutted  by  any  satis- 
factory evidence  of  restoration.  State 
v.  Davis,  27  S.  C.  609,  4  S.  E.  567. 

And  where  a  person  called  upon  to 
act  as  a  juror  is  shown  to  have  been  ad- 
judged insane  some  time  before,  and 
sent  to  an  asylum  for  treatment,  and 
the  records  of  the  county  show  that  his 
insanity  was  of  less  than  a  year's  dura- 
tion, the  court  is  warranted  in  presum- 
ing that  his  insanity  was  temporary, 
and  that  he  was  sane  at  the  time  of  his 
selection,    where    he   then    appeared    so, 


though  it  did  not  appear  that  he  had 
been  discharged  from  the  asylum.  State 
V.  Howard,  1 18  Mo.  127,  24  S.  W.  41. 

And  the  presumption  of  continued  in- 
sanity of  a  married  man,  arising  from 
an  adjudication  thereof,  is  overcome  by 
evidence  that  he  deserted  his  family, 
went  to  another  state,  and  resided  there 
for  several  years,  where  he  was  consid- 
ered sane,  and  where  he  procured  a  di- 
vorce on  service  by  publication,  al- 
though there  had  been  no  adjudication 
of  restoration.  Rodgers  V.  Rodgers,  56 
Kan.  483,  43  Pac.  779. 

^People  ex.  rel.  Norton  v.  "New  York 
Hospital,  3  Abb.  N.  C.  229. 

But  insanity  once  established,  though 
habitual,  will  not  be  presumed  to  con- 
tinue, where  a  very  long  period  of  time 
has  elapsed  between  the  proved  insan- 
ity and  the  date  of  the  subsequent  in- 
quiry. Lanqdon  v.  People,  133  111.  382, 
24  N,  E.  874 ;  Mutual  L.  Ins.  Co.  v.  Wis- 
loell,  56  Kan.  765,  35  L.  R.  A.  258,  44 
Pac.  996. 

And  confinement  of  a  man  ten  years 
before  in  an  insane  asylum  does  not 
create  a  presumption  that  his  insanity 
still  continues,  whei'e  such  confinement 
was  followed  by  at  least  eight  years* 
successful  practice  as  a  plivsician.  Lang- 
don  V.  People.  133  111.  382,' 24  N.  E.  874. 

''White  V.  McPherson,  183  Mass.  533, 
67  N.  E.  643. 

^Pike  V.  Pike,  104  Ala.  042,  16  So. 
689. 

In  Ford  v.  State,  71  Ala.  385,  how- 
ever, it  was  held,  that  where  an  insane 
person  has  lucid  intervals,  the  law  will 
presume  an  offense  committed  by  him 
to  have  been  committed  in  a  lucid  inter- 
val, unless  the  contrary  appears. 


f  307]  EVIDENCE,  843 

deemed  to  have  existed  at  that  time  unless  satisfactory  proof  is  ad- 
duced that  the  individual  had  recovered,  and  had  not  afterwards  suf- 
fered a  relapse.^  But  when  a  will  is  proved  to  have  been  made  by  a 
testator  himself,  unaided  by  others,  and  its  provisions  are  wise  and 
judicious,  a  presumption  is  established,  even  in  the  case  of  a  person 
habitually  insane,  that  it  was  made  during  a  lucid  interval,  which 
imposes  upon  those  who  attack  it  the  burden  of  proving  insanity  at 
the  moment  it  was  made.-^'^  And  where  a  lucid  interval  is  established 
upon  the  part  of  one  previously  insane,  a  short  time  before  the  act 
in  question,  the  burden  is  thereby  placed  upon  the  party  claiming  in- 
sanity to  show  that  he  had  again  become  insane.-"^ 

308.  Nature  of  presumption  of  continuance. — The  presumption  that 
insanity  continues  is  not  a  presumption  of  law,  but  an  inference  of 
fact,  varying  with  the  circumstances  of  the  case.^"  And  the  question 
whether  a  delusion  is  temporary  or  habitual  is  one  exclusively  within 
the  province  of  the  jury.^^  And  such  presumptions  may  be  rebutted 
by  proof  of  a  change  of  mental  condition  or  of  a  lucid  interval  at  the 
time  of  the  act  which  is  called  in  question.^* 

309.  Measure  of  proof;  civil  cases. —  No  particular  quantity  of  evi- 
dence is  necessary  to  establish  responsibility,  or  to  sustain  the  validity 
of  an  act,  on  the  question  of  mental  capacity;  the  jury  must  de- 
termine the  facts  upon  the  weight  of  evidence,  as  on  any  other  ques- 

^Foiclis  V.  Davidson,  6  Notes  of  Cases,  630;   Missouri  P.  R.  Co.  v.  Braszil,  72 

461;  Snoio  v.  Benton,  28  T'l.  306.  Tex.  233,   10  S.  W.  403. 

Where  a  delusion  is  established  on  the  So,  in  Webb  v.  State,  5  Tex.  App.  596, 
part  of  a  testator,  in  a  will  contest,  it  was  said  that  the  presumption  of 
which  naturally  aflfeets  toe  testamentary  continuance  of  insanity  is  rather  mat- 
act,  the  burden  of  showing  that  such  ter  of  fact  than  of  law,  or,  at  most, 
delusion  did  not  exist  at  the  time  the  partly  of  law  and  partly  of  fact, 
will  was  made  rests  with  the  proponents.  ^^Toumshend  v.  Toivnshend,  7  Gill,  10. 
Morse  v.  Scott,  4  Dem.  507.  Whether   a   disability   once  shown   to 

^"Kingsbury  v.  Whilaker,  32  La.  Ann.  have   existed   did   in   truth   continue   to 

1055,    36   Am.    Rep.   278:    Bey's   Succes-  exist    until    the   time    in    question    is    a 

sion,  46  La.  Ann.  773,  24  L.  E..  A.  557,  question   of   fact,   in   view   of   a  consid- 

15  So.  297.  eration  of  the  whole  case.     Fay  v.  Bur- 

^^Wright  v.  Jackson,  59  Wis.  569,   18  ditt,  81  Ind.  433,  42  Am.  Rep.  142. 

N.  W.  486.                 .  And  where  evidence  is  introduced  upon 

But  the  fact  that  a  testator  proved  an  issue  as  to  sanity,  tending  to  show 
to  be  insane  had  lucid  intervals  on  the  insanity,  it  is  error  for  the  court  to  in- 
morning  of  and  before  the  execution  of  struct  that  the  law  raises  a  presumption 
his  will  does  not  shift  the  burden  of  one  way  or  another.  Missouri  P.  R.  Vo. 
proof  to  the  contestant  of  the  will  to  v.  Brazzil,  72  Tex.  233,  10  S.  W.  403; 
establish  that  he  was  not  in  a  lucid  Manley  v.  Staples,  65  Vt.  370,  26  Atl. 
state  when  he  executed  the  instrument,  630. 

since    it    rests    with    the    proponent    to  ^*Mullins   v.    Cottrell,    41    Miss.    291; 

prove  a  lucid  interval  at  the  very  mo-  Snow  v.  Benton,  28   111.   ZQQ;- State  v. 

ment  of  its  execution.     Saxlon  v.  Wliit-  Spencer,  21  N.  J.  L.  196.    And  see  Arm.- 

aker,  30  Ala.  237.  strong  v.  State,  30  Fla.  170,  17  L.  R.  A. 

"Manley  v.  Staples,  65  Vt.  370,  26  Atl.  484,  11  So.  618, 


344 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  S09 


tion,^^  the  general  rule  being  that  evidence  of  insanity,  to  overcome 
the  presumption  that  all  acts  performed  by  an  adult  are  valid  and 
binding,  must  be  clear  and  satisfactory,^^  or  that  it  must  preponder- 
ate.^^ To  invalidate  a  contract,  proof  of  insanity  must  preponderate 
or  the  presumption  in  favor  of  sanity  will  prevail,^*  though  a  fair 
preponderance  is  all  that  is  required.^ ^  With  reference  to  wills 
under  this  rule  that  the  burden  of  proof  of  insanity  rests  with  him 
who  alleges  it,  it  is  incumbent  upon  the  contestant  to  prove  incapacity 
to  the  satisfaction  of  the  jury  in  order  to  justify  setting  aside  a  will.^*^ 
And  this  should  be  by  preponderance  of  the  evidence.^^  And  where 
incompetency  and  undue  influence  are  the  issue,  positive  proof  must 


^Rigg  v.  Wilton,  13  111.  15,  54  Am. 
Dec.  4iy. 

The  question,  where  sanity  is  im- 
peached and  the  evidence  is  conflicting, 
is  not  whether  the  facts  adduced  in  sup- 
port of  sanity  are,  in  general,  indica- 
tions of  sanity,  but  whether  they  are 
inconsistent  with,  or  sufficiently  ex- 
planatory of,  the  indications  of  insanity 
produced  by  the  other  side.  Steed  v. 
Calhj,  1  Keen,  620. 

^"Dominick  v.  Randolph,  124  Ala.  557, 
27  So.  481;  Kennedy  v.  Marrast,  46  Ala. 
161;  McCarty  v.  Kearnan,  86  111.  291; 
English  v.  Porter,  109  111.  285;  Titcomb 
V.  Vantyle,  84  111.  371;  Myatt  v.  Walker, 
44  111.  487;  State  v.  Geddis,  42  Iowa, 
268;  Hoice  v.  Howe,  99  Mass.  88;  Com. 
ex  rel.  Helmbold  v.  Kirkbride,  11  Phila. 
427;  Gibbons  v.  Dunn,  46  Mich.  146,  9 
N.  W.  140 ;  Dorchester  v.  Dorchester,  18 
N.  Y.  S.  R.  402,  3  N.  Y.  Supp.  238,  Re- 
versed on  other  grounds  in  121  N,  Y. 
156,  23  N.  E.   1043. 

The  proof  of  insanity  is  required  to 
be  sufficient  to  overcome  the  presumption 
of  sanity.  Sloan  v.  Maxwell,  3  N.  J. 
Eq.  563. 

But  it  need  not  be  beyond  a  reasonable 
doubt.  Kitig  v.  Rowan  (Miss.)  34  So. 
325. 

And  an  instruction  that  it  is  incum- 
bent on  those  seeking  to  establish  a 
will  made  by  a  person  adjudged  to  be 
of  unsound  mind  to  show  by  clear,  ex- 
plicit, and  satisfactory  evidence  that  ho 
had  sufficient  mental  capacity  is  not  ren- 
dered objectionable  by  the  use  of  the 
words  "clear,  explicit,  and  satisfactory," 
as  an  invasion  of  the  province  of  the 
jury,  Stevens  v.  Stevens,  127  Ind.  560, 
26  N.  E.   1078. 

"Clarke  v.  Irivin,  63  Neb.  539,  88  N. 
W.  783 ;  Harrison  v.  Harrison,  126  Ala. 


323,  28  So.  586.  And  see  Clements  v. 
McGinn  (Cal.)  33  Pac.  920. 

^^Lilly  V.  Waggon^,r,  27  111.  395; 
Myatt  V.  Walker,  44  111.  485;  Wall  v. 
Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578; 
Aurentz  v.  Anderson,  3  Pittsb.  310; 
Laing  v.  Bruce,  1  Dun) op,  B.  &  M.  59. 
And  see  Latner  v.  Long  (Tenn.  Ch. 
Vpp.)  47  S.  W.  1111. 

The  opinions  of  five  witnesses,  that  a 
party  to  a  contract  was  of  feeble  in- 
tellect, are  not  sufficient  to  establish 
universal  insanity  so  that  it  could  not 
but  be  known  to  a  party  dealing  with 
him,  as  against  testimony  of  seven  wit- 
nesses that  he  was  of  average  mind. 
Martinez  v.  Moll,  46  Fed.  724. 

^^Missouri  P.  R.  Co.  v.  Brazzil,  72  Tex. 
233,    10    S.   W.   403. 

Where  the  evidence  on  the  question 
of  the  sanity  or  insanity  of  the  grantor 
is  evenly  balanced,  the  admission  on  the 
part  of  the  grantee,  who  was  tlie  grant- 
or's general  agent,  that  the  grantor  was 
incapable  of  transacting  businefifi,  cor- 
roborates the  affirmative  of  th':  issue, 
and  warrants  a  finding  of  mentf,!  inca- 
pacity.   Brooke  v.  Berry,  2  Gill,  83. 

'"Jamison  v.  Jamison,  3  Houst.  (Del.) 
108;  MuUins  v.  Cottrell,  41  Miss.  291; 
Philadelphia  Trust  d  S.  D.  Co.  v.  Drink- 
house,  17  Phila.  23;  Gass  v.  Gass,  3 
Humph.  278. 

-'Clements  v.  McGinn  (Cal.)  33  Pac. 
920;  Nenhard  v.  Yundt,  132  Pa.  324,  19 
Atl.  288:  Messner  v.  Elliott,  184  Pa. 
41.  39  Atl.  46;  Cole's  Will,  49  Wis.  179, 
5   N.   W.   346. 

In  Morris  v.  Morton,  14  Ky.  L.  Rep. 
360,  20  S.  W.  287,  however,  it  was  held 
that  a  requirement  that  the  proponent 
of  a  will  shall  prove  its  execution,  and 
that  the  contestants  shall  prove  the  un- 
soundness of  mind  by  a  preponderance 


309] 


EVIDENCE. 


345 


be  made  to  support  each  proposition.^^  And  where,  upon  the  evi- 
dence, the  fact  of  capacity  or  incapacity  remains  doubtful,  the  will 
cannot  be  rejected  on  that  ground.^^  Likewise,  where  the  burden  of 
proof  of  sanity  rests  with  the  proponent,  he  is  usually  required  to 
prove  soundness  on  the  part  of  the  testator  to  the  satisfaction  of  the 
court  and  jury.^*  Or  by  a  preponderance  of  the  evidence.^^  The 
evidence  of  the  proponent  must  be  sufficient  to  outweigh  that  offered 
by  the  contestants.^^  The  presumption  of  sanity,  however,  cannot  be 
given  the  effect  of  an  independent  fact,  to  relieve,  as  a  substantial 
make-weight,  against  counter  proof.  Whatever  force  is  given  to  the 
presumption  is  due,  not  to  its  own  intrinsic  weight  as  an  item  of 
proof,  but  to  its  operation  in  rendering  the  circumstances  adduced 
more  pcrsuasive.^^  But  where,  upon  the  whole  evidence,  it  is  doubt- 
ful whether  the  party  is  sane  or  insane,  the  presumption  in  favor  of 
sanity  may  decide  the  question.^^     So,  that  an  act  questioned  on  the 


of  the  evidence  does  not  justify  a  re- 
versal, though  the  word  "preponderance" 
might  well  have  been  omitted. 

'''Frentis  v.  Bates,  88  Mich.  567,  50 
N.  W.  637. 

Whenever  business  transactions  with 
persons  of  weak  minds  are  brought  in 
review  before  a  court  of  equity,  and  such 
transactions  appear  to  be  wholly  against 
their  interests,  and  greatly  to  the  ad- 
vantage of  the  other  party,  or  wholly 
without  consideration,  the  court  will 
require  clear  proof  of  a  comprehension 
of  the  nature,  character,  and  elfect  of 
the  acts,  though  such  weakness  does 
not  amount  to  total  incapacity.  Jones 
V.  Thompson,  5  Del.  Ch.  374. 

"^MUler  V.  White,  5  Redf.  3-20;  GruUs 
v,  McDonald,  91  Pa.  236.  But  see  Sut- 
ton V.  Sadler,  3  C.  B.  N.  S.  87,  26  L.  J. 
C.  P.  N.  S.  284,  3  Jur.  N.  S.  1150,  5 
Week.   Rep.   880. 

-*Delnfteld  v.  Parish,  25  N.  Y.  9 ;  Re 
Flanshurgh,  82  Hun,  49,  31  N.  Y.  Supp. 
177 ;  Chrisman  v.  Chrisman,  16  Or.  127, 
18  Pac.  6;  Vance  v.  Upson,  66  Tex.  476, 
1  S.  W.  179;  Riddell  v.  Johnson,  26 
Gratt.  102;  Gray  v.  Rumrill  (Va.)  44 
S.  E.  697 ;  Browning  v.  Budd,  6  Moore 
P.  C.  C.  430.  And  see  Keeler  v.  Keeler, 
20  N.  Y.  S.  R.  439,  3  N.  Y.  Supp.  629. 

^"Rolinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473;  Williams  v.  Robinson, 
42  Vt.  658,  1  Am.  Rep.  359.  And  see 
Barbers  Appeal.  63  Conn.  393,  22  L.  R. 
A.  90,  27  Atl.  973:  Fulton  v.  Umbehend, 
182  Mass.  487,  65  N.  E.  829. 

The  propounder  of  a  will  must  sat- 
isfy  the    «ionscience   of   the    court   that 


the  instrument  propounded  was  the  last 
will  of  a  free  and  capable  testator. 
Chrisman  v.  Chrisman,  16  Or.  127,  18 
Pac.  6;  Vance  v.  Upson,  66  Tex.  476, 
1  S.  W.  179;  Riddell  v.  Johnson,  26 
Gratt.  152:  Dela field  v.  Parish,  25  N.  Y. 
9;  Re  Flansburgh,  82  Hun,  49,  31  N.  Y. 
Supp.  177;  Browning  v.  Budd,  6  Moore, 
P.  C.  C.  430. 

But  when  this  is  done,  insanity  must 
be  proved  by  a  preponderance  of  the 
evidence.  Egbers  v.  Eqbers,  177  111.  82, 
52  N.  E.  285;  Enfwisile  v.  Meikle,  180 
111.  9,  54  N.  E.  217;  Hollenheclc  v.  Cook, 
180  111.  65,  54  N.  E.  154 ;  Baker  v.  Baker, 
202  111.  595,  67  N.  E.  410. 

'^\iikin  V.  Weckerley,  19  Mich.  482; 
Sutton  V.  Sadler,  3  C.  B.  N.  S.  87,  3 
Jur.  N.  S.  1150,  26  L.  J.  C.  P.  N.  S.  284, 
5  Week.  Rep.  880. 

And  an  absolute  refusal  to  charge  the 
jury  that  they  must  rest  their  verdict 
upon  a  preponderance  of  proof,  without 
any  other  instruction  upon  the  point, 
is  erroneous,  as  tending  to  lead  them  to 
imply  that  they  are  not  authorized  to 
find  the  will  well  executed  upon  a  bal- 
ance of  the  testimony.  Aikin  v.  Weck- 
erly,    19   Mich.   482. 

^McGinnis  v.  Kempsey,  27  Mich.  363. 

^^Bachmeyer  v.  Mutual  Reserve  Fund 
Life  Asso.  87  Wis.  328,  58  N.  W.  399; 
Gibbons  v.  Dunn,  46  Mich.  146,  9  N.  W. 
140. 

But  an  instruction  to  the  jury  in  a 
will  contest  that  the  burden  rests  with 
the  proponents  of  a  will  to  establish 
testamentary  capacity,  and  that  they 
must  fail  if,  at  the  close  of  the  evidence, 


346  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  309 

ground  of  incapacity  was  done  in  a  lucid  interval  must  be  shown  by 
clear  and  satisfactory  evidence.^^ 

310.  Criminal  cases;  beyond  a  reasonable  doubt. —  The  theory  was 
formerly  acted  upon  by  some  of  the  cases,  that  in  order  to  warrant  a 
conviction  in  a  criminal  prosecution  when  insanity  is  interposed  as 
a  defense,  the  jury  must  be  satisfied  of  the  existence  of  insanity  be- 
yond a  reasonable  doubt  of  a  well-ordered  mind,^"  the  theory  being 
that  the  proof  of  insanity  ought  to  be  as  clear  and  satisfactory,  in  or- 
der to  acquit  the  accused  on  that  ground,  as  proof  of  committing  the 
act  ought  to  be  to  warrant  finding  a  sane  man  guilty.^^  And  the  rule 
has  been  stated  to  be  that  if  the  proof  of  insanity  does  not  arise  out 
of  the  evidence  offered  by  the  state,  the  accused  must  establish  the 
fact  of  insanity  by  distinct  evidence  proving  it  beyond  a  reasonable 
doubt.^^  This  doctrine,  however,  has  been  rejected  in  all  states  in 
which  it  originally  existed,^^  except  in  Oregon,  in  which  the  defense 
of  insanity  is  required  by  statute  to  be  established  beyond  a  reasona- 
ble doubt.2^ 

311.  To  the  satisfaction  of  the  jury. —  A  theory  of  the  measure  of 
proof  in  criminal  cases,  extensively  adopted,  is,  that  the  plea  of  in- 
sanity is  to  be  regarded  as  one  of  confession  and  avoidance.^^  And 
under  this  theory  the  rule  is  variously  stated  that  insanity  as  a  de- 

the  "scales  stand  evenly  balanced,"  with-  L.  R.  A.  721,  21  So.  271,  refusing  to  f cl- 
out instructing  as  to  the  legal  presump-  low  previous  Louisiana  decisions  on  the 
tion  of  sanity,  is  reversible  error.  Bar-  subject,  and  holding  that  insanity  must 
ber's  Appeal,  63  Conn.  393,  22  L.  R.  A.  be  established  to  the  satisfaction  of  the 
90,  27  Atl.  973.  ,]"ry  by  clear  and  convincing  proof,  and 

'^Cochran's  Will,  1  T.  B.  Mon.  263,  15  that  they  should  consider  all  the  testi- 

Am.  Dec.  116.  mony  before  them,  whether  produced  by 

^State  V.  Brinyea,  5  Ala.  241;   State  the  accused  or  the  state,  and  give  due 

V.  Neionan,  7  Ala.  69 ;  Stale  v.  Marler,  weight  to  the  presumption  of  sanit3%  and 

2   Ala.   43,   36  Am.   Dec.   398;    State  v.  if,  on  the  whole  testimony,   and  giving 

West,  1  Houst.  Grim.  Rep.    (Del.)   371;  such  presumption  its  full  operation,  they 

State  V.  Coleman,  27  La.  Ann.  691 ;  Peo-  were  satisfied  that  the  accused  was  in- 

ple  V.  McCann,  3  Park.  Grim.  Rep.  272;  sane  when  the  act  was  committed,  they 

Sellick's  Case,   1   N.  Y.   Gity  Hall  Rec.  should  acquit;  but,  if  not  thus  satisfied, 

185;  State  v.  Murray,  11  Or.  413,  5  Pac.  they  should  deem  him  sane  and  respon- 

55;  State  v.  De  Ranee,  34  La.  Ann.  186,  sible. 

44  Am.  Rep.  426;  State  v.  Clements,  47  ""^Siate  v.  Hansen,  25  Or.  391,  35  Pac. 

La.  Ann.  1088,  17  So.  502;  Bellinghani's  976,  36  Pac.  296;   State  v.  Murray,  11 

Case,  cited  in    1    Gollinson  on  Lunacy,  Or.  413,  5  Pac.  55. 

636;  Rex  v.  Ofj'ord,  5  Car.  &  P.  168.  And  And  a  finding  of  a  jury  in  a  criminal 

see /?(ofe  V. /Sfco^t,  49  La.  Ann.  253,  36  L.  prosecution  in  which   insanity  is  inter- 

R.  A.  721,  21  So.  271;   Cunningham  V.  posed  as  a  defense,  on  the  question  of 

State,  56  Miss.  272,  31  Am.  Rep.  360.  sanity,   cannot  be  disturbed  on   appeal, 

"State  V.  Spencer,  21  N.  J.  L.  197.  under    the    Oregon    statute.      State    v. 

"State   V.    Pratt,   Houst.    Grim.    Rep.  Hansen,  25  Or.  391,  35  Pac.  976,  36  Pac. 

(Del.)  249.  296. 

"See  infra,  succeeding  sections.  ^''Stafe  v.  Leicis,  136  Mo.  84,  37  S.  W. 

This  rule  was  changed   in   Louisiana  806;   State  v.  Wright,  134  Mo.   404,  35 

\»y  State  v.  Scott,  49  La,  Ann.  253.  36  S.  W.  1145. 


§  311]                                                  EVIDENCE.  347 

fense  must  be  established  by  the  accused  to  the  satisfaction  of  the 
jury,^*^  and  that  it  is  to  be  established  by  the  accused  by  evidence 

which  satisfies  the  jury  f^  or,  to  the  reasonable  satisfaction  of  the 
jury.^^  Under  these  rules  insanity  interposed  as  a  defense  in  a  prose- 
cution for  crime  need  not  be  established  beyond  a  reasonable  doubt.^® 
And  a  mere  reasonable  doubt  upon  the  part  of  the  jury  as  to  the 

"The  rule  ia  thus  stated  in  the  fol-  Gr.ddis,  42  Iowa,  268;   Kriel  v.  Com.  5 

lowing,   among   other   cases:     People  v.  Bush,  362;  Graham  v.  Com.  16  B.  Mon. 

Methever,  132  Cal.    326,    64    Pac.    481;  587;  State  v.  Scott,  49  La.  Ann.  253,  36 

State  V.  Danby,  Houst.Crim.  Rep.  (Del.)  L.  R.  A.  721,  21  So.  271 ;  Com.  v.  Heath, 

166;  State  v.  Cole,  2  Penn.   (Del.)   344,  11   Gray,  303;   State  v.   S7nith,  53   Mo. 

45  Atl.  391;  Beck  v.  State,  76  Ga.  452;  207;  People  v.  Pine,  2  Barb.  560;  State 

Fisher  v.  People,  23  111.  283;  People  v.  v.  Brandon,  53  N.  C.   (8  Jones  L.)  403; 

Walter,  1  Idaho,  386;  State  v.  Felter,  32  State  v.  Davis,  109  N.  C.  780,  14  S.  E. 

Iowa,  49;   Graham  v.  Com.  16  B.  Mon.  55;  Lynch  v.  Coin.  77  Pa.  205;  Com.  v. 

587;    State  v.   Gut,    13   Minn.   343,  Gil.  Bezek,  168  Pa.  603,  32  Atl.   109;   Com. 

315;  State  v.  Schaefer,  116  Mo.  96,  22  v.    Lynch,    3   Pittsb.    412;     Johnson    v. 

S.  W.  447;   Genz  v.  State,  58  N.  J.  L.  State,  10  Tex.  App.  571;   Dejarnette  v. 

482,  34  Atl.  816;  State  v.  Haywood,  61  Com.  75  Va.  867;   Bacciqalupo  v.  Com. 

N.  C.   (Phill.  L.)    370;  State  v.  Sjnvey,  33  Gratt.  807,  36  Am.  Rep.  795,  United 

132  N.  C.  989,  43  S.  E.  475;  Loeffner  v.  /Siaios  v.  McGlue,  1  Curt.  0.  C.  I,  Fed. 

Sfa^e,  10  Ohio  St.  599;  Ortwein  v.  Com.  Cas.  No.  15,679.    And  see  Holsenbake  v. 

76  Pa.  414,   18  Am.  Rep.  420;   Com.  v.  State,  45  Ga.  43. 

Kilpatrick,  204  Pa.  218,  53    Atl.    774;  The  presumption  of  sanity  will  of  it- 

State  V.  Stark,  1  Strobh.  L.  479 ;  Carter  self  svistain  the  burden  of  proof  resting 

V.  State,  39  Tex.  Grim.  Rep.  345,  46  S.  upon  the  state  in  a  criminal  case,  so  far 

W.  236,  48   S.  W.  508;   Baccigalupo  v.  as  the  issue  of  sanity  is  involved,  until 

Com.  33  Gratt.  807,  36  Am.  Rep.  795;  it   is   rebutted   and   overcome   by   satis- 

State  v.   Robinson,   20  W.  Va.   713,  43  factory  evidence  to  the  contrary.     King 

Am.  Rep.  799;  United  States  v.  McGlue,  v.  State,  9  Tex.  App.  515;  Kriel  v.  Com. 

1  Curt.  C.  C.  1,  Fed.  Cas.    No.    15.079;  5   Bush,   363. 

M'Naghten's  Case,  10  Clark  &  F.  200,  8  '"^Choice  v.  State,  31  Ga.  424;  State  v. 

Scott  N.  R.  595,  1  Car.  &  K.  130,  note;  Bruce,  48  Iowa,  530,  30  Am.  Rep.  403; 

Rex  v.  Offord,  5  Car.  &  P.  168.  State  v.  Duestrow,   137  Mo.  44,  91,  38 

The  question  for  the  jury  was  not  S.  W.  554:,  3d  S.  W.  2Q6;  State  v.  Pagels, 
whether  the  person  was  of  sound  mind,  92  Mo.  300,  4  S.  W.  931;  State  v.  Rede- 
hut  whether  he  had  made  out,  to  their  meier,  71  Mo.  173,  36  Am.  Rep.  462; 
satisfaction,  that  he  was  not  of  sound  State  v.  Smith,  53  Mo.  207;  State  v. 
mind.  Reg.  v.  Layton,  4  Cox  C.  C.  149;  Wright,  134  Mo.  404,  35  S.  W.  1145; 
WXaqhien's  Caf.e,  10  Clark  &  F.  200,  8  State  v.  Hundley,  40  Mo.  414;  State  v. 
Scott' N.  R.  595,  1  Car.  &  K.  130, 'note.  Leivis,  136  Mo.  84,  37  S.  W.  800;  State 

And   it  is   not  medical   but   legal   in-  v.  Palmer,  161  Mo.  158,  61  S.  W.  651; 

sanity  which  is  required  to  be  proved  to  Williams  v.  State,  37   Tex.   Crim.  Rep. 

the   satisfaction   of  the   jury  to  excuse  348,  39  S.  W.  687;  M'Naghten's  Case,  10 

from  criminal  responsibility.     Leache  v.  Clark"  &   F.   200,  8   Scott  N.  R.   595,   1 

State,  22    Tex.  App.  279,  58    Am.  Rep.  Car.  &  K.   130,  note;  Reg.  v.  Stokes,  3 

638,  3  S.  W.  539.  Car.  &  K.  185. 

And  an   instruction  in  a  prosecution  ^"Siate  v.  Wright,  134  Mo.  404;  35  S. 

for  homicide  that  a  man  is  presumed  to  W.  1145;  Gunter  v.  Slate,  83  Ala.  96,  3 

be  sane  vmtil  the  contrary  ii  shown  to  So.   000;   Ford    v.  State,  71    Ala.  385; 

the  satisfaction  of  the  jury,  accompanied  Boswell  v.  State,  63  Ala.  307,   35  Am. 

by    a    subsequent    statement    that    the  Rep.  20;  Danforth  v.  Stale,  75  Ga.  614, 

burden  of  proof  of  insanity  rests  with  58   Am.   Rep.   480;    State   v.   Bruce,   48 

the  defendant,    is    not    objectionable  as  Iowa,   533,  30  Am.  Rep.  403;   State  v. 

making  the   presumption   of   sanity  too  Felter,   32    Iowa,    53 ;    Kriel   v.    Com.    5 

])rominent.     Massengale  v.  State,  2-1  Tex.  Bush.  363;  State  v.  Dnestroic,  137  Mo. 

App.  181,  5  S.  W.  650,  6  S.  W.  35.  44,  38  S.  W.  554,  39  S.  W.  200;  State  v. 

^'•Bcck  V.  State,  76  Ga.  452;  State  v.  Hundley,  46  Mo.  414;  Genz  v.  State,  58 


348  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  311 

sanity  of  the  accused  does  not  entitle  him  to  an  acquittal.^''  But,  in 
passing  upon  the  question,  the  jury  must  look  at  the  whole  evidence 
in  the  case,  as  well  that  for  the  state  as  for  the  prisoner;*^  and  if, 
upon  the  whole  evidence,  they  believe  the  accused  to  have  been  insane 
when  he  committed  the  act,  they  must  acquit  him.^^ 

312.  By  a  preponderance  of  the  evidence. —  Another  rule  well  sup- 
ported by  authority  regards  insanity  as  an  independent  and  affirma- 
tive defense  in  a  criminal  prosecution,^^  and  requires  a  person 
accused  of  crime  who  interposes  insanity  as  a  defense,  to  prove  it  by 
a  preponderance  of  the  evidence.^^     Within  this  rule  insanity  is  not 

N.  J.  L.  482.  34  AtL  816;  iS/rtfe  V.  Davis,  People  v.  Barthleman,  120  Cal.  7,  52 
109  N.  C.  780,  14  S.  E.  55;  State  v.  Pae.  112;  Steele  v.  Helm,  2  Marv.  (Del.) 
Potts,  100  N.  C.  457,  6  S.  E.  657;  Pan-  237,  43  Atl.  153;  Ryder  v.  State,  100  Ga. 
nell  V.  Com.  86  Pa.  260;  Williams  v.  528,  38  L.  R.  A.  721,  62  Am.  St.  Rep. 
State,  37  Tex.  Crim.  Rep.  348,  39  S.  W.  334,  28  S.  E.  246;  State  v.  Larkins,  5 
687;  Burt  v.  State,  38  Tex.  dim.  App.  Idaho,  200,  47  Pac.  945;  State  v.  Felt- 
397,  39  L.  R.  A.  305,  40  S.  W.  1000,  43  er,  32  Iowa,  53;  State  v.  Rohhins,  109 
S.  W.  344;  Boswell  v.  Com.  20  Gratt.  Iowa,  650,  80  N.  W.  1061;  Moore  v. 
800;  State  v.  Robinson,  20  W.  Va.  713,  Com.  92  Ky.  630,  18  S.  W.  833;  State 
43  Am.  Rep.  799;  Dove  v.  State,  3  v.  Burns,  25  La.  Ann.  302;  State  v. 
Heisk.  348.  Parks,  93  Me.  208.  44  Atl.  899;  Com.  v. 

*''State  V.  Erh,  74  Mo.  199;  State  v.  Rogers,  7  Met.  500,  41  Am.  Dec.  458: 
Johnson,  91  Mo.  439,  3  S.  W.  808;  State  State  v.  McCoy.  34  Mo.  531,  80  Am.  Dec. 
V.  McCoy,  34  Mo.  531,  86  Am.  Dec.  121;  123:  State  v.  Williamson,  106  Mo.  162, 
State  V.  Huting.  21  Mo.  464;  Baldwin  v.  17  S.  W.  172;  Graves  v.  State,  45  N.  J. 
State,  12  Mo.  223;  State  v.  Hanlei/,  34  L.  203,  347,  46  Am.  Rep.  778;  State  v. 
Minn.  430,  26  N.  W.  397;  Bonfanti  v.  Leiois,  20  Nev.  333,  22  Pac.  241;  Reich 
State,  2  Minn.  123.  Gil.  99;  Lynch  v.  v.  State,  55  Ohio  St.  146,  39  L.  R.  A. 
Com.  77  Pa.  205;  Ortwein  v.  Com.  76  737,  60  Am.  St.  Rep.  680,  45  N.  E.  6; 
Pa.  414,  IS  Am.  Rep.  420;  Com.  v.  Co^/Ze  v.  Cow.  100  Pa.  573,  45  Am.  Rep. 
Lynch,  3  Pittsb.  412;  Baccigalupo  v.  397;  Com.  v.  Barner,  199  Pa.  335,  49 
Com.  33  Gratt.  807,  36  Am.  Rep.  795;  Atl.  60;  State  v.  Bundy,  24  S.  C.  439, 
Bosicell  V.  Com.  20  Gratt.  860;  Dejar-  58  Am.  Rep.  202;  Lovegrove  v.  State^ 
nette  v.  Com.  75  Va.  867;  State  v.  Doug-  31  Tex.  Crim.  Rep.  491,  21  S.  W.  191; 
lass,  28  W.  Va.  297;  State  v.  Strauder,  Riley  v.  State  (Tex.  Crim.  App.)  44  S. 
11  W.  Va.  745,  27  Am.  Rep.  606;  People  W.  498;  People  v.  Dillon,  8  Utah,  92. 
V.  Barthleman,  120  Cal.  7,  52  Pac.  112.      30  Pac.  150. 

"State  V.  Strauder,  11  W.  Va.  745;  The  accused  in  a  criminal  prosecution 
27  Am.  Rep.  606;  Com.  v.  Heath,  11  must  establish,  by  a  preponderance  of 
Gray,  303 ;  Com.  v.  Rogers,  7  Met.  500,  proof,  not  only  the  fact  of  insanity,  but 
41  Am.  Dec.  458;  Kriel  v.  Com.  5  Bush,  insanity  of  such  a  character  as  will 
363.  amount  in  law  to  a  defense.     People  v. 

*'' Dejarnette  v.  Com.  75  Va.  867;  Bos-    Bell,  49  Cal.  485;  Williams  v.  State,  50 
well    V.  Com.  20    Gratt.  800;   State    v.    Ark.  517,  9  S.  W.  5. 
Rohinson,  20  W.  Va.  713,  43  Am.  Rep.        And  error  in  instructing  that  insanity 
799;  State  v.  Scott,  49  La.  Ann.  253,  36    must  bo  clearly  proved  is  not  remedied 
L.  R.  A.  721,  21  So.  271.  by  a  subscriueiit  instruction  that  it  must 

"Com.  V.  Bezclc,  168  Pa.  603,  32  Atl.  be  proved  by  a  preponderance  of  the  evi- 
109;  Slate  v.  Lewis,  20  Nev.  333,  22  dence,  since  it  cannot  be  determined 
Pac.  241;  State  v.  Gut,  13  Minn.  343,  which  of  the  two  measures  the  jury 
Gil.  315.  adopted.     Com.  v.  Gerade,  145  Pa.  289, 

**  Among  numerous   other   cases   stat-    27  Am.  St.  Rep.  689,  22  Atl.  404. 
ing  the  rule  in  this  form  are:    Parsons        So  it  rests  with  a  person  accused  of 
V.  State,  81  Ala.  577,  60  Am.  Rep.  193,    crime  to  show  present  insanity  by  a  pre- 
2  So.  854;  Lide  v.  State,  133  Ala.  43.  31    ponderaia-e     of     the     proof.       State     v 
So.  953;  Voates  v.  State,  50  Ark.  330.  7    O'Grady,  3  Ohio  Legal  News,  137. 
S.  W.  304;  People  v.  Myers,  20  Cal.  518; 


§  312]  EVIDENCE.  Zi9 

required  to  be  proved  beyond  a  reasonable  doiibt.^^  And  a  reasonable 
doubt  a^  to  sanity  does  not  authorize  an  acquittal.^''  The  accused, 
however,  should  be  held  to  no  higher  degree  of  proof;  and  the  pre- 
sumption of  sanity  is  overcome,  and  the  burden  of  proof  resting  with 
the  defendant  is  satisfied,  by  a  mere  preponderance  of  the  evidence.*' 
313.  What  is  a  sufficient  preponderance. —  Proof  of  insanity  in  a 
criminal  prosecution  should  be  deemed  to  preponderate  whenever  the 
-existence  of  insanity  is  made  probable  upon  a  full  and  fair  consider- 
ation of  all  the  evidence  adduced  for  and  against  it.*^    It  is  not  a  prc- 

""Martin  v.  State,  119  Ala.  1,  25  So.  inal    case,    must    be    established   to   the 

255;   People  v.  Melhever;  132  Cal.  320,  reasonable   satisfaction    of   the   jury   by 

(54  Pac.  481;  People  v.  Coffman,  24  Cal.  preponderance    of    evidence,   yet,     after 

230;  People  v.  Wilson,  49  Cal.  13;  Pea-  consideration  of  all  the  evidence  in  the 

pie  V.  Ward,  105  Cal.  335.  3S  Pac.  945;  case,  the  jury  must  acquit  if  they  have 

State    V.     Hurley,     Houst.    Crim.    Rep.  a  reasonable  doubt  of  guilt,  is  improper, 

(Del.)    28;    State  v.  Larkins,   5   Idaho,  as  tending  to  mislead  the  jury  as  to  the 

200,  47  Pac.  945;  Danforth  v.  State,  75  proper    burden    and    degree    of    proof. 

Oa.  014.  58  Am.  Rep.  480;  Ball  v.  Com.  Porter  v.  State,  135  Ala.  51,  33  So.  094. 
81  Ky.  002;  State  v.  Wright,    134    Mo.       "State  v.   Larkins,   5   Idaho,   200,   47 

404,    35    S.    \V.    1145;    State   v.    11  mid-  Fac.  M5;  Peoj)le  v.  Messersmith,  57  Cnl. 

ley,    40    Mo.    414;     State    v.    Klinger,  575;    State  v.  Jones,  04   Iowa,  350,   17 

43    Mo.    127;    Graves    v.    State,    45    N.  N.  W.  911,  20  N.  VV.  470;  P/ie/ps  v.  Com. 

J.    L.    203;    State    v.    Starling,    51   N.  17  Kv.  L.  Rep.  700,  32  S.  W.  470;  Ball 

C.      (0     Jones     L.)      360;      Cottell    v.  v.   Com.  81    Ky.   602;    Kriel  v.   Com.   5 

State,   12   Ohio   C.   C.   407;    Loeffner  v.  Bush,  303;  Com.  v.  Rogers,  7  Met.  500, 

State,  10  Ohio  St.  599;  Pannell  v.  Com.  41  Am.  Dec.  458;  State  v.  Wright,  134 

SO  Pa.  200;  Meyers  v.  Com..  83  Pa.  141;  Mo.  404,  35  S.   W.  1145;   State  v.  Wil- 

Com.  V.   Werling,   164  Pa.  559,  30  Atl.  liamson,    106   Mo.    162,    17    S.   W.    172  ;1 

406;  State  v.  Alexander,  30   S.  C.  74,  14  State  v.  Hnndleij.  40  Mo.  414;  State  v. 

Am.  St.  Rep.  879,  8  S.  E.  440.  Klinger,  43   Mo.   127;    State  v.   McCoy, 

Where  a  preponderance  of  the  testi-  34  Mo.  531,  86  Am.  Dec.  121;  Cottell  v. 

inony  shows  the  insanity  of  the  accused  State,  12  Ohio  C.  C.  407;  Bond  v.  State, 

in    a    criminal  prosecution,  it    raises    a  23  Ohio  St.   349;   Loeffner  v.  State,   10 

reasonable    doubt    of     guilt.     State    v.  Ohio  St.  599;  Sharkey  v.  State,  4  Ohio 

Bruce,  48  Iowa,  533,  30  Am.  Rep.  403.  0.  C.  101;   Kelch  v.  State,  55  Ohio  St. 

*^Parsons  v.  State,  81  Ala.  577,  60  Am.  140,  39  L.  R.  A.  737,  60  Am.  St.  Rep. 

Rep.  193,  2  So.  854;   Maxwell  v.  State,  080,  45  N.  E.  6;  Com.  v.  Gerade,  145  Pa. 

89  Ala.  150,  7  So.  824;  Ford  v.  State,  71  289,  27  Am.  St.  Rep.  689.  22  Atl.  464; 

Ala.  385;  Bosuell  v.  State,  63  Ala.  307,  Pannell  v.  Coin.  86  Pa.  260;   Meyers  v. 

35  Am.  Rep.  20;   Cavaness  v.  State,  43  Com.  S3  Pa.  131;  State  v.  Alexander,  30 

Ark.    331;    People   v.    Barthlcman,    120  S.  C.  74,   14  Am.  St.  Rep.  879,  8  S.  E. 

Cal.  7,  52  Pac.  112;  People  v.  Myers,  20  440;    'Slewherry  v.  State,  32  Tex.  Crim. 

Cal.  518;  People  v.  Banden,  90  Cal.  195.  Rep.  145,  22  S.  W.  412;  Carlisle  v.  State 

27  Pac.  204;  Kriel  v.  Com.  5  Bush,  303;  (Tex.  Crim.  App.)   56  S.  W.  305. 
State  V.  Bell,  130  Mo.   120,    37    S.    W.        But  where  the  claim  of  insanity  set 

823;  State  v.  Leivis,  20  Nev.  333,  22  Pac.  up  in  a  criminal  action  is  unusual,  un- 

241 ;  Graves  v.  State,  45  N.  J.  L.  347,  40  natural,  and  out  of  the  ordinary  course 

Am.  Rep.  778;  State  v.  Starling,  51  N.  of  atTairs,  the  jury   is  not  required   to 

C.    (6  Jones  L.)    360;   Ortwein  v.  Com.  take  the  same  for  granted  upon  slight 

76  Pa.  414,  18  Am.  Rep.  420.  evidence,  and  should  not  find  its  exist- 

And    it    is    immaterial    whether    the  ence    except   on    evidence    of   a    reliable 

reasonable  doubt  arises  as  to  the  fact  of  character,  which  satisfies  them  that  the 

insanity,  or  as  to  the  actual  connection  defense    has    been   made    out.     State   v. 

"between  it  and  the  criminal  act.     Oun-  Ilockett,  70  Iowa,  442,  30  N.  W.  742. 
ter  V.  State,  83  Ala.  96,  3  So.  600.  *^Kelch  v.  State,  55  Ohio  St.   146,  39 

And  an  instruction  that,  while  insan-  L.  R.  A.  737,  60  Am.  St.  Rep.  680,  45 

ity,  when  set  up  as  a  defense  in  a  crira-  N.  E.  6;  State  v.  Qrear,  29  Minn.  221, 


350 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  313 


ponderance  in  point  of  the  number  of  witnesses,  but  a  preponderance 
of  facts  and  circumstances  which  are  convincing  to  the  minds  of  the 
jurors,  that  is  required.*^  And  it  consists  of  the  greater  weight  of 
credible  evidence  in  the  case,^^  and  must  be  sufficient  to  overturn 
the  presumption  of  sanity.^ ^  It  is  sufficient  to  establish  insanity  as 
a  defense  to  crime,  however,  if  the  evidence  be  such  as  would  justify 
a  jury  in  a  civil  case  in  finding  the  defendant  insane  if  the  single 
issue,  sane  or  insane,  was  submitted  to  them.°^  Some  of  the  cases 
have  qualified  the  rule  by  requiring  fairly  preponderating  evidenae 
of  insanity.^^    And  a  satisfactory  preponderance  has  been  required  f* 


13  N.  W.  140;  Meyers  v.  Com.  83  Pa. 
141 ;  State  V.  Jones,  64  Iowa,  3o6,  17 
N.  W.  911,  20  X.  W.  470;  State  v.  Thiele 
(Iowa)    94  N.  W.  256. 

A  mere  probability  of  insanity  is  not 
sufficient  to  warrant  an  acquittal. 
Sharkey  v.  State,  4  Ohio  C.  C.  101. 

And  an  instruction  in  a  criminal  pros- 
ecution that  the  accused  should  be  held 
responsible  for  his  acts  until  the  fact 
is  positively  proved  that  he  is  not  re- 
sponsible is  objectionable  as  requiring 
too  high  a  measure  of  proof;  but  it  is 
not  reversible  error,  where  it  is  fol- 
lowed by  a  statement  that  the  jury 
should  be  satisfied,  not  clearly,  but  by 
the  weight  of  evidence  simply,  since  the 
accused  is  not  bound  to  prove  irrespon- 
sibility except  by  the  weight  of  evi- 
dence, or  a  fair  preponderance  of  evi- 
dence. Com.  v.  Woodley,  166  Pa.  463, 
31   Atl.   202. 

"^People  v.  Barberi,  12  N.  Y.  Grim. 
Rep.  89,  47  N.  Y.  Supp.  168. 

And  positive  and  direct  proof  of  in- 
sanity is  not  necessary.  State  v.  Pagels, 
92  Mo.  300,  4  S.  W.  931. 

^State  V.  Trout,  74  Iowa,  545,  7  Am. 
St.  Rep.  499,  38  N.  W.  405;  Wall  v. 
Hill,  1  B.  Mon.  290,  36  Am.  Dec.  578; 
State  V.  Lewis,  20  Nev.  333,  22  Pac.  241; 
Farrer  v.  State.  2  Ohio  St.  .54;  Com. 
v.  Woodley,  106  Pac.  463,  31  Atl.  202; 
Com.  V.  Werling,  164  Pa.  559,  30  Atl. 
406.  And  see  Com.  v.  Wireback,  190 
Pa.  138,  70  Am.  St.  Rep.  625,  42  Atl. 
.542. 

If  the  proofs,  on  an  issue  of  sanity  or 
insanity,  are  of  equal  weiglit  and  re- 
liability, the  presumption  of  sanitj'  must 
prevail.  Xonnemacher  v.  'Nonnemacher, 
159  Pa.  034,  28  Atl.  439;  Reg.  v.  Stokes, 
3   Gar.   &   K.    185. 

And  refusal  to  instruct  that  if  the  evi- 
dence points  to  two  conclusions,  one 
consistent  with  the  defendant's  guilt, 
and   the   other   consistent   with   his   in- 


nocence, the  jury  is  bound  to  adopt  the 
one  of  innocence,  and  acquit  him,  is 
not  error  when  the  only  defense  is  in- 
sanitv.  People  v.  Barthleman,  120  Gal. 
7,  52'  Pac.   112. 

^Wloore  v.  Com.  92  Kv.  630,  18  S.  W. 
833 ;  State  v.  Leicis,  20  Nev.  333,  22  Pac. 
241;  State  v.  Bundy,  24  S.  G.  439,  58 
Am.  Rep.  263;  McKenzie  v.  State,  20 
Ark.  334. 

But  to  overcome  the  presumption  of 
sanity  and  responsibility  for  crime,  tlie 
evidence  may  come  as  well  from  the  wit- 
nesses for  the  government  as  from  the 
witnesses  for  the  defense.  Com.  v.  Heath, 
11  Gray,  303. 

And  though  the  burden  of  proving  in- 
sanity in  a  criminal  prosecution  may 
not  be  successfully  carried  so  as  to  au- 
thorize an  acquittal  on  that  ground,  it 
is,  nevertheless,  the  duty  of  the  jury  to 
consider  the  evidence  touching  the  al- 
leged insanity,  in  connection  with  the 
other  evidence  in  the  case,  and  then,  in 
view  of  all,  to  determine  whether  or  not 
a  reasonable  doubt  of  the  guilt  of  the 
accused  exists  in  their  minds.  Ryder  v. 
State,  100  Ga.  528,  38  L.  R.  A.  721, 
62  Am.  St.  Rep.  334.  28  S.  E.  246. 

^'People  V.  Hamilton,  62  Gal.  .377: 
People  V.  Messersmith,  61  Gal.  246; 
People  V.  Wilson,  49  Gal.  13 ;  People  v. 
McDoncll,  47  Gal.  134;  Peoplt  v.  Coff- 
man,  2^  Gal.  230;  Com.,  v.  Gerade,  145 
Pa.  289,  27  Am.  St.  Rep.  689,  22  Atl. 
464. 

The  person  who  alleges  insanity  as  a 
defense  must  prove  it  Avith  the  same  de- 
gree of  cogency  as  other  material  al- 
legations are  proved.  State  v.  Starling, 
5i   N.  G.    (6  Jones  L.)    366. 

''"Com.  V.  Bezek,  168  Pa.  606,  32  Atl. 
109;  Coi/le  v.  Com.  100  Pa.  573,  45  Am. 
Rep.  397;  Pannell  v.  Com.  80  Pa.  260. 

",S'<a<e  v.  Felter,  32  Iowa,  53. 

And  an  instruction  that  insanity  must 
be  shown  by  the  weight  and  prcponder- 


§  3131 


EVIDENCE. 


361 


and  also  a  clear  preponderance  f^  and  some  cases  have  held  that  in- 
sanity must  be  established  to  the  satisfaction  of  the  jury  by  a  pre- 
ponderance of  proof.  ^'^ 

314.  Clearly  proved,  reasonable  certainty. —  The  rule  has  also  been 
laid  down  by  some  of  the  cases  that,  to  warrant  an  acquittal  on  the 
ground  of  insanity,  it  must  be  clearly  proved.^^  And  it  has  been 
held  that  insanity  must  be  made  plainly  to  appear  ;^^  and  that  it 
must  be  made  to  appear  with  reasonable  certainty.^^  And  it  has  been 
held  that  the  evidence  must  be  such  as  to  rationally  convince  the  jury 
of  the  existence  of  insanity.^*^      Such  requirements,   however,   are 


ance  of  the  testimony  is  a  mere  in- 
formality, and  not  a  ground  for  reversal, 
though  the  jury  might  be  led  to  be- 
lieve therefrom  that  it  takes  something 
more  than  a  conviction  of  the  mind  to 
find  in  favor  of  a  plea  of  insanity.  State 
V.  Smith,  53  Mo.  267. 

'''-Staie  v.  Martin,  4  N.  J.  L.  J.  252, 
3  Crim.  L.  Mag.  44:  Graves  v.  State, 
45  N.  J.  L.  203 ;  Farrer  v.  State,  2  Ohio 
St.   70. 

In  State  v.  Hundley,  46  Mo.  414,  hovp- 
ever,  it  was  held  that  an  instruction  in 
a  criminal  action  that  insanity  as  a 
defense  should  be  shown  to  the  satis- 
faction of  the  jury  by  a  clear  preponder- 
ance of  the  testimony  is  objectionable 
in  the  use  of  the  word  "clear,"  as  tend- 
ing to  lead  the  jury  to  believe  that  some- 
thing more  than  a  preponderance,  or 
what  would  reasonably  satisfy  them,  was 
necessary. 

And  the  same  result  was  arrived  at 
in  Coyle  v.  Com.  100  Pa.  573,  45  Am. 
Rep.  397. 

''"Gunter  v.  State,  83  Ala.  96,  3  So. 
600;  Ford  v.  State,  71  Ala.  385;  Bos- 
well  V.  State,  63  Ala.  307,  35  Am.  Rep. 
20;  People  v.  Messersmith,  57  Cal.  575; 
State  v.  Lewis,  20  Nev.  333,  22  Pac.  241 ; 
Com.  V.  Eddy,  7  Gray,  583;  State  v. 
Burns,  25  La.  Ann.  302;  State  v. 
Wright,  134  Mo.  404,  35  S.  W.  1145; 
State  V.  Hundley,  46  Mo.  414;  State  v. 
Klinger,  43  jNIo.  127;  State  v.  William- 
son, 106  Mo.  162.  17  S.  W.  172;  Loeffner 
V.  State,  10  Ohio  St.  598;  Cottell  v. 
State,  12  Ohio  C.  C.  469;  Pannell  v. 
Com.  86  Pa.  200;  Coyle  v.  Com.  100  Pa. 
573,  45  Am.  Rep.  397;  Carlisle  v.  State 
(Tex.  Crim.  App.)    56  S.  W.  365. 

There  is  nothing  wrong  in  telling  the 
jury  in  a  criminal  prosecution  that,  aft- 
er weighing  tlie  evidence,  they  iMust  de- 
cide according  to  their  consciences. 
People  V.  Hubert,  119  Cal.  216,  51  Pac. 
329. 


^'Porter  v.  State,  135  Ala.  51,  33  So. 
694;  Casat  v.  State,  40  Ark.  511;  Peo- 
ple V.  McDonell.  47  Cal.  134;  State  v. 
Bicrns,  25  La.  Ann.  302 ;  Newcomh  v. 
State,   37   Miss.   383;    State  v.    Martin. 

4  N.  J.  L.  J.  252,  3  Crim.  L.  Mag.  44; 
State  V.  Spencer,  21  N.  J.  L.  196;  Stato 
V.  Scott,  8  N.  C.  (1  Hawks)  24;  Com.  v. 
McCaulley,  16  Phila.  502;  Com.  v.  Far- 
kin,  2  Clark   (Pa.)   208;  Webb  v.  State, 

5  Tex.  App.  596 ;  Clark  v.  State,  8  Tex 
App.  350;  Smith  v.  State,  19  Tex.  App 
95;  State  v.  Smith,  31  Tex.  Crim.  Rep 
14,  19  S.  W.  252 ;  King  v.  State,  9  Tex 
App.   558;    M'Naghte7i's  Case,    10  Clark 

6  F.  ^00,  8  Scott' N.  R.  595,  1  Car.  &  K 
130,  note;  People  v.  Klein,  1  Edm.  Sel 
Cas.  13,  cited  in  Ray,  Med.  Jur.  5th  ed 
§  42. 

An  instruction  in  a  criminal  action 
requiring  insanity  lo  be  clearly  proved 
to  establish  a  defense  is  not  objection- 
able as  a  charge  upon  the  degree  or 
measure,  or  upon  the  weight,  of  evi- 
dence. Giebel  v.  State,  28  Tex.  App.  151, 
12  S.  W.  591. 

'■\'^anders  v.  State,  18  Tex.  App.  372. 

'-^Humphreys  v.  State,  45  Ga.  190; 
Beck  v.  State,  76  Ga.  452;  Holsenbake 
v.  State,  45  Ga.  43;  Minder  v.  State,  113 
Ga.  772,  39  S.  E.  284.  And  see  Belling- 
ham's  Case,  cited  in  1  Collinson  on  Lu- 
nacy,  636. 

So,  in  Bellingham's  Case,  cited  in  1 
Collinson  on  Lunacy,  636,  it  was  held 
that  to  support  the  defense  of  insanity 
in  a  prosecution  for  murder,  it  ought  to 
be  proved  by  the  most  distinct  and  un- 
questionable evidence,  that  the  accused 
was  incapable  of  judging  between  right 
and  wrong,  and  did  not  consider  that 
murder  was  a  crime. 

""State  V.  Hockett,  70  Iowa,  442,  30 
N.  W.  742 ;  Kriel  v.  Com.  5  Bush,  363 ; 
Com.  V.  Lynch,  3  Pittsb.  412;  Webb  v. 
State,  9  Tex.  App.  490.     And  see  Par 


352  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  3U 

usually  deemed  to  require  something  more  than  a  mere  preponder- 
ance of  the  evidence,  and  therefore,  such  directions  are  usually 
deemed  improper  in  jurisdictions  in  which  the  general  rule  requiring 
a  preponderance  of  the  evidence  has  been  adopted.®^ 

315.  Reasonable  doubt  of  insanity. —  The  rule  adopted  by  the  Fed- 
eral courts  and  those  of  many  of  the  states  regards  insanity  as  an  in- 
gredient in  a  crime,  as  necessary  as  the  overt  act  itself,  without 
which  there  can  be  no  crime  ^^  And  where  insanity  is  relied  on  as 
a  defense  in  a  prosecution  for  crime  within  this  rule,  and  evidence  is 
given  tending  to  show  it,  and  a  reasonable,  well-founded  doubt  is 
thereby  raised  of  the  sanity  of  the  accused,  he  is  entitled  to  the 
benefit  of  the  doiibt,^^  the  burden  of  proof,  where  sanity  is  ques- 
tioned, resting  with  the  prosecution  to  establish  sanity  beyond  a 
reasonable  doubt.^*     And  the  defendant  is  to  be  acquitted  unless  the 

ker's  Case,  cited  in  1  Collinson  on  Lu-  69  Am.  Dec.  642;   People  v.   Nino,   149 

nacy,  477.  N.  Y.  317,  43  N.  E.  853;  Farrer  v.  iitate, 

"In  People  v.  Nino,  149  N.  Y.  327,  43  2  Oliio   St.  54 ;    Com.  v.   Gentry,  5   Pa. 

N.   E.   853,   it   was   said   that   it  would  Dist.  R.  703 ;  S^a7e  v.  i/c7n/os7i,  39  S.  C. 

be    error    to    declare    that    insanity    as  97,  17  S.  E.  446;  King  v.  State,  91  Tenn. 

an   affirmative   defense  must  be   clearly  617,  20  S.  W.   169;  Revoir  v.  State,  82 

proved,  since  a  preponderance  of  the  evi-  Wis.  295,  52  N.  W.  84 ;  Davis  v.  United 

dence  meets  the  legal  requirement;  and  States,  160  U.  S.  469,  40  L.  ed.  499,  16 

the  same  ruling  was  made  in   Com.  v.  Sup.   Ct.   Rep.   353;    German  v.    United 

Gerade,    145   Pa.  289,  27   Am.   St.  Rep.  States,  57  C.  C.  A.  128,  120  Fed.  666. 
689,  22  Atl.  464.  An  instruction,  in  a  criminal  prosecu- 

So,  "clearly  proved"  and  "proved  be-  tion,  that  insanity,  interposed  as  a  de- 

yond  a  reasonable  doubt"  are  not  con-  fense,  must  be  clearly  proved,  is  not  in- 

vertible  terms;  the  latter  implies  a  high-  correct,  where  the  jury  is  also  told  that 

er  degree  of  certainty  than  the  former,  a  person  must  be  given  the  benefit  of 

If  the  preponderance  of  testimony  is  on  any  doubt  as  to  his  sanity,  resting  upon 

the  side  of  insanity,   it  is  regarded  as  the    evidence    in    the    case.      Walker   v. 

clearly  proved,  although  there  is  a  rea-  People,  26  Hun,  67,  AJlirmed  in  88  N.  Y. 

sonable  doubt  of  its  existence.    Farrer  v.  81;  Brown  v.  Com.  14  Bush,  398. 
State,  2  Ohio  St.  70.  And  an  instruction  that  the  accused 

'-Chase  v.  People,  40  111.  353;   Hopps  is    presumed   to   be   sane   until   he   con- 

V.  People,  31  111.  385,  83  Am.  Dec.  231;  vinces  the  jury  by  evidence  to  the  con- 

People  V.  McCann,  16  N.  Y.  58,  69  Am.  trary  is  not  error,  where  the  trial  was 

Dec.  642.  conducted  upon  the  theory  that  the  bur- 

•"Among  the  numerous  eases  by  which  den  rests  with  the  prosecution  to  main- 

this  rule  has  been  adopted  are:     Henson  tain  the  sanitj'  of  the  prisoner,  and  the 

V.  State,  112  Ala.  41,  21   So.  79;   State  jury   had    also  been   instructed   that   if 

V.  Reidill,  9  Iloust.    (Del.)    470,   14  Atl.  they  had  a  reasonable  doubt,  from  the 

550;  Armstrong  v.  State,  30  Fla.  170,  17  evidence,    that    the    prisoner    was    sane 

L.  R.  A.  484,   11  So.  018;    Anderson  v.  they  should  give  him  the  benefit  of  the 

State,    42    Ga.    9;    Langdon    v.    People,  doubt.     O'Connell  v.  People,   87   N.   Y. 

133   111.   382,   24   N.   E.   874;    Grubb   v.  377,  41  Am.  Rep.  379. 
State,  117  Ind.  277.  20  N.  E.  257,  725;        "'State    v.    Johnson,    40    Conn.    136; 

State  V.  Nixon,  32  Kan.  205,  4  Pac.  159;  Stevens  v.   State,  31   Ind.  486,  99  Am. 

Smith    V.    Com.    1    Duv.    224;    Ford    v.  Dec.   634;    Hife   v.   Sims,   94    Ind.   333; 

State,  73  Miss.   734,   35   L.   R.   A.    117.  Bradley  v.  State,  31  Ind.  492;  Hiler  v. 

19  So.  665 ;  State  v.  Peel  23  Mont.  35H,  State,  4  Blackf.  552 ;   Wheeler  v.  State, 

73    Am.    St.    Rep.    529,    59    Pac.    169;  158    Ind.   687,   63   N.   E.   975;    State  v. 

State  V.  Bartlett,  43  N.  H.  224,  80  Am.  Reddick,  7  Kan.  143;  State  v.  Crawford, 

l»ec.  154:  People  v.  McCann.  16  N.  Y.  58,  11  Kan.  32;  Riissell  v.  State,  53  Miss. 


§  315]  EVIDENCE.  353 

jurj  are  satisfied  beyond  a  reasonable  doubt  that  the  criminal  act 
was  not  produced  by  mental  disease."^  It  is  not  necessary,  under  this 
rule,  that  insanity  be  established  by  a  preponderance  of  evidence,'''*'' 
or  beyond  a  reasonable  doubt. *^^  Sanity  is  presumed,  however,  and 
the  prosecutor  may  rest  upon  such  presumption,  without  other  proof ; 
but  upon  the  general  question  whether  the  crime  committed  was  com- 
mitted by  a  person  responsible  for  his  acts,  the  presumption  of  sanity 
and  the  evidence  are  both  to  be  considered,  the  affirmative  resting 
with  the  prosecution;  and  if  a  reasonable  doubt  exists  as  to  whether 
the  person  was  sane,  he  should  be  acquitted.*^^    And  it  is  immaterial 

367;  Ford  v.  State,  73  Miss.  734,  35  L.  and   was   mentally   capable  of   choosing 

R.  A.  117,  19  So.  GG5;  People  v.  Finley,  either   to   do   or   not   to   do    it,   and   of 

38  Mich.  482;  Wright  v.  People,  4  Neb.  governing  his  conduct  in  accordance  with 

407;  Furst  v.  State,  31  Neb.  40.3,  47  N.  such  choice,  they  should  find  him  guilty, 

W.  IIIG;  Ballard  v.  State,  19  Neb.  609,  though    they   believe   that   he   was    not 

28  N.  W.  271;   Smith  v.  State,  4  Neb.  entirely    and    perfectly    sane.      Hornish 

277;  State  v.  Bartlett,  43  N.  H.  224,  80  v.  People,  142  111.  620,  18  L.  R.  A.  237, 

Am.  Dec.  154;  State  v.  Jones,  50  N.  H.  32  N.  E.  677. 

,369,  9  Am.  Rep.  242;  State  v.  Pike,  49        ^State  v.  Shuif  (Idaho)   72  Pac.  664; 

N.  H.  399,   6  Am.   Rep.  533;    Moett  v.  Dacey  v.  People,   116  111.  555,   6  N.  E. 

People,  85  N.  Y.  373;   People  v.   l^ino,  165;   Grulh  v.  StcUe,   117   Ind.  277,  20 

149  N.  Y.  318,  43  N.  E.  853;  Walker  v.  N.  E.  257,  725;   Polk  v.  State,   19  Ind. 

People,  88  N.  Y.  81;   O'Brien  v.  People.  170,  81  Am.  Dec.  382;   Guetig  v.  State, 

48  Barb.  274;  People  V.  iv (/nor,  175  N.  Y.  66  Ind.   94,   32  Am.   Rep.   99;   State  t. 

419,  67  N.  E.  906:  1/cos  v.  Territory,  10  Crawford,  11  Kan.  32. 
Okla.  714,  53  L.  R.  A.  814,  63  Pac.  960;        ^'Armstrotig  v.  Stats,  27  Fla.  366,  26 

Davis  V.   United  States,   160  U.  S.  469.  Am.  St.  Rep.  72,  9  So.  1 ;  Smith  v.  Com. 

40  L.  ed.  499,  16  Sup.  Ct.  Rep.  353.  1  Duv.  224 ;  People  v.  McCann,  16  N.  Y. 

An  instruction  in  a  criminal  prosecu-  58,  69  Am.  Dec.  642. 
tion   that  the   jury   is   to   presume   the        ^Dacey  v.  People,  116  III.  555,  G  N.  E. 

defendant    innocent    until    his    guilt    is  165;    Montag  v.  People,   141  111.  75,  30 

established   beyond   a   reasonable   doubt  N.   E.   337;    Bradley   v.   State,   31    Ind. 

is  not  inconsistent  with  another  instruc-  492 ;    Wright   v.   Com.   24   Ky.   L.   Rep. 

tion  that  every  man  is  presumed  to  be  1838,  72  S.  W.  S40;  People  v.  Garbutt, 

sane,    and    to    intend   the    natural    and  17  Mich.  9,  97  Am.  Dec.  162;  Cunning- 

ordinary  consequences  of  his  acts.  Green-  ham  v.  State,  56  Miss.  269,  31  Am.  Rep. 

ley  V.  State,  60  Ind.  141.  360;  Ford  v.  State,  73  Miss.  734,  35  L 

^'-Bradley  v.  State,  31  Ind.  492;  Ford  R.   A.    117,    19   So.   665;    Brotherton  v. 

V.  State,  73  Miss.  734,  35  L.  R.  A.  117,  People,  75  N.  Y.  159;  Wallcer  v.  People, 

19  So.  665;  State  v.  Jones,  50  N.  H.  369,  26  Hun,  67;  People  v.  Coleman,  1  N.  Y. 

9   Am.  Rep.   242;    Wright  v.  People,  4  Crim.  Rep.  1;  Casey  v.  People,  31  Hun 

Neb.  407;  Ballard  v.  State,  19  Neb.  609,  158;   People  v.   O'Connell,  62  How.  Pr 

28  N.  W.  271.  436,  Affirmed  in  87  N.  Y.  377,  41  Am. 

A  prisoner  charged  with  murder  is  en-  Rep.  379:   State  v.  Mcintosh,  39  S.  C. 

titled   to  an   acquittal   if   the  jury   en-  97,   17  S.  E.  446;  State  v.  Coleman,  26 

tertain    a    reasonable   doubt   as   to   his  S.  C.  441;  Dove  v.  State,  3  Heisk.  348; 

soundness  of  mind  at  the  time  of  the  Coffee  v.  State,  3  Yerg.  28.3,  24  Am.  Dec. 

homicide,  although  they  believe  that  he  570;  King  v.  State,  91  Tenn.  617,  20  S 

had   judgment  and   reason  sufficient  to  W    109;    United  States  v.  Lancaster,  7 

discriminate   between   right   and   wrong  Biss.   440,   Fed.   Cas.   No.    15,555;    Gui- 

in  the  ordinary  affairs  of  life.     Stevens  ieau's  Case,  10  Fed.  161. 
V.  State,  31  Ind.  485,  99  Am.  Dec.  634.        It  is  never  incumbent  upon  the  pros- 

But   where   the    jury   believe,   beyond  ecution  in  a  criminal  case  to  give  evi- 

a  reasonable  doubt,  that  the  defendant  dence  that  sanity,  which  is  presumed  to 

committed  the  crime  charged,  and  that  exist,  existed  in  a  particular  case.    Wal- 

at  the  time  he  knew  that  it  was  wrong,  ter  v.  People,  32  N.  Y.   147;  Ferris  v. 

Vol.  I.  Med.  Jub.— 23, 


354 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§315 


whether  the  evidence  tending  to  show  insanity  was  adduced  by  the 
prosecution  or  the  defense.^** 

316.  What  constitutes  reasonable  doubt. —  The  reasonable  doubt 
which  will  result  in  an  acquittal  in  a  criminal  case  is  doubt  as  to  all 
or  any  of  the  constituent  elements  essential  to  legal  responsibility;''^ 
and  consists  of  a  fair  doubt  growing  out  of  the  testimony  in  the  case, 
and  not  a  mere  imaginary,  captious,  or  possible  doubt. ^^  It  is  such 
a  doubt  as  will  leave  the  minds  of  the  jury,  after  a  careful  examin- 
ation of  all  the  evidence  in  the  case,  in  such  a  condition  that  they 
cannot  say  they  have  an  abiding  conviction,  to  a  moral  certainty,  of 
the  truth  of  the  charge."^^  A  person  accused  of  crime  is  not  to  be 
acquitted  upon  any  fanciful  ground,  that  though  the  jury  believe  he 


People,  35  N.  Y.  125 ;  O'Brien  v.  People, 
48  Barb.  274;  State  v.  Eoyt,  47  Conn. 
618,  36  Am.  Rep.  89;  State  v.  Eoyt,  46 
Conn.   331. 

The  defendant  bringing  insanity  into 
the  case  must,  at  least,  create  a  reason- 
able doubt  as  to  responsibility.  State 
V.  Shuff  (Idaho)  72  Pac.  664;  Faulk- 
ner V.  Territory,  6  N.  M.  464,  30  Pac. 
905. 

He  is  entitled  to  an  instruction  that 
the  jury  must  be  satisfied  of  his  guilt 
beyond  a  reasonable  doubt;  and  this  is 
true  of  the  defense  of  insanity  so  far 
as  the  facts  attending  the  crime  are  con- 
cerned, or  at  least,  so  far  as  such  facts 
are  induded  in  the  res  gestce;  but  if  in- 
sanity is  set  up  as  a  separate  and  dis- 
tinct defense,  and  its  proof  does  not 
consist  of  the  facts  attending  the  crim- 
inal act,  then  the  proof  must  be  made 
out  by  the  defendant,  the  legal  presump- 
tion of  sanity  being  sufiicient,  in  the 
absence  of  evidence  to  the  contrary.  Mc- 
Allister V.  Territory,  1  Wash.  Terr.  360. 

""Hodge  v.  State,  26  Fla.  11,  7  So. 
593;  Armstrong  v.  State.  30  Fla.  170, 
17  L.  R.  A.  484,  11  So.  618;  Montag  v. 
People,  141  111.  75,  30  N.  E.  337;  Mc- 
Dougal  v.  State,  88  Ind.  24;  Cunning- 
ham V.  State,  56  Miss.  269,  31  Am.  Rep. 
360;  State  v.  Barilett,  43  N.  H.  224,  80 
Am.  Dec.  154;  King  v.  State,  91  Tenn. 
617,  20  S.  W.  169. 

The  accused,  in  a  prosecution  for 
murder,  is  entitled  to  an  acquittal, 
where  the  whole  evidence,  including 
that  supplied  by  the  presumption  of  san- 
ity, docs  not  exclude,  beyond  a  reason- 
able doubt,  the  hypothesis  of  insanity, 
some  proof  of  insanity  having  been  ad- 
duced, Davis  V.  United  States,  160  U.  S. 
469,  40  L.  ed.  499,  16  Sup,  Ct.  Rep.  353 ; 


State  V.  Crawford,  11  Kan.  32;  State  v. 
Smith,  53  Mo.  267. 

'"'Smith  V.  Com.  1  Duv.  224. 

''People  V.  Finley,  38  Mich.  482;  State 
V.  Coleman,  20  S.  C.  441;  People  v.  Bar- 
beri,  12  N.  Y.  Crim.  Rep.  89,  47  N.  Y. 
Supp.  168. 

''People  V.  Finley,  38  Mich.  482 ;  State 
V.  nolloaay,  156  Mo.  222,  56  S.  W.  734. 

A  juror,  to  convict,  should  be  so  con- 
vinced, by  the  evidence,  of  the  defendant's 
guilt,  that  a  prudent  man  would  feel 
safe  to  act  upon  that  conviction  in  the 
matters  of  highest  concern  and  import- 
ance to  himself  and  to  his  own  dearest 
personal  interests,  under  circumstances 
in  which  there  was  no  compulsion  rest- 
ing upon  him  at  all.  Bradley  v.  State, 
31   Ind.  402. 

But  an  instruction  in  a  criminal  case 
in  which  insanity  is  interposed  as  a  de- 
fense, that  the  presumption  of  innocence 
is  so  far  of  greater  strength  than  that 
of  sanity,  that  when  evidence  appears 
tending  to  prove  insanity,  it  compels 
the  prosecution  to  show,  from  all  the 
evidence,  mental  soundness  bej'ond  a  rea- 
sonable doubt,  is  objectionable,  since 
there  may  be  evidence  tending  to  prove 
insanity  which  is  not  sufficiently  strong 
to  raise  a  reasonable  doubt  of  mental 
soiuidness.  It  is  not  erroneous  as 
against  the  accused,  however,  since  it  is 
favorable  to  him.  Guetig  v.  State,  60 
Ind.  94,  32  Am.  Rep.  99. 

And  an  instruction  that  the  evidence 
as  to  insanity  should  be  carefully  con- 
sidered, for  the  reason  that  if  the  ac- 
cused was  in  truth  insane  lie  ouglit  not 
to  be  punished,  is  not  subject  to  objec- 
tion tliat  the  question  was  not  wliether 
the  accused  was  in  truth  insane,  but 
whether  the  jury  entertained  a  reason 


§  316]  EVIDENCE.  355 

was  sane,  yet  there  might  be  a  rational  doubt  of  such  sanity.'^'  And 
the  defense  should  not  be  sustained  upon  vague  and  shadowy  hear- 
say, or  mere  conjecture.'^*  There  should  be  clear  and  satisfactory 
evidence  of  insanity.'^^  The  insanity  of  a  defendant  in  a  criminnl 
case  need  not  be  submitted  to  the  jury,  however,  as  a  separate  issue, 
of  the  absence  of  which  they  must  be  satisfied  beyond  a  reasonable 
doubt;  it  is  sufficient  if  they  are  required  to  be  satisfied  of  the  de- 
fendant's guilt  beyond  a  reasonable  doubt.'' ^  A  reasonable  doubt 
as  to  the  sanity  of  a  person  on  trial  for  crime  is  a  reasonable  doubt  as 
to  his  guilt,  and  entitles  him  to  an  acquittal.''^     When  the  evidence 

able  doubt  as  to  his   sanity,   since  the  weigh  the  evidence.     Giietig  v.  State,  G3 

charge  was  not  as  to  the  degree  of  evi-  Ind.  278, 

dence,  but  referred  merely  to  the  duty  ''^WalkG}-  v.  People,  1  N.  Y.  Crim.  Rep. 

of  careful  scrutiny.     Goodwin  v.  State,  22;   People  v.  Coleman,  1    N.    Y.    Crinj. 

96  Ind.  550.  Rep.   1;   State  v.  Marler,  2  Ala.  43,  3G 

It  is  not  reversible  error  in  a  crim-  Am.  Dec.  398.  And  see  Wheeler  v.  State 

inal  prosecution  to  define  a  reasonable  158  Ind.  687,  G3  N.  E.  975. 

doubt  of  sanity  as  a  fair  doubt.    People  Evidence  that  the  accused  in  a  crim- 

V.    Hubert,    119    Cal.    216,    63    Am.    St.  inal  prosecution  was  in  trouble  with  his 

Rep.  72,  51  Pac.  329.  family,  and  was  disturbed  in  mind,  and 

'''Hodge  V.  State,  26  F\a.  11,  7  So.  5QS;  perhaps    excited,    is    not    sufficient    to 

Armstrong  v.  State,  27  Fla.  366,  26  Am.  raise  a  reasonable  doubt  in  regard  to  his 

St.  Rep.  72,  9   So.   1 ;   Freese    v.    State  sanity  which  will  require  the  people  to 

(Ind.)  65  N.  E.  915;  Nei^comb  v.  State,  establish  his  sanity  in  order  to  convict. 

37  IMiss.  383;  State  v.  Soper,    148    Mo.  Montag  v.  People,  141  111.  75,  30  N.  E. 

217,  49  S.  W.  1007.  337. 

Evidence  In  a  criminal  prosecution  in  '"^Hornish  v.  People,  142  III.  620,  18  L. 
which  the  defendant  was  accused  of  kill-  R.  A.  237,  32  N.  E.  677;  Walker  v.  Pee- 
ing his  wife,  that  his  conduct  was  at  pie,  88  N.  Y.  81.  And  see  Carr  v.  State, 
times  peculiar,  and  that  he  was  nervous,  96  Ga.  284,  22  S.  E.  570. 
and.  especially  when  talking  about  Evidence  bearing  upon  the  question  of 
trouble  with  his  wife,  became  greatly  ex-  insanity  in  a  criminal  prosecution 
cited,  is  insufficient  to  overcome  the  pre-  should  be  considered  in  connection  with 
sumption  of  sanity  to  the  extent  of  all  tlie  other  evidence,  in  determining 
raising  a  reasonable  doubt,  so  as  to  re-  whether  or  not,  upon  a  view  of  the 
quire  the  prosecution  to  prove  it,  where  whole  case,  there  was  reasonable  doubt 
it  appears  that  he  pursued  his  daily  of  guilt.  Carr  v.  State,  96  Ga.  284,  22 
avocation  as  men  usually  do,  and  was  S.  E.  570;  Jamison  v.  People,  145  111. 
treated  by  others  as  sane,  and  that  he  357,  34  N.  E.  486. 

entertained  a  feeling  of  malignancy  to-  And   refusal  to  instruct  the  jury  in 

ward  his  wife.     Lilly  v.  People,  148  111.  a  criminal  prosecution  that,  if  they  en- 

467,  36  N.  E.  95.  tertained    a    reasonable    doubt    of    the 

''^Walker  v.  People,  1  N.  Y.  Crim.  Rep.  sanity  of  the  accused  at  the  time  of  the 

22 ;  Bosxcell  v.  Com.  20  Gratt.  860.  And  act,  they  should  acquit  him,  is  not  error, 

see  Com.,  v.  Buccieri,  153  Pa.  535,  26  Atl.  where  the  court  had  charged  fully  with 

228.  reference  to  reasonable   doubt   with   re- 

But  an  instruction  in  a  murder  trial  gard  to  the  whole  case.     Webb  v.  State, 

in  which  insanity  was  interposed  as  a  9     Tex.     App.     490;     Westmoreland    v. 

defense,  that    if    the    accused  had  been  State,  45  Ga.  225;   O'Connell  v.  People, 

subject  to  attacks  of  epilepsy,  and  epi-  87  N.  Y.  377,  41   Am.  Rep.  379. 

lepsy  is  a  disease  which  tends  to  pro-  ''''State  v.  ISlixon,  32  Kan.  205,  4  Pae. 

duce  insanity,  these  facts  alone  are  not  159;   State    v.   Craicford,   11    Kan.   32; 

sufficient  to  raise  a  reasonable  doubt  of  Polk  v.  State,  19  Ind.  172,  81  Am.  Dec. 

sanity  at  the  time  of  the  oflTense,  is  er-  382.      And   see   Vpstone  v.   People,    109 

ronoous  as  tending  to  mislead  the  jury,  111.  169. 

ai.d  as  interfering  with  its  province  to  An   instruction   in   a   prosecution   for 


356  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  316 

is  of  such  a  character  that  the  jury  may  reasonably  infer  either  san- 
ity or  insanity,  the  question  is  for  them  to  decide,  and  is  not  open 
to  review  on  appeal.'^^ 

317.  Summary  as  to  measure  of  proof. — It  is  to  be  observed  that  the 
terms  "by  a  preponderance  of  the  evidence"  and  "by  satisfactory  evi- 
dence," or  "to  the  satisfaction  of  the  jury"  have  been  used  inter- 
changeably and  indiscriminately.  This  gives  rise  to  the  inference 
that  they  are  all  regarded  as  meaning  the  same  thing,  and  that  the 
several  states  and  jurisdictions  in  which  such  terms  have  been  adopted 
may  be  deemed  to  have  one  and  the  same  measure  of  proof  to  estab- 
lish insanity.'^*  The  requirement  of  proof  sufficient  to  raise  a  rea- 
sonable doubt  of  sanity,  however,  adopted  by  Connecticut,  Florida, 
Illinois,  Indiana,  Kansas,  Michigan,  Mississippi,  Nebraska,  New 
Hampshire,  New  York,  Tennessee,  Washington,  and  the  United 
States,  and  perhaps  other  jurisdictions,  cannot  be  regarded  as  the 
same  as  that  elsewhere  adopted;  but  must  be  deemed  to  require  a 
lesser  degree  of  proof.^*^  State  courts  are  not  bound  by  the  views 
of  the  Supreme  Court  of  the  United  States  on  the  question  of  the 
measure  of  proof  of  insanity.*^ 

b.  Drunkenness. 

318.  Presumptions  and  burden  of  proof. — Where  irresponsible 
drunkenness  is  relied  upon  as  a  defense  in  a  criminal  prosecution, 
the  burden  of  proving  it  rests  with  the  accused.^^  And  the  burden 
rests  with  one  who  relies  upon  alcoholic  insanity  as  an  excuse  for 

homicide,  authorizing  conviction  only  if  quires  that  the  preponderance  must  be 

the  jury  believes  from  the  evidence,  be-  plainly  apparent.     People  v.  Hamilton, 

yonci  a  reasonable  doubt,  that  the  blows  62     Cal.     377,     Overruling      People     v. 

were  struck  with  malice  or  forethought,  Wreden,  59  Cal.  392. 

is    not    objectionable    as    requiring    the  ""See   supra,    §    315,   and   cases   there 

jury  to  find    the    defendant    guilty  re-  cited. 

gardless  of  the  question  of  mental  con-  "^People  v.  Allender,  117  Cal.    81,    48 

dition.     Upsione  v.  People,  109  111.  109.  Pac.   1014. 

'"Sharp  V.  State  (Ind.)   68  N.  E.  280;  ^-State  v.  Grear,  29  Minn.  221,  13  N. 

Rinkard  v.  State,  157  Ind.  534,  02  N.  E.  W.  140;  Fonville  v.  State,  91  Ala.  39,  8 

14;  Blume  v.  State,  154  Ind.  343,  56  N.  So.  088;  State  v.  Pasnau,  118  Iowa,  501, 

E.  771;   State  v.  Sigler,  114  Iowa,  408,  92  N.  W.  682;  State  v.  Hill,  46  La.  Ann. 

87  N.  W.  283.  27,  49  Am.  St.  Rep.  316,  14  So.  294. 

""Clearly  proved"   and  "proved  by  a  But  an  instruction  as  to  the  burden 

preponderance    of    the    evidence"    mean  of   proof  of  intoxication,  and  as  to  in- 

tbe  same.    Hurst  v.  State,  40  Tex.  Crim.  toxication  as  a  de'fense,  is  justified  in  n 

Rep.  378,  46  S.  W.  635,  50  S.  W.  719;  prosecution     for    homicide    by   ovidencc 

Smith  v.  State,  19  Tex.  App.  95.     And  that    the    accused    had    been    drinking 

Bee  State  v.  Payne,  80  N.  C.  009.  ardent  spirits,  and  engaged  in  a  quarrel 

And  an  instruction  that  insanity  must  with   the   person   killed,   there   being  no 

be  clearly  established   is  not  objection-  proof  of  previous  acquaintance  between 

able  as  requiring  that  the  evidence  must  them.     Honesty  v.  Com.  81  Va.  283. 
more  than  predominate,  since  it  only  re- 


§  31SJ 


EVIDENCE. 


357 


crime  to  establish  that  it  was  caused  by  the  habitual  and  long  con- 
tinued intemperate  use  of  liquor,  as  distinguished  from  the  imme- 
diate result  of  intoxication.^^  And  drunkenness  which  is  available  to 
lower  the  grade  of  an  offense  must  also  be  established  by  the  ac- 
cused.^^  Likewise,  the  burden  of  proof  of  intoxication  and  conse- 
quent want  of  capacity  to  contract  rests  with  the  party  alleging  it.^° 
And  one  addicted  to  intemperance,  though  subject  to  fits  of  derange- 
ment, is  not  without  testamentary  capacity,  if  compos  mentis  at  the 
time,  and  it  rests  with  those  who  assert  it  to  show  incapacity.^* 
Though  one  is  an  habitual  drunkard,  he  is  presumed  to  be  competent 
to  make  a  valid  will  or  gift,  in  the  absence  of  proof  to  the  contrary,^' 
And  the  burden  of  proof,  in  an  action  upon  an  insurance  policy,  of 
death  from  intemperance,  forfeiting  the  policy,  rests  with  the  com- 
pany.^^  So,  the  presumption  of  sobriety  stands  in  favor  of  a  party 
injured  by  the  alleged  negligence  of  another,  in  place  of  proof.®* 
And  while  the  intoxication  of  the  person  injured  at  the  time  of  the 
injury  is  a  circumstance  to  go  to  the  jury,  on  the  ground  of  con- 
tributory negligence,  it  does  not  change  the  burden  of  proof  unless  the 
intoxication  was  of  such  a  degree  as  to  render  him  imbecile.^"     But 


•^People  V.  Bell,  49  Cal.  485. 

But  where  the  prosecution,  in  a  trial 
for  homicide,  asserts  that  the  accused 
was  guilty,  though  insane,  because  his 
insanity  was  drunken  madness,  the  al- 
legation must  be  proved.  United  States 
V.  McGlue,  1  Curt.  C.  C.  1,  Fed.  Cas.  No. 
15,679. 

^*Reg.  V.  Mo7ikhouse,  4  Cox.  C.  C.  55; 
Fonville  v.  State,  91  Ala.  39,  8  So.  688; 
State  V.  Kavanaugh  (Del.)  53  Atl.  335; 
Co7n..  V.  Eart,  2  Brewst.  (Pa.)  546;  Hon- 
esty V.  Com.  81  Va.  283. 

And  an  instruction  in  a  criminal 
prosecution,  that  one  who  kills  another 
by  the  use  of  means  appropriate  to  the 
end  is  presumed,  drunk  or  sober,  to  have 
intended  what  he  did,  is  not  ground  for 
a  new  trial,  though  in  some  respects  in- 
accurate, where  the  evidence  supports 
the  verdict.     Wise  v.  State,  34  Ga.  348. 

^'Connnt  v.  Jackson,  16  Vt.  335 ;  Harbi- 
son V.  Lemon,  3  Blackf.  51,  23  Am.  Dec. 
376;  Yotm  v.  Lamont,  56  Minn.  216,  57 
N.  W.  478. 

But  the  burden  rests  with  a  party  en- 
tering into  a  settlement  with  another, 
to  prove  his  competency  at  the  time, 
where  he  was  subsequently  found  to  be 
an  habitual  drunkard,  and  to  have  been 
such  from  a  time  preceding  the  day  of 
the  settlement.  Klohs  v.  Klohs,  61  Pa. 
245, 


^"Hehert  v.  Winn,  24  La.  Ann.  385; 
Andress  v.  Weller,  3  N.  J.  Eq.  604; 
Black  v.  Ellis,  3  Hill  L.  68;  Temple  \. 
Temple,  1  Hen.  &  M.  476. 

^"Gardner  v.  Gardner,  22  Wend.  526, 
34  Am.  Dec.  340.  And  see  Koegel  v. 
Egner,  54  N.  J.  Eq.  623,  35  Atl.  3i34. 

Where  a  will  is  read  to  a  testatrix 
correctly,  and  she  is  of  sound  mind,  the 
legal  presumption  is  that  she  under- 
stands its  contents;  but  the  presumption 
is  prima  facie  only  where  she  is  of  great 
age  and  addicted  to  the  use  of  intoxicat- 
ing liquors  to  such  an  extent  as  to  im- 
pair her  faculties.  RiUland  v.  Gleaves, 
1   Swan,   198. 

''Wan  Valkenburgh  v.  American  Pop- 
ular L.  Ins.  Co.  9  Hun,  583. 

^"Cramer  v.  Burlington,  42  Iowa,  315. 

Where  it  appears  that  a  conductor 
running  a  train  which  caused  a  personal 
injury  was  a  man  of  intemperate  habits, 
however,  the  burden  is  cast  upon  the 
railroad  company,  in  an  action  for  the 
injury,  to  prove  that  he  was  not  intoxi- 
cated at  the  time,  and  used  proper  care. 
Pennsylvania  R.  Co.  v.  Books,  57  Pa. 
339.   98   Am.  Dec.   229. 

""'Scijmcr  V.  Lake,  66  Wis.  651,  29  N. 
W.  554.  And  see  Ford  v.  Umatilla 
County,  15  Or.  315,  16  Pac.  .33;  Fitz- 
gerald V.  Weston,  52  Wis.  354.  9  N.  W. 
13. 


358 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§318 


where  it  is  negligence  to  be  in  a  particular  place  in  an  intoxicated 
condition,  and  there  is  evidence  tending  to  show  that  a  person  receiv- 
ing an  injury  at  snch  a  place  was  intoxicated,  the  burden  rests  with 
him  to  show  either  the  absence  of  intoxication,  or  that  it  did  not  con- 
tribute to  the  injury.^^ 

319.  Presumption  of  continuance. —  Insanity  arising  from  intem- 
perance is  usually  of  a  temporary  nature,  and  follow^ed  not  simply  by 
a  lucid  interval,  but  by  permanent  restoration  to  reason ;  and  to  such 
insanity  the  presumption  of  continuance  does  not  apply.^^  And  de- 
lirium tremens  passes  away  \vith  the  removal  of  its  exciting  cause, 
and  is  not  presumed  to  continue.*^^  '  And  where  it  is  set  up  as  a  de- 
fense in  a  criminal  prosecution,  the  existence  of  a  paroxysm  of  the 
disorder  at  the  very  time  the  criminal  act  was  done  must  be  shown.^^ 
And  one  who  seeks  to  avoid  a  contract  upon  the  ground  of  intoxication 
must  produce  clear  and  satisfactory  proof  that  he  was  in  such  a  state 
of  drunkenness  as  not  to  know  w^hat  he  was  doing.^^  But  when  al- 
coholism has  produced  permanent  derangement,  it  is  presumed  to 
continue,  and  proof  of  a  lucid  interval  is  necessary  to  give  validity  to 


An  instruction  in  an  action  for  dam- 
ages for  alleged  negligence,  that  the 
burden  of  proof  rests  with  the  defendant 
to  show  that  the  plaintiff's  injury  re- 
sulted from  his  own  intoxication  and 
negligence,  means  negligence  superin- 
duced by  intoxication,  and  is  not,  there- 
fore, misleading.  Loewer  v.  Sedalia,  77 
Mo.  431. 

^^Cramer  v.  Burlington,  42  Iowa,  315; 
Hubbard  v.  Mason  City,  GO  Iowa,  400,  14 
N.  W.  772. 

But  refusal  to  instruct  the  jury,  in 
an  action  for  an  injury  received  upon 
a  public  highway,  that,  if  the  person  in- 
jured was  so  intoxicated  as  to  be  incap- 
able of  properly  conducting  himself  and 
liis  team,  no  recovery  can  be  had,  is  not 
erroneous,  where  the  jury  were  told  that 
if  he  was  thus  intoxicated  at  the  time 
of  the  injury,  that,  of  itself,  would  throw 
the  burden  of  proof  upon  him  to  show 
that  he  exorcised  ordinary  care  and  pru- 
dence, and  that  his  intoxication  was 
prima  facie  evidence  of  want  of  ordinary 
care.     Bums  v.  Elba,  32  Wis.  605. 

^Duffield  V.  Robeson,  2  Harr.  (Del.) 
379;  People  v.  Findley,  132  Cal.  301,  64 
Pac.  472;  Hart  v.  Thompson,  15  La.  88; 
*SVa/e  V.  Roddick,  7  Kan.  143 ;  Halley  v. 
Webster,  21  Me.  461;  Pierce  v.  Pierce, 
38  Mich.  412;  l^late  v.  Lowe,  93  Mo.  547. 
5  S.  W.  889;  Re  Lee,  46  N.  J.  Eq.  193, 
18  Atl.  525;  Goble  v.  Grant,  3  N.  J,  Eq. 


G29;  Eahl  v.  Schober,  35  N.  J.  Eq.  461 ; 
Gardner  v.  Gardner,  22  Wend.  526,  34 
Am.  Dec.  340;  Julke  v.  Adam,  1  Redf. 
454;  Black  v.  Ellis,  3  Hill  L.  68;  J5an- 
nister  v.  Jackson,  45  N.  J.  Eq.  702,  17 
Atl.  692;  Elkinton  v.  Brick,  44  N.  J. 
Eq.  154,  1  L.  R.  A.  161,  15  Atl.  391; 
Andress  v.  Weller,  3  N.  J.  Eq.  604; 
Koegel  v.  Egner,  54  N.  J.  Eq.  623,  35 
Atl.  394;  Rather  v.  Btate,  25  Tex.  App. 
624,  9  S.  W.  69;  Lewis  v.  Baird,  3  IMc- 
lean,  56,  Fed.  Gas.  No.  8.316;  Wheeler 
V.  Aldcrson,  3  Hagg.  Eccl.  Rep.  574. 

So,  the  incapacity  arising  from  the 
use  of  morphine  bj'^  one  who  did  not 
have  the  habit  fixed  upon  him  is  but 
temporary,  and  there  is  no  presumption 
in  favor  of  a  continuance  of  it.  Camp 
V.  Hhaio,  52  111.  App.  241. 

'''State  V.  Potts,  100  N.  C.  457,  6  S.  E. 
657;  mate  v.  8eu-cll.  48  N.  G.  (3  Jones 
L.)  249;  Goodwin  v.  State,  96  Ind.  550; 
Kellogg  v.  United  States,  43  G.  C.  A. 
179,   103  Fed.  200. 

^*State  V.  Sewell,  48  N.  C.  (3  Jones 
L.)  245;  Goodwin  v.  State,  96  Ind.  550; 
Elkinton  v.  Brick,  44  N.  J.  Eq.  154,  1 
L.  R.  A.  161,  15  Atl.  391;  A^tdress  v. 
Weller,  3  N.  J.  Eq.  604. 

^'^Johns  V.  Fritchey,  39  I\Id.  259;  Youn 
V.  Lamont,  56  Minn.  216,  57  N.  W.  478. 

Evidence  in  a  contract  action  in 
which  the  defense  was  inconi])etency  to 
contract,  that  the  party  had  fixed  habit 


§  319] 


EVIDENCE. 


359 


subsequent  acts,°^  And  a  habit  of  intoxication  upon  the  part  of  a 
person  injured,  once  proved  to  exist,  is  presumed  to  continue,  and 
raises  a  presumption  of  negligence  in  case  of  accident  to  him^  which 
stands  until  rebutted. ^^ 

320.  Measure  of  proof. — Proof  of  drunkenness  set  up  to  excuse  or 
mitigate  crime  should  be  deliberately  scrutinized.^*  And  it  has  been 
held  that  it  should  be  made  out  by  a  fair  preponderance  of  the  evi- 
dence ;'^^  and  to  the  satisfaction  of  the  jury;^*^"  and  that  delirium  tre- 
mens or  mania  a  potu,  which  is  the  secondary  effect  of  intemperance, 
and  a  species  of  insanity,  must  be  established  to  the  satisfaction  of 
the  jury;^  and  that  a  reasonable  doubt  of  rationality  or  sanity  does 
not  justify  an  acquittal.^  The  doctrine  that  the  jury  must  be  satis- 
fied, beyond  a  reasonable  doubt,  that  the  accused  was  in  such  a  state 
of  mind  as  to  be  able  to  form  a  malicious  or  premeditated  intent,  and 
to  be  responsible  for  the  act  charged,  however,  has  also  been  held  ap- 
plicable to  incapacity  from  drunkenness  as  well  as  from  insanity.^ 
So,  clear  and  satisfactory  proof  that  a  party  was  in  such  a  state  of 


of  intemperance  for  two  years  before  it 
was  made,  is  not  sufficient,  in  the  ab- 
sence of  a  proceeding  de  lunatico  in- 
quirendo,  to  shift  the  burden  of  proof  of 
competency  to  the  party  seeking  to 
support  the  contract.  'Noel  v.  Karper, 
53  Pa.  97. 

"Gardner  v.  Gardner,  22  Wend.  526,  34 
Am.  Dec.  340;  Cochran's  Will,  1  T.  B. 
Mon.  263,  15  Am.  Dec.  116;  State  v. 
Potts,  100  N.  C.  437,  6  S.  E.  657;  People 
V.  Findley,  132  Cal.  301,  64  Pac.  472. 

And  evidence  of  a  mere  sober  interval 
of  a  few  hours  or  days  is  not  sufficient 
to  sustain  a  contract  made  by  one  who, 
for  nearly  four  years,  had  had  fits  of 
mania  a  potu  and  delirium  tremens,  and 
was  in  the  habit  of  daily  drunkenness, 
and  became  foolish  and  crazy  when 
drinking.  Menkins  v.  Lightner,  18  111. 
282. 

"^^Lane  v.  Missouri  P.  R.  Co.  132  Mo. 
4,  33  S.  W.  645,  1128.  And  see  Crew  v. 
St.  Louis,  K.  d  N.  W.  R.  Co.  20  Fed.  87 ; 
Chapman  v.  Erie  R.  Co.  55  N.  Y.  579. 

"^Jones  V.  Com.  30  Pittsb.  L.  J.  423. 

"^^State  V.  Grear,  28  Minn.  426,  41  Am. 
Rep.  296,  10  N.  W.  472;  Fonville  v. 
State,  91  Ala.  39,  8  So.  688;  Jones  v. 
Com.  30  Pittsb.  L.  J.  423. 

"^Fonville  v.  State,  91  Ala.  39,  8  So. 
888;  State  v.  Boicen,  Houst.  Crira.  Rep. 
(Del.)  91;  State  v.  Hill,  46  La.  Ann. 
27,  49  Am.  St.  Rep.  316,  14  So.  294; 
Com..  V.  FTart,  2  Brewst.   (Pa.)   546. 

^State  V.  Thomas,  Houst.  Grim.  Rep. 


(Del.)  511;  State  v.  Hurley,  Houst. 
Crim.  Rep.    (Del.)   28. 

-Fonville  v.  State,  91  Ala.  39,  8  So. 
688. 

The  state  is  not  bound  to  make  proof 
of  a  negative  by  showing,  beyond  a 
reasonable  doubt,  in  a  criminal  prosecu- 
tion, that  the  defendant's  intoxication 
was  of  a  degree  not  to  interfere  with 
his  judgment  and  intelligence,  or  pre- 
clude the  possibility  of  his  entertaining 
malice.  State  v.  Hill,  40  La.  Ann.  27, 
49  Am.  St.  Rep.  316,  14  So.  294. 

'State  V.  Fiske,  63  Conn.  388,  28  Atl. 
572;  State  v.  Rigleij,  7  Idaho,  292,  62 
Pac.  679;  Smith  v.  State,  4  Neb.  277; 
State  V.  Cross,  42  W.  Va.  253,  24  S.  E. 
996. 

But  even  under  this  rule,  an  instruc- 
tion in  a  prosecution  for  murder,  that 
the  burden  rests  with  the  defendant  to 
prove  the  defense  of  insanity  by  a  pre- 
ponderance of  the  evidence,  is  not 
prejudicial  error,  where  the  defendant 
admits  the  murder  and  claims  as  his 
sole  defense,  that  he  inherited  an  im- 
paired mentality  from  an  insane  mother, 
which  liad  been  further  weakened  by  the 
use  of  liquor,  so  as  to  incapacitate  him 
for  entertaining  the  intent  necessary  to 
constitute  murder  in  the  first  degree, 
and  the  jury  was  instructed  to  give  him 
the  benefit  of  every  reasonable  doubt  aa 
to  other  matters.  People  v.  Eubanks, 
81)  Cal.  295,  24  Pac.  1014. 


360 


MENTAL  UNSOLXDNESJS  IN  ITS  LEGAL  RELATIONS. 


[§  320 


drunkenness  as  not  to  know  what  he  was  doing  is  necessary  to  avoid 
a  contract  on  that  ground.*  And  that  a  person  suffering  a  personal 
injury  was  sober  at  the  time  must  be  shown  by  a  preponderance  of  the 
evidence.^  And  so  must  the  fact  that  an  injury  was  caused  in  whole 
or  in  part  by  the  negligence  of  a  drunken  employee,  improperly  re- 
tained in  the  service.'' 

II.  Competency  and  admissibility. 

a.   With  reference  to  lunacy. 

321.  Previous  and  subsequent  condition. —  Evidence  of  the  state  of 
mind  of  a  person  accused  of  crime,  before  and  after  the  commission 
of  the  act,  is  admissible  where  insanity  is  alleged  as  a  defense,  as 
tending  to  show  his  mental  condition  at  the  time,'^  and  may  be  given 
under  a  plea  of  not  guilty.*  Previous  and  subsequent  condition, 
however,  is  competent  only  as  tending  to  throw  light  on  the  condition 
of  the  mind  of  the  accused  at  the  time  of  the  commission  of  the 
crime.^     And  evidence  of  acts,  conduct,  and  habits  of  the  accused  at 


*Johns  V.  FritcJiey,  39  Md.  259.  And 
see  White  v.  Davis,  43  N.  Y.  S.  R.  901, 
17  N.  Y.  Supp.  548. 

^Hubbard  v.  Mason  City,  60  Iowa,  400, 
14  N.  W.  772;  Cramer  v.  Burlington, 
42  Iowa,  315. 

"Crcio  V.  St.  Louis,  K.  d  N.  W.  R.  Co. 
20  Fed.  87. 

But  proof  of  drunkenness  on  the  part 
of  a  servant,  so  habitual  as  to  be  gen- 
erally known,  is  sufficient  to  raise  a  pre- 
sumption of  knowledge  thereof  on  the 
part  of  his  master,  which  will  render 
him  responsible  for  injuries  resulting 
therefrom.  Sawyer  v.  Sauer,  10  Kan. 
466. 

^McAllister  v.  State,  17  Ala.  434.  52 
Am.  Dec.  180;  McLean  v.  State,  16  Ala. 
672;  People  v.  Lee  Fook,  85  Cal.  300,  24 
Pac.  654;  People  v.  Farrell,  31  Cal.  576; 
State  V.  Ilarrifjan,  9  Houst.  (Del.)  309, 
31  Atl.  1052;  Carr  v.  State,  96  Ga.  284. 
22  S.  E.  570;  State  v.  Jones,  64  Iowa, 
.356,  20  N.  W.  470,  17  N.  W.  911;  State 
V.  Felter,  25  Iowa,  67 ;  Moore  v.  Com. 
92  Ky.  630.  18  S.  W.  833:  Montgomery 
V.  Com.  88  Ky.  509,  11  S.  W.  475;  State 
V.  Kelley,  57  N.  H.  549 ;  Russell  v.  State. 
53  Miss.  307  ;  People  v.  Whedon,  2  N.  Y. 
Crim.  Rep.  318;  Queenan  v.  Territory, 
11  Okla.  261,  61  L.  R.  A.  324,  71  Pac. 
218;  Burkhard  v.  State,  18  Tex.  App. 
599;  Warren  v.  State,  9  Tex.  App.  619, 
35   Am.  Rep.  745;  Johnson  v.  State,  1 


Tex.  App.  146;  Williams  v.  State,  37 
Tex.  Crim.  Rep.  348,  39  S.  W.  687;  Can- 
non V.  State,  41  Tex.  Crim.  Rep.  467,  56 
S.  W.  351. 

The  superintendent  of  an  insane 
asylum  to  which  a  person  accused  of 
crime  who  pleaded  insanity  is  sent,  may 
testify,  upon  a  subsequent  trial  for  the 
offense,  as  to  his  condition  while  in  the 
asylum,  and  as  to  whether  he  had  recov- 
ered his  sanity  sufficiently  to  be  tried. 
State  V.  Pritchett,  106  N.  C.  667,  11  S. 
E.  357. 

^People  V.  Farrell,  31  Cal.  576;  Carr 
V.  State,  96  Ga.  284,  22  S.  E.  570. 

^State  V.  Martin,  4  N.  J.  L.  J.  252,  3 
Crim.  L.  Mag.  44;  State  v.  Hays,  22  La. 
Ann.  39;  People  v.  Clendennin,  91  Cal. 
35,  27  Pac.  418;  Choice  v.  State,  31  Ga. 
424;  Com.  v.  Pomeroy,  117  Mass.  143; 
People  V.  Garbutt,  17  Mich.  9,  97  Am. 
Dec.   102. 

Subsequent  acts  of  a  person  accused 
of  crime  who  alleges  insanity  as  a  de- 
fense are  not  to  be  admitted  unless  fol- 
lowed up  by  proof  of  facts  tending  to 
show  that  he  was  insane  at  the  time  of 
the  oflensc.  Spencer  v.  State,  69  Md.  28, 
13  Atl.  809. 

But  it  is  not  necessary  to  give  evi- 
dence of  insanity  at  the  time  of  the  com- 
mission of  a  criminal  act  before  offering 
evidence  of  subsequent  insanity;  it  is 
sufficient  if  the  evidence  of  insanity  at 


f  321] 


EVIDENCE. 


361 


a  subsequent  time  are  only  admissible  when  so  connected  with,  or 
corresponding  witli,  evidence  of  weakened  mental  condition  preced- 
ing the  offense,  as  to  strengthen  the  inference  of  continuance,  and 
carry  it  to  the  time  to  which  the  inquiry  relates.^*^  Likewise,  evi- 
dence of  the  state  of  mind  of  a  party  to  a  contract,  both  before  and 
after  the  time  it  was  made,  is  admissible  to  show  his  sanity  or  insanity 
at  that  time."  And  evidence  tending  to  prove  the  sanity  or  insan- 
ity of  a  grantor  previous  or  subsequent  to  the  execution  of  his  deed  is 
admissible  in  an  action  to  set  it  aside,^^  there  being  no  absolute  rule 
as  to  the  period  within  which  such  inquiry  may  be  made.^^  So,  evi- 
dence of  sanity  or  insanity  of  a  testator,  both  before  and  after  the 
making  of  his  will,  is  admissible  in  a  proceeding  to  contest  the  will, 
to  show  his  mental  condition  at  the  time  it  was  made,^^  great  latitude 


the  time  is  subsequently  given.  Vance 
V.  .Com.  2  Va.  Cas.  132. 

^"Com.  V.  Pomeroy,  117  Mass.  143; 
State  V.  Lewis,  20  Nev.  333,  22  Pac.  241. 

But  when  this  is  the  case^  it  is  ad- 
missible, though  remote  as  to  time. 
Wi7idisch  <£-  M.  Brewing  Co.  v.  Opp,  17 
Ohio  C.  C.  4C5. 

^^Grant  v.  Thompson,  4  Conn.  203,  10 
Am.  Dec.  119;  Clinton  v.  Estes,  20  Ark. 
216;  Walker  v.  Clay,  21  Ala.  797;  Small 
V.  Champeny,  102  Wis.  61,  78  N.  W.  407 ; 
Beavan  v.  M'Donnell,  26  Eng.  L.  &  Eq. 
Rep.  540,  10  Exch.  184,  23  L.  J.  Exch. 
N.  S.  326. 

Previous  and  subsequent  state  of  mind 
of  a  party  to  a  contract  is  also  admis- 
sible to  prove  that  the  other  party  to 
the  contract  had  notice  of  his  insanity. 
Beavan  v.  M'Donnell,  26  Eng.  L.  &  Eq. 
Rep.  540,  10  Exch.  184,  23  L.  J.  Exch. 
N.  S.  326. 

And  evidence  of  the  incapacity  of  a 
payee  when  a  not«  was  given  him  is  ad- 
missible as  tending  to  prove  his  inca- 
pacity to  make  a  valid  transfer  of  it  at 
the  time  when  he  subsequently  indorsed 
it.     Peaslee  v.  Robhins,  3  Met.  164. 

"'Nichol  V.  Thomas,  53  Ind.  42 ;  Ash- 
craft  V.  De  Armond,  44  Iowa,  229;  Wil 
kinson  v.  Pearson,  23  Pa.  117;  Williams 
V.  Sapieha  (Tex.  Civ.  App.)  62  S.  W.  72. 

Where  witnesses  give  evidence  of  pre- 
vious insanity,  they  may  also  testify  to 
the  state  of  the  party's  mind  subsequent 
to  the  act  in  question,  and  that  the  in- 
sanity was  continuing  and  permanent  in 
character.  Jerry  v.  Tow-nsliend.  9  Md. 
145. 

^^Clinton  v.  Estes,  20  Ark.  216. 

The  appearance  of  a  party  alleged  to 
he  insane  may  be  noted  at  the  time  of 


trial,  where  he  does  not  appear  to  have 
changed  since  the  performance  of  the 
act  in  question,  with  reference  to  which 
insanity  is  claimed.  Koile  v.  Ellis,  16 
Ind.  301. 

But  the  exclusion  of  evidence  of  the 
mental  condition  of  a  person  making  an 
assignment  which  is  sought  to  be  inval- 
idated, eight  months  afterwards,  after 
the  person  had  been  sent  to  a  lunatic 
asylum,  is  not  an  erroneous  exercise  of 
discretion.  Wrirjht  v.  Wright,  139  Mass. 
177,  29  N.  E.  380. 

And  evidence  of  the  condition  of  a 
partjr's  mind  a  year  after  the  act  in 
question  may  be  excluded,  in  the  discre 
tion  of  the  court,  as  too  remote  to  tend 
to  establish  insanity.  Wliite  v.  Graves, 
107  Mass.  325,  9  Am.  Rep.  38. 

And  evidence  of  the  insanity  of  a 
party  about  twenty  years  before  taking 
out  an  insurance  policy  is  inadmissible 
in  an  action  on  the  policy,  for  the  pur- 
pose of  charging  a  false  representation 
in  procuring  it,  or  of  showing  insanity 
at  the  time  of  a  subsequent  suicide,  in 
the  absence  of  anything  tending  to  show 
insanity  at  tlie  time  his  policy  was  is- 
sued. Blackstone  v.  Standard  Life  <k 
Acci.  Ins.  Co.  74  Mich.  592,  3  L.  R.  A. 
486,  42  N.  W.  156. 

So,  in  Dickinson  v.  Barber,  9  Mass. 
225,  6  Am.  Dec.  58,  it  was  said  that  the 
period  of  remoteness  should  not  be  ex- 
tended further  than  several  months. 

"Knox  v.  Knox,  95  Ala.  495,  36  Am. 
St.  Rep.  235,  11  So.  125;  Kramer  v. 
Weinert,  81  Ala.  414,  1  So.  26;  Moore 
V.  Spier,  80  Ala.  129;  Tobin  v.  Jenkins. 
29  Ark.  151;  Toomes's  Estate,  54  Cal. 
516,  35  Am.  Rep.  83;  Dale's  Appeal,  57 
Conn.  127,  17  Atl.  757:  Terry  v.  Buffing- 


3G2 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  321 


being  allowed  in  such  eases/ ^  the  remoteness  of  the  facts  testified  to 
going  to  the  effect,  or  weight,  or  importance  to  be  attached  to  the  evi- 
dence, rather  than  to  its  admissibility.^*'  But  such  evidence  is  not 
admissible  as  proof  of  an  independent  fact,  in  the  absence  of  evidence 
as  to  the  mental  condition  of  the  testator  at  the  time  of  making  the 
will.-^^     And  it  is  only 'important  as  it  throws  light  upon  the  actual 


ton,  11  Ga.  337,  56  Am.  Dec.  423;  Staser 
V.  Bor/at,,  120  Ind.  227,  21  N.  E.  91], 
22  N.  E.  990;  Colvin  v.  Warford,  20  Md. 
357;  Davis  v.  Calvert,  5  Gill  &  J.  269, 
25  Am.  Dec.  28;  Brashears  v.  Orme,  93 
Md.  442,  49  Atl.  620;  Gonehj  v.  McDon- 
ald, 40  Mich.  150;  Baines  v.  Bayden,  95 
Mich.  332,  35  Am.  St.  Rep.  566,  54  N. 
W.  911;  Spencer  v.  Terry  (Mich.)  10 
Det.  L.  N.  82.  94  N.  W.  372;  Von  De 
Veld  V.  Judy,  143  Mo.  348,  44  S.  W. 
1117;  Turner  v.  Cheesman,  15  N,  J.  Eq. 
243;  Whitenaclc  v.  Stryker,  2  N.  J.  Eq. 
8;  Sivails  v.  White,  149  Pa.  261,  24  Atl. 
292;  Philadelphia  Trust  tfi  S.  D.  Co.  v. 
Drinlchouse,  17  Pliila.  23;  Ford  v.  Ford, 
7  Humph.  92;  Kerr  v.  Lunsford,  31  W. 
Va.  680,  2  L.  R.  A.  668,  8  S.  E.  493; 
Den  ex  dem.  Stevens  v.  Vancleve,  4 
Wash.  C.  C.  262,  Fed.  Gas.  No.  13,412; 
Carpenter  v.  Batch,  64  N.  H,  573,  15 
Atl.  219. 

Evidence  of  the  state  of  mind  of  a 
testator  on  tlie  day  previous  to  the  exe- 
cution of  his  will  is  admissible  on  a  pro- 
ceeding to  contest  the  will,  and  where 
it  was  made  to  supply  the  place  of  one 
executed  on  a  previous  day,  which  had 
been  lost,  it  is  part  of  the  res  gestw. 
Dyer  v.  Dyer,  87  Ind.  13. 

And  witnesses  with  opportunity  for 
observing  may  testify  as  to  changes  in 
the  conduct  and  appearance  of  a  person 
whose  sanity  is  in  question,  as  deter- 
mined by  observation  made  both  before 
and  after  tlie  designated  time,  where  the 
question  was  one  as  to  mental  unsound- 
ness beginning  at  a  certain  date,  indi- 
cated by  olianges  in  appearance  and  con- 
duct. Shnnley's  Appeal,  62  Conn.  325, 
25  Atl.  245. 

And  permitting  a  witness  in  a  will 
contest  to  state  negatively  that  he  did 
not  observe  anything  peculiar  about  the 
mental  condition  of  the  testator  at  a 
time  other  than  that  when  the  will  was 
executed  does  not  furnish  suflicient 
ground  for  an  exception.  Robinson  v. 
Adams,  62  Me.  369,  16  Am.  Rep.  473. 

"Ilohinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473.  And  see  Obear  v.  Oray, 
73  Ga.  455;  Carpenter  v.  Batch,  64  N. 
H.  573,  15  Atl,  219. 


Where  unsoundness  of  mind  is  proved 
to  have  existed  on  the  day  a  will  was 
made,  or  instructions  were  given,  it  is 
permissible  to  trace  it  both  before  and 
after  that  time,  up  to  the  time  of  the 
testator's  death.  Pidcock  v.  Potter,  68 
Pa.  348,  8  Am.  Rep.  181. 

But  statements  made  by  a  testator 
after  making  his  will,  relating  to  trans- 
actions which  took  place  after  it  was 
made,  though  tending  to  show  an  insane 
delusion  toward  one  who  might  have 
been  a  beneficiaiy,  are  not  admissible  in 
evidence  to  show  the  existence  of  such  a 
delusion  months  before,  when  the  will 
was  made.  Re  Merriman,  108  Mich. 
454,  66  N.  W.  372. 

^'Conely  v.  McDonald,  40  Mich.  150. 
And  see  Ross  v.  McQuision,  45  Iowa, 
145;  Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473;  Baines  v.  Bayden,  95 
Mich.  332,  35  Am.  St.  Rep.  566,  54  N. 
W.  911;  Fairchild  v.  Bascomb,  35  Vt. 
398. 

Evidence  of  subsequent  capacity  is  ad- 
missible in  a  will  contest,  without  re- 
gard to  length  of  time,  where  the  claim 
is  weakness  and  imbecility  from  great 
age,  though  evidence  of  incapacity 
should  be  confined  to  a  reasonable  time 
after  the  making  of  a  will.  Re  Pinney, 
27  Minn.  280,  6  N.  W.  791,  7  N.  W.  144. 

And  testimony  in  a  will  contest,  cov- 
ering a  connected  period  of  six  years 
after  the  execution  of  a  will,  is  not  too 
remote  to  be  admissible  on  the  question 
of  testamentary  capacity,  where  it  is 
claimed  that  the  testator  was  afflicted 
with  senile  dementia,  which,  if  it  exist- 
ed at  all,  must  necessarily  have  been  of 
long  standing  and  progi'cssive.  Bever  v. 
Spangler,  93  Iowa,  576,  61  N.  W.  1072. 
And  see  Ashcraft  v.  De  Armond,  44 
Iowa,  229. 

"Terry  v.  Bnffmyton,  11  Ga.  337,  56 
Am.  Dec.  423;  Von  De  Veld  v.  Judy,  143 
Mo.  348.  44  S.  E.  1117;  Grnbhs  v.  Mc- 
Donald, 91  Pa.  236;  Dimond's  Estate, 
3  Pa.  Dist.  R.  554.  And  see  Bowden  v. 
People,  12  Hun,  85. 

So,  the  condition  of  the  mind  of  a  tes- 
tator after  making  his  will  is  irrelevant 
and  inadmissible  in  a  proceeding  to  con* 


i  321] 


EVIDENCE. 


363 


condition  of  his  mind  at  that  time.^*  So,  evidence,  in  an  action  for 
slander,  that  the  defendant  was  weak-minded,  and  at  times,  before 
and  after  speaking  the  slanderous  words,  was  totally  deranged,  is 
competent  on  the  question  of  his  insanity  at  that  time.-*® 

It  must  be  left  to  the  presiding  judge  to  determine,  upon  the  facts 
before  him,  how  far  previous  and  subsequent  acts  have  a  tendency  to 
throw  light  upon  the  actual  condition  of  the  mind  at  the  date  of  the 
act  in  question.^^  And  it  is  for  the  party  offering  such  evidence  to 
show  its  competency  as  against  the  objection  that  the  acts  detailed 
are  previous  or  subsequent  in  point  of  time.^^  The  weight  of  such 
evidence,  with  reference  to  the  length  of  time  elapsing,  however,  is 
for  the  determination  of  the  jury.^^ 

322.  The  act  itself. —  In  criminal  law,  the  criminal  act  and  its  na- 
ture are  not  admitted  in  evidence  as  bearing  upon  the  sanity  or  insan- 
ity of  the  perpetrator.^^  But  the  rule  appears  to  be  different  in  civil 
cases,  and  where  a  will  is  offered  for  probate  it  may  be  considered  in 
connection  with  other  evidence  in  the  case,  for  the  purpose  of  ascer- 
taining whether  the  testator  had  testamentary  capacity  at  the  time  of 
its  execution  ;^^  evidence  tending  to  prove  a  will  to  be  of  unnatural 


test  it,  where  the  provisions  of  the  will 
depended  for  their  operation  upon  the 
nonhappening  of  events  which  came  to 
pass.  Magee  v.  McNeil,  41  Miss.  17,  90 
Am.  Dec.  354. 

^Chrisman  v.  Chrisman,  16  Or.  127, 
18  Pac.  6;  Den  ex  dem.  Stevens  v.  Van- 
cleve,  4  Wash.  C.  C.  262,  Fed.  Cas.  No. 
13,412;  Philadelphia  Trust  d  ,Sf.  D.  Co. 
V.  Drinkhouse,  17  Phila.  23;  Dickie  v. 
Carter,  42  111.  376.  And  see  Ashcraft  v. 
De  Armond,  44  Iowa,  229;  Pavcy  v. 
Wintrode,  87  Ind.  379;  Kenworthy  v. 
Williams,  5  Ind.  375. 

^"Bryant  v.  Jackson,  6  Humph.  199; 
Dickinson  v.  Barber,  9  Mass.  225,  6  Am. 
Dec.  58. 

-"Slimier  v.  Bumstead,  99  Mass.  112; 
McCoy  V.  Jorda/n  (MilBs.)  69  N.  E.  358; 
Hopkins  v.  Howard,  20  R.  I.  394,  39 
Atl.  519. 

The  interval  of  time  within  which  the 
acts,  conduct,  and  habits  of  a  person  ac- 
cused of  crime  may  be  reviewed,  as  bear- 
ing upon  the  question  of  his  sanity  at 
the  time  of  the  commission  of  the  act  in 
question,  is  to  be  measured  with  refer- 
ence to  the  intervening  events.  Com.  v. 
Ponieroy,  117  Mass.  143. 

And  evidence  of  character  and  conduct 
prior  to  a  certain  date  is  properly  re- 
jected in  a  criminal  prosecution  in  which 
insanity  is  alleged,  where  the  claim   is 


that  the  insanity  commenced  at  that 
time.  Webber  v.  Com.  119  Pa.  223,  4 
Am.  St.  Rep.  634,  13  Atl.  427. 

Where  one  party  is  permitted  to  offer 
evidence  as  to  the  previous  and  subse- 
quent condition  of  mind  of  a  party,  the 
other  party  should  be  permitted  to  cover 
the  same  period.  Petefish  v.  Becker,  176 
111.  448,  52  N.  E.  71. 

'^'Coni.  v.  Pomeroy,  117  Mass.  143. 

''-Dale's  Appeal,  57  Conn.  127,  17  Atl. 
757. 

Evidence  that  a  man  went  into  the 
street  dressed  only  in  his  imderclotliini: 
docs  not  indicate  insanity  existing  thirty 
years  previous  to  that  time.  Haicley  v. 
'(iriffin   (Iowa)   82  N.  W.  905. 

"See  Beasley  v.  State,  50  Ala.  149, 
20  Am.  Rep.  292;  State  v.  Stark,  1 
Strobh.  L.  479;  Laros  v.  Com.  84  Pa. 
200;  Com.  v.  Mosler,  4  Pa.  264. 

•^Curry  v.  Bratney,  29  Ind.  195;  Sum- 
mers \.Copeland,  125  Ind.  466,  25  N.  K. 
555;  Manatt  v.  Scott,  106  Iowa,  203,  68 
Am.  St.  Rep.  293,  70  N.  W.  717;  Vance 
V.  Upson,  66  Tex.  476,  1  S.  W.  179; 
Whitman  v.  Morey,  63  N.  H.  448,  2  Atl. 
809;  Tobin  v.  Jenkins,  29  Ark.  151; 
Bonqhton  v.  Kniqht,  L.  R.  3  Prob.  & 
Div.'  64,  42  L.  J.  Prob.  N.  S.  41,  28  L. 
T.  N.  S.  562.  And  see  Summers  v.  Cope- 
land,  125  Ind.  466,  25  N.  E.  555. 

But  the  exclusion  of  a  question  put 


364 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  322 


character  being  admissible,  as  tending  to  show  want  of  testamentary 
capacity  f^  and  evidence  tending  to  show  consistency  of  the  will  with 
the  natural  inclinations  and  previously  declared  intentions  of  the 
testator  being  admissible,  as  tending  to  show  testamentary  capacity.^*^ 
323.  Declarations  and  admissions  of  the  party. —  Whether  declara- 
tions and  admissions  of  a  party  would  have  any  practical  or  material 
probative  force  on  the  question  of  his  sanity  or  insanity  is  the  true 
guide  in  determining  their  admissibility  in  evidence.^^  And  decla- 
rations of  a  person  accused  of  crime,  made  either  before  or  after  the 
criminal  act,  may  be  given  in  evidence  on  the  question  of  his  sanity 
or  insanity,  for  the  purpose  of  ascertaining  the  state  of  his  mind.^^ 


to  a  witness  in  a  will  contest,  who  had 
drawn  the  will,  and  had  testified  that 
the  testator  drew  his  attention  to  a 
memorandum  respecting  a  land  trade, 
as  to  what  recollection  he  had  upon  the 
subject,  is  not  error,  the  testator's  recol- 
lection, and  not  that  of  the  witness,  be- 
in;?  important.  McGinnis  v.  Kempsey, 
27' Mich.  303. 

^'"Roberts  v.  Traivick,  13  Ala.  68; 
Stuhhs  V.  Honston,  33  Ala.  555 ;  New- 
comb  V.  NeiDComb,  96  Ky.  120,  27  S.  W. 
997;  Barker  v.  Comins,  110  Mass.  477; 
Carpenter  v.  Hatch,  04  N.  H.  573,  15 
Atl.  219;  Re  Burns,  121  N.  C.  336,  28  S. 
E.  519;  Ward  v.  Brotvn  (W.  Va.)  44 
S.  E.  488;  Hollcnbeck  v.  Cook,  180  111. 
05,  54  N.  E.  154;  Hone  v.  Richards,  112 
Iowa,  220,  83  N.  W.  909. 

Evidence  that  a  testatrix  undertook  to 
devise  property  not  her  own  is  relevant 
and  admissible  in  a  will  contest,  on  the 
issue  of  testamentary  capacity  and  un- 
due influence.  Re  Buckman,  64  Vt.  313, 
33  Am.  St.  Rep.  930,  24  Atl.  252. 

But  where  the  provisions  of  a  will  are 
claimed  to  be  unnatural  because  of  an 
allefrcd  gift  to  a  stranger,  evidence  is 
admissible,  for  the  purpose  of  explaining 
the  beque-st,  as  to  the  way  in  wliich  the 
wife  of  the  legatee  cared  for  the  testa- 
tor. Denning  v.  Butcher,  91  Iowa,  425, 
59  N.  W.  69. 

And  evidence  that  a  testator  under- 
stood that  in  order  to  render  his  will 
operative  it  would  be  necessary  that  he 
should  name  all  his  heirs  is  competent 
to  explain  numerous  legacies  of  one 
dollar  each  in  the  will.  Whitman  v. 
Morey,  03  N.  IT.  448,  2  Atl.  899. 

And  the  exclusion  of  a  certified  copy 
of  a  record  of  a  suit  in  equity,  and  the 
report  of  the  ma.ster  therein,  fixing  the 
amount  of  interest  of  the  son  in  a  part- 
nerebip  with  his  father,  in  a  contest  of 


the  father's  will,  in  which  defendants 
claim  that  the  son  had  transferred  his 
share  to  his  father  for  the  purpose  of 
facilitating  the  settlement,  with  the  un- 
derstanding that  he  would  have  all  his 
father's  estate  at  death,  offered  for  the 
purpose  of  showing  that  the  will  was  un- 
reasonable, as  a  ground  for  involving 
unsoundness  of  mind,  is  not  a  ground  of 
exception.    Nash  v.  Hunt,  110  Mass.  237. 

'"Hammond  v.  Dike,  42  Minn.  273,  18 
Am.  St.  Rep.  503,  44  N.  W.  61;  Moore 
V.  Moore.  2  Bradf.  205;  Fitzgerald  v. 
Shelton,  95  N.  C.  519. 

The  contents  of  a  former  will  may  be 
proved  without  producing  it.  Den  v. 
Vancleve,  5  N.  J.  L.  589. 

And  a  will  and  the  probate  thereof  are 
not  rendered  inadmissible  in  evidence  in 
a  will  contest  by  the  fact  that  the  pro- 
bate contained  an  ex  parte  affidavit  of 
one  of  the  witnesses,  stating  that  the 
testator  was  of  sound  mind.  Summers 
v.  Copeland,  125  Ind.  400.  25  N.  E.  555. 

"French  v.  State,  93  Wis.  325,  67  N. 
W.   706. 

Pleading  insanity  as  a  defense  admits 
the  act  charged.  State  v.  Holloway,  150 
Mo.  222,  50  S.  W.  734. 

"^McLean  v.  State.  10  Ala.  672: 
Cawley  v.  State, ^U^  Ala.  128,  32  So. 
227;  State  v.  Hays,  22  La.  Ann.  39; 
Lake  v.  People,  1  Park.  Crim.  Rep.  495 ; 
Com.  V.  Van  Horn,  188  Pa.  143,  41  Atl. 
409:  United  States  v.  Holmes,  1  Cliff. 
98,  Fed.  Cas.  No.  15.382.  And  see  State 
V.  Brooks.  4  Wash.  328,  30  Pac.  147. 

The  fact  that  a  conversation  offered 
in  evidence  shows  the  accused  in  a  crim- 
inal prosecution  to  have  been  guilty  of 
another  crime  does  not  render  it  incom- 
petent, where  it  was  offered  only  to  show 
the  defendant's  mental  condition  at  tlm 
time  of  the  interview,  and  not  to  reflect 
upon     his    connection     with    the    other 


§  323]  EVIDENCE.  365 

So,  while  declarations  of  a  gi-antor,  made  subsequent  to  the  execu- 
tion of  his  deed,  cannot  be  given  in  evidence  to  invalidate  it,  declara 
tions  made  near  the  time  of  its  execution  are  admissible  on  the  ques 
tion  of  his  sanity  at  the  time.-^  And,  his  declarations  made  both 
before  and  after  the  execution  of  the  deed,  tending  to  show  undue  in- 
fluence to  induce  him  to  make  it,  are  admissible  to  the  same  extent  as 
if  it  were  a  will  contest.^*^  And  declarations  showing  an  intent  to 
dispose  of  the  property  in  the  manner  in  which  it  was  afterwards  dis- 
posed of  are  admissible,  as  tending  to  show  capacity  ;^^  as  are  also 
declarations  showing  a  different  intent,  for  the  purpose  of  proving 
incapacity.^^  So,  declarations  of  a  testator  are  admissible  in  a  pro- 
ceeding to  contest  his  will,  to  show  his  mental  condition  at  the  time 
of  its  execution,^^  or  to  show  the  presence  or  absence  of  insane  delu- 

crime.     People  v.  Trticlc,  170  N.  Y.  203,    578    (4  Dev.  &  B.   L.   442)  ;    Dinges  v. 
G3  N.  E.  281.  Branson,  14  W.  Va.  100. 

xVnd  where  acts,  conduct,  and  decla-  ^"Dinges  v.  Branson,  14  W.  Va.  100. 
rations  of  a  person  accused  of  crime  are  And  see  Howell  v.  Howell,  47  Ga.  402; 
introduced  in  evidence  to  prove  his  in-  Rice  v.  Rice,  127  Pa.  181,  14  Am.  St. 
sanity  at  the  time  of  the  act,  the  prose-  Rep.  831,  17  Atl.  888;  Haines  v.  Hay- 
cution,  in  rebuttal,  is  not  limited  to  the  den,  95  Mich.  332,  35  Am.  St.  Rep.  56G, 
explanation  or  denial  thereof,  but  may  54  N.  VV.  911;  Johnson  v.  Culver,  IIG 
also  offer  evidence  of  other  acts,  conduct,  Ind.  278,  19  M.  E.  129. 
or  declarations  tending  to  show  his  san-  ^^Buclcey  v.  Buckcy,  38  W.  Va.  1C8,  18 
ity  Avithin  the  same  period.  United  S.  E.  383;  Howe  v.  Howe,  99  Mu-ss.  88; 
states  v.  Holmes,  1  Cliff.  110,  Fed.  Cas.  Sheelian  v.  Kearney  (Miss.)  35  L.  R.  A. 
No.  15,382.  102,  21  So.  41;  Midler  v.  Ht.  Louis  Hos- 

But   declarations   are   not   admissible    pital  Asso.  5  Mo.  App.  390. 
unless  their  purpose  is  disclosed.     State       ^-WiUcinson  v.   Pearson,   23   Pa.    117; 
V.  Brooks,  23  iNIont.  146,  57  Pac.  1038.        Reel  v.  Reel,  8  N.  C.    (1   Hawks)    248, 

And  declarations  made  by  a  person  to  9  Am.  Dec.  632. 
a  phj'sician,  as  to  his  condition  at  a  time  ^  This  proposition  is  supported  by 
prior  to  the  making  of  the  declarations,  many  authorities  among  which  are: 
are  not  admissible  in  evidence.  People  Comstock  v.  Hadlyme  Ecclesiastical  Soc. 
v.  Haickins,  109  N.  Y.  408,  17  N.  E.  8  Conn.  254,  20  Am.  Dec.  100;  Nieman 
371.  V.  Schnitker,  181  111.  400,  55  N.  E.  151; 

And  a  confession  made  by  a  defendant  Manatt  v.  Scott,  106  Iowa,  203,  68  Am. 
in  a  criminal  prosecution,  while  in  jail,  St.  Rep.  293,  76  N.  VV.  717;  Mooney  v. 
without  being  warned  that  it  would  be  Olscn,  22  Kan.  69;  Jones  v.  McLellan, 
used  against  him,  is  not  rendered  admis-  76  Me.  49;  Brashears  v.  Orme,  93  Md. 
siblc  by  the  fact  that  the  defense  was  442,  49  Atl.  620;  May  v.  Bradlee,  127 
insanity,  and  the  jury  were  instructed  Mass.  414;  Haines  v.  Hayden,  05  Mich, 
to  consider  it  only  on  the  question  of  332,  35  Am.  St.  Rep.  566,  54  N.  VV.  911: 
insanity.  Hurst  v.  State  (Te.x.  Crim.  Re  Broun,  38  Minn.  112,  35  N.  W.  726; 
App.)   40  S.  W.  264.  Sheelian  v.  Kearney  (Miss.)  35  L.  R.  A. 

Xor  are  declarations  and  acts  of  the  102,  21  So.  41 ;  Crowson  v.  Crowson,  172 
defendant  tending  to  show,  that  he  was,  Mo.  691,  72  S.  VV.  1065;  Boylan  v. 
on  the  night  of  the  criminal  act,  in  Meeker,  ?8  N.  J.  L.  274;  Waterman  v. 
great  fear  of  his  life,  admissible  as  tend-  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71 ; 
ing  to  show  delusion.  People  v.  Ells-  Reel  v.  Reel,  8  N.  C.  (1  Hawks)  248,  9 
worth,  127  Cal.  595,  60  Pac.  161.  Am.  Dec.  632;   Herster  v.  Herster,  122 

-"Woodcock  v.  Johnson,  36  Minn.  217,  Pa.  2.39,  9  Am.  St.  Rep.  95,  16  Atl.  342; 
30  N.  VV.  894;  Chess  v.  Chess,  1  Penr.  Peery  v.  Peery,  94  Tenn.  328,  29  S.  W. 
&  W.  32,  21  Am.  Dec.  350;  Rice  v.  Rice,  1;  Robinson  v.  Hutchinson,  26  Vt.  38, 
127  Pa.  181,  14  Am.  St.  Rep.  831,  17  60  Am.  Dec.  298;  Thompson  v.  Upde- 
Atl.  888;  Noruood  v.  Marrow,  20  N.  C.   g7a1f,  3  VV.  Va.  629;  Sutton  v.  Sadler^ 


366  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  323 

sions.^*  And  tlie  rule  of  admissibility  is  the  same  whether  the  decla- 
rations were  consistent  with  the  dispositions  made,^^  or  show  a  tes- 
tamentary intent  quite  different  from  that  manifested  by  the 
instrument."^^ 

Declarations  and  admissions  can  only  be  considered,  however,  on 
the  question  of  mental  capacity.^"^  They  are  not  admissible  to  con- 
tradict a  will,  or  show  its  revocation,^^  or  for  the  purpose  of  establish- 
ing undue  influence  exercised  upon  the  testator,^^  unless  contempo- 
raneously made,^^  or  unless  there  is  proof  of  other  facts  and 
circumstances  indicating  fraud.^^  They  are  not  evidence  of 
facts  stated,  but  are  merely  admitted  as  tending  to  show  the  opera- 
tions of  the  mind.^"     And  they  diminish  in  importance  as  the  grade 

3  C.  B.  N.  S.  87,  26  L.  J.  C.  P.  N.  S.  284,  W.  845;  Earring  v.  Allen,  25  Mich.  505; 

3  Jur.  N.  S.  1150.  5  Week.  Rep.  880.  Herster  v.  Herster,  122  Pa.  239,  9  Am. 

Tliis  is  the  rule  in  case  of  senile  de-  St.  Rep.  95,  16  Atl.  342;  Titlow  v.  Tit- 

mentia,    though    the    declarations    were  low,  54  Pa.  216,  93  Am.  Dec.  691;  Peery 

made  a  long  time  after  the  execution  of  v.  Peery,  94  Tenn.    328,    29    S.    W.    1 ; 

the  will.     Manatt  v.  Scott,    106    Iowa,  Thompson  v.  Updegrajf,  3  W.  Va.  629; 

203,  68  Am.  St.  Rep.  293,  76  N.  W.  717.  Sviith  v.  Fenner,  1  Gall.  170,  Fed.  Cas. 

So,  conversations  had  in  the  presence  No.  13,046.        And    see   Bundy    v.    Mc- 

of  a  testator,  regarding  the  condition  of  Kninht,  48  Ind.  502. 

his  mind,  which  would  necessarily  call  "See  Todd    v.    Fenion,    66    Ind.     25; 

for    some    response    from    him,    during  Waterman  v.  Whitney,  11  N.  Y.  157,  62 

which   he  remained  silent,  are  admissi-  Am.   Dec.   71;   Jackson  ex  dem.  Coe  v. 

ble  in  a  will  contest,  it  being  left  to  the  Eniffen,  2  Johns.  31,  3  Am.    Dec.    390. 

jury    whether    or    not    he    heard    them.  But  see  Bates  v.  Bates,  27  Iowa,  110,  1 

Meeher  v.  Meeker,  74  Iowa,  352,  7  Am.  Am.  Rep.  260. 

St.  Rep.  489,  37  N.  VV.  773.  The  admission  of  declarations  and  ad- 

^Brace  v.  Black,  125  111.  33,  17  N.  E.  missions  of  a  party  on  the    question  of 

66.  undue  influence    depends    largely    upon 

^'^Den  ex  dem,.  Stevens  v.  Vancleve,  4  the  character  of    the    unsoundness    at- 

Wash.  C.  C.  202,  Fed.  Cas.  No.  13,412;  tempted     to     be     proved.       Herster     v. 

Hammond  v.  Dike.  42  Minn.  273.  18  Am.  Herster.  122  Pa.  239,  9  Am.  St.  Rep.  95, 

St.  Rep.   503,  44  N.   W.   61;    Titlow   v.  16  Atl.  342. 

Titloir,  54  Pa.   216,  93   Am.   Dec.   691  ;  *^Herster  v.  Eerstei;  122    Pa.    256,    9 

Broun  v.  Mitchell,  88  Tex.  350,  36  L.  R.  Am.  St.  Rep.  95,  16  Atl.  342. 

A.  64,  31  S.  W.  621 ;   McMechen  v.  Mc-  Declarations    and    admissions     of     a 

Mechen,    17   W.   Va.   683,   41   Am.   Rep.  party  a.'e  admissible  in  evidence  where 

682;  Sution  v.  Sadler,  3  C.  B.  N.  S.  87,  the   issue  is  both   undue   influence    and 

26  L.  J.  P.  C.  N.  S.  284,  3  Jur.  N.  S.  mental     incapacity     {Parsons    v.    Par- 

1150,  5  Week.  Rep.  880.  sons,  66  Iowa,  754,  21  N.  W.  570,  24  N. 

^Titlow  V.  Titlow,  54  Pa.  216,  93  Am.  W.  564;  Mooney  v.  Olsen,  22  Kan.  69)  ; 

Dec.  691 ;  Boylan,  v.  Meeker,  15  N.  J.  Eq.  and  also  where  they  tend  to  show  weak- 

310;    Waterman  v.   Whitney,   11   N.   Y.  ness  of  mind,  operated  upon  by  an  ex- 

157,  02  Am.  Dec.  71;  Sisson  v.  Conger,  cessive  and  undue  importunity,  though 

I  Thoinp.  &  C.  564;   Denison's  Appeal,  they  were  made  in  the  absence    of  the 

29   Conn.   399;    Korris  v.   Sheppard,  20  person    afl'ected    thereby.       Rambler    v. 

Pa.  475.  Tryon,  7  Serg.  &  R.  90,  10  Am.  Dec.  444. 

""Turner  v.  Cook,  36  Ind.  129.  *^Lang's  Estate,  65  Cal.  19,  2  Pac.  491; 

'■^]{eynolds  v.  Adams,  90  111.   134,   32  Comstock  v.  Hndh/me  Ecclesiastical  Sac. 

Am.  liep.  15.  8  Conn.  254,  20  Am.  Dec.  100;    Manatt 

"Dennis  v.  Weekes,  46  Ga.  514;  Todd  v.  Scott,  106  Iowa,  203,  68  Am.  St.  Rep. 

y.  Fenton.  66  Ind.  25;  Re  Goldthorp,  94  293,  76  N.  W.  717;  Mooney  v.  Olsen,  22 

Iowa,  336,  58  Am.  St.  Rep.  400,  62  N.  Kan.  69;  Jones  v.  McLellan,  76  Me.  49; 


f  323]  EVIDENCE.  367 

of  capacity  increases,  and  have  no  value  at  all  when  made  hj  a  per- 
son of  sound  mind.^^  So,  as  a  general  rule,  they  are  regarded  as  ad- 
missible only  when  made  shortly  previous  or  subsequent  to  the  act  in 
question.^^  And  it  has  been  held  that  they  must  be  near  enough  in 
point  of  time  to  be  a  part  of  the  res  gestce."^^  But  this  has  been 
denied.^* 

Barring  v.  Allen,  25  Mich.  505;  Pratte  the  trial  court  to  admit  evidence  that 
V.  Coffman,  33  Mo.  76;  Jones  v.  Roberts,  the  person  making  them  had  first  con- 
37  Mo.  App.  163;  Gibson  v.  Gibson,  24  suited  with  his  lawyer.  8tate  v.  Han- 
Mo.  227.       And  see  Stewart  v.  Redditt,  sen,  25  Or.  391,  35  Pac.  976,  36  Pac.  296. 

3  Md.  67;  May  v.  Bradlee,  127  Mass.  "La  Bau  v.  Vanderbilt,  3  Rcdf.  384; 
,414;  Woodbury  v.  Obcar,  7  Gray,  467;  Landis  v.  Landis,  1  Grant  Gas.  248; 
'  Wurzell  V.  Beckman,  52  Mich.  478,   18  Wilkinson    v.     Pearson,    23     Pa.     117; 

N.  W.  226;  Frazer  v.  Jennison,  42  Mich.  Dnrant  v.  Ashmore,    2    Rich.    L.    184; 

206,  3  N.  W.  882;  State  v.  Dunn  (Mo.)  Robinson  v.  Hutchinson,  26  Vt.  38,  60 

77  S.  W.  848;  Rule  v.  Maupin,   84  Mo.  Am.  Dec.  298.     But  see  McLean  v.  State, 

587;  Norwood  v.  Marrow,  20  N.  C.  578,  16  Ala.   672;   Muller  v.  St.  Louis  Hos- 

(4  Dev.  &  B.  L.  442)  ;  Kachline  v.  Clark,  vital  Asso.  5  Mo.  App.  390;   Waterman 

4  Whart.  316;  Crocker  v.  Cha.'ie,  57  Vt.  v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec. 
413;  Hoflman  v.  Overbey,  137  U.  S.  465,  71;  People  v.  Hawkins,  109  N.  Y.  408, 
34  L.  ed.  754,  11  Sup.  Ct.  Rep.  157.  17  N.  E.  371;   Norwood  v.  Marrow,  20 

A  party  cannot  make  substantive  evi-  N.  C.  578,  (4  Dev.  &  B.  L.  442)  ;  State 
dence  in  his  own  favor  by  proving  his  v.  Vann.  82  N.  C.  631;  State  v.  Tilly,  25 
own  declarations  out  of  court,  under  the  N.  C.  (3  Ired.  L.)  424. 
claim  that  his  story  would  afford  ground  The  declarations  of  a  grantor  are  ad- 
for  argument  that  he  was  insane.  State  missible  in  evidence  in  an  action  to  set 
V.  Tatro,  50  Vt.  483.  And  see  Bootle  aside  his  deed,  upon  the  question  of 
v.  Blundell,  19  Ves.  Jr.  494,  15  Revised  mental  capacity,  where  they  were  made 
Rep.  93.  not  more  than  fifteen  months  before  the 

And  testimony  of  a  person  accused  of  alleged  insanity    began,    and    not    more 
crime,  to  the  effect  that  he  was  laboring   than  eigliteen  months  before  the  dispul 
under  such  a  defect    of    reason    at  the   ed  deed.     Rice  v.  Rice,  127  Pa.  181,  14 
time  of  the  criminal  act  as  not  to  know   Am.  St.  Rep.  831,  17  Atl.  888. 
its  nature,    is    inadmissible.       State    v.        And    tlie     rejection     of     declarations 
Kluseman,  53  Minn.  541,  55  N.  W.  741.   made  some  time  before  the  act  in  ques- 

And  where  a  person  upon  whom  a  tion  is  not  error,  where  the  person 
criminal  assault  was  made  is  an  incom-  making  them  had  not  been  restricted  in 
petent  witness  by  reason  of  idiocy  or  in-  his  proof,  and  had  closed  his  case  with- 
sanity,  her  assertions  or  declarations  out  offering  them.  State  v.  John,  30 
descriptive  of  the  offenses  or  offender  iN.  C.  (8  Ired.  L.)  330,  49  Am.  Dec.  396. 
cannot  be  received  in  evidence,  such  *°State  v.  Scott,  8  N.  C.  (1  Hawks ) 
declarations  being  proper  only  to  affect  24;  Marx  v.  McGlynn,  4  Redf.  457,  Af- 
the  credibility  of  the  person,  after  hav-  firmed  in  88  N.  Y.  357;  Waterma^i  v. 
Ing  testified  in  the  cause.  People  v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71. 
McGee,  1  Denio,  19.  And  see  Rutherford  v.   Norris,    77    111. 

But  testimony  which  is  relevant  and  397;  Hayes  v.  West,  37  Ind.  21;  Quisen- 
admissible  as  bearing  upon  the  mental  berry  v.  Quisenberry,  14  B.  Mon.  481 ; 
condition  of  the  accused  in  a  criminal  Frascr  v.  Jennison,  42  Mich.  206,  3  N. 
prosecution  is  not  rendered  inadmissible  W.  882;  Cawthorn  v.  Haynes,  24  Mo. 
by  the  fact  that  it  prima  facie  connects  236;  Gibson  v.  Gibson,  24  Mo.  227; 
the  accused  with  the  offense  charged.  Tingley  v.  Cowgill,  48  Mo.  291;  Spoone- 
Cornell  v.  State,  104  Wis.  527,  80  N.  W.  more  v.  Cables,  66  Mo.  579. 
745.  This  is  the  rule  when  declarations  are 

"Tunison  v.  Tunison,  4  Bradf.  138.  ottered  in  evidence  to    establish    fraud. 

The  exclusion  of  declarations  of  a  per-    Pratfc  v.  Coffman,  33  Mo.  76. 
son  admitted  to  be    sane    is    not    error.       *^Thompson  v.  Ish,  99  Mo.  160,  17  Am. 
Harden  v.  Hays,  14  Pa.  91.  St.  Rep.  552.  12  S.  W.  510;    Dinges    V. 

And  where  declarations  are  given  in  Branson,  14  \V.  Va.  100:  Boiling  v. 
evidence,  it  is  within  the  discretion  of   State,  54  Ark.  588,  16  S.  W.  658.      And 


368 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  32^ 


324.  Declarations,    admissions,    and    acts    of    third    persons. — The 

question  of  the  admissibility  of  declarations  and  admissions  of  third 
persons  for  the  purpose  of  showing  sanity  or  insanity  seems  to  depend 
upon  whether  or  not  they  are  against  interest.  Declarations  by  a  per- 
son killed,  made  before  the  commission  of  the  homicide,  are  not  ad- 
missible to  show  insanity  of  the  accused,  though  they  w^ere  dying  dec- 
larations.*^ 'Not  are  admissions  of  friends  or  relatives  of  the  person 
killed  admissible.**  Nor  are  admissions  or  declarations  of  relatives 
or  friends  of  the  accused  admissible,  where  the  declarants  are  living 
and  within  reach.*^  Declarations  of  a  son,  however,  who  had  re- 
ceived a  conveyance  from  his  father,  as  to  the  capacity  of  his  father, 
are  admissible  against  him  in  an  action  to  set  aside  the  deed.^^  And 
statements,  declarations,  and  admissions  by  a  devisee  or  legatee  in  a 
will,  against  his  interest,  to  the  effect  that  the  testator  was  incapable 
of  making  a  will,  are  generally  admissible  in  favor  of  the  contest- 
ant.^^    And  so  are  declarations  and  admissions  of  the  executors  pro- 


seo  Ross  V.  McQuiston,  45  Iowa,  145; 
TI (lines  v.  Hayden,  95  Mich.  332.  35  Am. 
St.  Rep.  506,  54  N.  W.  911;  Mcintosh  v. 
Moore,  22  Tex.  Civ.  App.  22,  53  S.  W. 
611. 

Declarations  and  admissions  offered  in 
evidence  for  the  purpose  of  proving  un- 
soundness of  mind  have  been  held  to  be 
inadmissible  imder  statutes  proliibiting 
a  party  from  giving  evidence  of  conver- 
sations with  a  deceased  party  relative 
to  any  matter  in  issue  between  them, 
when  unaccompanied  by  evidence  of  in- 
sanity at  the  time.  Hoice  v.  Howe,  99 
i\Iass.  88 ;  Noricood  v.  Marroic,  20  N.  C. 
578  (4  Dev.  &  B.  L.  442)  ;  Crocker  v. 
Chase,  57  Vt.  413.  And  see  Kachline 
V.  Clark,  4  Whart.  316. 

And  so  with  reference  to  a  statute 
rendering  communications  between  hus- 
band and  wife  inadmissible.  Bertrich 
V.  Hertrich,  114  Iowa,  643,  86  Am.  St. 
Rep.  389,  87  N.  W.  689;  Re  Evans,  114 
Iowa,  240,  86  N.  W.  283. 

But  the  contrary  rule,  that  they  are 
not  rendered  inadmissible  by  such 
statutes,  is  laid  down  in  Re  Brown,  38 
Minn.  112,  35  N.  W.  720. 

"Htate  V.  Welsor,  117  Mo.  570,  21  S. 
W.  443;  State  v.  Pacjels,  92  Mo.  300,  4 
S.  W.  931;  State  v.  Spencer,  21  N.  J.  L. 
197. 

*^Beck  V.  State,  76  Ga.  452;  Warren 
V.  Com.  37  Pa.  45. 

*'State  V.  Porter,  34  Iowa,  131. 

**Boggess  v.  Boggess,  127  Mo.  305,  29 
B.  W.  1018.      And  see  Gee  v.    Word,   5 


Week.  Rep.  579,  7  El.  &  Bl.  509,  3  Jur. 
N.  S.  692. 

But  declarations  of  a  father  that  his 
son  was  insane,  made  while  making  a 
provision  for  him,  are  not  admissible  in 
evidence.       Gray  v.  Obear,  59  Ga.  675. 

So,  declarations  of  an  attorney  in  fact 
that  his  principal  was  non  compos 
mentis  at  the  date  of  a  deed  executed  by 
the  attorney,  and  at  the  time  of  the 
execution  of  the  power  of  attorney,  are 
not  admissible  in  evidence  to  defeat  the 
deed,  in  behalf  of  devisees  of  the  princi- 
pal. Bensell  v.  Chancellor,  5  Whart. 
371,  34  Am.  Dec.  561. 

^'Wallis  V.  Luhring,  134  Ind.  447,  34 
N.  E.  231;  Milton  v.  Hunter,  13  Bush, 
103;  Phelps  v.  Hartwell,  1  Mass.  71; 
'Armstrong  v.  Farrar,  8  Mo.  627;  Keith- 
ley  V.  Stafford,  126  111.  507,  18  N.  E. 
740;  Eghers  v.  Egbers,  177  111.  82,  52  N. 
E.  285.  And  see  Ducker  v.  Whitson, 
112  N.  C.  44,  16  S.  E.  854;  Dale's  Ap- 
peal, 57  Conn.  127,  17  Atl.  757;  Horn  v. 
Pullman,  10  Hun,  471. 

But  a  legatee  who  had  expressed  an 
opinion  that  the  testator  had  not  suf- 
ficient capacity  to  make  a  will  may  be 
properly  permitted,  on  a  contested  pro- 
bate thereof,  to  explain  his  change  of 
mind  as  a  result  of  information  with 
reference  to  the  requirements  of  law  as 
to  what  constitutes  testamentary  ca- 
pacity. Dale's  Appeal,  57  Conn.  127. 
17  Atl.  757. 

And  statements  made  by  the  wife  of  a 
testator,  that  he  was  an  old    fool    and 


5  324] 


EVIDENCE. 


369 


pcnmding  the  will,  to  that  effect,  where  thej  were  also  legatees."^ 
Aud  so  are  declarations  and  acts  of  a  contestant  in  favor  of  sanity, 
whether  made  before  or  after  the  execution  of  the  will.^*^  But  when 
declarations  against  interest  are  given,  the  declarant  may  insist  upon 
giving  the  whole  conversation  ;^'*  and  they  must  relate  to  capacity  at 
about  the  time  in  question,^^  And  declarations  of  a  party  having  no 
interest  are  not  admissible  because  of  the  fact  that  he  subsequently 
became  intcrested.^^  So,  the  rule  is  prevalent  that  declarations  or 
admissions  of  a  legatee  or  devisee  as  to  the  mental  incapacity  of  the 
testator  are  not  admissible  where  there  are  other  legatees  or  devisees 
whose  interests  may  be  injuriously  affected,  such  other  legatees  cot 
being  jointly  interested,^^  though  the  contrary  doctrine,  making  such 


was  deranged,  are  not  admissible  in  a 
will  contest  as  admissions  concerning 
his  mental  condition,  when  made  under 
circumstances  showing  that  they  were 
the  petulant  reproaches  of  an  irritable 
old  woman,  rather  than  the  expression 
of  an  opinion.  Sellars  v.  Cellars,  2 
Heisk.  430. 

And  an  admission  of  incompetency 
made  a  long  time  after  the  execution  of 
the  will  is  irrelevant.  I\'aul  v.  Naul, 
75  App.  Div.  292,  78  N.  Y.  Supp.   101. 

And  the  witness  himself  cannot  be 
asked  if  he  had  not  made  such  declara- 
tions. Roiish  V.  Wensel,  15  Ohio  C.  C. 
133,  8  Ohio  C.  D.  141. 

^-Atkins  V.  Sanger,  1  Pick.  192; 
Peeples  v.  Stevens,  8  Rich.  L.  198,  64 
Am.  Dec.  750;  Re  Broicn,  38  Minn.  112, 
35  N.  W.  726. 

But  letters  of  an  executor,  written  be- 
fore the  date  of  the  will,  are  only  ad- 
missible to  contradict  his  testimony. 
Stevenson  v.  Kingsley,  8  Pa.  Dist.  R. 
245. 

'''Ware  v.  Ware,  8  Me.  42;  Kettemann 
V.  Metzger,  23  Ohio  C.  C.  61;  Peeples  v. 
Stevens,  8  Rich.  L.  198,  64  Am.  Dec.  750. 

Letters  passing  between  the  legatees 
under  a  will  and  the  heirs  contesting  it, 
witli  reference  to  the  confinement  of  the 
testatrix  in  an  insane  asylum,  and  to 
her  cure  and  release,  are  admissible,  not 
only  to  show  her  state  of  mind  toward 
the  parties,  but  also  her  mental  con- 
dition. Foster  v.  Dickerson,  64  Vt. 
233,  24  Atl.  253. 

"■^Dale's  Appeal,  57  Conn.  127,  17  Atl. 
757. 

'^Thompson  v.  Kyner,  65  Pa.  308; 
Uunt  V.  Hunt,  3  B.  JNIon.  575. 

^"Burton  v.  Scott,  3  Rand.   (Va.)   309; 
Ware    v.    Ware,    8    Me.   42.     And     see 
Vol.  I.  Mkd.  Juk  —24. 


Walker  v.  Jones,  23  Ala.  448;  Coryell  v. 
Stone,  62  Ind.  307;  Brewer  v.  Ferguses, 
11   Humph.  565. 

And  declarations  of  a  beneficiary  are 
not  admissible  to  defeat  a  will  where  the 
amount  he  would  receive  under  it  is 
less  than  he  would  take  if  the  testator 
had  died  intestate.  Tltlow  v.  Titloiv, 
54  Pa.  216,  93  Am.  Dec.  691. 

"'Dale's  Appeal,  57  Conn.  127,  17  Atl. 
757;  Shorb  v.  Brubaker,  94  Ind.  165, 
TJayes  v.  Bxirkam,  67  Ind.  359;  Her- 
trich  V.  Eertrich,  114  Iowa,  643,  86  Am. 
St.  Rep.  389,  87  N.  W.  689;  Dye  v. 
Yomig,  55  Iowa,  433,  7  N.  W.  678;  Re 
Ames,  51  Iowa,  596,  2  N.  W.  408; 
Shailer  v.  Bumstead,  99  Mass.  112; 
Phelps  V.  HarticeU,  1  Mass.  71;  Wood  v. 
Carpenter,  166  Mo.  465,  66  S.  W.  172; 
La  Ban  v.  Vanderbilt,  3  Redf.  384; 
Navl  V.  Naul,  75  App.  Div.  292,  78  N.  Y. 
Supp.  101 ;  Thompson  v.  Thompson,  13 
Ohio  St.  350;  Nussear  v.  Arnold,  13 
Serg.  &  R.  323;  Bovard  v.  Wallace,  4 
Serg.  &  R.  499;  Boyd  v.  Eby,  8  Watts, 
66;  Dietrich  v.  Dietrich,  4  W.itts,  167, 
note;  Hauberger  v.  Root,  6  Watts  &  S. 
434;  Dotts  v.  Fetzer,  9  Pa.  88;  Clark  v. 
Morrison,  25  Pa.  455;  Dillard  v.  Dillard, 
2  Strobh.  L.  89;  Prather  v.  McClelland, 
76  Tex.  574,  13  S.  W.  543;  Burton  v. 
Scott,  3  Rand.  399;  Forney  v.  Ferrell,  4 
W.  Va.  729.  And  see  Bunt  v.  Hunt,  l< 
B.  Mon.  575;  Roberts  v.  Traidck,  13 
Ala.  68;  Blakey  v.  Blakey,  33  Ala.  611  : 
Coryell  v.  Stone,  62  Ind.  307. 

This  is  so  though  a  conspiracy  be- 
tween the  legatees  is  alleged,  \\here  no 
preliminary  evidence  of  the  conspiracy 
is  olFered.  Hertrich  v.  Bert  rich,  114 
Iowa.  643,  86  Am.  St.  Rop.  389,  87  N. 
W.  689. 

And  it  is  immateri;'l  on  the  question 


370 


MENTAL  UXiSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  324 


declarations  competent,  has  some  support.^*  An  admission  made  by 
an  attesting  witness  to  a  will,  however,  that  the  testator  was  not  com- 
petent at  the  time  the  will  was  made,  and  that  he  signed  only  to  attest 
the  signature,  or  to  gratify  the  testator,  is  admissible  for  the  purpose 
of  rebutting  the  prima  facie  effect  of  his  attestation.^^  And  state- 
ments made  in  another  conneciion,  that  the  will  was  worthless,  are 
admissible  in  evidence  for  the  purpose  of  impeaching  a  witness  called 
to  testify  to  due  execution.*^^ 

325.  Letters,  private  writings,  deeds,  wills,  etc. —  Letters  and  pri- 
vate writings  proving  nothing  on  the  question  of  mental  capacity  are 
not  admissible  in  evidence  on  an  issue  of  sanity  or  insanity,  and  their 
rejection  is  not  erroneous.^^  And  letters  addressed  to  a  person, 
found  among  his  papers  after  death,  written  in  reply  to  communica- 
tions from  him,  are  not  admissible  as  evidence  of  his  mental  capacity, 
unless  he  is  shown  to  have  exercised  some  act,  judgment,  or  under- 
standing with  reference  to  them.*^^  A  letter  written  by  a  person  ac- 
cused of  crime,  however,  is  admissible  in  evidence  upon  a  prosecution 
therefor,  to  throw  light  upon  the  condition  of  his  mind  at  the  time.*^^ 


of  the  admissibility  of  declarations  of  a 
legatee  where  there  were  other  legatees 
and  devisees  whose  interests  might  be 
injuriously  affected  thereby,  whether  the 
declarant  was  a  party  to  the  issue  or 
not.       Boyd  v.  Ely,  8  Watts,  66. 

Declarations  and  admissions  of  a 
legatee,  however,  are  admissible  in  a 
will  contest,  in  favor  of  the  contestant, 
on  the  question  of  testamentary  ca- 
pacity, though  there  were  other  persons 
interested,  where  the  whole  estate  was 
devised  to  him.  t\ussear  v.  Arnold,  13 
Serg.  &  R.  323.  And  see  Ware  v.  Ware, 
8  Me.  42;  Blakey  v.  Blakey,  33  Ala.  QU. 

"See  Dennis  v.  Weekes,  46  Ga.  514; 
Milton  V.  Tlvnter,  13  Bush,  163;  Rogers 
V.  Rogers,  2  B.  Mon.  324;  Beall  v. 
Cunningham,  1  B.  Mon.  399 ;  Davis  v. 
Calvert,  5  Gill  &  J.  269,  25  Am.  Dee. 
282;  Armstrong  v.  Farrar,  8  IMo.  627; 
APCraine  v.  Clarke,  6  N.  C.  (2  Murph.) 
317;  Peeples  v.  Stevens,  8  Rich.  L.  108, 
64  Am.  Dec.  750;  Brown  v.  Moore,  6 
Yerg.  272. 

'-"Colvin  V.  Warford,  20  Md.  357; 
Toicnshend  v.  Totcnshend,  9  Gill,  506. 

*"Bcauhien  v.  Cicotte,  12  Mich.  459; 
Lccis  v.  Mason,  109  Mass.  169. 

'^Fraser  v.  Jennison,  42  Mich.  206,  3 
N.  W.  882. 

A  letter  of  a  testator  is  not  admissible 
on  the  question  of  his  mental  capacity 
to  explain  his  peculiar  actions,  where  it 


was  not  dated,  and  it  did  not  appear 
whether  it  was  written  at  about  the 
time  of  such  actions  or  not.  Clements 
v.  McGinn  (Cal.)   33  Pac.  920. 

"-Waters  v.  Waters,  35  Md.  531; 
Wright  v.  Doe  ex  dem.  Tatham,  7  Ad. 
&  El.  313,  2  Nev.  &  P.  305,  7  L.  J.  Exch. 
N.  S.  340,  Affirmed  in  4  Bing.  N.  C. 
489,  5  Clark  &  F.  670,  6  Scott,  58,  2  Jur. 
461;  Morgan  v.  Boys,  cited  in  7  Ad.  & 
El.  337 ;  Handley  v.  Jones,  cited  in  7 
Ad.  &  El.  337. 

So,  letters  of  a  stranger,  proved  to  be 
insane,  are  not  admissible  on  an  issue 
as  to  sanity,  for  the  purpose  of  showing 
tliat  insane  persons  might  write 
rationally.       Ware  v.  Ware,  8  Me.  42. 

^^State  V.  Kring,  64  Mo.  591;  Sayrcs 
V.  Com.  88  Pa.  291. 

And  such  a  letter  is  admissible  for  the 
purpose  of  obtaining  the  opinion  of  an 
expert  thereon  as  to  his  sanity.  Blume 
V.  State,  154  Ind.  343,  56  N.  E.  771. 

And  the  admission  of  a  letter  written 
by  a  person  accused  of  crime,  after  his 
arrest,  for  the  purpose  of  showing  his 
sanity,  which  was  claimed  to  have  been 
obtained  in  an  illesal  manner,  is  not 
error,  where  the  defense  was  permitted 
to  introduce  evidence  with  a  view  of 
proving  the  manner  in  which  it  was  ob- 
tained. Langdon  v.  People,  133  111. 
382,  24  N.  E.  874. 

So,  a  journal  kept  by  the  master  of 


i  325]  EVIDENCE.  171 

And  where  such  letters  have  been  destroyed,  secondary  evidence  of 
their  contents  may  be  given.^'*  And  letters  written  by  a  testator 
cither  before  or  after  the  execution  of  his  will  are  competent  upon 
the  question  of  his  mental  capacity  and  the  condition  of  his  mind 
with  reference  to  the  objects  of  his  bounty ,^^  as  well  as  to  show  knowl- 
edge of  the  contents  of  the  will,  and  assent  to  its  provisions.*^^  So, 
contracts  betAveen  a  contestant  of  a  will  and  a  testator,  and  checks, 
letters,  receipts,  deeds,  and  other  papers  of  the  testator,  and  his  man- 
ner of  transacting  the  matters  in  hand,  sufficiently  close  in  point  of 
time  to  tend  to  illustrate  the  condition  of  his  mind  at  the  time  the  will 
was  made,  are  admissible  on  the  question  of  testamentary  capacity,^^ 
and  so  are  diaries  kept  by  the  testator  f^  though  not  as  evidence  of  the 
fact  stated  or  to  prove  fraud  or  undue  influence.*''^  And  a  memoran- 
dum of  facts  and  suggestions  concerning  unsettled  business,  made  by 
a  testator  for  the  use  of  his  executors,  which  is  substantially  correct, 
is  admissible  in  a  will  contest  to  strengthen  the  inference  arising  from 
a  rational  will.^*^  So,  a  former  will,  executed  at  a  time  when  there 
was  no  doubt  of  the  capacity  of  the  testator,  and  containing  provisions 
similar  to  those  of  a  later  will,  is  competent,  in  connection  with  other 
evidence,  on  the  contested  probate  of  the  latter,  on  the  question  as  to 
whether  the  testator's  mind  was  rational  and  unbiased  at  the  time  of 
the  execution  of  the  second  will.'^^     And  the  rule  is  the  same  whether 

a  ship  is  admissible    in    evidence    in  a  But  the  contents  of  a  bond    executed 

prosecution  against  members  of  the  crew  by  a  testator  are  not  admissible  as  evi- 

for  a  revolt,  to  prove  his  sanity  by  the  dence  of  his  capacity  to  comprehend  or 

style  in  which  it  was  kept,  but    not   as  transact  business,  where  it  does  not  ap- 

evidence     of    any     facts     stated    in    it.  pear  that  he  read  it  or  heard    it    read. 

United  States  v.  Sharp,  Pet.  C.  C.  118,  Re  Pinney,  27  Minn.  280,  6  N.  W.    791, 

Fed.  Cas.  No.  16,264.  7  N.  W.  144. 

'^State  V.  Krmg,  64  Mo.  591.  ^^Marx  v.  McGlynn,  88  N.  Y.  357,  Af- 

"''Marw   V.    McGhjnn,    88    N.    Y.    357;  firming  4  Redf.    455;    Irish  v.  Smith,  8 

Dominick  v.  Dominick,  20  Abb.    N.    C.  Serg.  &  R.  573,  11  Am.  Dec.  648. 

286 ;  Baker  v.  Baker,  202  111.  595,  67  N.  ""''Marx  v.  McGlynn,  88  N.  Y.  357,  Af- 

E.  410;   Eowe   v.    Richards,    112    Iowa,  firming  4  Redf.  455. 

220,  83  N.  W.  909;   Vance  v.  Upson,  66  Papers  made  by  a  testator  subsequent 

Tex.  476,  1  S.  W.  179.  to  his  will,    though    sometimes    admis 

Letters  which,   though  too  remote  in  sible,  are  to  be  regarded  with  jealousy, 

point  of  time,  if  standing  alone,  to  be  since  he  is  not  to  be  permitted  to  prove 

competent  evidence  as  to    the    writer's  his  own  sanity.       Wood  v.  Sawyer,  61 

mental  condition,  are  admissible  if  their  N.  C.    (Phill.  L.)   251;  Bootle   v.    Blun- 

subject-matter     is     repeated     in    other  dell,  19  Ves.  Jr.  494,  15  Revised  Rep.  93. 

letters  which  are  competent  in  point  of  '"^Weir^s  Will,  9  Dana,  434. 

time.       Baker  v.  Baker,  202  111.  595,  67  ''Tobin  v.  Jenkins.  29  Ark.  151;   Nie- 

N.  E.  410.  man  v.  Schnitker,  181  111.  400,  55  N.  E. 

""Mc'Ninch  v.  Charles,  2  Rich.  L.  229.  151;  Ross  v.  McQuiston,  45  Iowa,    145; 

'^''Wise  V.  Foote,  81  Ky.  10;  Morris  v.  Perkins  v.  Perkins,  116  Iowa,  253,  90  N. 

Morton,  14  Ky.  L.  Rep.  360,  20    S.    W.  W.  55;  Beaubien   v.    Cicoite,    12   Mich. 

287.       And  see    Manatt    v.    Scott,    106  459;   Thompson  v.  Ish,  99  Mo.   160,  17 

Iowa,  203,  68  Am.  St.  Rep.  293,  76    N.  Am.  St.  Rep.  552,  12  S.  W.  510;  Muller 

W.  717.  V.  St.  Louis  Hospital  Asso.  73  Mo.  243  : 


n-2  MENTAL  LlN  SOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  325 

the  will  was  formally  executed  or  a  mere  draft.'^^  And  a  previous 
will,  making  different  dispositions  of  the  testator's  property,  is  also 
admissible  on  behalf  of  the  contestants.'^^ 

326.  Acts  and  conduct. —  The  question  as  to  how  one  conducted  him- 
self in  a  recent  transaction  does  not  call  for  an  opinion  as  to  his  sanity, 
but  for  a  statement  as  to  his  conduct  and  appearance.'^^  And  every 
act  of  the  party,  and  every  other  circumstance  which  could  possibly 
aid  the  jury  in  correctly  determining  the  question  as  to  his  sanity  or 
insanity,  is  to  be  admitted,  in  evidence,^^  whether  the  acts 
and  conduct  of  a  person  would  have  any  practical  or  ma- 
terial  probative  force   on   the   question   of   his   sanity   or   insanity 

Rankin  v.  Rankin,  61  Mo.  295;    Den  v.  pared.       Broivn    v.    Mitchell,    88    Tex. 

Vancleve,  5  N.  J.  L.  589;  Titlow  v.  Tit-  350.  36  L.  R.  A.  64,  31  S.  W.  621. 

Zoit\  54  Pa.  216,  93  Am.  Dec.  691;  /ns7i  ^'Httffhes    v.     Hughes,     31     Ala.     519, 

V.  Smith,  8  Serg.  &  R.  573,  11  Am.  Dec.  Overruling  Roberts  v.  Trawick,  13  Ala. 

648;  Kerr  v.  Limsford,  3  W.  Va.  680,  2  68;  Varner  v.  Varner,  16  Ohio  C.  C.  386. 

L.  R.  A.  668,  8    S.    E.    493.       And    see  But  see  Jvac/ih'we  v.  CVa/7c,  4  Whart.  316. 

Fountain  v.  Brown,  38  Ala.  72;  Love  v.  But    special    attention     of    the    jury 

Johnston,  34  N.  C.    (12  Ired.  L. )    355;  should  not  be  called  to  irregularities  in 

Dodge  V.  Meech,  1  Hagg.  Eecl.  Rep.  612;  a  will,  as  an  indication    of    incapacitj', 

Mynn  v.  Robinson,  2  Hagg.  Eccl.  Rep.  unless  more  importance  is    attached    to 

169;  also  diata  in  B'^own  v.  Mitchell,  87  that    circumstance    than       to      others. 

Tex.  140,  26  S.  W.  1059.  Stokes  v.  Shippen,  13  Bush,  180. 

In   such  case,  proof  of    soundness    of  And  a  variance  between  a  declared  in 

mind   when   the  former  will   was  made  tention  to  make  a  gift  and  a  subsequent 

may  be  admitted.     Nieman  v.  Schnitker,  deed,  constituting  a  better  bargain,  does 

18l"  111.  400,  55  N.  E.  151.  not     affect     the     admissibility     of    the 

But  refusal  to  admit  proof  as  to  con-  declarations,  in  an  action  to  set  the  deed 

tents  of  a  former  will  in  evidence  in  a  aside.       Rice  v.  Rice,  127  Pa.    181,    14 

will    contest,    where    it    had    been     de-  Am.  St.  Rep.  831,  17  Atl.  888. 

stroyed,  is  not  error,  in  the  absence  of  "7/e  Wax,  106  Cal.  343,  39  Pac.  624. 

any  statement    of    counsel    as    to    what  ''Van  Densen  v.  y ewcomer,    40   Mich, 

ivere  its  contents,  and  as  to  whether  it  90:  Green  v.  State,  64  Ark.  523,  43  S.  W. 

had  any  bearing  upon  the    question   of  973;   Re  Keilhley,  134  Cal.    9,  66    Pac. 

the  testator's  soundness  or  unsoundness  5;   Re  Pinney,  27  Minn.  280,  6    N.    W. 

of  mind.       Louder  v.  Loicder,    58    Ind.  791,  7   N.  W.   144;   Clark  v.  Periam,  2 

538.  Atk.  337,  9  Mod.  346;   and  see  Hodges 

And  a  will  in  which  the  testator  made  v  f^cott,  118  Mass.  530;  Johnson  v.  Cul- 
his  nephew  a  residuary  legatee,  disin-  ver,  116  Ind.  278,  19  X.  E.  129. 
heriting  his  daughter,  and  a  trust  deed  Testimony  will  not  be  rejected  as  ir- 
by  him  of  certain  stocks  and  notes  to  nis  relevant  and  immaterial  on  the  issue  of 
former  guardian,  made  for  the  purpose  insanity  merely  because  the  facts  testi- 
of  carrying  the  provisions  of  the  will  fled  to  by  each  witness,  taken  separate- 
info  effect,  are  too  remote  and  uncertain  ly,  may  not  prove  sanitj-  or  insanity  to 
in  character,  and  open  to  too  many  col-  a  sufficient  extent  to  qualify  him  to  ex- 
lateral  issues,  to  be  admissible  as  bear-  press  his  individual  opinion  upon  the 
ing  on  his  mental  capacity,  in  an  action  question.  First  Nat.  Bank  v  Wire- 
attacking  the  validity  o"f  the  deed,  bach,  106  Pa.  37;  McTaggart  v.  Thomp- 
ilnveg  v.  Hobson,  55  Me.  256.  S07i,  14  Pa.  149. 

~-M cConnell  v.  Wildes,  153  Mass.  480.  And  the  appearance  and  condition  and 

26  N.  E.  1114;   Thornton    v.    Thornton,  actions  of  a  person  for  some  time  prior 

39  Vt.  132.  to  the  act  in  question  may  be  sho\vn  to 

On  an  issue  of  capacity    to    make    a  furnish  a  ba^sis  for  nonexpert    opinions 

will,  directions  of  the  testatrix  for    the  as  to  his  sanity.       State  v.  McDonough, 

preparation  of  a  will,  which    was    not  104  Iowa,  6,  73  N.  W.  357. 

f'xeculed.  may  be  proved,  although    the  Entire  conversations  should  be  given; 

will  was  not  shown  her  after  it  was  pre-  when  tlie  witnesses    are    competent    to 


f  326]  EVIDENCE.  573 

being  the  true  guide  in  determining  their  admissibility.'^^  These 
rules  apply  to  the  acts  and  conduct  of  the  accused  in  a  criminal 
prosecution,  and  they  are  admissible,  whether  previous  or  subsequent 
to  the  criminal  act,'^^  and  though  not  forming  a  part  of  the  res  gestcc, 
whenever  they  are  so  connected  with,  or  correspond  with,  evidence  of 
■disordered  intellect  preceding  the  offense,  as  to  strengthen  the  infer- 
ence of  continuance,  and  carry  it  by  the  time  to  wh:-h  the  inquiry 
relates^*  To  be  admissible,  however,  the  acts  and  conduct  must  have 
been  offered  with  a  view  of  proving  insanity  as  a  defense,  and  not  for 
the  purpose  of  showing  disposition,  or  absence  of  intent  or  delibera- 
tion.'^» 

These  rules  likewise  apply  in  actions  involving  the  validity  of  con- 
testify  to  them.  Re  Potter,  161  N.  Y.  cution,  to  permit  an  officer  to  describe 
84,  55  N.  E.  387.  the  conduct  of  a  prisoner  as  seen  by  him 

'"French  v.  State,  93  Wis.  329,  67  N.  while  looking  through  a  hole  prepared 
W.  706.  in  the  wall  so  as  to  permit  him    to  ob- 

Evidence  merely  calculated  to  arouse    serve     the     accused,     on    the    question 
prejudice  should  not  be  admitted  on  an    whether     the     insanity     was     real     or 
issue  as  to  sanity,  where  it    does    not    feigned.       M'Kee  v.  People,    36    N.    Y. 
throw  light  on  the  question  of  capacity.    113. 
Pierce  v.  Pierce,  38  Mich.  412.  And  a  defendant  in  a  criminal  action, 

And  the  mere  fact  that  a  person  ac-  who  interposes  insanity  as  a  defense, 
cused  of  crime  was  difi'erent  from  other  may  prove  not  only  irrational  and  in- 
people  in  his  manner  of  living,  or  acting,  sane  acts  and  conduct,  but  also  facts 
or  speaking,  or  eating,  is  not  admissible  which  may  account  for  such  acts,  and 
upon  the  question  of  his  insanity,  show  an  adequate  cause  for  the  aber- 
Ooodwin  v.  State,  96  Ind.  550.  rations  of  mind.       People  v.  Wood,  126 

And  the  rejection  of    evidence    in    a    N.  Y.  249,  27  N.  E.  362. 
criminal   prosecution   that    the    accused        So,  a  person  accused    of    crime    may 
ate  with  a  hearty  appetite,  slept  sound-    properly  be  asked  wliy  he  pretended  in- 
ly and   quietly,   and    evidenced    no    re-    sanity.       State  v.  Pritchett,   106  N.  C. 
morse  or   sense  of  guilt  while    in    jail    107,  11  S.  E.  357. 

subsequent  to  the  commission  of  the  '"'Boiling  v.  State,  54  Ark.  588,  16  S. 
crime,  is  not  error.  Com.  v.  Pomeroy,  W.  658.  And  see  Z7ooi;er  v.  j^^aie  (Ind.) 
117  Mass.  143.  68  N.  E.  591;  State  v.  Kelley,  57  N.  H. 

'"McLean  v.  State,  16  Ala.  672;  Caw-  549. 
ley  v.  State,  133  Ala.  128,  32  So.  227;  And  testimony  of  a  witness  in  a 
State  V.  West,  Houst.  Crim.  Rep.  (Del.)  criminal  prosecution  that  just  after  the 
371  ;  State  v.  Wright,  112  Iowa,  430,  84  commission  of  the  offense  he  asked  the 
N.  W.  541 ;  State  v.  Hays,  22  La.  Ann.  accused  the  amount  of  a  payment  he  had 
39;  State  v.  Privitt,  175  Mo.  207,  75  S.  made,  to  which  he  answered  correctly. 
W.  457;  Lake  v.  People,  1  Park.  Crim.  as  a  witness  found  by  subsequent 
Rep.  405;  Cannon  v.  State,  41  Tex.  examination  of  his  book,  is  not  subject 
Crim.  Rep.  467,  56  S.  W.  351;  United  to  the  objection  that  the  book  should 
States  V.  Uolmes,  1  Cliff.  98,  Fed.  Cas.  have  been  produced,  the  object  not  being 
No.  15,382.  to  prove  the  account,  but  the  fact  that 

Evidence  of  the  declarations,  acts,  the  statement  agreed  with  the  book, 
and  conduct  of  a  person  accused  of  State  v.  Hoyt,  47  Conn.  518,  36  Am. 
crime,  offered  for  the  purpose  of  show-    Rep.  89. 

ing  his  sanity  in  rebuttal  of  evidence  of        ''"Sindram  v.  People,  88  N.  Y.  196,  Af- 
insanity,  is  not  objectionable  as  an  at-    firming  1  N.  Y''.  Crim.  Rep.  448;    State 
tack  upon  character.       United  States  v.    v.  Welsor,  117  Mo.  570,  21  S.  W.  443. 
Uolmes,  1  Cliff.  110,  Fed.  Cas.  No.  15,-        And   they   must   have   some  tendency 
382.  toward      showing      insanity;       violence 

And  it  is  proper,  in  a  criminal  prose-    toward  another  than  the  person  killed  is 


374 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  326 


tracts  or  deeds  of  alleged  lunatics,^*'  and  to  acts  and  conduct  of  a 
testator,  whether  before,  at  the  time,  or  after  the  making  of  his  will.^* 
And  it  is  competent  to  show  that  the  testator  was  erratic,  eccentric, 
unsettled,  and  excitable,^^  qj.  that  he  made  improvident  bargains,*' 
or  that  he  had  attempted  to  commit  suicide.*"*  And  evidence  that  the 
acts,  conduct,  and  habits  of  a  person  whose  sanity  was  in  question 
were  changed  and  unnatural,  and  different  from  what  they  had  previ- 
ously been,  is  admissible  as  tending  to  show  insanity,*^  or  the  exist- 
ence of  an  insane  delusion.*^  And  where  evidence  of  the  acts  and 
conduct  of  a  person  alleged  to  be  insane  has  been  given  to  prove  his 
insanity,  the  other  side  is  not  limited  to  an  explanation  or  denial  of 
the  particular  act  or  conduct,  but  may  offer  evidence  of  other  acts  or 


not  admissible  to  show  insanity  in  one 
accused  of  homicide.  State  v.  Marshall, 
35  Or.  265,  57  Pac.  902. 

'"Bowe  V.  Hoice,  99  ]\Iass.  88. 

"^Boylan  v.  Meeker,  28  N.  J.  L.  274. 
And  see  Haines  v.  Hayden.  95  Mich.  332, 
35  Am.  St.  Rep.  566,  54  N.  W.  911; 
Brashears  v.  Orme,  93  Md.  442,  49  Atl. 
620. 

The  fact  that  before  his  will  was  made 
a  testator  had  conveyed  away  some  of 
the  property  which  he  attempted  to  dis- 
pose of  by  will  is  admissible  in  a  pro- 
ceeding to  contest  the  will.  Fountain 
V.  Brotvn.  38  Ala.  72. 

And  so  is  a  claim  by  a  testator  to 
own  more  property  that  he  actually 
does.  Waugh  v.  Moan,  200  111.  298,  65 
N.  E.  713. 

But  a  statement  of  a  witness  in  a  will 
contest,  that  the  testator  transacted  no 
business,  unless  selling  things  that  did 
not  belong  to  him  could  be  called  trans- 
acting business,  is  properly  excluded. 
Re  Blood,  (J2  Vt.  359.  19  Atl.  770. 

^-Prentis  v.  Bates,  93  Mich.  234,  17  L. 
R.  A.  494,  53  N.  W.  153.  And  see 
Watson  V.  Anderson,  11  Ala.  43;  Irish 
V.  Smith,  8  Serg.  &  R.  573,  11  Am.  Dec. 
648. 

But  the  fact  that  a*"  testator,  while 
traveling  with  one  of  his  sons,  wanted 
to  stop  at  another  man's  house  to  see 
bis  daughter,  is  inadmissible  on  the 
question  of  testamentary  capacity. 
Rice  V.  Rice,  53  Mich.  432,  19  N.  W.  132. 

And  the  fact  that  a  testator  was  so 
irritable  and  abusive  to  his  father  that 
the  doctors  forbade  his  coming  into  the 
father's  sick  room  is  not  admissible  as 
bearing  upon  his  mental  condition  a 
few  lionrs  later,  when  he  made  his  will. 
Re  Blood,  62  Vt.  359,  19  Atl.  770. 


"Re  Carmichael,  36  Ala.  514;  Stubba 
V.  Houston,  33  Ala.  555;  Leic^s  v.  Mason, 
109  Mass.  169. 

And  a  transfer  of  property  by  a  tes- 
tator, for  the  purpose  of  better  enabling 
him  to  contest  a  previous  contract,  is 
admissible  upon  the  question  of  his 
testamentary  capacity.  Stubbs  v.  Hous- 
ton. 33  Ala.  555. 

^*Brashears  V.  Orme,  93  Md.  442,  4'> 
Atl.  620. 

^Watson  V.  Anderson,  11  Ala.  43; 
Conely  v.  McDonald,  40  Mich.  150: 
Bitner  v.  Bitner,  65  Pa.  347;  Fairchild 
V.  Bascomb,  35  Vt.  398. 

The  question  whether  there  was  ap- 
parent change  in  a  man's  intelligence  or 
luiderstanding,  or  want  of  coherency  in 
his  remarks,  is  not  a  matter  of  opinion, 
but  one  of  fact,  as  to  which  any  witness 
who  had  opportunity  to  observe  him 
may  testify.  Barker  v.  Comins,  110 
Mass.   477. 

But  the  fact  that  a  testator  did  not 
keep  his  buildings  in  as  good  repair  in 
the  latter  part  of  his  life  as  previously 
is  not  admissible  for  the  purpose  of 
showing  testamentary  incapacity.  Ham,il- 
ton  V.  Hamilton,  10  R.  I.  538. 

^"Haines  v.  Hayden,  95  Mich  332,  35 
Am.  St.  Rep.  566.  54  N.  W.  911;  Titus 
V.  Gafic,  70  Vt.  14,  39  Atl.  246. 

And  evidence  of  illtreatment  of  a 
testatrix  by  her  husband,  and  of  his 
conduct,  reputation,  and  character  with 
reference  to  other  women,  so  far  as  they 
were  known  to  her,  are  admissible  in 
evidence  in  a  will  contest  in  which  it 
was  alleged  that  she  was  possessed  of 
the  insane  delusion  that  he  held  im- 
proper relations  with  other  women. 
Foster  V.  Dickerson,  04  Vt.  233,  24  Atl. 
253. 


i  326] 


EVIDENCE. 


375 


couduct,  tending  to  show  that  he  was  sane  within  the  same  period.®^ 
Preparations  made  by  a  party  committing  a  murder,  and  subsequent 
conversation  indicating  that  he  understood  what  he  was  doing,  may 
be  considered  on  the  question  of  his  sanity  as  well  as  on  that  of  pre- 
meditation.^^ And  conduct  or  conversation  showing  subsequent 
knowledge  of  the  contents  of  an  instrument  is  admissible  to  show 
sanity  when  it  Avas  made.^^ 

327.  Surrounding  circumstances.—  A  very  broad  inquiry  is  permit- 
ted, on  the  question  of  sanity  or  insanity,  into  the  whole  chain  of  sur- 
rounding circumstances  attending  the  act  in  question,  it  being  deemed 
to  embrace  all  the  important  preliminaries.^"  And  anything  which 
tends  to  show  the  person's  mental  condition  and  the  annoyances  to 
which  he  was  subject,  and  his  susceptibility  to  the  influence  of  those 
around  him,  is  admissible  in  evidence.^^     In  determining  whether  the 


And  where  evidence  of  strangeness  of 
conduct  toward  a  particular  person  lias 
been  introduced  by  a. contestant  in  a  will 
contest  to  support  an  allegation  of  par- 
tial insanity,  the  propounder  may  show 
similar  conduct  toward  other  persons. 
Wood  V.  Sawyer,  61  N.  C.  (Phill.  L.) 
251. 

But  the  habit  of  preserving  worthless 
papers  does  not  indicate  insanity,  where 
the  person  preserving  them  believed  they 
might  be  valuable  to  him.  Hawley  v. 
Griffin  (Iowa)   ^  N.  W.  905. 

^'United  States  v.  Holmes,  1  Cliff,  98, 
Fed.  Cas.  No.  15,382;  United  States  v. 
Gvileau,  1  Mackey,  498,  47  Am.  Rep. 
247;  Hall  v.  State,  31  Tex.  Crim.  Rep. 
565,  21  S.  W.  368;  People  v.  Miles,  143 
N.  Y.  383,  38  N.  E.  456.  And  see  Com. 
V.  Brayman,  136  Mass.  438;  Porter  v. 
State,  i35  Ala.  51,  33  So.  694;  Beauhien 
v.  Cicotte,  12  Mich.  459;  State  v.  Pea- 
cock, 50  N.  J.  L.  34,  11  Atl.  270. 

Evidence  that  a  widow,  upon  the  death 
of  her  husband,  took  into  her  house  to 
live  with  her  a  man  who  had  abandoned 
his  own  family,  and  of  their  living  to- 
gether for  several  years  as  husband  and 
wife,  is  admissible  on  an  application  for 
the  appointment  of  a  conservator  for 
her,  upon  the  ground  that,  by  reason  of 
her  debauched  habits,  she  had  become  in- 
capable of  taking  care  of  herself  and 
managing  her  property.  Wickioire's  Ap- 
peal, 30  Conn.  86. 

'^Cole's  Trial,  7  Abb.  Pr.  N.  S.  321. 

And  evidence  of  improper  conduct  be- 
tween a  father  and  daughter  is  relevant 
and  material  in  a  prosecution  against  a 
father    for   murder,    where   the   defense 


claimed  that  he  became  insane  from  fear 
that  the  person  he  killed  entertained  im- 
proper relations  toward  the  daughter. 
People  V.  Lane,  101  Cal.  513,  36  Pac.  16. 

^'Sargent  v.  Burton,  74  Vt.  24,  52  Atl. 
72. 

^"Beauhien  v.  Cicotte,  12  Mich.  459: 
Toiin  V.  Jenkins,  29  Ark.  151 ;  Bouqhton 
V.  Knight,  L.  R.  3  Prob.  &  Div.  64,  42 
L.  J.  Prob.  N.  S.  41,  28  L.  T.  N.  S.  562. 
And  see  Grant  v.  Thompson,  4  Conn. 
203,  10  Am.  Dec.  119;  Henry  v.  Fine,  23 
Ark.  417;  Davis  v.  Rogers,  1  Houst. 
(Del.)  44;  Vance  v.  Upson,  66  Tex.  476, 
1  S.  W.  179;  McGinnis  v.  Kempsey,  27 
Mich.  303;  Re  Merriman,  108  Mich.  454, 
66  N.  W.  372;  Manatt  v.  Scott,  106 
Iowa,  203,  68  Am.  St.  Rep.  293,  76  N. 
W.  717;  Hepler  v.  Hosack,  197  Pa.  631, 
47  Atl.  847. 

"Reynolds,  v.  Adams,  90  111.  134,  32 
Am.  Rep.  15.  And  see  Greenley  v.  State, 
60  Ind.  141 ;  Stevens  v.  Leonard,  154 
Ind.  67,  77  Am.  St.  Rep.  446,  56  N.  E. 
27;  AUott  V.  Com.  107  Ky.  624,  55  S. 
W.  196;  McCarty  v.  Com.  24  Ky.  L. 
Rep.   1427,  71   S.   W.  656. 

The  fact  that  a  father,  immediately 
before  killing  a  person,  received  the  in- 
formation that  such  person  had  seduced 
his  daughter,  whether  the  information  i3 
true  or  not,  is  competent  evidence  in  a 
prosecution  for  the  homicide,  to  be  con- 
sidered with  other  evidence  as  bearing 
upon  his  plea  of  insanity.  Ragland  v. 
State,  125  Ala.  12,  27  So.  983. 

But  where  it  is  claimed  that  the  ac- 
cused committed  a  murder  Avhile  insane, 
and  that  the  insanity  was  caused  by  the 
discovery  of  improper  relations  between 


376 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  321 


act  is  one  of  real  or  pretended  insanity,  the  opportunity  of  the  person 
to  learn  the  symptoms  of  insanity  may  be  shown.^^  But  circum- 
stances tending  to  show  a  state  of  frenzy  can  only  be  admitted  when 
so  near  the  time  in  question  that  there  would  not  have  been  opportu- 
nity for  the  passion  to  subside.^^  In  contract  matters,  the  circum- 
stance of  inadequacy  of  consideration  may  be  considered,^^  though  it 
must  have  been  so  great  as  to  be  inconsistent  with  good  faith  upon  the 
part  of  the  other  party.^^  And  the  pecuniary  condition,  means,  and 
ability  of  a  testator  and  his  beneficiaries,  and  the  contestants  of  the 
will,  may  be  considered  in  determining  whether  the  testator  appreci- 
ated his  relations  to  them.^^     But  the  fact  that  a  testator  had  derived 


the  person  killed  and  his  wife,  evidence 
that  a  few  months  previous  to  their  mar- 
TiagQ  he  had  sought  to  procure  improper 
relations  between  her  and  others,  for 
purposes  of  gain,  is  also  admissible. 
State  V.  Bryant,  93  Mo.  273,  6  S.  W.  102. 

And  where  it  appears  that  the  wife  of 
a  person  committing  a  homicide  had  con- 
fessed to  her  husband  that  she  had  been 
guilty  of  improper  conduct  with  the  per- 
son killed,  and  that  the  confession  was 
followed  by  great  anger  and  mental  de- 
pression on  his  part,  evidence  that  she 
had  been  seen  with  the  deceased  under 
suspicious  circumstances  is  not  admis- 
sible, since  it  was  her  statement  that  is 
claimed  to  have  deprived  him  of  reason, 
and  not  the  truth  thereof.  People  v. 
Hurt  ado,  03  Cal.  288. 

And  such  circumstances  are  merely  ad- 
missible for  the  purpose  of  showing  the 
state  of  mind  of  the  accused,  and  should 
not  be  permitted  to  influence  the  verdict 
or  sentence.  McCarty  v.  Com.  24  Ky.  L. 
Rep.   1427,  71   S.  W.  G56. 

^-People  V.  Lake,  2  Park.  Crim.  Rep. 
215. 

'^Sanchez  v.  People,  22  N.  Y.  147.  And 
eee  Baityyer  v.  State.  35  Ind.  80. 

^Henry  v.  Fme,  23  Ark.  417. 

So,  evidence  that  a  maker  of  promis- 
sory notes  of  a  largo  amount,  made  as 
a  gift  to  a  public  enterprise,  was  a  man 
of  great  wealth,  is  admissible  on  the 
question  of  his  soundness  of  mind  and 
capacity  to  make  the  notes.  School  Dis- 
trict v.  Sheidley,  138  Mo.  672,  37  L.  R. 
A.  400,  60  Am.  St.  Rep.  576,  40  S.  W. 
656. 

'^Cavender  v.  Waddingham,  5  Mo. 
App.  487. 

And  evidence  in  an  action  upon  a  con- 
tract made  with  an  alleged  lunatic,  that 
when  he  signed  it  he  was  security  for 
the  other  party  in  a  large  amount,  and 


that  the  other  party  had  no  means  of 
credit,  is  inadmissible.  Noel  v.  Karper, 
53  Pa.  97. 

So,  a  suspicion  as  to  the  character  of 
a  conveyance  by  a  son  to  his  father,  that 
might  be  engendered  by  failure  to  pro- 
duce the  father  as  a  witness  in  defense 
of  the  conveyance,  cannot  be  used  as  evi- 
dence that  the  conveyance  was  fraudu- 
lent, where  the  father's  mind  was  so  im- 
paired that  no  reliance  could  be  placed 
upon  his  testimonv.  Woodhull  v.  Whit- 
tle, 63  Mich.  575,  30  N.  W.  368. 

^Sim  V.  Russell,  90  Iowa.  656,  57  N. 
W.  601 ;  Manatt  v.  Scott,  106  Iowa,  203, 
68  Am.  St.  Rep.  293,  76  N.  W.  717; 
Kenicorthy  v.  Williams,  5  Ind.  375; 
Stiihhs  V.  Houston,  33  Ala.  555;  Sutton 
V.  Sutton,  5  Harr.  (Del.)  459;  Svratt  v. 
Spratt,  76  Mich.  384,  43  N.  W.  627; 
Crocker  v.  Chase.  57  Vt.  413,  Fairchild 
V.  Bascomb,  35  Vt.  398. 

But  the  fact  that  the  executor  of  a 
will  was  the  father  of  the  legatee,  who 
was  a  stranger,  and  that  the  executor 
was  a  wealthy  man,  is  not  relevant  on 
the  issue  of  the  testator's  capacity. 
Murphree  v.  Senn,  107  Ala.  424,  18  So. 
204. 

And  the  amount  of  property  possessed 
by  a  woman  Avhen  slie  married  is  not  ad- 
missible in  evidence  in  a  proceeding  to 
contest  the  will  of  her  husband  upon  the 
ground  of  unsoundness  of  mind.  Willett 
v.  Porter,  42  Ind.  250. 

Nor  is  the  fact  that  a  person  who 
formerly  lived  with  the  testator  was 
poor,  and  therefore  a  more  natural  ob- 
ject of  his  bounty  than  the  legatee 
named,  admissible  to  show  testamentary 
incapacitv.  Re  Merriman,  108  Mich. 
454,  00  N.  W.  372. 

And  refusal  to  permit  the  contestant 
of  a  will  to  prove  what  certain  properly 
was  worth  is  not  reversible  error  in  a 


e  327]  EVIDENCE.  377 

a  large  property  from  inheritance,  and  died  poor,  is  not  admissible 
to  show  unsoundness  of  mind.^'^  And  the  rule  which  permits  evi- 
dence as  to  pecuniary  condition,  means,  and  ability  of  beneficiaries 
in  a  will  and  those  who  might  have  been  benefited,  with  a  view  to  de- 
termining whether  the  testator  appreciated  his  relations  to  them,  and 
exhibited  a  disposing  mind,  has  no  application  in  case  of  a  gift,  ac- 
companied by  delivery.^^ 

So,  circumstances  tending  to  show  the  exercise  of  sound  judgment 
on  the  part  of  the  testator  are  competent  for  the  purpose  of  establish- 
ing his  testamentary  capacity.^^  And  the  character  and  motives  of 
the  persons  surrounding  a  testator  may  be  shown. ^''^  Likewise,  evi- 
dence tending  to  show  the  want  of  any  real  or  apparent  cause  for  a 
belief  alleged  to  be  a  delusion  is  competent  and  material,^  as  is  also 
evidence  of  circumstances  tending  to  show  that  a  belief  alleged  to  be 
a  delusion  was  founded  on  fact.^  Evidence  of  the  good  character  of 
the  contestants  of  a  will,  however,  is  inadmissible  on  the  question  of 
the  testator's  capacity.^  Nor  is  the  sanity  of  a  testator  to  be  deter- 
mined by  his  religious  creed,  unless  it  is  so  absurd  as  to  afford  evi- 
dence of  unsoundness  of  mind,  though  it  may  be  shown  for  the  pur- 
pose of  showing  his  state  of  mind."* 

328.  Relationship  between  parties. —  The  relationship  and  feeling 
between  parties  concerned  in  the  commission  of  a  crime  is  proper  to 
be  considered  in  a  prosecution  therefor,  in  connection  with  their  men- 
will  contest,  where  it  was  claimed  and  mistress  may  be  shown.  Smith  v.  Hen- 
deniod  that  the  decedent  had  sold  it  line,  174  111.  184,  51  N.  E.  227. 
for  less  than  it  was  worth.  Kerr  v.  And  evidence  in  a  will  contest  that  a 
Lunsford,  31  VV.  Va.  680,  2  L.  R.  A.  668,  woman  whom  the  testator  claimed  to  be 
8   S.  E.  493.  his   daughter,    whom    he   took    into   his 

"Hall  V.  Hall,  17  Pick.  373.  household,  resembled  one  of  his  daugh- 

'■'^Crum  V.  Thornley,  47  111.  192.  ters,  and  was    in    fact    his  illegitimate 

^Brotinfield  v  Brownfield,  43  111.  147.  daughter,  is  admissible  on  the  question 
It  is  competent,  on  the  question  of  of  his  sanity.  Johnson  v.  Armstrong, 
testamentary  capacity,  to  show  that  a  97  Ala.  731,  12  So.  72. 
testator  who  had  been  confined  in  an  in-  ^Mnllins  v.  Gottrell,  41  Miss.  291; 
»  sane  asylum  was  sane,  but  remained  Mills's  Appeal,  44  Conn.  484.  And  see 
there  voluntarily.  Martin  v.  Johnston,  Burkhart  v.  Gladish,  123  Ind.  337,  24 
1  Fost.  &    F.  122.  N.  E.  118;  Florey  v.  Florey,  24  Ala.  241. 

But  evidence  that  other  persons,  while  And  evidence  that  statements  in  a  will 
inmates  of  an  insane  asylum,  had  given  that  the  testator  had  advanced  desig- 
intelligent  depositions  and  been  per-  nated  sums  of  money  to  persons  named 
mittcd  to  testify  in  court,  is  not  admis-  were  erroneous  is  competent  in  a  will 
sible  in  a  will  contest,  where  the  testa-  contest,  for  the  purpose  of  showing  the 
trix  was  confined  in  an  asylum  at  the  mental  condition  of  the  testator,  but  not 
time  of  making  the  will.  Foster  v.  to  contradict  the  will.  Lamh  v.  Lamb, 
Dickerson,  64  Vt.  233,  24  Atl.  253.  105  Ind.  456,  5  N.  E.  171. 

^'"Nnssear    v.  Arnold,  13    Serg.  &    R.        "Com.   ex    rel.  Haskell    v.   Haskell,  2 
323;  Frary  v.  Gusha,  59  Vt.  257,  9  Atl.    Brewst.   (Pa.)  491. 
5-49.  '  ^Ttidor  v.  Tudor,  17  B.  Mon.  383. 

That  the  beneficiary  was  the  testator's        *MuUins  v.  Gottrell,  41  Miss.  291. 


878 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


r§  32^ 


tal  condition  and  their  surrounding  circumstances.'  And  expressions 
of  hostile  feeling  by  the  person  killed  toward  the  accused  in  a  prose- 
cution for  homicide  are  admissible,  where  it  is  claimed  that  the  crime 
was  committed  under  an  insane  delusion  that  the  deceased  and  others 
were  engaged  in  a  conspiracy  against  him.®  So,  evidence  tending  to 
show  the  relationship  existing  between  a  testator  and  the  natural 
objects  of  his  bounty  is  admissible  on  an  issue  of  testamentary  inca- 
pacity or  undue  influence.^  And  evidence  of  hostility  and  aversion 
to  those  who  are  bound  to  the  testator  by  ties  of  kindred  is  admissible 
on  the  question  of  insanity,  not  alone  because  of  the  existence  of  the 
hostility,  but  because,  if  ^\^thout  cause,  it  would  tend  to  show  delu- 
sion.^ And  evidence  of  affectionate  relations  between  a  testator  and 
the  natural  objects  of  his  bounty  is  admissible  as  tending  to  show  that 
the  subsequent  exclusion  of  such  objects  was  the  result  of  mental  de- 


"■Crawford  v.  Hoeft,  58  Mich.  1,  23  N. 
W.  27,  24  N.  W.  645,  25  N.  W.  567,  20 
N.  W.  870;  Hoice  v.  Richards,  312  Iowa, 
220.  S3  N.  W.  90L  And  see  Cole's  Trial, 
7  Abb.  Pr.  N.  S.  321;  People  v.  Wood, 
120  N.  Y.  249,  27  N.  E.  362. 

But  evidence  in  a  prosecution  of  a 
person  accused  of  killing  his  wife  and 
her  paramour,  of  acts  of  infidelity  on 
her  part,  not  known  to  the  husband,  is 
inadmissible.  People  v.  Osmond,  138  N. 
Y.  80,  33  N.  E.  739. 

And  proof  of  statements  made  by  a 
person  accused  of  killing  his  wife,  to  the 
witnesses,  from  time  to  time  before  the 
homicide,  that  he  was  greatly  attached 
to  lier,  is  not  admissible  in  a  prosecution 
for  the  killing.  State  v.  Swift,  57  Conn. 
490.   18  Atl.  664. 

"Com.  V.  Wilson,  1  Gray,  339. 

But  the  fact  that  a  witness  bore  ill- 
will  toward  a  person  alleged  to  be  in- 
sane, at  a  time  when  he  testified  in  a 
proceeding  to  test  her  sanity,  is  not  com- 
petent evidence  in  an  action  by  the  wit- 
ness against  her  for  slander  in  charging 
him  with  perjury  committed  while  so 
testifying.    Butts  v.  Ihttts,  62  Ind.  214. 

'Staser  v.  Eorjan,  120  Ind.  207,  21  N. 
E.  911,  22  N.  E.  990;  Sutton  v.  Sutton, 
5  Harr.  (Del.)  459;  Carter  v.  Dixon,  09 
Ga.  82;  Dunham's  Appeal,  27  Conn.  192; 
Spratt  V.  Spratt,  70  Mich.  384,  43  N. 
W.  627;  Crocker  v.  Chase,  57  Vt.  413. 

Evidence  as  to  tlie  amount  and  quality 
of  labor  performed  for  a  testator  by  his 
children  is  admissible  in  a  will  contest, 
as  tending  to  throw  light  upon  his  men- 
tal condition,  though  it  would  not  be  so 
if  the  labor  was  performed  more  than 
twenty-five   years   before.      Burkhart  v. 


Gladish,  123  Ind.  337,  24  N.  E.  118. 
And  see  Maddox  v.  Maddox,  114  Mo.  35, 
35  Am.  St.  Rep.  734,  21  S.  W.  499; 
Canfield  v.  Fairbanks,  63  Barb.  402. 

And  intemperate  habits  of  relatives  of 
a  testatrix  may  be  proved  on  an  issue 
of  testamentary  incapacity  and  undue 
influence,  as  tending  to  show  her  feel- 
ings toward  them,  and  to  explain  why 
she  left  them  nominal  legacies.  Wliit- 
man  v.  Morey,  63  N.  H.  448,  2  Atl.  899; 
Fairchild  v.  Bascomh,  35  Vt.  398. 

And  a  witness  in  a  will  contest  in 
which  imbecility  is  alleged,  who  is  called 
on  to  impeach  the  will,  may  be  asked 
on  cross-examination,  whether  he  had 
ever  accepted  a  devise  under  it.  Irish 
V.  Smith,  8  Serg.  &  R.  573.  11  Am.  Dec. 
648. 

^Turner  v.  Rusk,  53  Md.  65 ;  Broicn  v. 
Ward,  53  Md.  376,  36  Am.  Rep.  422: 
Frary  v.  Gnsha,  59  Vt.  257,  9  Atl.  549 ; 
Vance  v.  Upson,  60  Tex.  470,  1  S.  W. 
179. 

So,  evidence  that  a  father  was  very 
mucli  cast  down,  and  thought  his  chil- 
dren were  not  using  him  right,  and  were 
wasting  his  property,  and  that  he 
wanted  somebody  to  take  care  of  it,  is 
admissible  in  a  lunacy  proceeding,  as 
tending  to  show  that  he  was  subject  to 
delusions.  Smith  v.  Hickenbottom,  57 
Iowa.  733.   11  N.  W.  064. 

But  evidence  that  a  witness  had  been 
forbidden,  bj'  the  contestant  of  a  will, 
to  go  to  see  the  testatrix,  is  not  admis- 
sible in  a  proceeding  to  contest  the  will 
as  tending  to  show  testamentary  inca- 
pacitv,  or  undue  influence.  Eckert  v. 
Floiory,  43  Pa.  46. 


«  328] 


EVIDENCE. 


379 


cay  y*  and  so  is  evidence  that  a  testator  had  received  the  larger  portion 
of  his  father's  estate,  where  it  appears  that  he  intended  to  return  part 
of  it  by  his  will.^°  Evidence  that  a  testator's  widow,  in  his  lifetime, 
and  after  the  Avill  was  made,  had  filed  a  petition  for  divorce,  however, 
which  was  pending  at  his  death^  is  inadmissible.^^  And  evidence  as 
to  improper  conduct  upon  the  part  of  a  testator,  or  that  one  of  the 
devisees  had  attempted  to  cast  shame  and  disgrace  upon  his  memory, 
18  also  irrelevant. •'^  And  that  an  alleged  lunatic  was  controlled  by 
another,  is  not  admissible  in  a  lunacy  proceeding, ^^  though  it  may  be 
shown  that  a  party  was  treated  as  a  lunatic  or  otherwise  by  his 
friends.-^* 

329.  Physical  and  mental  condition. —  Independently  of  any  ques- 
tion of  sanity  or  insanity,  the  defendant  in  a  criminal  action  has  the 
right  to  have  his  general  physical,  as  well  as  his  mental,  condition  at 
the  time  of  the  commission  of  the  act,  explained  to  the  jury.^^  And 
the  character  and  quality  of  his  mind,  as  to  whether  it  was  weak  or 
strong,  is  a  material  fact  where  the  defense  is  insanity. ^"^     Every- 


'Bost  V.  Bost,  87  N.  C.  477. 

And  evidence  of  the  general  good  char- 
acter and  conduct  of  the  wife  of  a  tes- 
tator's son  is  admissible  on  the  question 
of  imbecility  and  fraud  in  a  will  con- 
test, where  the  testator  had  disinherited 
his  son  on  account  of  her  supposed  ex- 
travagance. DietricJc  v.  Dietrick,  5  Serg. 
&  R.  207. 

That  the  reputation  of  the  wife  of  a 
testator,  whom  he  had  recently  married, 
was  not  good,  however,  is  inadmissible 
in  a  proceeding  to  contest  his  will. 
Thomas  v.  Stump,  62  Mo.  275. 

^°McMechen  v.  McMechen,  17  W.  Va. 
f)83,  41  Am.  Rep.  682. 

But  evidence  that  a  testator  sold  lum- 
ber as  agent  of  his  son-in-law,  and  the 
purchaser  became  embarrassed,  and  the 
son-in-law  suffered  a  loss  greater  in 
amount  than  any  advancements  he  had 
received  from  his  father-in-law,  is  not 
admissible  upon  the  theory  that  the  ad- 
vancements were  made  for  the  purpose 
of  offsetting  the  loss,  and  that  conse- 
quently there  was  no  reason  for  giving 
his  wife  a  smaller  share  than  the  other 
heirs.    Stokes  v.  SMppen,  13  Bush,  180. 

"Willett  V.  Porter,  42  Ind.  250. 

^'Carpenter  v.  Calvert,  83  111.  62. 

"J?e  Carmichael,  36  Ala.  514. 

And  a  petitioner  in  an  inquisition  may 
be  asked  if  he  had  not  offered  to  drop 
the  matteV  if  paid  a  certain  sum.  Re 
Mason,  60  Ilun,  46.  14  N.  Y.  Supp.  434. 

^*Williams     v.     Sapieha      (Tex.     Civ. 


App.)  62  S.  W.  72;  State  v.  Wright,  112 
Iowa,  436,  84  N.  W.  541. 

But  statements  by  a  witness  that  a 
Avife  treated  her  husband  as  a  parent 
would  treat  a  child  are  inadmissible  to 
prove  the  insanity  of  the  husband,  being 
a  mere  expression  of  opinion.  Waters 
V.  Waters,   35  Md.  531. 

^''Sage  v.  State,  91  Ind.  141;  Eempton 
V.  State,  111  Wis.  127,  86  N.  W.  596; 
Atty.  Gen.  v.  Farnther,  3  Bro.  Ch.  441. 
And  see  Miller  v.  State  (Tex.  Crim. 
App.)   71  S.  W.  20. 

And  evidence  in  a  criminal  prosecution 
in  which  it  appeared  that  the  accused 
was  addicted  to  the  habitual  and  exces- 
sive use  of  opium,  and  that,  at  the  time 
of  the  alleged  commission  of  the  offense, 
he  had  been  deprived  of  his  customary 
supply,  and  as  to  the  effect  such  depri- 
vation would  have  upon  his  mental  con- 
dition, is  admissible  as  tending  to  show 
whether  he  was  in  such  a  mental  condi- 
tion as  to  be  competent  to  commit  the 
crime.     Rogers  v.  State,  33  Ind.  543. 

^'•People  V.  Worthington,  105  Cal.  166, 
38  Pac.  689;  Fain  v.  Com.  78  Ky.  183, 
3-9  Am.  Rep.  213.      ^ 

And  the  competency  of  evidence  in  a 
prosecution  for  homicide,  that  a  com- 
munication was  made  to  the  accused 
'.vliich  caused  him  to  become  insane, 
where  there  was  also  evidence  tending  to 
show  head  injury  and  a  diseased  condi- 
tion of  the  brain,  is  not  affected  by  the 
fact  that  the  homicide  was  committed  dc- 


380 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  329 


thing  relating  to  the  physical  and  mental  history  of  the  accused  is  rel- 
evant on  that  question.-'^  But  evidence  as  to  the  temperament  and 
disposition  of  the  accused  is  not  admissible,  where  it  is  intended,  not 
to  shoM^  insanity  or  an  insane  impulse,  but  only  to  show  an  excitable 
temperament  and  momentary  loss  of  self-government.^^  And  evi- 
dence of  peculiarity,  eccentricity,  nervousness,  excitability,  or  inordi- 
nate passion,  is  not  admissible  to  show  insanity,  or  anything  from 
which  insanity  could  be  inferred.  ^^  So,  the  age,  health,  mode  of 
life,  manners,  conversation,  and  conduct  of  a  party  to  a  contract  or 
deed,  and  the  character  and  progress  of  decay  of  his  mental  faculties,, 
may  be  shown  in  an  action  to  set  it  aside  on  the  ground  of  imbecility 
or  sinister  inlluences.^^  And  the  age  and  physical  and  mental  condi- 
tion of  a  testator  are  admissible  for  consideration  in  determining  his 
testamentary  capacity  f^  though  these  cannot  be  showm  from  the  looks 


liberately.  People  v.  Wood.  126  N.  Y. 
249,  27  N.  E.  362. 

But  the  mother  of  a  person  on  trial 
for  homicide  who  sets  up  insanity  as  a 
defense  cannot  be  permitted  to  tell  what 
efl'ect  fits,  which  she  testified  he  had 
when  two  years  old,  had  on  him,  or 
whether  they  rendered  him  unconscious 
or  not.  State  v.  Hockett,  70  Iowa,  442, 
30  N.  W.  742. 

"Guiteau's  Ca^e,  10  Fed.  161.  And 
see  Martin  v.  Balcer,  135  Mo.  49.5,  30  S. 
W.  369;  State  v.  Wright,  112  Iowa,  430, 
84  N.  W.  541;  Miller  v.  State  (Tex. 
Crim.  App.)  71  S.  W.  20;  Spear  v. 
Sweenetj,  88  Wis.  545,  60  N.  W.  1060. 

Where  a  person  on  trial  for  homicide 
wlio  interposes  epileptic  insanity  as  a 
defense  testifies  in  his  own  behalf,  to  his 
own  insanity,  the  court  may  direct  the 
attention  of  the  jury,  without  comment, 
to  his  appearance  and  conduct  as  facts 
for  their  consideration  with  the  other 
testimonJ^  And  evidence  of  neighbors 
that  they  had  never  seen  him  liave  an 
epileptic  fit,  but  had  seen  him  drunk,  is 
admissible  as  tending,'  to  show  that  the 
stupor  which  he  attributed  to  epilepsy 
was  really  due  to  drink.  Com.  v.  Buc- 
cieri,  153  Pa.  535,  26  Atl.  228. 

But  where  positive  evidence  of  a 
testatri.x's  incapacity  has  been  triven, 
and  it  is  shown  that  she  had  an  epileptic 
attack  shortly  after  the  execution  of  her 
will,  evidence  that  in  nine  cases  out  of 
ten  paralysis  does  not  produce  anj'  effect 
on  the  mind  is  incompetent.  Landis  v. 
Layuiis,  1  Grant's  Cas.  248. 

"Jacobs  V.  Com.   121   Pa.  586^  6  Am. 


St.  Rep.  802,  15  Atl.  465;  State  v.  Flow- 
ers, 58  Kan.  702,  50  Pac.  938. 

And  evidence  in  a  prosecution  for 
larceny,  that  about  three  jears  prior  to 
the  alleged  offense,  and  also  since  the  ac- 
cused had  been  in  jail,  he  had  been  sub- 
ject to  epileptic  fits  which  had  weakened 
his  mind,  and  would  tend  to  account  for 
contradictory  statements  made  by  him 
about  the  possession  of  the  stolen  monej', 
is  not  admissible  unless  followed  by 
proof  that  such  fits  rendered  him  irre-  ■ 
sponsible  for  his  acts.  Gross  v.  State,. 
62  Md.  179. 

^%'om.  V.  Cleary,  148  Pa.  26,  23  AtL 
1110;  Sindram  v.  People,  1  N.  Y.  Crim. 
Rep.  448,  Affirmed  in  88  N.  Y.  196.  And 
see  Hawley  v.  Grijjin  (Iowa)  82  N.  W. 
905. 

In  Porter  v.  State,  135  Ala.  51,  33  So. 
694,  however,  it  was  held  that  nervous- 
ness, sleeplessness,  restlessness,  and  ex- 
travagant acts  on  the  part  of  the  ac- 
cused, are  proper  to  be  proved  in  a  prose- 
cution for  homicide,  but  whether  they 
amount  to  symptoms  of  insanity  is  a 
question  of  fact  for  the  jury. 

■'^Doe  ex  dem.  Guest  v.  Beeson,  fi 
Houst.  (Del.)  246;  Hendrix  v.  Money,  1 
Bush,  306. 

-'Sutton  V.  Sutton,  5  Harr.  (Del.)  459; 
Davis  V.  lior/ers,  1  Houst.  (Del.)  44; 
Whitman  v.  J/orci/.  63  N.  H.  448,  2  Atl. 
890;  Egbert  v.  Egbert,  78  Pa.  326;  Hal- 
ley  V.  Webster,  21  Me.  461;  Daly  v. 
Daly,  183  111.  209,  55  N.  E.  671;  Linght 
V.  Linr/le  (Iowa)  90  N.  W.  708;  Sitn  v. 
Rasseil,  VO  Iowa,  650.  57  N.  W.  601. 

And  a  witness  in  a  will  contest,  called 


§  329]  EVIDENCE.  '  381 

of  the  testator,  as  portrayed  by  his  photograph.^^  And  evidence  tend- 
ing to  show  failure  of  memory  is  admissible;"^  and  the  question 
whether  the  eyesight  of  a  testator  was  good  enough  to  enable  him  to 
recognize  the  witnesses  when  near  to  him,  if  in  his  right  mind,  may 
be  asked,-^  So,  evidence  showing  a  knowledge  on  the  part  of  a  per- 
son deriving  a  benefit  under  a  will,  of  the  weak  state  of  the  testator's 
mind,  is  admissible  as  evidence  in  chief,  where  it  is  sought  to  be 
shown  that  he  exercised  an  influence  to  have  the  will  made.^'^ 

330.  Hereditary  insanity. —  Inquiry  into  the  mental  condition  of 
the  immediate  family  and  relatives  of  a  person  whose  sanity  is  in 
question  is  permissible,-''  it  having  been  established  that  the  insanity 
in  question  was  of  an  hereditary  form.^^  This  rule  is  applied  to  the 
insanity  of  a  fatlier,  mother,  brothers,  sisters,  uncles,  nieces,  and 
grandparents.^^     But  this  cannot  be  proved  by  reputation,  tradition, 

to  prove  the  insanity  of  the  testatrix,  W.  973;  State  v.  Windsor,  5  Harr. 
may  be  asked  on  cross-examination  (Del.)  512;  Bradley  v.  State,  31  Ind, 
whether  the  testatrix  did  not  attend  a  492;  State  v.  Felter,  25  Iowa,  07;  State 
certain  banquet,  since  it  might  be  an  im-  v.  Wright,  112  Iowa,  430,  84  N.  W.  541; 
portant  fact,  if  true,  that  she  was  able  Ba-xter  v.  Abbott,  7  Gray,  71;  People  v. 
to  attend.  Prentis  v.  Bales,  93  Mich.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  102; 
234,  17  L.  R.  A.  494,  53  N.  W.  153.  Prentis  v.  Bates,  93  Mich.  234,  17  L.  R. 

But  the  exclusion  of  evidence  of  the  A.  494,  53  N.  W.  153;  Walsh  v.  People, 
mental  and  moral  condition  of  a  testa-  88  N.  Y.  458 ;  Coughlin  v.  Paulson,  2 
trix  seventy-eight  years  old  when  her  MacArth.  308;  Com.  ex  rel.  Haskell  v. 
will  was  e.xecuted,  fifteen  months  after-  Haskell,  2  Brewst,  (Pa.)  491;  Com.  v.; 
wards,  when  she  was  affected  with  Winnemore,  1  Brewst.  (Pa.)  350; 
paralysis,  and  of  evidence  of  her  bodily  Hagan  v.  State,  5  Baxt.  015;  Queen  v. 
and  mental  condition  at  subsequent  pe-  Tucket,  1  Cox  C.  C.  103,  4  L.  T.  50.  But 
riods  until  her  death  at  the  age  of  ninety-  see  M'Adam  v.  Walker,  1  Dow  P.  C.  148. 
one,  offered  to  show  that  she  was  weak  ^^Queen  v.  Tucket,  1  Cox  C.  C.  103,  4 
in  body  and  mind  when  she  executed  it,  L.  T.  50.  And  see  State  v.  Simms,  08 
is  not  sufficient  ground  for  exception.  Mo.  305. 
Shailer  v.  Bumstead,  99  Mass.  112.  The  insane  relatives  must  have  been 

And  such  evidence  as  to  physical  con-  lineal,  not  collateral;  they  must  have 
dition  has  been  held  inadmissible.  The  been  in  the  direct  line  of  ascent  or  de- 
Berry  Will  Case,  93  Md.  500,  49  Atl.  scent.  State  v.  Soper,  148  Mo.  217, 
401.  49  S.  W.  1007. 

^-Varner  v.  Varner,  16  Ohio  C.  C.  386.        Where  a  defendant  in  a  prosecution 

^Fountain  v.  Brown,  38  Ala.  72 ;  Au-  for  murder  in  which  insanity  is  alleged 
hert  V.  Aubert,  6  La.  Ann.  104.  introduced  evidence  that  his  sister  had 

-*Irish  v.  Smith,  8  Serg.  &  R.  573,  11  been  insane,  the  prosecution  may  in- 
Am.  Dec.  648.  quire  as  to  what  caused  the  insanity,  in 

^Dennis  v.  Weekes,  46  Ga.  514.  order  to  show  that  it  was  not  hereditary. 

But  the  fact  that  the  ordinary  effect  State  v.  Hoyt,  47  Conn.  518,  36  Am.  Rep. 
of  morphine  is  to  weaken  the  power  of   89. 

the  will  is  immaterial  in  an  action  to  ^State  v.  Felter,  25  Iowa,  67;  Baxter 
set  aside  a  will  on  the  ground  of  undue  v.  Abbott,  7  Gray,  71;  People  v.  Gar- 
influence,  where  the  evidence  shows  that  butt,  17  Mich.  9,  97  Am.  Dec.  162; 
there  was  in  fact  no  weakening,  and  no  Fraser  v.  Jennison,  42  Mich.  206,  3  N. 
effort  to  control  the  testator.  Bush  v.  W.  882;  Prentis  v.  Bates,  93  ]\Iich.  234, 
IasI"   89  Ky.  393,  12  S.  W.  702.  17  L.  R.  A.  494,  53  N.  W.  153;   Queen 

"areen  v.  State,  64  Ark.  523,  43  S.   v.  Tucket,  I  Cox  C.  C.  103,  4  L.  T.  50. 


382 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  330 


or  hearsay.^''^  And  such  evidence  is  not  relevant  or  admissible  to 
show  insanity,  in  tlie  absence  of  proof  or  an  offer  to  show  that  it  was 
hereditary,^'^  or  that  the  disease  Avas  one  which  affects  the  mind.^^ 
And  it  mnst  appear  that  the  alleged  insanity  w^as  not  a  temporary 
malady,  but  that  it  was  of  the  same  species  as  tliat  AAath  which  other 
members  of  the  family  had  been  affiicted.^^  And  in  order  to  render 
hereditary  insanity  admissible,  there  must  also  be  evidence  tending  to 
prove  that  the  person  whose  act  was  questioned  was  himself  insane  f^ 
or  that  the  act  was  without  apparent  motive  ;^'*  though  it  need 
not  be  such  as  to  raise  a  reasonable  doubt  of  sanity.^^ 

331.  Reputation  and  hearsay. —  Family  tradition  is  not  available 
to  prove  a  predisposition  to  insanity.^^  And  insanity  cannot  be 
proved  by  reputation  or  public  opinion  ;^''^  nor  can  it  be  proved  by 


^Snell  V.  United  States,  16  App.  D. 
C.  501 ;  Couffhlin  v.  Paulson,  2  Mac- 
Arth.  308. 

But  reputation  in  the  family  or  fam- 
ily tradition  as  to  previous  eases  of  in- 
sanity mav  be  proved  in  such  case. 
State  V.  Windsor,  5  Harr.   (Del.)  512. 

^"Reichenhach  v.  Riiddach,  127  Pa. 
564,  IS  Atl.  432;  State  v.  Van  Tassel, 
103  low^,  6,  72  N.  W.  497. 

In  Kentucky  the  action  of  the  court 
below  in  admitting  or  rejecting  evidence 
of  hereditary  taint  will  not  be  revised  on 
appeal.  Wright  v.  Com.  24  Ky.  L.  Rep. 
1838,  72  S.  W.  340. 

That  the  father  of  a  testatrix  was  of 
intemperate  habits  in  early  life,  stand- 
ing alone,  is  not  admissible  in  evidence 
as  tending  to  prove  insanity  of  testa- 
trix. Titus  V.  Gcge,  70  Vt.  14,  39  Atl. 
246. 

And  the  insanity  of  a  grandchild,  not 
of  an  hereditary  character,  and  the  im- 
becility of  another  grandchild,  caused  by 
disease  with  which  the  grandparent  was 
not  afflicted,  is  not  proof  of  the  grand- 
parent's insanity.  Hawley  v.  Griffin 
(Iowa)   82  N.  W.  905. 

''Walsh  v.  People,  88  N.  Y.  458. 

And  where  a  testator  is  shown  to  have 
had  three  strokes  of  paralysis,  one  be- 
fore his  will  and  the  second  a  short  time 
afterwards,  and  the  third  resulting  in 
his  death,  evidence  that  the  same  dis- 
ease had  afTeeted  his  ancestors  and  blood 
relatives  is  properly  excluded,  since  it 
does  not  show  tlie  effect  of  the  malady 
upon  him.  Meeker  v.  Meeker,  75  111. 
2(i0. 

'"State  V.  Christmas,  51  N.  C.  (G 
Jones  L.)  471.  And  see  ;Si<a^e  v.  Ilay- 
uard,  02  Minn.  474.  G5  N.  W.  63, 


And  evidence  that  a  person  on  trial  for 
homicide  had  one  child  who  was  subject 
to  epileptic  fits  of  the  same  character 
as  those  with  which  he  claims  to  be  af- 
flicted is  inadmissible  as  tending  to  show 
hereditary  insanity.  Hall  v.  Com.  22  W. 
N.  C.  25. 

^'Green  v.  State,  64  Ark.  523,  43  S.  W. 
973;  People  v.  Smith,  31  Cal.  460;  Mvr- 
phy  v.  Com.  92  Ky.  485,  18  S.  W.  103; 
Bernj  v.  Safe  Deposit  d  T.  Co.  96  Md. 
45,  53  Atl.  720;  State  v.  Eayicard,  62 
Minn.  474,  65  N.  W.  63 ;  Laros  v.  Com. 
84  Pa.  200 ;  Doe  ex  dem.  Mather  v.  White- 
foot,  8  Car.  &  P.  270.  And  see  State  v. 
Cunningham,  72  N.  C.  469;  Snow  v. 
Benton,  28  111.  306. 

Evidence  that  several  of  the  family  of 
a  testatrix  had  been  afflicted  with 
paralysis  in  advanced  age,  accompanied 
by  enfeeblemeiit  of  the  mental  and  moral 
powers,  and  that  it  was  a  family  tend- 
ency, is  not  admissible  in  a  will  contest 
as  bearing  upon  the  question  of  her  men- 
tal condition,  Avhere  the  onJy  foundation 
laid  therefor  consisted  of  evidence  that 
two  years  before  she  had  com})lained  of 
feeling  numb,  and  at  that  time  and 
afterwards  she  was  physically  weak  and 
somnambulent  and  mentaDy  inactive, 
and.  that  she  had  paralysis  ^fteen  yearg 
after  the  execution  of  the  vi.ll.  Shailer 
v.  Bumstead,  99  ]\Iass.  IIU- 

"People  V.  Smith,  31  Oa.i.  466. 

■".Jones  V.  People,  23  Co-lo.  276,  47  Pac. 
275. 

'"Com.  V.  Moss,  6  Kulp,  3  <  ;  Coughlin 
V.  Poulson,  2  MacArth.  30?,  People  v. 
.Montgomery,  13  Abb.  Pr.  N.  S.  207; 
People  v.  Koerner,  154  N.  Y.  35.),  48  N. 
E.  730. 

"People  V.  Pico,  62  Cal.  ^>0;  State  v. 


I  331] 


EVIDENCE. 


383 


hearsay,  or  by  what  somebody  else  said.^^  Questions  put  to  the  wit- 
nesses in  a  will  contest  in  which  insanity  is  alleged,  respecting  family 
history,  however,  are  not  objectionable  on  the  ground  of  being  hear- 
say.^'**  And  conversations  of  a  testator  are  admissible  upon  tlie  ques- 
tion of  insanity,  to  show  the  state  of  his  mind,^*^  But  an  inference  of 
testamentary  incapacity  cannot  be  drawn  from  conversations  between 
the  testator  and  anotlier,  which  are  not  disclosed  to  the  jury,^^  though 
evidence  of  the  universally  good  character,  as  a  man  and  citizen, 
of  a  person  accused  of  homicide,  who  pleads  insanity,  is  competent 
as  tending  to  show  that  he  could  not  have  been  sane  at  the  time  the 
deed  was  done.*^ 

332.  Adjudications  and   certificates  of    lunacy. — Inquisitions  of  lu- 


Eoyt,  47  Conn.  518,  36  Am.  Rep.  89; 
Snell  V.  United  States,  16  App.  D.  C. 
501;  Brinlleij  v.  State,  58  Ga.  290; 
Stcvart  V.  State,  58  Ga.  577 ;  Choice  v. 
State,  31  GiiA24:;  Foster  v.  Brooks,  6  Ga. 
291;  Gruhi  v.  State,  117  Ind.  277,  20  N. 
E.  257,  725;  Walker  v.  State,  102  Ind. 
502,  1  N.  E.  856;  Yeates  v.  Reed,  4 
Blackf.  463,  32  Am.  Dec.  43;  Ashcraft 
V.  De  Armond,  44  Iowa,  229;  Townsend 
V.  Pepperell,  99  Mass.  40 ;  Thompson  v. 
Ish,  99  Mo.  IGO,  17  Am.  St.  Rep.  552,  12 
S.  W.  510;  Brinkman  v.  Riieggesick.  71 
Mo.  553 ;  Biddle  v.  Jenkins,  61  Neb.  400, 
88  N.  W.  392;  Lancaster  County  Nat. 
Bank  v.  Moore,  78  Pa.  407,  21  Am.  Rep. 
24;  Pidcock  v.  Potter,  68  Pa.  348,  8  Am. 
Rep.  181;  Ball  v.  Com.  22  W.  N.  C.  25; 
McLane  v.  Elder  (Tex.  Civ.  App.)  23 
S.  W.  758;  Cannon  v.  State,  41  Tex. 
Crim.  Rep.  467,  56  S.  W.  351;  Ellis  v. 
State.  33  Tex.  Crim.  Rep.  86,  24  S.  W. 
894;  Wright  v.  Doe  ex  dem.  Tatham,  1 
Ad.  &  El.  3,  3  Nev.  &  M.  268,  3  L.  J. 
Exch.  N.  S.  366;  Greenslade  v.  Dare,  20 
Beav.  284,  24  L.  J.  Ch.  N.  S.  490,  1  Jur. 
N.  S.  294,  3  Week.  Rep.  220. 

And  evidence  of  a  proceeding  taken  in 
which  a  commission  declared  a  wife  in- 
sane is  inadmissible  in  a  prosecution 
against  her  husband  for  conspiracy  to 
confine  her  in  a  lunatic  asylum,  in  the 
absence  of  an  allegation  of  collusion  or 
fraud  between  the  husband  and  the  com- 
missioner. Com.  V.  Spink,  27  W.  N.  C. 
37. 

'"Myers  v.  Knabe,  51  Kan.  720,  33  Pac. 
602;  Kidder  v.  Stevens,  60  Cal.  414; 
Waters  v.  Waters,  35  Md.  531;  The 
Berry  Will  Case,  93  Md.  560,  49  Atl. 
401  ;  Barker  v.  Pope,  91  N.  C.  165;  Peo- 
ple V.  Burtado,  03  Cal.  288;  People  v. 
Schmitt.  100  Cal.  48.  39  Pac.  204:  Rush 
V.   Magee,  30  Ind.  69;   Staser  v.  Hogan, 


120  Ind.  227,  21  N.  E.  911,  22  N.  E. 
990;  State  v.  Gtit,  13  Minn.  343,  Gil. 
315;  Clarke  v.  Irwin,  63  Neb.  539.  88  N. 
W.  783;  People  v.  Montgomery,  13  Abb. 
Pr.  N.  S.  207;  Jones  v.  Galbraith  (Tenn. 
Ch.  App.)  59  S.  W.  350;  Hurst  v. 
State  (Tex.  Crim.  App.)  40  S.  W.  264; 
Carlisle  v.  State  (Tex.  Crim.  App.)  56 
S.  W.  365. 

And  a  question  asked  a  witness  as  to 
what  the  person  whose  sanity  is  ques- 
tioned had  said  became  of  a  certain  deed 
is  irrelevant  and  immaterial,  where  it 
does  not  appear  when  the  deed  was  made 
or  what  property  was  transferred  by  if. 
and  there  is  nothing  to  show  that  the 
deed  was  treated  otherwise  than  deeds 
usually  are.  Re  Wax,  106  Cal.  343,  39 
Pac.   624.. 

'■^"Eraser  v.  Jennison,  42  Mich.  206,  3 
N.  VV.  882;  State  v.  Windsor,  5  Harr. 
(Del.)  512;  Walker  v.  State,  102  Ind. 
502,  1  N.  E.  850. 

^'Mullins  V.  Cottrell,  41  Miss.  291; 
Staser  v.  Hogan,  120  Ind.  207,  21  N.  E. 
911,  22  N.  E.  990. 

"Irish  V.  Smith,  8  Serg.  &  R.  573,  11 
Am.  Dec.  648.  And  see  Lake  v.  Peonle,  1 
Park.  Crim.  Rep.  495,  Affirmed  in  12  N. 
Y.  358;  Vance  v.  Vance,  74  Ind.  370; 
Hughes  V.  Hughes,  31  Ala.  519;  Ware 
V.  Ware,  8  Me.  42;  Calvin  v.  Warford, 
20  Md.  357. 

But  conversations  between  plaintiff, 
in  an  .action  for  a  personal  injury,  and 
defendant's  agent,  at  the  time  of 
making  a  settlement  evidenced  by  a  re- 
lease, though  alleged  to  have  been  im- 
properly ODtained,  are  admissible  in  evi- 
dence on  the  question  of  mental  capac- 
ity. Missouri  P.  R.  Co.  v.  Brazzil,  72 
Tex.  233,  10  S.  W.  403. 

'-Hopps  V.  People,  31  111.  385,  83  Am. 
Dec.  231. 


384 


MENTAL  UNSOUJ^DNESS  IN  ITS  LEGAL  RELATIONS.         [§  332 


nacy  are  admissible  in  evidence,  as  a  general  rule,  to  establish  the 
insanity  of  the  party  against  whom  they  are  found,  in  all  classes  of 
actions,^^  even  as  against  strangers  to  the  proceedings,  who  had  no 
opportunity  to  cross-examine  witnesses.^^  And  so  are  the  records  of 
a  public  hospital.^^  And  the  record  of  the  appointment  of  a  conser- 
vator is  admissible  to  show  such  appointment.^"  So,  records  of  a 
probate  court,  showing  that  a  person  was  treated  by  it  as  the  lawful 
guardian  of  a  non  compos ^  will  be  nx^eived  as  prima  facie  evidence 
of  guardianship,  after  a  long  lapse  of  time,  in  the  absence  of  direct 
proof  of  a  probate  appointment.*^  And  orders  in  the  course  of  lu- 
nacy proceedings  are  admissible  as  evidence  that  proceedings  were 
had,  but   not  as   evidence   of  facts   therein   stated.*^     A   determina- 


*^Nichol  V.  Thomas,  53  Ind.  42; 
Ockendon  v.  Barnes,  43  Iowa,  615; 
State  V.  McMurry,  61  Kan.  87,  58  Pac. 
961 ;  Hawkins  v.  Grimes,  13  B.  Mon.  257  ; 
Gibson  v.  Soper,  6  Gray,  279,  66  Am. 
Dec.  414;  Y auger  v.  Skinner,  14  N.  J. 
Eq.  389;  Vi'hitenack  v.  Stryker,  2  N.  J. 
Eq.  8;  Rider  v.  Miller,  86  N.  Y.  507; 
Osterhout  v.  Shoemaker,  3  Hill,  513; 
Hart  V.  Deamer,  G  Wend.  497 ;  Hoyt  v. 
Adee,  3  Lans.  173;  Goodell  v.  Harring- 
ton, 3  Thomp.  &  C.  345;  Wheeler  v. 
State,  34  Ohio  St.  394,  32  Am.  Rep.  372; 
Siaujfer  v.  Young,  39  Pa.  455;  Cathcart 
V.  Sugenheimer,  18  S.  C.  123;  M'Creight 
V,  Aiken,  Rice  L.  56;  Kerr  v.  Lunsford, 
31  W.  Va.  680,  2  L.  R.  A.  668,  8  S.  E. 
493;  Burnham  v.  Mitchell,  34  Wis.  117; 
Hempton  v.  State,  111  Wis.  127.  86  N. 
W.  596;  Hume  v.  Burton,  1  Ridg^v.  P. 
C.  204;  Se'geson  v.  Seahj,  2  Atk.  412,  9 
Mod.  370;  Faulder  v.  Silk,  3  Campb. 
126;  Cooke  v.  Turner,  15  Sim.  611,  16  L. 
J.  Ch.  N.  S.  487,  11  Jur.  702.  But  see 
Re  Pinney,  27  Minn.  280,  6  N.  W.  791, 
7  N.  W.   144. 

This  is  so  thouf^h  the  decree  be  one 
of  a  court  of  another  state.  Herndon  v. 
Vick,^  18  Tex.  Civ.  App.  583,  45  S.  W. 
852;  Re  Pei-kins,  2  Johns.  Ch.  124;  Re 
Linton,  29  W.  N.  C.  550. 

Though  it  would  be  of  no  efl'ect  if 
rendered  in  the  absence  of  due  notic*>. 
Com.  ex  rel.  Stewart  v.  Kirkbridge,  2 
Brewst.  (Pa.)  419. 

A  record  of  proceedings  of  another 
court  in  lunacy,  which  had  been  quashed 
for  irregularity,  though  not  competent 
to  prove  the  person's  incapacity  to  con- 
tract, is  competent  when  the  proceed- 
ings were  carried  on  with  the  knowledge 
of  the  person  with  whom  he  contracted, 
to  ahow  knowledge  on   his   part   of  hi- 


state  of  mind.     Prather  v.  Naylor,  1  B 
Mon.  244. 

And  an  inquisition  finding  a  party  to 
have  been  a  lunatic  for  a  preceding 
period  is  not  rendered  incompetent  by  a 
statute  providing  that  the  inquiry  must 
be  confined  to  the  question  of  incom- 
petency at  the  time  it  was  made,  where 
it  was  submitted  to  the  jury  without  re- 
mark as  to  its  effect,  other  than  that  it 
was  not  conclusive.  Dominick  v.  Dom- 
inick,  20  Abb.  N.  C.  286. 

But  a  copy  of  the  records  of  a  pro- 
bate court  in  another  state,  stating  that 
the  father  of  an  insured  person  had  been 
found  to  be  insane,  is  not  admissible  in 
an  nction  upon  the  insurance  policy  in 
which  a  breach  of  warranty  that  none 
of  Llie  family  of  the  insured  had  been 
afflicted  with  insanity  was  claimed, 
where  no  proof  was  made  as  to  the  au- 
thority of  the  court  under  the  laws  of 
that  state.  'Newton  v.  Mutual  Ben.  L. 
Ins.  Co.  15  Hun,  597. 

^Osterhout  v.  Shoemaker,  3  Hill,  513; 
M'Creight  v.  Aiken,  Rice  L.  56;  Serge- 
son  V.  Sealy,  2  Atk.  412,  9  Mod.  370. 

*'Hempton  v.  State,  111  Wis.  127,  86 
N.  W.  596. 

*^State  V,  Hyde,  29  Conn.  564. 

But  the  record  of  proceedings  under 
the  Nebraska  statute,  in  which  a  person 
has  been  adjudged  insane  and  a  fit  sub- 
ject for  treatment  in  the  insane  hospital, 
is  not  admissible  in  an  action  to  avoid 
a  deed  on  the  ground  of  insanity. 
newey  v.  Allgire.  37  Neb.  6,  40  Am.  St. 
Rep.  468,  55 'N.  W.  276. 

*''Thomas  v.  Hatch,  3  Sumn.  170,  Fed. 
Cas.  No.  13.899.  And  see  Edson  v. 
MunscU,   10  Allen,  557. 

*Hh-cagh  v.  Blood,  2  Jones  &  L.  609, 
8  Jr.  Eq.  Rep.  434. 


§  332]  EVIDENCE.  385 

tion  or  order  in  a  proceeding  not  designed  to  fix  the  status  of  the 
party,  however,  is  not  admissible  upon  an  issue  as  to  the  sanity  of 
such  party."**^  And  records  of  a  public  hospital  for  the  insane,  to  be 
admissible,  must  be  kept  in  compliance  with  the  laws  of  the  institu- 
tion, and  such  laws  must  be  introduced  to  establish  tlie  fact^*^  And 
Superfluous  recitals  in  a  finding  or  decision  of  the  point  in  issue  are 
not  evidence.^^  !Nor  is  a  verdict  or  finding  pronouncing  a  person 
sane  admissible  to  establish  his  sanity.^^  And  an  inquisition  of 
lunacy  is  not  evidence  of  insanity  prior  to  the  date  on  which  it  was 
made.^^  unless  it  overreaches  and  embraces  the  time  of  the  act  in 
question.^"* 

**lSee  Gridley  v.  Borjcjs,  62  Cal.  100;  Pac.  945;  Marceau  v.  Travelers'  Ins.  Co. 

Leagate     v.     Clark,     ill     Mass.     308:  101  Cal.  338,  35  Pac.  856,  SO  Pac.  Slb^, 

Wheeler  v.   State,  34   Ohio  St.   394,   32  Naanes  v.  State,  143  Ind.  299,  42  N.  E. 

Am.  Rep.  372;  State  v.  Turner,  Wright  609;  Leiois  v.  Mason,  109  Mass.  169. 
(Ohio)   26;  Jones  v.  White,  1  Strange,        But  a  decree  dismissing  a  petition  for 

68;   Martin  v.  Johnston,   1   Fost.  &  F.  the  appointment  of  a  guardian   for  an 

122.  alleged  insane  person,  and  a  verdict  and 

Standing  alone,  the  fact  that  a  person  judgment  on  appeal  from  such  decree,  in 

accused  of  crime  was  an  inmate  of  an  favor  of  his  sanity,  may  be  given  in  evi- 

insane  hospital  is  not  evidence  of  crim-  dence   as   tending   to   show   capacity   to 

inal  irresponsibility  or  of  incapacity  to  make  a  deed.     Gibson  v.  Soper,  G  Gray, 

defend   himself.      Gaddell  v.   State,   130  279,  60  Am.  Dec.  414. 
Ala.  9,  34  So.  191.  And  the  offer  of  a  verdict  pronouncing 

And  a  verdict  of  a  jury  upon  an  in-  a  person  sane,  by  the  district  attorney 

quisition  of  lunacy  is  not  admissible  in  in  a  criminal  case,  as  evidence  of  sanity, 

evidence  upon  a  traverse  of  a  finding  in  which   was   rejected,   is   not   misconduct 

the   inquisition.      Gom.    ex  rel.    Haskell  on   his  part,  prejudicial  to  the  defend- 

V.  Haskell  2  Brewst.   (Pa.)  491.  ant.     People  v.  Ward,  105  Cal.  335,  38 

'■"Butler  V.   St.  Louis  L.  Ins.   Go.  45  Pac.  945. 
Iowa,  93;   Snell    v.    United    States,    16        '■^Burnham  v.  Mitchell,  34   Wis.   117; 

App.  D.  0.  501.  Hovei/  v.  Ghase,  52  Me.  304,  83  Am.  Dec. 

So,  the  testimony  of  a  superintendent  514:  Rhoades  v.  Fuller,  139  Mo.  179,  40 

of  a  hospital  for  the  insane  in  another  S.  W.  760;  Entioistle  v.  Meikle,  180  111. 

state  is  not  admissible  to  show  the  in-  9,  54  N.  E.  217;  Henry  v.  Brothers,  48 

sanity  of  a  person  who  had  been  con-  Pa.  70.     But  see  Rider  v.  Miller,  86  N. 

fined  there,  where  he  knew  nothing  of  Y.  507. 

the  disease  of  such  person,  and  based  his        So,  a  physician's  certificate  prepared 

statements  upon  what  was  shown  by  the  from  the  statements    of    relatives    and 

records    of    the    hospital.      Newton    v.  friends  of  a  patient  in  an  insane  asylum 

Mutual  Ben.  L.  Ins.  Go.  15  Hun,  597.  is  not  competent  to  show  the  patient's 

'■^Rice  V.  Rice,  53  Mich.  432,  19  N.  W.  mental  condition  previous  to  his  confine- 

132;    Kerr  v.  Lunsford,  31  W.  Va.  680,  ment.     Butler  v.  St.  Louis  L.  Ins.  Go. 

2  L.  R.  A.  668,  8  S.  E.  493.  45  Iowa,  93. 

But   the   admission   in   evidence   of  a        '*Re  Blaker,  27  N.  Y.  Week.  Dig.  486, 

record   in   a   lunacy   matter,   containing  12  N.  Y.  S.  R.  741;  Goodell  v.  Harring- 

recitals   and   statements   which   are   not  ton,  3  Thomp.  &  C.  345. 
evidence,   and  might  influence   the  ver-        And  proceedings  in  lunacy,  finding  a 

diet,   is  not  a  ground  for  a  new  trial,  mortgagor  to  have  been  a  hmatic  for  a 

where  the  judge  informs  the  jury  that  period  covering  the  date  of  the  mortgage, 

the  recitals  are  not  evidence,  and  cau-  are  not  admissible  in  evidence  to  inval- 

tions  them  to  disregard  them.     Greagh  idate   the   mortgage,   in   the   absence   of 

V.  Blood,  2  Jones  &  L.  509,  8  Ir.  Eq.  Rep.  proof  of   fraud   or   notice  to  the  mort 

434.  gagee  of  the  mcutgagor's   mental   inca- 

"People   V.    Ward,    105    Cal.    335,   38  pacity.    Mills  v.  Slook,  9  W.  N.  C.  379. 
Vol.  I.  Med.  Job.— 25. 


336 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  332 


So,  a  judgment  setting  aside  a  will  of  a  person  is  not  admissible  in 
an  action  to  set  aside  a  deed  made  by  him,  as  tending  to  show  his  in- 
sanity, where  it  was  rendered  some  time  subsequent  to  the  giving  of 
the  deed.^^  Where  adjudications  or  certificates  of  lunacy  are  given 
in  evidence  to  establish  incompetency  it  is  proper  to  prove  recovery 
or  a  lucid  interval  at  the  time  of  the  act  in  question.^*^  And  mem- 
bers of  an  inquisition  which  found  a  person  insane  are  competent 
to  prove  the  unsoundness  or  a  lucid  interval  when  the  facts  are  with- 
in their  knowledge,  though  they  cannot  be  examined  as  to  what  they 
intended  by  their  return. ^^ 

h.   With  reference  to  drunlienness. 

333.  The  fact  of  intoxication. —  Where  malice  or  intent  is  an  in- 
gredient of  a  charge,  whether  civil  or  criminal,  simple  intoxication 
may  be  given  in  evidence  to  rebut  it.^^  And  the  fact  of  drunken- 
ness may  be  established  by  evidence  of  tlie  quantity  and  quality  of 
the  liquor  drunk.^^  But  evidence  going  only  to  establish  a  mere  con- 
jecture that  one  might  have  drunk  liquor,  or  might  have  been  intoxi- 


"^Hovey  v.  Chase,  52  Me.  305,  83  Am. 
Dec.  514;  Gridleij  v.  Boggs,  62  Cal.  190. 
But  see  Hanna  v.  Read,  102  111.  596,  40 
Am.  Txep.  608. 

And,  a  record  of  the  proceedings  in  a 
separate  trial,  in  which  one  of  two  de- 
fendants jointly  indicted  is  adjudged  in- 
sane, is  not  evidence  either  of  the  fact 
or  of  such  insanity  upon  the  trial  of 
the  indictment.  Marler  v.  State,  67  Ala. 
.55,  42  Am.  Rep.  95. 

'^Enox  V.  Know,  30  S.  C.  377,  9  S.  E. 
.353. 

In  Missouri,  evidence  of  a  lucid  inter- 
val is  not  admissible  to  controvert  the 
insanity  of  a  person  who  has  been  placed 
under  jjuardianship  as  insane,  and  non 
est  factum  may  be  pleaded  to  a  deed 
subsequently  made  by  him,  and  the 
special  matter  given  in  evidence.  Ran- 
nells  V.  Gerner,  80  Mo.  475. 

"Hutchhison  v.  Sandt,  4  Rawle,  234, 
26  Am.  Dec.  127;  Bowman  v.  Van  Baum, 
14  W.  N.  C.   185. 

'Wawson  v.  State,  16  Ind.  428,  79 
Am.  Dec.  439;  Bruen  v.  People  (111.)  69 
N.  E.  24;  State  v.  Wright,  112  Iowa, 
430,  84  N.  W.  541  ;  Bishop  v.  Com.  109 
Ky.  558,  60  S.  W.  190;  State  v.  Koerner, 
8  N.  D.  292,  78  N.  W.  981. 

The  grossly  intoxicated  condition  of 
a  party  immediately  before  and  shortly 
after  a  transaction  concerning  which  he 


testified,  with  reference  to  which  testi- 
mony he  is  accused  oi  having  committed 
perji'.ry,  is  admissible  as  tending  to 
show  whether  or  not  it  had  the  effect  of 
rendering  him  incapable  of  remembering 
the  facts  while  on  the  witness  stand. 
Lytle  V.  Stale,  31  Ohio  St.  196. 

So,  intoxication  may  be  shown  to  ex- 
plain appearances  that  otherwise  might 
have  been  attributed  to  insanity.  Hoover 
V.  State   (Ind.)   68  N.  E.  591. 

But  instructions  in  such  cases,  sing- 
ling out  the  fact  of  intoxication,  should 
not  be  given.  Bishop  v.  Com.  109  Kv. 
558,  60  S  .W.  190. 

••^Fleming  v.  State,  5  Humph.  564; 
Wraae  v.  State  (Tex.  Crim.  App.)  60 
S.  W.  55 ;  Reg.  v.  Monkhouse,  4"  Cox  C. 
C.  55. 

But  on  a  trial  for  murder,  in  which 
it  is  claimed  that  the  accused  was  ren- 
dered insane  by  drinking  whisky  fur- 
nished liim,  evidence  of  experiments  that 
had  been  made  with  ordinary  whisky 
and  a  liquid  claimed  to  be  of  the  same 
character  as  that  furnished  the  accused 
is  inadmissible,  in  the  absence  of  any- 
thing to  show  that  the  liquor  with 
which  the  experiments  were  made  was  of 
the  same  character  as  that  drunk  by 
the  accused.  People  v.  Slack,  90  Mich. 
448,  51  N.  W.  533. 


§  333]  EVIDENCE.  387 

cated,  is  inadmissible.^'^  So,  evidence  is  admissible  in  an  action 
upon  contract  on  the  question  as  to  whetlier  a  party  was  in  such  a 
state  of  intoxication  at  the  time  of  making  it  as  to  be  unfit  for  the 
transaction  of  business.^^  And  evidence  of  the  intoxication  of  a 
party  to  a  contract,  and  that  the  other  party  caused  it,  and  imposed 
upon  him  while  in  that  condition,  is  admissible,  and  constitutes  a 
good  defense.*'^  Also,  intoxication  in  any  degree  of  a  person  injured 
is  proper  to  be  considered  in  an  action  for  damages  for  the  injury 
in  determining  as  to  his  contributory  negligence.^^  And  the  intoxi- 
cation of  a  person  causing  an  injury  may  be  considered  on  the  ques- 
tion as  to  his  negligence,  as  a  part  of  the  res  gestm.^^  And  it  may 
likewise  be  considered  in  an  action  of  trespass  or  of  tort  generally.'''^ 
But  the  intoxication  of  a  person  committing  an  assault  is  not  a  miti- 
gating circumstance,  to  be  taken  into  consideration  in  determining 
the  amoimt  of  exemplary  damages  where  it  was  not  such  as  to  render 
him  irresponsible  for  his  acts.^°  And  intoxication  at  the  time  of 
uttering  slanderous  words  is  not  a  matter  of  mitigation,''''^  and  evi- 
dence thereof  has  been  held  to  be  inadmissible,'^^  though  it  has  also 

^Com.    V.    Cloonen,    151    Pa.    605,    25  '^Wynn  v.  AUard,  5  Watts  &  S.  624; 

Atl.  145;  Com.  v.  deary,  135  Pa.  64,  8  Dimick  v.  Doicns,  82  III.  570. 

L.   R.   A.   301,    19   Atl.    1017.     And   see  Drunkenness  of  a  sheriff  is  no  legal 

Warren  v.  Com.  37  Pa.  45;   Whitney  v.  defense  for  making  an  illegal  arrest,  but 

State,  8  Mo.  165;  Patterson  v.  State,  G6  may,  in  the  discretion  of  the  jury,  be  re- 

Ind.  185.  garded  as  an  aggravation  of  the  offense. 

But  evidence  on  a  trial  for  drunken-  Hall  v.  O'Malley,  49  Tex.  70. 
ness  that  the  defendant  was  found  in  But  evidence  that  the  plaintiff  in  an 
the  streets,  behaving  in  a  drunken  man-  action  for  breach  of  promise  of  marriage 
ner,  and  that  his  breath  smelled  of  drank  to  excess.,  and  sometimes  to  in- 
liquor,  and  that  he  had  been  convicted  toxication,  is  inadmissible  in  mitigation 
of  that  offense  twice  before  within  a  of  damages,  where  it  does  not  appear 
year  upon  his  plea  of  guilty,  is  properly  under  what  circumstances  the  alleged  ex- 
submitted  to  the  jury  to  determine  cesses  took  place,  or  that  her  general 
whether  the  drunkenness  was  voluntary  reputation  as  to  sobriety  was  bad.  But- 
or  not.    Com.  v.  Hughes,  133  Mass.  496.  ton  v.  McCauley,  38  Barb.  413. 

"^Burroughs  v.  Richman,  13  N.  J.  L.  ^'^Schmidt  v.  Pfeil,  24  Wis.  452. 

233,  23  Am.  Dec.  717.  ^'Mix   v.    McCoy,    22    Mo.    App.    488; 

"'Curtis  V.  Hall,  4  N.  J.  L.  361.     But  Reed  v.   Harper,  25   Iowa,   87,   95   Am. 

see  Noel  v.  Karper,  53  Pa.  97.  Dec.  774. 

'^Fitzgerald  v.  Weston,  52  Wis.  354,  But  evidence  that  at  the  time  of 
9  N.  W.  13;  Illinois  G.  R.  Co.  v.  Cragin,  speaking  alleged  slanderous  words  the 
71  111.  177;  Gulf,  G.  &  8.  F.  R.  Co.  v.  defendant's  mind  was  so  excited  by  a 
G7-0SS  (Tex.  Civ.  App.)  21  S.  W.  186.  long  course  of  dissipation,  and  his  char- 
But  intoxication  at  another  time  is  acter  so  depraved  that  no  one  who  knew 
not  admissible.  Story  v.  Norfolk  &  S.  him  would  pay  any  attention  to  what 
R.  Co.  133  N.  C.  59,  45  S.  E.  349.  he  might  say,  or  give  any  credence  what- 

"^Williams  v.  Edmunds,  75  Mich.  92,  ever  to  any  charge  he  might  make,   ia 

42   N.   W.   534 ;    Northern  P.  R.   Go.  v.  admissible  in  an  action  therefor.     Gates 

Graff.   16  C.  C.  A.   175,  29  U.  S.  App.  v.  Meredith,  7  Ind.  440. 

687,  69  Fed.  124.  '^Mix  v.  McCoy,  22  Mo.  App.  488. 


388 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


l§  333 


been  held  that  it  may  be  considered  in  determining  the  amount  of 
the  verdict.^^ 

334.  General  character  and  habits. —  The  general  character  and 
habits  of  a  person,  for  drunkenness  or  sobriety,  are  generally  inadmis- 
sible in  evidence  in  all  classes  of  actions,  either  to  show  responsibil- 
ity or  capacity  on  the  one  hand,  or  irresponsibility  or  incapacity  upon 
the  other.'^  Evidence  of  habits  of  intoxication,  however,  by  which 
one's  faculties  had  been  so  impaired  as  to  deprive  him  of  capacity  to 
distinguish  between  right  and  ^\Tong,  is  admissible  on  the  question  of 
intent."^  And  evidence  of  the  general  reputation  of  an  employee 
for  intoxication  is  admissible  in  an  action  for  an  injury  caused  by 
such  employee,  to  show  that  the  employer  would,  had  he  exercised 
due  care,  have  known  that  he  was  an  unsuitable  ser^^ant  to  be  em- 
ployed,'^ and  to  show  the  incompetency  of  the  servant, '^^  though  it  is 
not  admissible  for  the  purpose  of  rebutting  evidence  of  intoxication 
constituting  contributory  negligence  of  a  person  injured.'^^     So,  in- 


•"ffeed  V.  Harper,  25  Iowa,  87,  95  Am. 
Deo.  774. 

'"See  FahnestocJc  v.  State,  23  Ind. 
231  ;  Jenners  v.  Hoicard,  6  Blackf.  240; 
Hubbard  v.  Mason  City,  60  Iowa.  400, 
14  N.  W.  772;  Baltimore  d  0.  R.  Co.  v. 
Boteler,  38  Md.  568:  Robinson  v.  Fitch- 
burq  d  IV.  R.  Co.  7  Gray.  92:  Gahagan 
T.  Boston  d  L.  R.  Co.  1  Allen,  189,  79 
Am.  Dec.  724;  ^Villiams  v.  Edmunds,  75 
Mich.  92,  42  N.  W.  534;  Barker  v. 
Savage,  1  Sweenv,  288 ;  Brindle  v.  M'll- 
vaine,  10  Seror.' &  R.  282;  Carter  v. 
Seattle,  19  Wash.  597,  53  Pac.  1102. 

So,  evidence  of  a  habit  of  the  maker 
of  a  note  to  gamble  when  drunk  is  not 
admissible  to  show  that  the  note  was 
given  for  monev  lost  at  play.  Thompson 
V.  Bowie,  4  Wall.  463,  18  L.  ed.  423. 

But  the  admission  of  evidence  showing 
that  the  disposition  of  a  person  accused 
of  homicide  was  extremely  quarrelsome 
while  he  was  drinking,  to  enable  the 
jury  to  compare  his  acts  at  various 
times,  is  not  a  ground  for  reversal. 
State  V.  Duestrow,  137  Mo.  44,  38  S.  W. 
554,  39  S.  W.  266. 

^^People  V,  Blake,  65  Cal.  275,  4  Pac. 
I. 

""Oilman  v.  Eastern  R.  Co.  13  Allen, 
433.  90  Am.  Dec.  210.  And  see  Cleqhorn 
V.  -New  York  C.  d  H.  R.  R.  Co.  56  N.  Y. 
44,  15  Am.  Rep.  375. 

And  evidence  in  an  action  for  dam- 
ages to  an  employee  of  a  railway  com- 
pany, alleged  to  have  been  caused  by  the 
intoxication  of  a  cocmployee,  as  to  his 
having  be«n  seen  in  an  intoxicated  con- 


dition on  the  day  of  the  accident  and  at 
other  times,  is  not  rendered  inadmissible 
by  the  fact  that  there  was  no  allegation 
with  reference  to  the  condition  or  habits 
of  such  employees,  but  only  as  to  their 
skill  and  experience.  Lyons  v.  Neic 
York  C.  d  H.  R.  R.  Co.  39  Hun,  386. 

But  evidence  that  a  flagman  had  been 
intoxicated  on  several  occasions  previ- 
ous to  an  injury  caused  by  a  collision, 
and  that  his  intemperate  habits  were 
known  to  the  officers  of  the  company,  is 
inadmissible  in  an  action  for  the  injury, 
on  an  issue  as  to  present  negligence  in 
failing  to  give  a  signal.  Warner  v.  Neio 
York  C.  R.  Co.  44  N.  Y.  465. 

''^Baltimore  d  0.  R.  Co.  v.  Henthorne. 
19  C.  C.  A.  623,  43  U.  S.  App.  113,  73 
Fed.  034. 

'^Carter  v.  Seattle,  19  Wash.  597,  53 
Pac.  1102. 

But  the  plaintiff  in  an  action  for  a 
personal  injury,  who  has  testified  that 
he  was  not  drunk  at  the  time,  and  had 
not  been  drinking,  may  be  asked,  on 
cross-examination,  if  he  was  not  in  the 
habit  of  getting  drunk.  McCracken  v. 
Markcsan,  76  Wis.  409,  45  N.  W.  323. 

And  where  a  person  who  suffered  a 
personal  injury  becomes  insane  and  un- 
able to  testify  in  an  action  therefor,  it 
is  competent  to  introduce  evidence  as  to 
her  habits,  tending  to  show  that  at  the 
time  of  the  injury  she  was  not  intoxi- 
cated, and  was  probably  exercising  ordi 
narv  care.  Chicago  v.  Doolan,  99  III 
App.  143. 


5  334] 


EVIDENCE. 


389 


temperate  habits  may  also  be  shown  to  establish  violation  of  a  war- 
ranty in  an  insurance  contract,  that  the  insured  was  a  person  of  tem- 
perate habits.'^^ 

335.  Previous  and  subsequent  intoxication. — Evidence  of  the  pre- 
vious intoxication  of  a  person  accused  of  crime  is  admissible  on  a 
prosecution  therefor,  as  bearing  upon  the  question  of  his  condition 
at  the  time  of  the  act,  and  of  his  conduct  while  in  that  state,  pro- 
vided such  testimony  makes  it  probable  that  the  intoxication  contin- 
ued and  existed  at  the  time  of  the  offense.'^®  Subsequent  conduct  of 
the  accused,  however,  would  be  of  less  importance  since  tlie  act  itself 
might  have  caused  the  excitement.'^''  And  evidence  that  the  accused 
was  in  the  habit  of  drinking  to  excess,  and  of  the  effect  upon  hLs 
mind  produced  by  such  habit,  is  properly  confined  within  a  very  short 
period  of  tlie  time  of  the  criminal  act.'^^  And  the  fact  that  the  ac^ 
cused  had,  on  a  prior  occasion,  been  so  drunk  that  he  was  deprived  of 
reason,  does  not  establish  his  want  of  reason  and  responsibility  at 
the  time  of  the  offense,  and  is  therefore  inadmissible.^'  But  evi- 
dence of  excessive  drinking  by  the  accused  during  the  year  preceding 
the  commission  of  the  crime  is  admissible  as  tending  to  explain  or 


^United  Brethren  Mut.  Aid  Soc.  v. 
O'Hara,  120  Pa.  256,  13  Atl.  932. 

But  evidence  in  an  action  upon  a  life 
insurance  policy  conditioned  against  lia- 
bility if  the  assured  became  so  intem- 
perate as  to  seriously  or  permanently 
impair  his  health,  as  to  the  quantity  of 
liquor  he  drank,  and  that  it  was  suffi- 
cient to  impair  his  health,  is  irrelevant 
and  inadmissible,  in  the  absence  of  proof 
that  it  had  affected  his  health,  since  the 
effect  which  it  might  have  upon  the 
health  of  diff'erent  people  might  be  dif- 
ferent. Odd  Felloics'  Mut.  L.  Ins.  Co. 
V.  Rohkopp,  94  Pa.  59. 

And  evidence  that  the  habits  of  intem- 
perance of  an  insured  person  were  known 
to  the  insurance  agent  who  acted  for  the 
insurance  company  in  negotiating  the 
contract  is  not  admissible  in  answer  to 
the  defense  of  misrepresentation  as  to 
Buch  habits,  where  it  was  not  pleaded  in 
reply  to  that  defense.  Texas  Mu^^^.  L. 
Ins.  Co.  V.  Davidge,  51  Tex.  244. 

'HJpstone  v.  People,  109  111.  169; 
Pierce  v.  State,  53  Ga.  365;  Porter  v. 
State,  135  Ala.  51,  33  So.  694;  Peojyle  v. 
Gaynor,  33  App.  Div.  98,  53  N.  Y.  Supp. 
86;  Reg.  v.  Monkhoiise,  4  Cox  C.  C.  55. 
But  see  Dauson  v.  State,  16  Ind.  428,  79 
Am.  Dec.  439. 

And  this  is  so,  whether  or  not  the  in- 


toxication had  any  relation  to  the  occur- 
rences disclosed  by  the  testimony.  Porter 
V.  State,  135  Ala.  51,  33  So.  694. 

Evidence  of  a  robbery  by  a  person  ac- 
cused of  burglary,  done  just  previous  to 
the  burglary,  is  admissible  in  a  prosecu- 
tion for  the  burglary,  to  rebut  evidence 
of  intoxication  off'ered  as  a  defense,  as 
tending  to  show  that  he  was  not  intoxi- 
cated at  the  time  of  the  robbery.  State 
V.  Harris,  100  Iowa,  188,  69  N.  W.  413. 

"7?e7.  V.  Monkhottse,  4  Cox.  C.  C.  55. 

'meal  v.  People,  42  N.  Y.  270;  Slmf- 
flin  v.  People,  4  Hun,  16. 

An  instruction  as  to  voluntary  drunk- 
enness is  not  irrelevant,  where  the  proof 
shows  that  the  homicide  in  question  was 
committed  on  Sunday,  and  that  the  de- 
fendant had  bought  a  pint  of  pure  alco- 
hol on  the  Friday  before  and  drank  it 
without  water  all  the  next  day.  People 
V.  Jones,  63  Cal.  168. 

'"State  V.  Hart,  29  Iowa,  208. 

And  evidence  of  quarrelsomeness 
while  drinking,  and  that  the  accused 
had  been  drinking  on  the  day  previous, 
does  not  require  an  instruction  in  a 
prosecution  for  homicide  as  to  intoxica- 
tion at  the  time  of  the  act.  People  v. 
Kloss,  115  Cal.  567,  47  Pac.  459. 

And  refusal  to  instruct  with  reference 
to  insanity  or  drunkenness  is  not  error 


390  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  335 

account  for  changes  of  conduct  or  manner  during  that  timc.^'^  So, 
previous  intoxication  is  admissible  on  the  question  of  capacity  to  con- 
tracts^ And  that  a  person  had  been  drinking  for  a  great  part  of 
the  time  for  several  weeks  is  admissible  for  the  purpose  of  showing 
his  mental  condition  at  the  time  of  making  a  settlement  or  giving  a 
release.s^  And  evidence  of  the  repeated  drunkenness  of  a  person 
who  suffered  a  j^rsonal  injury,  for  some  years  before  and  afterwards, 
is  admissible  on  an  issue  of  contributory  negligence,  for  the  purpose 
of  throwing  light  on  the  question  whether  or  not  he  was  drunk  at  tlie 
time.*^  Likewise,  intoxication  or  stupefaction  of  a  testator  from 
drugs,  at  the  time,  is  admissible  on  the  question  of  his  testamentary 
capacity.^^ 

336.  Acts  and  conduct. — The  acts  and  conduct  of  a  person  com- 
mitting a  criminal  act  are  admissible  in  evidence  as  bearing  upon 
the  question  whether  the  act  w^as  done  under  the  influence  of  insanity, 
or  committed  because  of  intoxication.^^  And  they  are  also  admissi- 
ble where  it  is  claimed  that  the  act  in  question  was  done  while  the 
person  doing  it  was  so  under  the  influence  of  liquor  as  not  to  know 
what  he  was  doing,  and  as  to  be  incapable  of  entertaining  a  wTongf  ul 
or  corrupt  intent.**^     And  expressions  used  by  the  accused  soon  after 

in  a  criminal  case,  where  there  is  no  evi-  ship  had  gone  ashore,  and  who  had  sold 
dance  of  mental  unsoundness,  and  the  her  to  a  party  who  succeeded  in  getting 
only  proof  of  drunkenness  is  that  the  her  off,  was  addicted  to  drunkenness 
accused  was  drunk  on  the  morning  pre-  within  a  short  time  before  the  vessel 
ceding  the  offense.  Cavaness  v.  State,  sailed,  is  admissible  on  an  issue  between 
43  Ark.  331.  the  ouner  and  the  receiver  as  to  whether 

^"State  V.  Murray,  11  Or.  413,  5  Pac.  there  had  been  a  total  loss.  Alcock  v. 
55.  Royal    Exchange    Assurance,    13    Q.    B. 

But    evidence    that    for    four    or    five    292. 
years  the  accused  in  a  criminal  case  had        '^Re  Gilham,  64  N.  J.  Eq.  715,  52  Atl. 
been  addicted  to  excessive  drinking  so    690. 

as  to  become  an  habitual  drunkard,  and  ''^French  v.  State,  93  Wis.  325,  67  N. 
that  he  was  quarrelsome  while  drunk,  is  W.  706;  Com.  v.  Curry,  150  Mass.  509, 
inadmissible  for  the  purpose  of  showing   23  N.  E.  212. 

the  state  of  his  mind  at  the  time  of  the  ^'■White  v.  State,  103  Ala.  72,  16  So. 
criminal  act.  Com,  v.  Werling,  164  Pa.  63.  And  see  Collins  v.  People,  194  111. 
559,  30  Atl.  406.  506,  62  N.  E.  903. 

*^ Rogers  v.  Warren,  75  Mo.  App.  271.        And  so  Ls  the  appearance  of  a  person 

"f'oss  V.  Hildreth,  10  Allen,  76.  on  the  question  whether  he  acted,  in  the 

So,  evidence  that  a  party  to  a  settle-  commission  of  a  criminal  act,  under  the 
ment  and  receipt  came  home  intoxicated  influence  of  drunkenness  or  an  epileptic 
several  hours  afterwards  is  admissible  fit.  State  v.  Wright,  112  Iowa,  436,  84 
to  show  intoxication  for  the  purpose  of   N.  W.  541. 

setting  aside  such  settlement  and  re-  But  evidence  that  a  party  to  an  action 
oeipl,  where  there  was  evidence  tending  for  damages  endeavored  to  secure  im- 
to  show  that  he  was  indulging  in  a  pro-  pecimious  parties  upon  a  bond  for  his 
tracted  spree.  Phelan  v.  Gardner,  43  appearance  at  court  bears  so  remotely 
Cal.  306.  upon   the   question    of   his    intoxication 

^Knright  v.  A  tlwnta.  78  Ga.  288.  But  that  a  judgment  would  not  be  reversed 
see  Shelly  v.  Bruiisirick  Traction  Co.  65  on  account  of  its  exclusion.  Hubhard  v. 
N.  .7.  L.  '639,  48  Atl.  562.  ^[ason  City,  60  Iowa,  400,  14  N.  W.  772. 

So.  evidence  tliat  a  sliip  captain  wliose 


f  336}  EVIDENCE.  391 

a  criminal  act  are  admissible  on  the  question  of  intent.^'^  Wliat  the 
demeanor  of  the  person  killed  was  when  intoxicated,  however,  is  not 
material  in  a  prosecution  for  the  killing,  unless  confined  to  that  exist- 
ing at  the  time  of,  or  immediately  preceding,  the  homicide.** 

337.  Confessions,  admissions,  and  declarations. —  A  confession  is  not 
rendered  inadihissible  as  evidence  in  a  criminal  prosecution  by 
the  mere  fact  that  the  person  making  it  was  drunk  at  the  time,  and  it 
is  not  thereby  rendered  insufficient  to  sustain  a  conviction,  where  the 
corpus  delicti  was  otherwise  proved,*^  though  the  drunkenness  was 
induced  by  a  third  person,  for  the  purpose  of  procuring  the  confes- 
sion.^*^ The  intoxication  at  the  time  of  the  confession  affects  its 
weight  and  not  its  admissibility.^^  That  degree  of  intoxication 
which  leaves  a  person  capable  of  narrating  past  facts,  or  of  stating 
his  owm  participation  in  a  crime,  does  not  exclude  his  confession  from 
ihe  consideration  of  the  jury  upon  a  prosecution  for  such  act.^^  But 
the  submission  to  the  court  of  the  question  whether  the  defendant, 
when  making  a  confession,  was  so  intoxicated  as  not  to  understand 
what  he  was  confessing  is  preliminary  to  its  admission  and  an  im- 
portant consideration  furnishing  ground  for  an  exception.^^  And 
where  tliere  is  evidence  tending  to  prove  that  a  person  making  a  con- 
fession was  laboring  under  delirium  tremens,  or  was  otherwise  in- 
sane at  the  time,  the  opinion  of  an  expert  may  properly  be  taken  as 

"Reg.   V.   Dixon,    11    Cox   C.    C.    341;  9   Gray.   110;    White  v.   State,   32   Tex. 

State  '  V.    Hurley,    Houst.    Crim.    Rep.  Crim.  Rep.  625,  25  S.  W.  784;   Rex  v. 

(Del.)   28.  Spilsbiiry,  7  Car.  &  P.  187.- 

But  threats   against  a  person   killed,  Where  a  person  making  a  confession 

made  a  long  time  before  the  killing,  at  was    so    much    under    the    influence    of 

a  time  when  the  person  accused  of  kill-  liquor  as  not  to  understand  what  he  was 

ing  was  very  drunk,  are  entitled  to  no  confessing,  the  jury  should  disregard  the 

weight,  where  it  appears  that  the  subse-  confession  altogether.     Com.  v.  Howe,  9 

quent     relations     between     them     were  Gray,  110. 

friendly.     Willis  v.  Com.  32  Gratt.  929.  ^-State  v.  Grear,  28  Minn.  426,  41  Am. 

And  evidence  that  a  few  days  before  Rep.  296,  10  N.  W.  472 ;  White  v.  State, 

a  criminal  act,  the  accused  had  bought  32  Tex.  Crim.  Rep.  625,  25  S.  W.  784. 

a  pint  of  whisky,  and  said  he  was  going  And  see  Eskridge  v.  State,  25  Ala.  30. 

to  quit,  is  wholly  immaterial  and  inad-  And  refusal  to  instruct  the  jury  in  a 

missible  on  an  issue  as  to  whether  he  criminal  case  that,  if  the  defendant  wa3 

was   insane   at  the  time  of  the  act  or  so   intoxicated  at  the  time   he  made  a 

merely  drunk.       Beck  v.  State,    76    Ga.  confession  as  not  to  be  able  to  under- 

452.  stand  what  he  was  doing  or  saying,  the 

^^Shufflin  V.  People,  4  Hun,  16.  confession  should  not  be  regarded  as  evi- 

^^WilUams  v.  State,  12  Lea,  211;  Les-  dence  against  him,  is  not  error,  where 

ter    V.    State,    32    Ark.    727;   State    v.  the   only   evidence    of   intoxication    was 

Grear,  28  Minn.  426,  41  Am.  Rep.  296,  that  he  had  drunk  four  or  five  drinks  of 

10  N.  W.  472;  Rex  v.  Spilsbury,  7  Car.  whisky  within  five  or  six  hours  of  mak- 

&  P.  187.  ins:  it-     Zicickcr  v.  State,  27  Tex.  App. 

''Rex  V.  Spilsbury,  7  Car.  &  P.  187.  539,  11  S.  W.  633. 

^'Stnfe  V.  Grear,  28  Minn.  426,  41  Am.  "'Com.  v.  Howe,  9  Gray,  110. 
Rep.  296,  10  N.  W.  472;  Com.  v.  Howe, 


392  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  337 

to  his  mental  condition,  indicated  by  the  proved  facts.®*  So,  declara- 
tions of  an  agent  of  an  employer  that  an  employee  who  was  competent 
when  employed  had  become  incompetent  through  habits  of  intoxica- 
tion are  admissible  in  an  action  by  a  coemployee  against  the  employer 
for  an  injury  caused  by  the  incompetent  employee  while  intoxicated, 
for  the  purpose  of  showing  knowledge  of  his  incompetency.®^  The 
intoxication  of  a  person,  and  his  consequent  incompetency,  however, 
cannot  be  established  by  his  own  declarations.®*^ 

•  III.  Opinion  evidence. 

a.  With  reference  to  lunacy, 

1.  Experts. 

338.  Admissibility  generally. — The  opinions  of  medical  experts  and 
experts  with  relation  to  mental  disease  are  admissible  in  evidence 
generally  on  an  issue  as  to  sanity  or  insanity,®"^  without  reference  to 
the  question  of  their  weight;®^  and  such  opinions  may  be  based  upon 
the  symptoms  and  circumstances  which  come  within  their  own  ob- 
servation, or  which  are  testified  to  by  others,  or  upon  hypothetical 
statements  or  questions  assuming  their  existence.®®     The  opinions  of 

**8iate  v.  Feltes,  51  Iowa,  495,  1  N.  Kempsey,  27  Mich.  3G3;  People  v.  Fin- 

W.  755.  leif,  38  Mich.  482;   Clarice  v.  Saimjer,  3 

^''Chapman  v.   Erie  R.   Co.   55   N.   Y.  Sandf.  Ch.  351 ;  Lake  v.  People,  1  Park. 

579;   Laninci-v.  'Neio  York  C.  R.  Co.  49  dim.   Rep.  495;   Re  Kiedaisch.  2   Con- 

N.  Y.  521,  10  Am.  Rep.  417.  noly,   438,    13   N.   Y.    Supp.   255;    First 

^Cihsonv.  Gibson,  24  Mo.  227;  North-  Nat.    Bank    v.    Wirelacli,    106    Pa.    37; 

uestern  Mut.   L.  Ins.   Co.  v.   Muskegon  Gibson  v.  Gibson,  9  Yero^.  329;  Puryear 

Nat.  Bank,  122  U.  S.  501,  30  L.  ed.  liOO,  v.  Reese,  6  Coldw.  21;  Pigg  v.  State,  43 

7  Sup.  Ct.  Rep.  1221.      ,  Tex.  108;  Flhelton  v.  State,  34  Tex.  666; 

Bvit  a  letter  of  a  testator  to  his  wifo,  Charter  Oak  L.  Ins.  Co.  v.  Rodel,  95  U. 

shortly   before   death,    in   which   he   ex-  S.  232.  24  L.  ed.  433 ;  Beavan  v.  M'Don- 

pressed  regret  that  he  was  drunk  when  7ieU,  26  Eng.  L.  &  Eq.  541,  10  Exch.  184, 

he  made  his  will,  and  solicitude  for  the  23  L.  J.  Exch.  N.  S.  326. 
welfare  of  his  children,  is  admissible  in        But    expert    testimony    based    solely 

evidence   on   the   question   of  his   testa-  upon  a  svipposed  case  of  previous  habits 

mentary     capacity.       Re     Van     Alstitie  which   might   cause  insanity   is  not  ad- 

(Utah)   72  Pac.  942.  missible,  in  the  absence  of  independent 

"Steele  v.  Helm,  2  Marv.    (Del.)   237,  evidence     tending     to     show     insanity. 

43    Atl.    153;    Jamison    v.    Jamison,    3  Bishop  v.  Com.  109  Ky.  558,  60  S.  W. 

Houst.    (Del.)    108;    Potts  v.   House,   6  190. 

Ga.    324,   50   Am.   Dec.   329;    Choice   v.        ^^Charter  Oak  L.  Ins.  Co.  v.  Rodel,  95 

State,  31   Ga.  424;   Coryell  v.  Stone,  62  U.  S.  232,  24  L.  cd.  433. 
Ind.   .307;   Bever  v.   Spangler,  93   Iowa,        ""Poits  v.   Bonsc,  6  Ga.  324,  50  Am. 

576,  61   N.  W.   1072;    Chandler  v.  Bar-  Dec.   329;    McAllister  v.   State,  17   Ala. 

rett,  21  La.  Ann.  58,  99  Am.  Dec.  701:  439,  52  Am.  Dec.   180;   Com.  v.  Rogers, 

Com.  V.  Brayman,  1.30  Mass.  438;   Com.  7  Met.  500,  41  Am.  Dec.  458;  Boardman 

V.  Rogers,  7  Met.  500,  41  Am.  Dec.  458;  v.  Woodman,  47  N.  H.   120;   Pidcock  v. 

Ba.Tter  v.  Abbott,  7  Gray,  71;  Hastings  Potter,  68  Pa.  342,  8  Am.  Rep.  181. 
V.    Rider,    99    Mass.    622;    McGinnia    v. 


§  338]  EVIDENCE.  393 

expert  witnesses,  based  upon  the  facts  of  the  case,  arc  admissible  as 
a  scientific  deduction  from  such  facts,  without  w^hich  the  jury  wouhl 
not  be  able  to  decide  the  question  correctly. ^^"^  And  they  are  re- 
ceived because  the  facts  are  of  such  a  nature  tliat  they  carmot  be 
weighed  or  understood  by  the  jury,  the  expert  giving  his  opinion  as 
to  what  they  do  or  do  not  indicate.^  Expert  testimony  as  to  insanity, 
however,  is  to  be  received  with  caution,  and  subjected  to  patient  and 
intelligent  investigation.-  And  it  is  never  received  where  all  the 
facts  upon  which  the  opinions  are  founded  can  be  ascertained  and 
made  intelligible  to  the  court  or  jur)%^  And  medical  exports  cannot 
testify  as  such  in  a  will  contest  in  behalf  of  the  contestants,  where 
a  prima  facie  case  of  testamentary  incapacity  has  not  been  made  out"* 
And  the  exclusion  of  expert  testimony  as  to  sanity  or  insanity  is  not 
prejudicial  error,  where  it  does  not  appear  to  have  been  material.'^ 
339.  Application  of  doctrine  as  to  privilege  of  witnesses.  —  The 
general  rule  regards  a  physician  who  goes  in  his  professional  capac- 
ity to  see  a  patient,  as  within  statutory  provisions  prohibiting  tlie 
disclosure  by  a  physician  of  any  information  received  by  him  in  his 
professional  capacity ;  and  he  cannot  be  called  upon  for  his  opinion  as 
to  sanity  or  insanity  of  such  person,  based  upon  the  information  thus 

^"^Cotjle  V.  Com.  104  Pa.  117;  Lake  v.  Bliss  v.  New  York  C.  d  H.  R.  R.  Co.  160 

People,  1  Park.  Crim.  Rep.  495 ;  Harri-  Mass.  447,  39  Am.  St.  Rep.  504,  36  N.  E. 

son  V.  Rowan,  3  Wash,  C.  C.  580,  Fed.  65. 
Gas.  No.  6,141.  ^Clark  v.  Fisher,  1  Paige,  171,  19  Am. 

^People  V.  Youngs,  151  N.  Y.  210,  45  Dec.  402. 
N.  E.  4G0.  *Re  Miller,  26  Pittsb.  L.  J.  N.  S.  428. 

■Wilcox  T.  State,  94  Tenn.  106,  28  S.        ''Morton  v.  Eeidorn,  135  Mo.  608,  37 

W.  312.  S.  W.  504. 

It  is  not  an  abuse  of  discretion   for        So,  refusal  to  allow  a  statement  made 

the  court  in  a  will  contest,  to  limit  the  by  an  expert  called  by  the  government 

number  of  expert    witnesses    upon    the  in  a  prosecution  for  murder,  of  his  opin- 

quastion  of  insanity  to    five    upon  each  ion  of  the  defendant's  mental  condition, 

side.     Fraser  v.  Jennison,  42  Mich.  206,  to  be  read  to  the  jury,  but  permitting 

3  N.  W.  882.  defendant's   counsel   to  use  it  to  cross- 

And  the  opinion  of  an  expert  as  to  the  examine    the    Avitnesses,     furnishes     no 

<!ondition  of  a  person's  mind,  based  on  groimd  for  excejition.    Com.  v.  Pomeroy, 

her  physical  condition  a  year  and  a  half  117  Mass.  143. 

afterwards,  is  too  conjectural  to  be  ad-        Where  the  trial  judge  selects  compe- 

missible.   Missouri  P.  R.  Co.  v.  Lovelace,  tent  physicians  as  experts  to  make  an 

57  Kan.  195,  45  Pac.  590.  examination  of  the  mental  condition  of 

But  testimony  of  an  expert  witness  in  the  accused   in   a  criminal   prosecution, 

an  action  against  a  railroad  company  for  i'or  the  purpose  of  better  prei>aring  them 

a  personal   injury,  in  which  the  person  to    intelligently    state    tlie    situation    to 

injured  had  given  a  receipt  and  release  the  jury,  it  is  not  a  condition  precedent 

of  all  claims  shortly  after  the  accideriC,  to  the  trial  being  proceeded    with    that 

that  his  mind  might  have  been  dazed  or  they  should  make  a  written  and  detailed 

confused  as  a  result  of  the  injury,  is  ad-  report  of  such  examination  to  the  court, 

missible.  though  it  did  not  go  so  far  as  State  v.  Paine,  49  La.  Ann.  1092,  22  So. 

to  show  that  that  result  was  probable.  316. 


394  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  339 

obtained.®  But  the  rule  proliibiting  the  disclosure  of  information 
received  in  a  professional  capacity  does  not  cover  a  case  where  its 
prohibition  was  invoked  solely  for  the  protection  of  a  criminal,  and 
not  at  all  for  the  benefit  or  protection  of  the  patient,  who  was  dead, 
and  a  waiver  of  the  prohibition  had  therefore  become  imj^ossible; 
it  is  only  applicable  in  civil  cases. ^  And  the  mere  fact  that  a  medical 
expert  was  the  physician  of  a  person  does  not  prevent  him  from  giving 
an  opinion  as  to  such  person's  insanity,  where  it  does  not  appear  that 
he  obtained  his  facts  through  the  professional  relation.*  Nor  does 
the  fact  that  he  was  physician  of  a  jail,  in  which  an  accused  person 
was  confined,  or  that  he  was  in  the  employ  of  the  district  attorney, 
create  the  relation  of  physician  and  patient  between  him  and  the  ac- 
cused so  as  to  exclude  his  opinion  as  to  the  sanity  of  the  accused.^ 
And  the  burden  rests  with  the  party  seeking  to  exclude  tes- 
timony of  a  physician  under  such  statutes,  to  show  not  only  that  the 
information  sought  to  be  excluded  was  acquired  in  attending  the 
patient  in  a  professional  capacity,  but  also  that  it  was  necessary  to 
enable  him  to  act  in  that  capacity.^ *^  So,  the  privilege  may  be  waived 
by  those  whose  interest  it  is  to  sustain  the  competency  of  the  pa- 
tient,^ ^  and  a  request  by  a  testator  to  sign  his  will  as  a  witness  consti- 

'Renihan   v.   Dennin,    103   N.   Y.   574,  ment  of  a  committee  for  a  lunatic  or 

57  Am.  Rep.  770,  9  N.  E.  320;  Re  Cole-  habitual  drunkard.     Re  Hoyt,  20  Abb. 

man.   111   N.  Y.  220,   19  N.  E.  71;   Re  N.  C.  162. 

Connor,  27  N.  Y.  S.  R.  905,  7  N.  Y.  Supp.  'Renihan  v.  DaiJiin,  103  N.  Y.  573,  57 

855;   Davis  v.   Traver,   65   Ala.   98;    Re  Am.  Rep.   770,   9   N.   E.   320.     And  see 

Redfield,  110  Cal.  637,  48  Pac.  794;  Re  Staunton  v.  Parker,  19  Hun,  56. 

Nelsoji,  132  Cal.  182,  64  Pac.  294;  Ueiis-  ^Wheeler  v.  State,  158  Ind.  687,  63  N. 

ton  V.  Simpson,  115  Ind.  62,  7  Am.  St.  E.   975. 

Rep.  409,  17  N.  E.  261;  Re  Goldthorp,  ^People  v.  Schuyler,  106  N.  Y.  298,  12 

94  Iowa,  336,  58  Am.  St.  Rep.  400,  62  N.  E.  783;   People  v.   Hoch,   150  N.  Y. 

N.  W.  845;   Re  Van  Alstine   (Utah)   72  291,  44  N.  E.  976;  People  v.  Kemmler, 

Pac.  942.     But  see  contra,  Allen  v.  Pub-  119  N.  Y.  580.  24  N.  E.  9. 

lie  Administrator,  1  Bradf.  221.  '"People  v.  Schuyler,  106  N.  Y.  298,  12 

A  physician  who  had  known  the  in-  N.  E.  783 ;  Peoj>le  v.  Koerner,  154  N.  Y. 

sured  for  a  long  time,  and  who  attended  355,  48  N.  E.  730;  Staunton  v.  Parker, 

him  professionally  a  short  time  hefore  19  Hun,  56. 

)iis   death,   cannot  state   how   he   found  ^'Denning   v.   Butcher,    91    Iowa,   425, 

him  in  an  action  upon  an  insurance  pol-  59   N.   W.    69;    Fraser   v.   Jennison,   42 

icy  in  which  he  is  claimed  to  have  com-  Mich.  206,  3  N.  W.  882;   Thompson  v. 

mitted  suicide  while  insane,  the  evidence  Ish,  99  M.**.  160,  17  Am.  St.  Rep.  552,  12 

being  privileged.     Westover  v.  ^J^tna  L.  S.  W.  510. 

Ins.  Co.  99  N.  Y.  56,  52  Am.  Rep.  1,  1  Heirs  at  law  who  are  the  only  repre- 

N.  E.  104.  sentatives  of  a  testator,   and  who  suc- 

And  the  prohibition  of  the  New  York  cced  to  iiis  rights,  are  competent  to 
Code  of  Civil  Procedure  against  the  dis-  waive  the  provisions  of  a  statute  pro- 
closure  by  physicians  of  professional  in-  hibitiug  disclosure  by  a  physician  of 
formation  applies  to  an  allidavit  made  information  acquired  in  a  professional 
by  a  physician  for  the  purpose  of  sup-  capacity,  so  as  to  enable  the  physician 
porting  an  application   for  an  appoint-  to  testify  for  the  purpose    of    showing 


339J 


EVIDENCE. 


395 


tiites  a  waiver.^-  O:*  executor  or  administrator,  however, cannot  waive 
the  privilege  given  by  the  New  York  Code  of  Civil  Procedure,  so  as 
to  permit  an  attending  physician  to  give  evidence  upon  the  subject, 
on  the  issue  of  mental  capacity  of  the  deceased.-"^ 

340.  Opinions  formed  from  observation  or  examination. — An  expert 
witness  who  has  had  opportunities  for  knowing  and  observing  a 
person  whose  sanity  is  in  question  may  give  an  opinion  on  that  sub- 
ject on  knowledge  obtained  from  such  observation,  where  he  fully 
states  the  condition,  appearances,  and  conversations  of  tlie  person  at 
the  time.^*  And  this  may  be  done  by  the  family  physician  as  well 
as  by  any  other.^^  As  a  general  rule,  however,  an  expert  witness 
will  not  be  allowed  to  give  an  opinion  as  to  the  mental  condition  of 
a  person,  founded  upon  personal  examination,  without  first  showing 
the  circumstances  and  facts  upon  which  such  opinion  is  based.^'' 
And,  as  a  rule,  the  court  will  not  stop  a  trial  and  give  a  physician, 


that  the  testator  was  of  unsound  mind, 
and  incapable  of  making  a  will.  Staun- 
ton V.  Parker,  19  Hun,  56. 

^'Denning  v.  Butcher,  91  Iowa,  425,  59 
N.  W.  69. 

"Wesforer  v.  Mtna  L.  Ins.  Co.  99  N. 
Y.  56,  52  Am.  Rep.  1,  1  N.  E.  104. 

^*McAllister  v.  State,  17  Ala.  434,  52 
Am.  Dec.  180;  People  v.  Worfhington, 
105  Cal.  166,  38  Pac.  689;  Potts  v. 
House,  6  Ga.  324,  50  Am.  Dec.  329 ;  Tay- 
lor V.  State,  S3  Ga.  647,  10  S.  E.  442; 
Stevens  v.  Leonard,  154  Ind.  67,  77  Am. 
St.  Rep.  446,  56  N.  E.  27;  State  v. 
Felter,  25  Iowa,  67 ;  Murphy  v.  Com.  92 
Ky.  485,  18  S.  W.  163;  Ilathorn  v.  King, 

8  Mass.  371,  5  Am.  Dec.  106;  Baxter  v. 
Ahhott,  7  Grav,  71;  McHugh  v.  Fitzger- 
ald, 103  Mich.  21,  61  N.  W.  354;  Rice 
V.  Rice,  53  Mich.  432,  19  N.  W.  132; 
Horah  v.  Knox,  87  N.  C.  490;  State  v. 
Potts.  100  N.  C.  457,  6  S.  E.  657;  Bitner 
V.  Bitner,  65  Pa.  347 ;  Gibson  v.  Gibson, 

9  Yerg.  329;  Burt  v.  State,  38  Tex. 
Grim.  Rep.  397,  39  L.  R.  A.  305,  330,  40 
S.  W.  1000,  43  S.  W.  344;  Pigg  v.  State, 
43  Tex.  108;  Broun  v.  Mitchell,  75  Tex. 
9,  12  S.  W.  606;  Barris  v.  State,  IS  Tex. 
App.  287;  McClackey  v.  State,  5  Tex. 
App.  320;  Foster  v.  Dickerson,  64  Vt. 
233,  24  Atl.  253;  Frary  v.  Gusha,  59  Vt. 
257,  9  Atl.  549. 

A  medical  witness  in  a  criminal  prose- 
cution in  which  insanity  is  alleged  may 
be  asked  whether,  from  the  whole  of  his 
intercourse  with  the  accused,  it  appeared 
to  him  that  he  was  insane.  Frith's  Case. 
22  How.  St.  Tr.  307. 

And  one  who  states,  on  an  inquisition 


of  lunacy,  that  he  has  conversed  with 
the  alleged  lunatic  in  order  to  test  the 
condition  of  his  mind,  and  noticed  his 
general  expression  and  appearance,  but 
has  formed  no  settled  opinion  as  to  the 
depth  of  his  mind,  may  be  asked  whether 
he  discovered  any  evidence  of  unsound- 
ness of  mind,  and  may  be  permitted  to 
state  his  opinion  on  the  question  of  san- 
ity or  insanity.  Re  Carmichael,  36  Ala. 
514. 

'''Ball  V.  Perry,  87  Me.  569,  47  Am.  St. 
Rep.  352,  33  Atl.  160;  Merritt  v.  State, 
39  Tex.  Grim.  Rep.  70,  45  S.  W.  21. 

A  question  asked  a  physician  as  to  th^ 
state  of  mind  of  a  person  whose  sanity 
was  in  question,  on  a  particular  day, 
based  upon  his  appearance,  actions,  con- 
dition, and  conversation,  is  not  objec- 
tionable as  leading  and  suggestive, 
Avhere  he  had  previously  testified  at 
length  that  he  had  attended  such  person 
for  some  time,  including  the  day  speci- 
fied, and  described  his  ailments  and 
physical  condition,  and  that  he  had  con- 
versed with  him.  Wheelock  v.  Godfrey, 
100  Cal.  578,  35  Pac.  317. 

^'Chandler  v.  Barrett,  21  La.  Ann.  .58, 
99  Am.  Dec.  701;  Rattb -v.  Carpenter,  17 
App.  D.  C.  505 :  Haioley  v.  Griffin 
(Iowa)  92  N.  W.  113;  Hathorn  v.  King, 
8  Mass.  371,  5  Am.  Dec.  106;  Dickinson 
V.  Barber,  9  Mass.  225,  6  Am.  Dec.  58: 
While  V.  Bailey,  10  Mich.  155;  People 
V.  Truck,  170  N.  Y.  203,  63  N.  E.  281: 
Gibson  v.  Gibson,  9  Yerg.  329;  Purycar 
V.  Reese,  6  Coldw.  21.  I'ut  see  Potts  v. 
IJoxise,  6  Ga.  324.  50  Am.  D(>c.  329; 
Jones  v.  Collins,  94  Md.  403,  51  Atl.  398. 


396 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  34U 


called  as  a  witness,  an  opportunity  to  examine  a  party,^'^  tliongh  it 
is  within  the  discretion  of  the  court  to  do  so.^^  It  is  not  necessary 
to  the  admissibility  of  the  opinion  of  an  expert  that  he  should  have 
heard  all  of  the  evidence,  where  his  opinion  is  based  upon  his  own 
knowledge  and  obsen'ation  and  what  was  said  to  him  by  the  person 
whose  sanity  is  questioned.^  ^  The  evidence  of  a  medical  witness 
wlio  had  made  a  personal  examination  of  a  person  accused  of  crime, 
and  who  gave  his  opinion,  based  on  such  examination,  is  not  subject 
to  the  objection  that  the  accused  was  thereby  compelled  to  furnish 
evidence  against  himself.^*^  And  it  is  not  an  abuse  of  discretion  for 
the  court  to  exclude  all  medical  experts  from  the  court  room  in  a 
criminal  prosecution,  where  they  were  called, not  to  declare  a  scientific 
opinion  upon  other  testimony,  but  simply  as  witnesses,  to  give  their 
opinions  on  the  question  of  menial  capacity,  as  derived  from  personal 
acquaintance.^^ 

341.  Opinions  based  on  evidence. —  The  general  rule  is  that  an  ex- 
pert witness  in  an  action  involving  the  question  cf  sanity  or  insanity, 
who  has  heard  all  the  testimony  given  on  that  question  may  be  asked 
his  opinion,  upon  the  hypothesis  that  the  testimony  given  by  the  wit- 
nesses is  all  true,^^  though  he  has  not  seen  the  patient,^^  and  though 


It  is  not  error  to  permit  a  medical  ex- 
pert, who  has  made  a  personal  examina- 
tion of  a  patient  -for  the  purpose  of  de- 
termining his  mental  condition,  to  give 
his  opinion  as  to  that  condition  at  the 
time  of  the  examination,  without,  in  the 
first  instance,  disclosing  the  particular 
facts  upon  which  the  opinion  is  based. 
People  V.  Youngs,  151  N.  Y.  210,  45  N. 
E.  400;  Crockett  v.  Davis,  81  Md.  134, 
31  Atl.  710. 

But  the  contrary  is  the  better  prac- 
tice. People  V.  Youngs,  151  N.  Y.  210, 
45  N.  E.  460. 

"State  V.  Crisp,  120  Mo.  605.  29  S.  W. 
699;  Hull  v.  Louth,  109  Ind.  315,  58 
Am.  Rep.  4l>5,  10  N.  E.  270. 

'"Herndon  v.  State,  111  Ga.  178,  36  S. 
E.  634. 

"Slate  V.  Hoyden,  51  Vt.  290;  State 
y.  Gould,  40  Kan.  258,  19  Pac.  739. 

So,  the  opinion  of  an  expert  in  a 
trial  for  murder,  in  which  insanity  is 
alleged,  is  not  subject  to  objection,  when 
ofTered  in  evidence,  that  he  had  not 
heard  the  testimony  given  with  respect 
to  the  condition  of  the  defendant's  mind, 
where  his  opinion  was  given  from  his 
own  personal  knowledge.  State  v. Gould, 
40  Kan.  258,  19  Pac.  739. 

''People  V.  Kemmler,  119  N.  Y,  580, 


24  N.  E.  9;  People  v.  Truck,  170  N.  Y. 
203,  G3  N.  E.  281. 

And  this  is  the  rule  though  the  court 
permitted  expert  witnesses  for  the 
prosecution  to  make  an  examination  of 
the  defendant  in  a  criminal  case.  Peo- 
ple  V.  Truck,  170  N.  Y.  203,  63  N.  E. 
281. 

And  an  opinion  as  to  sanity,  based  on 
the  observation  of  the  accused,  is  not 
inadmissible  because,  at  the  time  the 
observation  was  made,  the  accused  wa« 
in  jail,  unwarned.  Burt  v.  State,  38 
Tex.  Crim.  Rep.  397,  39  L.  R.  A.  305, 
330,  40  S.  W.  1000,  43  S.  W.  344. 

^Johvson  V.  State,  10  Tex.  App.  571. 

--McAllister  v.  State,  17  Ala.  434,  52 
Am.  Dec.  180;  Green  v.  State,  64  Ark 
523.  43  S.  W.  973;  State  v.  Windsor. 
5  Harr.  (Del.)  512;  Potts  v.  House,  0 
Ga.  324.  50  Am.  Dec.  329 ;  Schneider  v. 
Manning,  121  111.  376,  12  N.  E.  267; 
Doe  ex  dcm.  Sutton  v.  Reagan,  5  Blackf. 
217,  33  Am.  Dec.  400;  Jerry  v.  Toums- 
hend,  9  Md.  145;  Co7n.  v.  Rogers,  7  Met. 
500,  41  Am.  Dec.  458;  Kcmpsey  v.  Mc- 
Oiuuiss,  21  Mich.  123;  State  v.  Klinger, 
40  Mo.  224;  State  v.  Privitt.  175  Mo. 
207,  75  S.  W.  457  :  People  v.  Barber,  115 
N.  Y.  475,  22  N.  E.  182;  State  v.  Potts, 
100  N.  C.  457,  G  S.  E.  657;  Yardley  v. 


§  3411 


EVIDENCE. 


397 


he  has  made  no  personal  examination,  and  knows  nothing  of  the  ac- 
tual facts.-'*  The  opinion  of  an  expert  witness,  however,  must  be 
based  upon  evidence  taken  upon  the  trial  then  pending.^^  And  the 
better  practice  has  been  held  to  be  to  allow  tlie  medical  experts,  called 
solely  as  such,  to  remain  in  the  room  and  hear  all  tlie  testimony,  in 
order  that  from  the  whole  they  may  be  informed  as  to  the  matters 
upon  which  their  opinions  are  desired."'^  Opinions  may  be  based  on 
both  a  personal  examination  and  on  evidence  heard.-^  The  facts 
upon  which  an  opinion  is  founded  may  be  stated,  and  the  jury  left  to 
detei-mine,  not  only  the  truth  of  the  facts,  but  of  the  opinion  fovmded 
thereon.^® 

But  refusal  to  permit  an  expert  witness  who  has  heard  all  of  tlie 
evidence  to  give  his  opinion  upon  the  facts  stated,  is  not  eiTor,  where 
the  court  allowed  him  to  give  his  opinion  upon  a  hypothetical  case 
corresponding  with  the  testimony,  or  permitted  the  evidence  to  be 
read,  and  his  opinion  to  be  asked  on  the  supposition  that  the  facts 
were  true.^^  And  it  has  been  held  that  an  expert  witness  cannot  be 
asked  his  opinion  upon  the  whole  evidence,  where  it  is  conflicting, 
and  that  in  such  case  the  question  put  to  him  should  state  tlie  particu- 


Cuthlertson,  108  Pa.  395,  56  Am.  Rep. 
218,  1  At\.lQ>o;Pidcoclc  v. Potter,  fiS  Pa. 
342,  8  Am.  Rep.  181;  Vance  v.Upson,C)6 
Tex.  47G,  1  S.  W.  179;  Webb  v.  State, 
9  Tex.  App.  490 :  Foster  v.  Dickerson, 
04  Vt.  233,  24  Atl.  253;  State  v.  Hay- 
den,  51  Vt.  296;  Cornell  v.  State,  104 
Wis.  527,  80  N.  W.  745;  Rex  v.  Wright, 
Russ.  &  R.  C.  C.  456;  Rex  v.  Searle,  1 
Moodv  &  R.  75;  W'Naqhten's  Case,  10 
Clark  &  F.  200,  8  Scott  N.  R.  505,  1 
Car.  &  K.  130,  note.  And  see  Re  Storer, 
28  Minn.  9,  8  N.  W.  827. 

But  tlie  opinion  of  an  expert  witness 
in  a  criminal  prosecution,  founded  upon 
Ihe  testimony,  upon  tlie  general  ques- 
tion of  sanity  or  insanity,  is  not  compe- 
tent; the  expert  should  merely  give  an 
opinion  as  to  what  the  facts  proved  or 
claimed  to  be  proved  indicate  as  to  the 
mental  condition  of  the  person  in  ques- 
tion.    People  V.  Lake,  12  N.  Y.  358. 

'^State  V.  Windsor,  5  Harr.  (Del.) 
512. 

"Com.  V.  Rogers,  7  Met.  500,  41  Am. 
Dee.  458. 

'''Williams  v.  State,  37  Tex.  Crim. 
Rep.  348,  39  S.  W.  687;  Macfarland's 
Trial,  8  Abb.  Pr.  N.  S.  57-  T^ngley  v. 
Coicgill,  48  Mo.  29:. 

A  medical  witness  in  a.  criminal 
prosecution  in  which  insanity  is  alleged, 
who  states  that  he  has  read  all  the  evi- 


dence as  published  in  the  newspapers, 
with  a  view  to  making  up  his  mind  as  to 
the  person's  sanity,  cannot  express  ar 
opinion  on  that  subject;  only  a  hypo- 
thetical question  can  be  put,  unless  the 
witness  has  been  in  court,  and  liiTusclf 
heard  the  evidence.  Macfarland's  Trial, 
8  Abb.  Pr.  N.  S.  57. 

And  a  physician  who  had  visited  an 
invalid  on  consultation  with  his  attend- 
ing physician  cannot  give  his  opinion  of 
the  mental  condition  of  such  invalid  at 
that  time,  based  upon  representations 
by  the  invalid's  wife,  the  attending  phy- 
sician, and  the  other  attendants  as  to 
his  previous  symptoms  or  condition,  in 
connection  with  symptoms  he  discovered 
by  professional  observation  and  exami- 
nation. Hea.ld  v.  Thing,  45  Me.  392; 
Wctherbee  v.  Wetherbee,  38  Vt.  454. 

-"Johnson  v.  State,  10  Tex.  App.  571; 
Leache  v.  State,  22  Tex.  App.  279,  68 
Am.  Rep.  638.  3  S.  W.  539. 

"Re  Shelleig,  11  Ohio  S.  &  C.  P.  Dec. 
81. 

^Kempsey  v.  McGinniss,  21  Mich. 
123;  Wetherbee  v.  Wetherbee,  38  Vt. 
454;  Com.  v.  Rogers,  7  Met.  500,  41  Am. 
Dec.  458. 

'■^"McCann  v.  People,  3  Park.  Crim. 
Rep.  272 ;  Johnson  v.  State,  10  Tex. 
App.  571. 


398 


IMENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  341 


lar  facts  in  evidence  hypotlietically,  assuming  them  to  be  true,  so 
framed  that  the  jury  can  see  upon  what  particular  assumed  facts  his 
opinion  is  based,^^ — a  question  calling  for  his  opinion  as  to  the  facts 
involving  a  determination  of  the  truth  of  such  facts,  as  well  as  a  scien- 
tific conclusion  drawTi  from  them;^^  and  that  an  expert  witness  can- 
not be  allowed  to  give  an  opinion  as  to  sanity  or  insanity,  where  he 
had  not  heard  all  the  evidence,  and  it  did  not  appear  what  part  he 
had  not  heard,  and  no  hypothetical  or  agi-eed  case  had  been  submit- 
ted to  him.^2  xhe  contrary  rule  has  been  asserted,  however,  that  ex- 
pert witnesses  who  did  not  hear  all  the  evidence  may  give  an  opinion 
founded  upon  tlie  proof  heard.^^  And  error  in  permitting  an  expert 
witness  to  give  his  opinion  as  to  mental  condition  upon  tlie  evidence 
instead  of  upon  a  hypothetical  statement  is  not  reversible  error,  where 
the  answer  to  the  question  did  not  prejudice  substantial  rights.^* 
342.  Opinions   upon   hypothetical   questions   or   statements.  —  Wit- 


^Gnnter  v.  Btate,  83  Ala.  96,  3  So. 
600;  Porter  v.  State,  135  Ala.  51,  33  So. 
694;  CJioice  v.  State,  31  Ga.  424;  Mc- 
Carty  v.  Com.  14  Ky.  L.  Rep.  285,  20  S. 
W.  229;  Jerry  v.Toicnshend,  9  Md.  145; 
Woodbury  v.  Ohear,  7  Gray,  467;  Kemp- 
sey  V.  ilcGinniss,  21  Mich.  123;  Reed  v. 
State,  62  Miss.  405;  Tingley  v.  Cowgill, 
48  Mo.  291;  Coyle  v.  Com.  104  Pa.  117; 
State  V.  Coleynan,  20  S.  C.  441 ;  Price  v. 
Richmond  &  D.  R.  Co.  38  S.  C.  199,  17 
S.  E.  732;  Kerr  v.  Lunsford,  31  W.  Va. 
680.  2  L.  R.  A.  668,  8  S.  E.  493;  Mc- 
Mechcn  v.  McMechen,  17  W.  Va.  683,  41 
Am.  Rep.  682 ;  Bennett  v.  State,  57  Wis. 
U9,  46  Am.  Rep.  26,  14  N.  W.  912;  Dex- 
ter V.  Hall,  15  Wall.  9,  21  L.  ed.  73; 
Ufiitcd  States  v.  McGlue,  1  Curt.  C.  C. 
1,  Fed.  Cas.  No.  15,679;  Doe  ex  dem. 
Bainbridge  v.  Bainbridge,  4  Cox  C.  C. 
454;  Reg.  v.  Frances,  4  Cox  C.  C.  57, 
Overwiling  M'Naghten's  Case,  1  Car. 
&  K.  130,  note,  lo  Clark  &  F.  200,  8 
Scott  N.  R.  595. 

Questions  put  to  an  expert  witness  on 
the  question  of  sanity  or  insanity  in  a 
criminal  prosecution,  on  direct  examina- 
tion, must  be  hypothetical  in  form,  un- 
less there  is  no  conflict  of  evidence  as 
to  the  facts,  or  unless  the  expert  is  per- 
sonally acquainted  with  them.  State  v. 
Maier,  30  W.  Va,  757,  15  S.  E.  991. 

"Reed  v.  State,  62  Miss.  408;  Porter 
v.  State,  135  Ala.  51,  33  So.  694; 
iVSaghten's  Case,  10  Clark  &  F.  200, 
8  Scott  N.  E.  595,  1  Car.  &  K.  130,  note. 

Medical  experts  will  not  be  allowed  to 
determine  upon  the  evidence  what  the 
facta  are,  and  give  their  opinions  from 


them.  Dexter  v.  Hall,  15  Wall.  9,  21  L. 
ed.  73. 

They  are  not  to  judge  of  the  credibil- 
ity of  the  witnesses  or  of  the  truth  of 
the  facts  detailed  by  them;  it  is  for  the 
jury  to  decide  whether  such  facts  are 
satisfactorily  proved.  Com.  v.  Rogers, 
7  Met.  500,  41  Am.  Dec.  458. 

'-Broicn  v.  Com.  14  Bush,  398 ;  Kemp- 
sey  V.  McGinniss,  21  Mich.  123;  People 
V.  Thurston,  2  Park.  Crim.  Rep.  449 ; 
Webb  V.  State,  9  Tex.  App.  490. 

But  an  opinion  of  a  medical  expert, 
given  on  a  former  trial,  is  not  rendered 
inadmissible  on  a  subsequent  one  by  the 
fact  that  new  matters  were  interposed 
on  the  second  trial,  concerning  which  no 
cross-examination  was  had.  First  Nat. 
Bank  v.  Wirebach,  106  Pa.  37. 

^'People  V.  Lake,  12  N.  Y.  358,  Af- 
firmed in  1  Park.  Crim.  Rep.  495 ;  State 
V.  Gould,  40  Kan.  258.  19  Pac.  739; 
Yardley  v.  Cuthbertson,  108  Pa.  395,  56 
Am.  Rep.  218.  1  Atl.  765. 

If  an  expert  witness  who  has  heard 
all  the  testimony  of  a  particular  witness 
or  of  all  the  witnesses  is  permitted  to 
give  his  opinion  upon  such  evidence  as 
to  sanity  or  insanity,  and  there  is  any 
conflict  of  e\ndence,  or  any  doubt  as  to 
what  the  evidence  is,  he  should  be  re- 
quired to  state  fully  his  understanding 
as  to  what  facts  are  established  thereby. 
Bennett  v.  State,  57  Wis.  69,  46  Am. 
Rep.  26,  14  N.  W.  912. 

■'McCarty  v.  Com.  14  Ky.  L.  Rep.  285, 
20  S.  W.  229;  Jones  v.  People,  23  Colo. 
276,  47  Pac.  275. 


342] 


EVIDENCE. 


399 


nesses  who  are  experts  upon  the  question  of  mental  condition  may 
give  their  opinions  on  an  issue  as  to  sanity  or  insanity  upon  a  hypo- 
thetical question  or  statement  of  the  facts  established  by  the  evi- 
<lence.^^  A  hypothetical  question  as  to  mental  condition,  addressed 
to  an  expert  witness,  should  embrace  all  the  facts  of  the  case,  when 
there  is  no  dispute  as  to  such  facts,  and  the  witness  should  take  them 
all  into  consideration  in  giving  his  answer.^^  It  must  substantially 
embody  the  facts  relating  to  the  subject,  as  disclosed  by  the  evidence, 
though  it  need  not  embody  all  matters  of  which  there  is  any  evi- 
denced'^ And  where  the  facts  are  in  dispute,  the  question  need  not 
be  based  upon  all  the  evidence,  but  should  be  based  upon  the  facts 
which  the  evidence  tends  to  prove  ;^^  and  counsel  may  assume  the 


^Pittard  v.  Foster,  12  111.  App.  132; 
Choice  V.  State,  31  Ga.  424;  Massie  v. 
Com.  15  Ky.  L.  Rep.  562.  24  S.  W.  611: 
Lake  v.  People,  1  Park.  Crim.  Rep.  495 ; 
People  V.  Thurston,  2  Park.  Crim.  Rep. 
49;  Re  Jacott,  25  N.  Y.  S.  R.  712,  6  N. 
Y.  Supp.  122;  Pidcock  v.  Potter,  68  Pa. 
342,  8  Am.  Rep.  181;  Hathaicay  v.  Na- 
tional L.  Ins.  Co.  48  Vt.  346;  Dexter  v. 
Hall,  15  Wall.  9,  21  L.  ed.  73. 

But  refusal  to  pemiit  an  expert  wit- 
ness on  the  question  of  testamentary 
capacity  to  answer  proper  hypothetical 
questions  is  not  reversible  error,  where 
he  had  been  permitted  to  answer  other 
proper  hypothetical  questions  covering 
the  whole  case,  including  everji;hing 
covered  by  the  questions  he  was  not  per- 
mitted to  answer.  Kerr  v.  Lun^sford,  31 
W.  Va.  680,  2  L.  R.  A.  668,  8  S.  E.  493. 

And  an  objection  to  evidence  as  to 
sanity  or  insanity,  based  upon  a  hypo- 
thetical case  and  an  examination,  that 
it  is  incompetent  and  immaterial,  is  in- 
sufficient. State  v.  Wright,  134  Mo.  404, 
35  S.  W.  1145. 

"^Davis  V.  State,  35  Ind.  496,  9  Am. 
Rep.  760;  Lake  v.  People,  1  Park.  Crim. 
Rep.  495;  Re  Miller,  26  Pittsb.  L.  J. 
N.  S.  428;  McCullough's  Will,  35 
Pittsb.  L.  J.  169;  Webb  v.  State,  9  Tex. 
App.  490;  Hathaicay  v.  National  L.  Ins. 
Co.  48  Vt.  346. 

But  refusal  to  permit  all  the  testi- 
mony given  in  a  case  to  be  read  as  a 
hypothetical  question  put  to  a  medical 
expert  in  a  criminal  prosecution  is  not 
error,  where  counsel  was  told  that  ho 
might  assume  certain  facts,  and  put  the 
usual  hypothetical  questions,  which  wus 
finally  done.  People  v.  Goldenson,  76 
Cal.  328,  19  Pac.  161;  Choice  v.  State. 
31  Ga.  424. 


'"'State  V.  Baber,  74  Mo.  292,  41  Am. 
Rep.  314;  People  v.  Hill,  116  Cal.  5G2, 
48  Pac.  711;  Goodwin  v.  State,  96  Ind. 
550 ;  Re  Norman,  72  Iowa,  84,  33  N.  W. 
374;  Kirsher  v.  Kirsh-er  (Iowa)  94  N. 
W.  846;  Sharkey  v.  State,  4  Ohio  C.  C. 
101,  2  Ohio  C.  D.  443;   Burt  v.  State, 

38  Tex.  Crim.  Rep.  397,  39  L.  R.  A.  305, 
330,  40  S.  W.  1000,  43  S.  W.  344;  Wil- 
liams V.  State,  37  Tex.  Crim.  Rep.  348, 

39  S.  W.  687;  Williams  v.  State  (Tex. 
Crim.  App.)   53  S.  W.  859. 

Nor  need  it  embrace  all  the  elements 
of  the  law  of  insanity.  State  v.  Peel, 
23  Mont.  358,  75  Am.  St.  Rep.  529,  59 
Pac.  169. 

But  it  may  cover  a  long  period  of 
time,  both  before  and  after  the  time  of 
the  act  in  question,  when  long-standing, 
progiessive  mental  disease  is  involved. 
Manatt  v.  Scott,  106  Iowa,  203,  68  Am. 
St.  Rep.  293,  76  N.  W.  717. 

^Dai'is  V.  State,  35  Ind.  496,  9  Am. 
Rep.  760;  Guetig  v.  State,  66  Ind.  94, 
32  Am.  Rep.  99;  Meeker  v.  Meeker,  74 
Iowa,  352,  7  Am.  St.  Rep.  489,  37  N.  W. 
773;  Kirsher  v.  Kirsher  (Iowa)  94  N. 
W.  846;  Re  Fenton,  97  Iowa,  192,  66  N. 
W.  99;  Manatt  v.  Scott,  106  Iowa,  203, 
68  Am.  St.  Rep.  293,  76  N.  W.  717; 
Kelly  V.  Perrault,  5  Idaho,  221,  48  Pac. 
45:  Medill  v.  Snyder,  61  Kan.  15,  78 
Am.  St.  Rep.  306.  58  Pac.  962 ;  State  v. 
Privitt,  175  Mo.  207,  75  S.  W.  457. 

Contestants  of  a  will  cannot  intro- 
duce contradictory  evidence  upon  o 
given  point  and  then  base  hypothetical 
questions  to  experts  upon  the  theory 
that  some  of  the  witnesses  are  correct 
and  some  of  them  mistaken.  Prentis  v. 
Bates,  88  Mich.  567,  50  N.  VV.  G37. 

And  all  the  evidence  upon  both  sides, 
upon  the  issue  of  insanity,  slwuld  not 


400 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  342 


facts  in  accordance  with  his  theory  of  them,^®  though  they  cannot  be 
entirely  without  the  support  of  evidence,  or  based  upon  mere  conject 
ure."**^  The  hypothesis  upon  which  experts  are  examined  must  be 
based  upon  facts  admitted  or  established  by  the  evidence,  or  which, 
if  controverted,  the  jury  might  legitimately  find  on  weighing  the  evi- 
denced^ And  the  question  must  be  founded  on  a  given  state  of  the 
facts,  embracing  all  the  facts  relied  upon  to  show  the  theory  claimed.*' 


be  incorporated  in  one  question  asked 
an  expert  witness,  where  tlie  facts  on 
one  side  conflict  with  the  facts  on  the 
other  side;  in  such  case  attention  should 
be  called  to  their  opposing  tendencies, 
arid  if  his  skill  or  knowledge  as  an  ex- 
pert can  furnish  any  explanation  which 
harmonizes  them,  he  may  state  it.  Fair- 
child  V.  Uascumb,  35  Vt.  398. 

^Bever  v.  Spangler,  93  Iowa,  57G,  61 
N.  W.  1072;  Goodwin  v.  State,  96  Ind. 
550;  State  v.  Privitt,  175  Mo.  207,  75 
S.  W.  457;  Burt  v.  State,  38  Tex.  Grim. 
Rep.  397,  39  L.  R.  A.  305,  330,  40  S.  W. 
1000,  43  S.  W.  344;  Kerr  v.  Lunsford, 
31  W.  Va.  680,  2  L.  R.  A.  608,  8  S.  E. 
493.  And  see  Prentis  v.  Bates,  93  Mich. 
234,  17  L.  R.  A.  494,  53  N.  W.  153; 
State  V.  Dtinn  (Mo.)  77  S.  W.  848; 
Williams  v.  State  (Tex.  Grim.  App.)  53 
S.  W.  859. 

And  if  the  other  party  is  not  satisfied, 
be  has  the  privilege  of  submitting  his 
case,  embracing  an}'  or  all  of  the  testi- 
mony introduced  on  the  trial.  Bii7-t  v. 
State,  38  Tex.  Grim.  Rep.  397,  39.  L.  R. 
A.  305,  330,  40  S.  W.  1000,  43  S.  W.  344. 

The  attention  of  an  expert  witness 
may  be  called  to  such  acts  as  are 
claimed  by  a  party  to  show  sanity,  and 
his  opinion  asked  as  to  whether  such 
acts,  together  with  the  acts  and  facts 
claimed  to  have  been  proved  by  the 
other  party,  are  inconsistent  with  the 
claim  of  insanity.  Prentis  v.  Bates,  93 
Mich.  234,  17  L.  R.  A.  494,  53  N.  W. 
153.  And  see  Reg.  v.  Frances,  4  Cox  C. 
C.  57. 

^"Guetig  v.  State,  66  Ind.  94,  32  Am. 
Rep.  99;  Carpenter  v.  Bailey,  94  Gal. 
406,  29  Pac.  1101:  Kelly  v.  Perrault,  5 
Idaho,  221,  48  Pac.  45;  Meeker  v.  Meek- 
er, 74  Iowa,  352,  7  Am.  St.  Rep.  489, 
37  N.  W.  773 ;  Bomgardner  v.  Andrews, 
55  Iowa,  638,  8  N.  W.  481;  Hovcii  v. 
Chase.  52  Me.  305,  83  Am.  Dec.  514; 
The  Berry  Will  Case,  93  Md.  560,  49 
At!.  401 ;  State  v.  IJanley,  34  Minn.  430, 
26  N.  W.  397;  State  v.  Scott.  41  Minn. 
365,  43  N.  W.  62;  State  v.  Palmer, 
161    Mo.    152,   61    S.   W.   651;    State  v. 


Dunn  (Mo.)  77  S.  W.  848;  Re  Lyddy, 
24  N.  Y.  S.  R.  007,  5  N.  Y.  Supp.  636; 
Convwell  v.  Riker,  2  Dem.  354;  People 
V.  Smiler,  125  N.  Y.  717,  26  N.  E.  312; 
Ballard  v.  State,  19  Neb.  610,  28  N.  W. 
271 ;  Prut  her  v.  McClelland,  76  Tex.  574. 
13  S.  W.  543;  Loice  v.  State  (Wis.)  96 
N.  W.  417.  And  see  Eorton  v.  United 
States,  15  App.  D.  C.  310. 

Whenever  a  hypothetical  question 
supposes  facts  not  given  in  evidence,  it 
should  be  disregarded.  State  v.  Pagels, 
92  Mo.  300,  4  S.  W.  931. 

And  so,  if  tlie  facts  are  given  a  wrong 
coloring.  The  Berry  Will  Case,  93  Md. 
560,  49  Atl.  401. 

And  while  a  question  put  to  an  ex- 
pert \ntness  on  the  question  of  another's 
mental  condition,  about  which  he  had  no 
personal  knowledge,  may  not  be  im- 
proper because  it  includes  only  a  part 
of  the  facts  in  evidence,  it  would  be  so 
if,  by  reason  of  the  omission,  it  mani- 
festly failed  to  present  facts  which  were 
in  evidence,  in  their  just  and  true  rela- 
tion. Barber's  Appeal,  63  Conn.  393,  22 
L.  R.  A.  90,  27  Atl.  973. 

*^People  v.  Aitgsbury,  97  N.  Y.  501 ; 
Re  Mason,  GO  Hiui,  46,  14  N.  Y.  Supp. 
434;  Barber's  Appeal,  63  Conn.  396,  22 
L.  R.  A.  90,  27  Atl.  973;  Tlie  Berry  Will 
Case,  93  Md.  560,  49  Atl.  401 ;  Berry  v. 
8afe  Deposit  d  T.  Co.  96  Md.  45,  53  Atl. 
720. 

It  is  not  a  question  as  to  the  weight 
of  the  evidence,  but  whether  there  was 
any  evidence  tending  to  prove  the  facts 
stated  in  the  h\'pothesis.  Re  Norman, 
72  Iowa,  84,  33  "N.  W.  374. 

And  a  physician  may  give  his  opinion 
as  to  the  sanity  or  insanity  of  a  person 
on  trial  for  homicide  upon  the  basis  of 
a  hypothetical  case,  together  with  what 
he  has  learned  from  an  examination  of 
him.  State  v.  Wriqht,  134  Mo.  410,  3.') 
S.  W.  1145;  Re  Mason,  60  Hun,  46,  14 
N.  Y.  Supp.  434. 

*'Lake  v.  People,  1  Park.  Crim.  Rep. 
495;  MeCullough's  Will,  35  Pittsb.  L. 
J.  169;  Webb  v.  State,  9  Tex.  App.  490. 

To  permit  or  require  an  answer  by  an 


8  342] 


EVIDENCE. 


401 


And  it  must  be  limited  to  facts  which,  if  true,  are  indicative  of  men- 
tal unsoundness.^"^  Nor  is  the  jury  to  take  it  for  granted  that  the 
statement  contained  in  the  hypothetical  question  is  true ;  it  must  care- 
fully scrutinize  tlie  evidence,  and  from  that  deteruiine  what,  if  any 
part  of  it,  is  true  ;'^'*  whether  the  facts  assumed  in  a  hypothetical  case 
liave  been  proved  or  not  being  a  question  for  the  jury.^^ 

Questions  put  to  medical  experts  on  the  issue  of  insanity  should 
be  so  framed  as  to  require  them  to  state  the  measure  of  capacity  in 
their  own  language,  and  by  such  ordinary  terms  and  forms  of  expres- 
sion as  will  best  convey  their  ideas  to  tlie  jury.'*^  And  the  opinion 
and  hypothesis  must  be  clearly  stated,  so  that  the  jury  may  know  witli 


expert  on  a  hypothetical  question  a3 
to  sanity  embracing  only  the  evidence  of 
one  party  is  not  reversible  error,  if  both 
parties  subsequently  submit  and  obtain 
answers  to  questions  containing  all  the 
evidence.  Burt  v.  State,  38  Tex.  Crim. 
Rep.  307,  39  L.  R.  A.  305,  330,  40  S.  W. 
1000,  43  S.  W.  344.  Or,  where  no  other 
application  was  made,  after  the  state 
had  put  in  its  rebutting  proof,  to 
examine  the  medical  experts  with  the 
additional  evidence  of  the  other  party 
before  the  jury.  Dove  v.  State,  3 
Heisk.  348. 

But  an  expert  witness  in  a  prosecu- 
tion for  homicide,  who  has  stated,  on  a 
hypothetical  case,  that,  in  his  opinion, 
the  defendant  was  insane,  cannot  be  sub- 
sequently asked  to  state  his  opinion  as 
to  the  condition  of  the  defendant's  mind 
at  the  time  of  the  homicide,  judging 
from  a  personal  examination  which  he 
had  since  made,  and  the  hypothetical 
case,  upon  which  he  had  already  ex- 
pressed his  opinion.  State  v.  Welsor, 
117  Mo.  570,  21  S.  W.  443. 

^rnivard  V.  Rivard.  109  Mich.  98,  63 
Am.  St.  Rep.  560,  66  N.  W.  681. 

Facts  are  not  rendered  objectionable 
as  a  basis  for  a  hypothetical  question  in 
a  criminal  case,  by  the  fact  that  they 
were  testified  to  by  the  defendant  him- 
self. State  V.  Dunn  (I\Io.)  77  S.  W.  848. 
**Gueiig  v.  State,  66  Ind.  94,  32  Am. 
Rep.  99. 

Where,  at  the  close  of  the  testimony, 
it  is  found  that  a  hypothetical  question 
with  reference  to  mental  unsoundness 
assumed  the  existence  of  facts  with  no 
testimony  to  support  them,  counsel 
should  move  to  have  tlie  answer  stricken 
out.  Rirard  v.  Rivard,  109  ]\Iich.  98.  03 
Am.  St.  Rep.  506,  66  N.  W.  681. 

*'Sta1e  v.  Baher,  74  Mo.  292,  41   Am. 

Vol.  I.   AlKn.  .Iuk.— 20. 


Rep.  314;  State  v.  Pagcls,  92  Mo.  300, 
4  S.  W.  931  ;  Davis  v.  Staie,  35  Ind.  496, 
9  Am.  Rep.  760;  Lake  v.  People,  1  Park. 
Crim.  Rep.  495. 

And  while  a  hypothetical  question 
should  conform  with  reasonable  strict- 
ness to  the  facts  proved  or  indicated  by 
the  testimony,  no  prejudice  results  from 
the  allowance  of  a  question  which  does 
not  do  so,  where  the  jury  were  instruct- 
ed that  if  the  hypothetical  statement  of 
facts  was,  in  any  material  and  import- 
ant particular,  incorrect  or  untrue,  no 
weight  should  be  attached  to  answers 
founded  upon  it.  Rove  v.  Richards, 
112  Iowa,  220,  83  N.  W.  909. 

And  if  it  is  feared  that  questions  con- 
tain statements  of  alleged  facts  which 
were  not  proved,  and  that  the  jury 
might  be  led  to  accept  them  simply  be- 
cause they  were  incorporated  in  the 
hypothesis,  the  adverse  party  should 
ask  for  an  instruction  that  the  facts  be 
not  taken  for  granted,  but  that  the  jury 
should  carefully  scrutinize  the  evidence, 
and  determine  what,  if  any,  of  the  aver- 
ments are  true.  Grand  Lodge  I.  0.  of 
M.  A.  V.  Wieting,  108  111.  408,  61  Am. 
St.  Rep.  123,  48  N.  E.  59. 

*^Fairchild  v.  Bascomb,  35  Vt.  398; 
Hall  V.  Perry,  87  Me.  509.  47  Am.  St. 
Rep.  352.  33  Atl.  100;  Rush  v.  Megee, 
30  Ind.  09. 

The  fact  that  a  hypothetical  question 
is  so  framed  as  to  apply  to  the  party 
by  name  instead  of  a  supposititious  per- 
son does  not  render  it  objectionable, 
when  it  must  have  been  imderstood  by 
the  jury  to  have  reference  to  him,  and 
ic  cannot  be  seen  that  the  adverse  party 
was  prejudiced  therebv.  Grand  Lodge 
T.  O.  of'M.  A.  v.  ^Viciinq,  108  111.  408, 
61  Am.  St.  Rep.  123,  48  k.  E.  59. 


402  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  iSi'Z 

certainty  upon  precisely  what  state  of  assumed  facts  the  expert,  bases 
his  opinion;'*'  and  must  he  so  framed  as  to  fairly  reflect  the  facts 
admitted  or  proved  by  the  witnesses.^^  Where  such  questions  are 
founded  upon  the  testimony  of  witnesses  personally  examined,  they 
must  be  so  shaped  as  to  give  the  expert  no  occasion  to  draw  his  con- 
clusion from  the  evidence,  and  from  such  conclusion  express  his  opin- 
ion, or  to  decide  as  to  the  weight  of  evidence  or  the  credibility  of 
the  witnesses,  and  his  answers  must  be  such  as  not  to  involve  such  a 
conclusion  or  such  an  opinion,^^  such  a  determination  operating  as 

*''McMechen  v.  McMechen,  17  W.  Va.         And  a  question  asked  an  expert  wit- 

683.  40  Am.  Rep.   682;   State  v.   Scott,  ness  in  an  action  involvinor  the  validity 

41  Minn.  365,  43  N.  W.  62 ;   Horton  v.  of  a  gift,  whether  the  mind  of  the  donor 

United  States,  15  App.  T>.  C.  310.     And  was  in  such  a  condition  that  he  could 

see  Fraser  v.  Jennison,  42  Mich.  206,  3  understandingly  dispose  of  $5,000  worth 

N.  W.  882.  of    government    bonds,    is    objectionable 

But  where  a  medical  witness  is  sub-  only    as    being    leading.       Melendy    v. 

jected  to  a  long  and  minute  examination  Spaulding,  54  Vt.  517. 
with   respect   to  the  sanity  of  another,        But  it  is  improper  after  enumerating 

and  his  opinion  is  elicited  upon  groups  a  great  number  of  facts  as  the  basis  for 

of  assumed  facts  which  the  evidence  in-  a  hypothetical  question  to  an  expert  on 

dicates,  and  carefully  formed  hypothetic-  the  question  of  sanity  or  insanity,  to  in- 

al  questions  are  put  without  repeating  corporate   the    entire   testimony   of   the 

such  facts,  but  referring  to  them  as  a  witnesses,  without  stating  that  it  is  to 

basis  for  an   additional   inquiry,   and  a  be  considered  in   connection  with  other 

long,  critical  examination  is  had,  follow-  facts  and  propositions  named.     Barker's 

ing   the    same   method, — a    question    on  Appeal,  63   Conn.  393,  22   L.  R.  A.  90, 

re-examination   which   does   not  include  27  Atl.  973. 

the    hypothesis    should    be   treated    and        *^Kerr  v.  Lunsford,  31  W.  Va.  680,  2 

considered  as  resting  upon  the  hypothe-  L.  R.  A.  668,  8  S.  E.  493 ;  McMechen  v. 

sis    assumed    in    the    cross-examination.  McMechen,  17  W.  Va.  683,  41  Am.  Rep. 

McGinnis  v.  Kempsey,  27  Mich.  363.  682;    Smith  v.  Hickenbottom,  57   Iowa, 

*^Burgo  v.  State,  26  Neb.  639,  42   N.  733,   11   N.  W.  664;   Com.  v.  Rogers,  7 

W.  701;   Ballard  v.  State,  19  Neb.  610,  Met.  500,  41  Am.  Dec.  458;  Kempsey  v. 

28  N.  W.  271.     And  see  Davis  v.  State,  McGinniss,    21    Mich.    123;    Ballard    v. 

35  Ind.  496,  9  Am.  Rep.  760;   Barber's  State,  19  Neb.  610,  28  N.  W.  271;  Lake 

Appeal,  63  Conn.  393,  22  L.  R.  A.  90,  27  v.  People,  1  Park.  Crim.  Rep.  495;  Dex- 

Atl.  973.  ter  v.  Hall,  15  Wall.  9,  21  L.  ed.  73. 

A  proper  question  to  a  medical  expert        And  a  medical  witness  in  a  criminal 

on  the  subject  of  insanity  in  a  criminal  prosecution  cannot  give   an    opinion    as 

prosecution  is:     "Assuming  the  facts  to  to  the  sanity  or  insanity  of  the  defend- 

be  true  which  you  have  heard  testified  ant,  based  upon  the  facts  and  circum- 

to,  what  is  your  opinion  as  to  the  pris-  stances   stated  by  other  witnesses,   and 

oner's  sanity  or  otherwise?"     People  v.  upon    the    defendant's    conduct    at    the 

Kleim,  1  Edm.  Sel.  Cas.  13.  trial.     State  v.  Felter,  25  Iowa,  67. 

And  an  expert  witness  on  the  subject        And  it  is  not  competent  to  predicate 

of  insanity  may  be  asked  if  the  symp-  a  hypothetical  question  put  to  an  expert 

toms    and    indications    testified    to    by  upon  the  question  of  the  insanity  of  a 

other    witnesses    are  proved,  and  if  the  person  upon  all  the  evidence  in  the  case, 

jury     are     satisfied     of     their      truth,  whether   he  has  heard   it  or  not,  upon 

whether,  in  his  opinion,  the  party  was  the    assumption    that    he    recollects    ii„ 

insane,  and  what  were  the  nature  and  since  it  would  then  be  impossible  for  thp 

character  of  the  insanity,  what  state  of  jury  to  determine  the  facts  upon  which 

mind  they  indicated,  and  what  he  would  the     witness     based     his     opinion,     and 

expect  would  be  the  conduct  of  such  a  whether  such  facts  were  proved  or  not. 

person     under     anv     supposed     circum-  People  v.  McElvaine,  181  N.  Y.  250,  18 

stances.     Com.  v.  Rogers,  7  Met.  500,  41  Am.  St.  Rep.  820.  24  N.  E.  465;  Flana- 

Am.  Dec.  458.  gan  v.  State,  106  Ga.  109,  32  S.  E.  80. 


f  342] 


EVIDENCE. 


403 


an  encroachment  upon  the  functions  and  province  of  the  jury.'"  The 
projoer  mode  of  examining  an  expert,  however,  has  been  held  to  bo 
to  ask  what  are  the  symptoms  of  insanity,  and  take  particular  facts, 
assuming  tliem  to  be  true,  and  ask  whether  or  not  tliey  indicate  in- 
sanity upon  the  part  of  the  person  whose  sanity  is  in  question."^ 

343.  Qualifications  of  experts. —  A  general  knowledge  as  a  medical 
man,  or  a  scientific  training  upon  the  subject,  at  least,  is  required  to 
enable  one  to  testify  as  an  expert  on  questions  pertaining  to  insan- 
ity.^" But  physicians  who  have  been  for  some  time  in  general  prac- 
tice are  generally  regarded  as  competent  witnesses  on  such  questions.^'"' 
And  it  is  not  necessary  that  they  should  have  made  the  particular  dis- 
ease involved  a  specialty,  to  render  their  testimony  admissible  as  that 
of  an  expert,^^  the  extent  of  the  experience  and  learning  of  a  witness 


""JTempsey  v.  McGinniss,  21  Mich. 
123;  ^tate  v.  Felter,  25  Iowa,  67. 

'-^lieg.  V.  Frances,  4  Cox  C.  C.  57,  Over- 
ruling M'Naghten's  Case,  1  Car,  &  K. 
130.  note,  8  Scott  N.  R.  595,  10  Clark 
&  F.  200;  McCann  v.  People,  3  Park. 
Crim.  Rep.  272. 

'■State  V.  Crisp,  126  Mo.  607,  29  S.  W. 
699:  Com.  v.  Brayman,  136  Mass.  438; 
People  V.  Kemmler,  119  N.  Y.  580,  24 
N.  E.  9;  Abbott  v.  Com.  107  Ky.  624,  55 
S.  W.  196. 

A  minister  of  the  gospel,  though  he 
had  read  authorities  on  moral  and  in- 
tellectual science,  but  nothing  on  insan- 
ity or  medical  jurisprudence,  is  not 
qualified  as  an  expert  to  give  an  opinion 
in  a  criminal  prosecution  as  to  the  san- 
ity or  insanity  of  the  accused.  Burt  v. 
State,  38  Tex.  Crim.  Rep.  397,  39  L.  R. 
A.  305,  330,  40  S.  VV.  1000,  43  S.  W.  344. 

But  a  Catholic  priest,  regularly  edu- 
cated, who  had  officiated  as  such  for  ten 
years,  and  part  of  whose  preparatory 
education  was  to  become  competent  to 
pass  upon  the  mental  condition  of  com- 
municants in  his  church,  to  the  end  that 
the  rites  of  the  church  administered  to 
invalids  or  dying  persons  might  be  ad- 
ministered to  persons  ascertained  to  bo 
in  a  proper  state  of  reason,  and  who 
was  daily  required  to  exercise  and  pass 
his  judgment  upon  the  mental  condition 
of  such,  is  an  expert,  who  may  give  his 
opinion  in  evidence  as  to  the  sanity  or 
insanity  of  a  testator  in  a  will  contest. 
Toomes's  Estate,  54  Cal.  509,  35  Am. 
Rep.  83. 

''■'Green  v.  State,  64  Ark.  523,  43  S.  W. 
973;  Wheelock  v.  Godfrey,  100  Cal.  578, 
35  Pac.  317;  Davis  v.  State,  35  Ind. 
496,  9  Am.  Rep.  760;  State  v.  Reddick. 


7  Kan.  143;  Montgomery  v.  Com.  88  Ky. 
509,  11  S.  W.  475;  Abbott  v.  Com.  107 
Ky.  624,  55  S.  W.  196;  Baxter  v.  Ab- 
bott, 7  Gray,  71;  Bastings  v.  Rider,  99 
Mass.  624;  State  v.  Larkins,  5  Idaho, 
200,  47  Pac.  945;  Flynt  v.  Bodenhamer, 
80  N.  C.  205;  Fairchild  v.  Bascomb,  35 
Vt.  398;  Hathaway  v.  'National  L.  Ins. 
Co.  48  Vt.  336;  State  v.  Boyce,  24  Wash. 
514,  64  Pac.  719. 

The  opinion  of  an  expert  witness  in 
a  will  contest  as  to  the  testator's  san- 
ity is  not  rendered  incompetent  by  the 
fact  that  he  had  testified  that  he  was 
ignorant  of  the  effect  of  a  certain  dis- 
ease included  in  the  facts  assumed  in 
questioning  him.  "Nash  v.  Hunt,  IIG 
Mass.  237. 

''*Hat}Mway  v.  National  L.  Ins.  Co. 
48  Vt.  336;  Lewis  v.  Mason,  109  Mass. 
169;  Lowe  v.  State  (Wis.)  96  N.  W. 
417.  And  see  White  v.  McPherson,  183 
Mass.  533,  67  N.  E.  643;  Martin  v. 
Johnston,  1  Fost.  &  F.  122. 

Physicians  who  knew  the  defendant 
in  a  criminal  prosecution,  personally, 
and  had  observed  him  in  jail  since  the 
commission  of  the  offense,  may  be  per- 
mitted to  give  opinions  as  to  his  men- 
tal condition,  Avhere,  in  the  course  of 
their  practice,  they  had  a  fair  propor- 
tion of  cases  of  mental  diseases  under 
treatment,  though  they  did  not  profess 
to  be  experts  in  such  diseases.  Phelpfi 
V.  Com.  17  Ky.  L.  Rep.  706,  32  S.  W. 
470. 

And  proof  that  a  witness  in  a  will 
contest  had  been  a  nurse  in  an  insane 
asylum,  and  had  had  extended  experi- 
ence in  nursing  the  insane  in  private 
houses  and  institutions,  and  that  she 
had  conversed  with  the  testa tjix  for  aa 


404 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  343^ 


going-  to  his  credibility,  and  not  to  his  competency.^^  The  rule  has 
been  extensively  acted  upon,  however,  that  to  render  an  opinion  as  to 
sanity  or  insanity  admissible  in  evidence,  it  is  essential  that  the  wit- 
ness slionld  be  an  expert  on  the  general  subject  under  consideration^ 
and  that  no  acquaintance  with  cognate  subjects  will  suffice,  unless  the 
matter  inquired  into  is  common  to  both.^®  And  the  extent  of  a  wit- 
ness's acquaintance  with  tlie  subject  upon  which  he  testifies  as  an 
expert  may  always  be  inquired  into  to  enable  the  jury  to  weigh  his 
evidence.^'^  Whether  an  expert  witness  on  the  question  of  mental 
soundness  is  competent  to  testify  as  an  expert  is  a  question  for  the 
court.^*  And  it  is  not  affected  by  the  witness's  own  opinion  as  to 
his  qualification  or  competency.^^  And  its  decision  is  usually  final, 
though  it  may  be  reviewed  in  extreme  cases,  where  a  serious  mistake 
hae  been  committed.®^ 


hour  or  two  at  a  time  on  three  different 
occasions,  is  sufficient  to  lay  a  founda- 
tion for  her  opinion  as  to  her  sanity  or 
insanity.  Foster  v.  Dickerson,  64  Vt. 
233.  24  Atl.  253. 

But  the  mere  fact  that  a  physician 
had  had  some  experience  with  persons 
suffering  from  excessive  smoking  or 
drinking  does  not  qualify  him  as  an  ex- 
pert on  insanity  from  smoking  or  drink- 
ing. Bishop  V.  Com.  109  Ky.  558,  GO  S. 
W.  100. 

'^Montgomery  v.  Com.  88  Ky.  509,  11 
S.  W.  475. 

Statutes  prescribing  the  qualifications 
of  commissioners  of  lunacy  do  not  apply 
to  the  question  of  the  qualifications  of 
expert  witnesses  on  the  subject  of  insan- 
ity. Lowe  V.  State  (Wis.)  9G  N.  W. 
417. 

^Russell  V.  State,  53  Miss.  367 ;  Reed 
V.  State,  62  Miss.  405;  Green  v.  State. 
64  Ark.  523,  43  S.  W.  973;  Hutchins  v. 
Ford,  82  Me.  363,  19  Atl.  832;  State  v. 
Crisp,  126  Mo.  605,  29  S.  W.  699.  And 
see  Fairchild  v.  Bascomb,  35  Vt.  398 ; 
Lorts  V.  Wash,  175  Mo.  487,  75  S.  W. 
95;  McLeod  v.  State,  31  Tex.  Crim.  Rep. 
331,  20  S.  W.  749. 

The  asking  of  hypothetical  questions 
upon  an  assumed  state  of  facts,  for  the 
purpose  of  eliciting  an  opinion  of  a  wit- 
ness upon  the  issue  of  sanity  or  insan- 
ity, may  be  justified  only  upon  the 
theory  that  the  witness  is  so  familiar 
with  the  general  characteristics  of  the 
subject  under  consideration  as  to  be  able 
to  form  opinions  worth}'  of  considera- 
tion, though  wliolly  ignorant  of  the  par- 
ticular transaction  in  controversy. 
Russell  V.  Slate,  53  Miss.  367. 


And  a  physician  who  had  not  made 
a  special  study  of  insanity,  and  had  con- 
sidered the  matter  only  so  far  as  to  de- 
termine whether  a  patient  was  in  sucli 
a  condition  as  to  require  treatment  for 
insanity,  and,  if  so,  to  call  in  the  serv- 
ices of  a  specialist,  or  recommend  the 
removal  of  the  patient  to  a  hospital  for 
the  insane,  cannot  be  interrogated  as  an 
expert  concerning  sanity  or  insanity. 
Com.  V.  Rich,  14  Gray,  335. 

So,  the  rule  that  skilful  and  reputable 
physicians  may  testify  to  the  mental 
condition  of  tlieir  patients,  where  they 
had  adequate  opportunity  for  observing 
and  judging  of  their  rwental  qualities, 
does  not  apply  to  one  who  was  not  an 
attending  physician,  and  had  made  but 
a  single  examination  pendente  lite,  in 
order  to  inform  himself  as  a  witness. 
Fayette  v.  Chest erville,  77  Me.  28,  52 
Am.  Rep.  741. 

"Davis  V.  State,  35  Ind.  496,  9  Am. 
Rep.  760;  Fairchild  v.  Bascomb,  35  Vt. 
398. 

'-'Davis  V.  State,  35  Ind.  496,  9  Am. 
Rep.  760;  Eggers  v.  Eggers,  57  Ind.  461 ; 
Raub  V.  Carpenter,  17  App.  D.  C.  505: 
Fayette  v.  ChesterviUe,  11  Me.  28,  52 
Am.  Rep.  741 ;  Boardman  v.  Woodman, 
47  N.  H.  120;  Flynt  v.  Bodenhamer,  80 
N.  C.  205. 

And  it  has  been  held  to  rest  withir 
its  discretion.  Green  v.  State,  64  Ark 
523,  43  S.  W.  973. 

'•"^Boardman  v.  Woodman,  47  N.  H. 
120;  Morton  v.  United  States,  15  App. 
D.  C.  310;  State  v.  Boyce,  24  Wash.  514, 
64  Pac.  719. 

'"Fayette  v.  ChesterviUe,  11  Me.  28, 
52  Am.  Rep.  741;  People  v.  Goldsworthy. 


I  344] 


EVIDENCE. 


405 


344.  Basis  of  facts  or  reasons  for  the  opinions. —  The  JU17  should 
know  upon  what  basis  of  facts  or  reasons  the  opinion  of  an  expert 
as  to  mental  capacity  is  founded,  since  its  pertinence  depends  upon 
whether  they  find  the  truth  of  the  facts  upon  which  it  rests.''^  An 
•opinion  is  not  evidence  unless  the  jury  find  the  facts  proved  upon 
which  it  is  based;  and  when  such  facts  are  found,  the  opinion  is  a, 
fact  for  the  jury  to  consider  in  connection  witli  the  other  evidence.^^ 
So,  a  question  asked  an  expert  witness  is  incompetent,  where  it  refers 
to  facts  which,  either  standing  alone  or  in  connection  witli  other 
tilings,  have  no  tendency  to  show  insanity  or  incompetency  at  any 
time.^"^  The  facts  must  form  a  sufficient  foundation  upon  M'hich  to 
base  a  hypothetical  question.^^     And  an  opinion  based  upon  incom- 


130  Cal.  600,  62  Pac.  1074;  Rauh  v. 
Carpenter.  17  App.  D.  C.  505;  Davis  v. 
Slate  (Fla.)  32  So.  822.  And  see  Re 
Mc Arthur,  36  N.  Y.  S.  R.  292,  12  N.  Y. 
Supp.  822. 

One  who  gave  testimony  in  a  court  of 
law  as  an  expert  upon  the  question  of 
soundness  of  mind  will  be  presumed,  on 
appeal,  to  have  been  properly  qualified, 
where  nothing  appears  to  the  contrary. 
Melendy  v.  Upaulding,  54  Vt.  bll. 

'"^Weiherhee  v.  Wetherhee,  38  Vt.  454 ; 
Prentis  v.  Bates,  93  Mich.  234,  19  L.  R. 
A.  494,  53  N.  W.  153;  Cotjle  v.  Com.  104 
Pa.  117. 

An  expert  witness  on  the  question  of 
sanity  or  insanity  may  be  asked  by  ei- 
ther party  for  the  reasons  on  which  his 
opinion  is  based,  or  he  may,  with  leave 
of  the  court,  give  such  explanation  on 
his  own  account.  Leache  v.  State,  22 
Tex.  App.  279,  58  Am.  Rep.  638,  3  S.  VV. 
539. 

''-Foster  v.  Dickerson,  64  Vt.  233,  24 
Atl.  253;  Kempsey  v.  McGinniss.  21 
Mich.  123;  flarrison  v.  Rowan,  3  Wash. 
C.  C.  580,  Fed.  Cas.  No.  6,141. 

The  better  practice  is  first  to  intro- 
duce all  the  evidence  in  support  of  the 
facts  assumed  by  a  hj'pothetical  ques- 
tion with  reference  to  mental  unsound- 
ness. Rivard  v.  Rivard,  109  Mich.  98, 
63  Am.  St.  Rep.  506,  66  N.  W.  681. 

But  a  medical  expert  upon  the  ques- 
tion of  insanity  need  not  givo  all  the  de- 
tails upon  which  his  opinion  is  based, 
since  the  opinion  sometimes  depends  up- 
on looks  and  gestures  connected  with 
acts,  conduct,  or  conversation,  which 
would  be  difficult,  if  not  impossible,  for 
the  witness  to  intelligently  describe. 
State  V.  Lewis,  20  Nev.  333,  22  Pac.  241. 

And  a  question  asked  an  expert  wit- 


ness, calling  for  his  opinion  on  the  ques- 
tion of  the  soundness  of  mind  of  a  per- 
son, based  on  conversations  had  with 
him.  and  their  character,  and  his  actions 
at  that  time,  is  not  subject  to  the  ob- 
jection that  it  shouW  have  included  all 
his  observations  during  the  entire  period 
of  his  acquaintance,  where  counsel  did 
not  attempt  to  modify  the  evidence  by 
cross-examination.  People  v.  Borgetto, 
99  Mi«h.   33G,  58  N.  W.   328. 

"""Prentis  v.  Bates,  88  Mich.  567,  50 
N.  W.  637;  Thornton  v.  Thornton,  39 
Vt.  122. 

The  particular  facts  stated  by  each  of 
several  expert  witnesses  upon  the  ques- 
tion of  the  sanity  or  insanity  of  a  per- 
son must  be  taken  alone  as  the  basis 
of  the  proposed  opinion  of  that  witness, 
and  if  they  are  found  in  themselves  in- 
conclusive in  their  nature,  or  of  such 
a  neutral  character  as  to  be  consistent 
either  with  soundness  or  unsoundness, 
they  cannot  be  assumed  as  the  basis  of 
an  opinion.  First  Nat.  Benk  v.  Wire- 
bach,  106  Pa.  37. 

'■^Barber's  Appeal,  63  Conn.  393.  22  L. 
R.  A.  90,  27  Atl.  973;  Bomgardner  v. 
Andrews,  55  Iowa,  638,  8  N. 'W.  481. 

Testimony  as  to  the  effect  of  hypno- 
tism upon  persons  subject  to  such  in- 
fluence is  not  admissible  in  a  criminal 
prosecution  where  there  was  no  evi- 
dence tending  to  show  that  the  defend- 
ant was  subject  to  hypnotism,  merely 
showing  that  she  was  told  to  kill  a 
person,  and  that  she  did  it,  not  estab- 
lishing hypnotism.  People  v.  Worthing- 
ton,   105  "Cal.   166,  38   Pac.  689. 

But  answers  to  hypothetical  questions 
put  to  medical  experts  on  the  question 
of  sanity  or  insanity  are  not  objection- 
able because  they  include  considerations 


cOtf 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  344 


peteut  evidence  is  inadmissible.®^  And  this  is  the  rule  where  the 
evidence  as  to  sanity  was  hearsay,®^  though  it  consisted  of  a  narra- 
tion or  declaration  of  the  person  himself  whose  sanity  was  in  ques- 
tion.®^ But  the  jury  are  entitled  to  the  facts  upon  which  the  expert 
bases  his  opinion,  even  though  these  facts  are  the  result  of  his  own 
interview  with  the  patient.®^  And  an  opinion  of  an  expert  is  not 
rendered  inadmissible  by  the  fact  that  the  hypothesis  was  based  upon 
a  state  of  facts  describing  the  patient's  physical  condition,  as  testified 
to  by  the  medical  expert  himself.®^ 

345.  Scope  generally. — A  mere  doubt  of  an  expert  as  to  sanity  i^ 
not  admissible.^"  And  one  expert  cannot  give  an  opinion  involving 
a  question  as  to  the  value  of  the  opinion  of  another.''^  And  to  be 
admissible,  the  opinion  of  an  expert  must  be  a  medical  one,  based 
upon  professional  knowledge.'^^  Nor  can  an  expert  be  asked  to  state 
facts  tending  to  show  the  state  of  another's  mind  as  to  soundness ;  he 


not  referred  to  in  the  questions  as  con- 
stituting the  basis  of  the  opinion  given, 
where  they  are  such  as  the  testimony 
tends  to  prove,  and  as  might  have  been 
properly  included  in  the  questions. 
Eathauay  v.  National  L.  Ins.  Co.  48 
Vt.   336. 

'^Heald  v.  Thing,  45  Me.  392;  People 
V.  Hawkins,  109 'N.  Y.  408,  17  N.  E. 
371. 

But  an  expert  opinion  as  to  insan- 
ity is  not  less  competent  because  the 
acts  observed  upon  which  it  is  based 
were  those  accompanying,  as  well  as 
those  immediately  preceding,  the  act  in 
question.  People  v.  Krist,  168  N.  Y. 
19,  60  N.  E.  1057. 

And  facts  assumed  in  propounding  a 
hypothetical  question  to  an  expert  wit- 
ness in  a  will  contest  upon  the  ground 
of  insanity,  which  are  a  part  of  the 
testator's  history,  and  which,  taken  in 
connection  with  other  circumstances, 
are  proper  to  be  considered,  as  showing 
his  condition  of  mind,  are  not  subject 
to  objection  that  they  are  irrelevant  and 
immaterial,  and  have  no  tendency  to 
show  unsoundness  of  mind.  Bever  v. 
Spangler.  93  Iowa,  576,  61  N.  W.  1072. 

"Conely  v.  McDonald,  40  Mich.  150; 
Wetherbee  v.  Wetherbee,  38  Vt.  454; 
United  Slates  v.  Faulkner,  35  Fed.  730. 
And  see  Toivnsend  v.  Pepperell,  99  Mass. 
40. 

The  superintendent  of  an  insane  asy- 
lum, calh'd  as  a  witness  in  a  will  con- 
test, cannot  give  an  opinion  as  to  what 
must  have  been  the  condition  of  the  pa- 
tient in  the  asylum,   from  the  time  of 


her  admission  to  her  death,  where  he 
had  never  seen  her,  and  knew  nothing 
except  what  the  records  of  the  asylum 
showed,  and  he  based  his  answers  upon 
the  absence  from  the  record  of  things 
which  he  said  would  undoubtedly  have 
been  noted  if  they  had  existed.  Pren- 
tis  V.  Bates,  88  Mi'ch.  567,  50  N.  W.  637. 

"'People  V.  Strait,  148  N.  Y.  566,  42 
N.  E.  1045:  People  v.  Baiokins,  109  N. 
Y.  408,  17  N.  E.  371;  Wood  v.  Saicyer. 
61  N.  C.  (Phill.  L.)  251;  State  v.  Soper, 
148  Mo.  217,  49   S.  W.   1007. 

^People  V.  Nino,  149  N.  Y.  317,  43  N. 
E.  853.  And  see  Spivey  v.  State  (Tex. 
Grim.  App.)   77  S.  W.  444. 

The  language  of  a  person,  whether 
written  or  spoken,  may  afford  some  ba- 
sis for  an  opinion  concerning  his  san- 
ity or  insanilv.  Wheeler  v.  State,  158 
Ind.   687,  63   k.   E.  975. 

^"Re  Flint,  100  Cal.  391,  34  Pac.  863. 

So,  a  question  asked  an  expert  Avitness 
in  a  will  contest,  as  to  whether,  in  his 
opinion,  the  testatrix  might  have  re- 
covered her  sanity,  assuming  her  condi- 
tion to  have  been  as  stated  by  another 
expert,  calls  for  his  opinion  upon  the 
facts  stated  by  the  other  expert,  and  not 
upon  such  facts  combined  with  his  opin- 
ion, and  is  therefore  competent.  Foster 
v.   Dickcrson,   04   Vt.   233.   24   Atl.   253. 

'"Sanchez  v.  People,  22  N.  Y.  147. 

'"People  V.  Webster,  59  Hun,  398,  13 
N.  Y.  Supp.  414;  People  v.  Holmes,  111 
Mich.  364.  69  N.  W.  501. 

"'•Uiqbte  V.  (Juardian  Mut.  L.  Ins.  Co, 
66  P>arb.  463. 


9  345] 


EVIDENCE. 


407 


can  only  be  permitted  to  state  how  lie  appeared  with  respect  thereto."'' 
And  an  expert  cannot  testify  as  to  what  causes  are  sufficient  to-  pro- 
duce insanity,  tlie  issue  being  whether  the  person  in  question  was 
insane,  and  not  what  would  be  sufficient  to  produce  insanityJ^  Nor 
is  it  proper  to  show  a  mere  affliction  upon  tlie  part  of  a  person,  and 
the  effect  it  had  upon  his  mind,  by  way  of  comparison.'^^  So,  ex- 
perts may  not  testify  as  to  whether  their  theory  is  supported  by  au- 
thorities, the  works  themselves  being  the  best  evidence  as  to  what  they 
teach,  though  the  rule  would  be  different  upon  cross-examination;'^*' 
and  an  expert  witness  should  not  be  asked  to  define  words  having 
a  fixed  and  well  known  signification.'^^  JSTor  are  the  theories  of  ex- 
perts admissible  where  they  are  directly  opposed  to  the  established 
legal  rule  upon  the  question.'^* 


'^Vyman  v.  Gould,  47  Me.  159. 

An  expert  witness  in  a  criminal  pros- 
ecution cannot  give  an  opinion  that  the 
accused  was  capable  of  deliberating  like 
a  sane  person,  where  he  never  had  had 
an  opportunity  to  examine  liim.  State 
V.  Palmer,  161  Mo.  152,  61  S.  W.  651. 

Nor  can  he  testify  as  to  what  would 
be  the  likelihood  of  one  with  a  heredity 
like  that  of  the  defendant  being  injured 
by  the  excessive  use  of  liquor,  over  that 
of  one  with  an  ordinary  heredity. 
Wright  v.  Com.  24  Ky.  L.  Rep.  1838,  72 
S.  W.  340. 

'•^Carter  v.  State,  56  Ga.  466 ;  Hall  v. 
Com.  22  W.  N.  C.  25,  12  Atl.  169;  Lan- 
dis  V.  Landis,  1  Grant  Cas.  248. 

And  a  medical  expert  who  had  been 
asked  whether  the  headaches  of  a  per- 
son were  neuralgia  or  proceeded  from  a 
disordered  stomach,  and  declined  to  give 
any  medical  opinion  thereon,  cannot  be 
asked  what  impression  was  made  on  his 
mind  by  interviews  had  by  him  with 
such  person.  Higbee  v.  Guardian  Mut. 
L.  Ins.  Co.  m  Barb.  466. 

So,  in  Anderson  v.  State,  42  Ga.  9,  re- 
fusal of  the  trial  court  to  allow  a  phy- 
sician called  as  a  witness  to  explain 
to  the  jury  the  structure  of  the  brain, 
what  changes  were  produced  upon  it  by 
habitual  disease,  and  how  its  irritation 
and  inflammation  were  calculated  to 
present  to  the  mind  unreal  images  from 
whicli  a  person  might  be  induced  to  act 
as  though  the  imaginary  impressions 
really  existed,  was  upheld  on  appeal. 

'"People  v.  Holmes,  111  Mich.  364, 
69  N.  W.  501;  Leache  v.  State,  22  Tex. 
App.  279,  58  Am.  Rep.  638,  3  S.  W.  539. 

And  an  expert  witness  in  a  criminal 
prosecution   cannot  be  asked,   on  cross- 


examination  or  otherwise,  for  an  opin- 
ion as  to  the  sanity  of  other  persons 
than  the  accused,  vv'ho  had  committed 
crimes  somewhat  similar  in  their  na- 
ture. Loice  V.  State  (Wis.)  96  N.  W. 
417. 

But  a  hypothetical  question  calling 
for  the  opinion  of  an  expert  as  to  the 
mental  capacity  of  the  testator  is  not 
objectionable  because  of  the  inclusion  of 
the  question  of  his  power  to  compre- 
hend his  moral  obligations  to  others, 
where  it  plainly  appears  that  the  ob- 
ligations referred  to  were  those  which 
a  parent  owes  to  his  children.  Rivard 
V.  Rivard,  109  Mich.  98,  63  Am.  St. 
Rep.  566,  60  N.  W.  681. 

'"'State  v.  Winter,  72  Iowa,  627,  34  N. 
W.  475;  State  v.  Coleman,  20  S.  C.  441; 
Carlisle  v.  State  (Tex.  Crim.  App.)  56 
S.  W.  365. 

''Goodwin  v.  State,  96  Ind.  550. 

'"French  v.  State,  93  Wis.  325,  67  N. 
W.  706 ;  Marceau  v.  Travelers'  Ins.  Co. 
101  Cal.  338,  35  Pac.  856,  36  Pac.  813: 
Jones  V.  Collins,  94  Md.  403,  51  Atl. 
398. 

But  the  testimony  of  a  witness  in  the 
abstract,  as  to  a  certain  phase  or  kind 
of  insanity,  not  addressed  to  the  men- 
tal condition  of  the  person  whose  san- 
ity is  in  question,  will  not  be  rejected 
on  the  ground  that  it  contradicts  the 
rule  of  insanity  established  by  the  su- 
preme court  of  the  state.  Marceau  v. 
Travelers'  L.  Ins.  Co.  101  Cal.  338,  35 
Pac.   856,   36  Pac.  813. 

And  the  admission  in  evidence  in  a 
will  contest  of  a  statement  by  a  medical 
expert  that  the  fact  that  a  testatrix 
told  those  around  her  she  wanted  to  get 
someone  to  make  a  will  would    be    evi- 


408 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  Mb 


A  medical  expert,  however,  may  testify  as  to  what  are  the  symp- 
toms of  insanity,^^  and  whether  certain  symptoms  indicate  insan- 
ity j***^  or  whether  certain  acts  are  consistent  with  sanity  or  indicate 
insanity.^^  And  he  may  state  whether  a  trait  claimed  to  be  an  indi- 
cation of  insanity  is  a  vice  or  a  disease.*^  And  the  extent  and  in 
what  manner  the  mind  of  a  person  was  affected  by  disease  is  a  ques- 
tion of  fact  npon  which  it  is  competent  for  professional  witnesses  to 
express  their  opinions.^^  And  they  may  also  testify  as  to  the  proba- 
bility of  an  inherited  predisposition  to  insanity  developing  through 
subsequent  causes,^^  as  well  as  to  whether  or  not  tlie  person  whose  san- 
ity is  in  question  is  shamming,  a  personal  examination  having  been 


dence  of  delirium  is  harmless  error, 
since  it  is  common  knowledge  that  the 
condition  referred  to  is  not  evidence  of 
delirium,  but  of  its  absence.  McHiigh 
V.  Fitzgerald,  103  Mich.  21,  61  N.  W. 
354. 

'■'Lulce  V.  People,  1  Park.  Crim.  Rep. 
495;  McCann  v.  People,  3  Park.  Crim. 
Rep.  272. 

A  witness  testifying  as  an  expert  may 
state  what  insanity  is,  or  what  causes 
insanity,  but  mast  assume  hypothetic- 
al facts  when  he  tells  the  jury  his  con- 
clusions. Price  V.  Richmond  &  D.  R.  Co. 
38  S.  C.  190,  17  S.  E.  732. 

And  an  expert  witness  in  a  prosecu- 
tion for  homicide  in  which  epileptic  in- 
sanity is  alleged  may  give  an  opinion, 
where  he  had  seen  the  accused  within  an 
hour  after  the  offense,  as  to  whether 
there  were  any  indications  in  his  ap- 
pearance of  a  recent  epileptic  attack. 
Com.  V.  Buccieri,  153  Pa.  535,  26  Atl. 
228. 

^Dexter  v.  Hall,  15  Wall.  9,  21  L.  ed. 
73;  United  States  v.  McGlue,  1  Curt.  C. 
C.  1,  Fed.  Cas.  No.  15,679;  Sills  v. 
Brown,  9  Car.  &  P.  GOl;  Spear  v.  Rich- 
ardson, 37  N.  H.  23 ;  Fairchild  v.  Bas- 
comb,  35  Vt.  398;  Hathaicay  v.  National 
L.  Ins.  Co.  48  Vt.  335;  Com.  v.  Rogers, 
7  Met.  500,  41  Am.  Dec.  458;  Com.,  v. 
Rich,  14  Gray,  335 ;  Hoard  v.  Peck,  56 
Barb.  202;  Harnett  v.  Garvey,  66  N.  Y. 
641;  Jerry  v.  Toicnshend,  9  Md.  145; 
Choice  V.  State,  31  Ga.  424;  Davis  v. 
State,  35  Ind.  496,  9  Am.  Rep.  760; 
Bishop  V.  Spilling,  38  Ind.  143;  Wright 
V.  Hardy,  22  Wis.  348;  Wilkinson  v. 
iloseley,  30  Ala.  562 ;  and  cases  cited 
in  Wharton  on  Ev.   §   452. 

"People  V.  Krist,  168  N.  Y.  19,  60  N. 
E.  1057. 

"United  States  v.  Guiteau,  1  Mackey, 
498,  47  Am.  Rep.  247. 


So,  it  is  not  improper  to  ask  an  ex- 
pert witness  in  a  criminal  prosecution 
if  he  had  discovered  anything  that  led 
him  to  think  the  accused  was  insane, 
though  it  is  not  claimed  that  his  in- 
sanity was  of  a  type  which  is  manifested 
in  paroxvsms  of  frenzy.  Pannell  v.  Com. 
86  Pa.  260. 

But  questions  asked  an  expert  witness 
as  to  whether  certain  specified  symptoms 
in  connection  with  testimony  not  speci- 
fied indicate  unsoundness  of  mind  are 
improper.  Re  Storer,  28  Minn.  9,  8  N. 
W.  827. 

^Kempsey  v.  McGinniss,  21  Mich.  123; 
Koenig  v.  Globe  Mut.  L.  Ins.  Co.  10 
Hun,   558. 

An  expert  witness  in  a  prosecution 
for  homicide,  who  had  stated  that  the 
facts  assumed  in  a  hypothetical  question 
indicate  mental  imsoundness,  may  be 
asked  in  regard  to  the  state  and  degree 
of  mental  unsoundness  indicated,  and 
how  far  it  would  disqualify  the  person 
for  business,  or  render  him  unconscious 
of  the  nature  of  his  conduct ;  and  he 
should  be  inquired  of  as  to  whether  the 
facts  are  explainable  in  any  other  mode 
than  upon  the  theory  of  insanity,  and 
with  what  degree  of  certainty  they  indi- 
cate the  inference  drawn.  Reed  v.  State, 
G2  Miss.  405. 

And  evidence  in  a  prosecution  for 
homicide,  that  loss  of  sleep  and  other 
causes  which  produce  nervous  depression 
or  mental  anxiety  may  produce  a  state 
of  unconsciousness  between  sleeping  and 
waking,  and  evidence  that  the  children 
of  the  accused  had  been  sick,  and  that 
he  had  in  consequence  lost  much  sleep, 
is  admissible  in  evidence  where  the  ac- 
cused killed  a  person  who  suddenly  woke 
him  from  a  sound  sleep.  Fain  v.  Com. 
78  Ky.   183,  39  Am.  Rep.  213. 

"^Dejarnette  v.  Com.  75  Va.  867.      ' 


§  345] 


EVIDENCE. 


409 


made.*'  So,  the  effect  of  a  deprivation  of  an  accustomed  supply  of 
liquors  or  drugs  upon  the  mental  condition  of  the  subject  is  a  proper 
subject  for  expert  opinion.^ ^  And  the  mind  of  a  person  with  refer- 
ence to  tlie  act  in  question  may  be  properly  compared  with  that  of  a 
child  of  designated  age.^^  The  scope  and  limitation  of  hyjx)thetical 
questions  should  be  left  largely  to  the  discretion  of  tlie  trial  court*^* 

346.  Scope  as  to  time. —  The  opinions  of  expert  witnesses  as  to  san- 
ity or  insanity  of  a  person  are  not  confined  to  the  exact  time  of  the 
occurrence  of  the  act  in  question,  and  the  testimony  of  a  medical  ex- 
pert, founded  upon  the  appearance  of  a  person  whose  sanity  is  ques- 
tioned, at  the  time  of  the  trial,  is  admissible.^^  And  where  a  physi- 
cian was  acquainted  with  a  person  and  with  his  mental  condition  at 
a  prior  period  of  his  life,  he  may  state  his  opinion  as  to  sanity  or  in- 
sanity at  tliat  time  as  bearing  upon  his  mental  condition  at  the  time 
of  the  act  in  question.''^  But  after  the  lapse  of  many  years,  with  op- 
portunity at  all  times  to  urge  the  question,  the  door  will  not  be  opened 
to  mere  speculative  opinion  as  to  a  person's  mental  condition.^^ 

347.  Cross-examination  of  experts. — After  expert  witnesses  have 
given  their  opinions  as  to  sanity  or  insanity,  upon  direct  examina- 


^"People  V.  Koerner,  154  N.  Y.  355,  48 
N.  E.  730. 

•^Rogers  v.  State,  33  Ind.  543. 

"Richmond's  Appeal,  59  Conn.  226,  21 
Am.  St.  Rep.  85,  22  Atl.  82. 

And  an  expert  witness,  called  to  pive 
his  opinion  as  to  the  effect  of  epilepsy 
upon  the  memory,  may  give,  as  an  illus- 
tration of  a  sound  memory,  an  opinion 
as  to  the  epileptic's  power  of  memory 
from  the  nature  and  accuracy  of  his 
narrative  on  the  witness  stand.  Com. 
V.  Buccieri,  153  Pa.  535,  26  Atl.  228. 

^Horton  v.  United  States,  15  App.  D. 
C.  310. 

^^McAllister  v.  State,  17  Ala.  434,  52 
Am.  Dec.  180;  People  v.  Hoch,  150  N. 
Y.  291,  44  N.  E.  976.  And  see  Jones  v. 
Collins,  94  Md.  403,  51  Atl.  398. 

If  a  medical  expert  in  a  criminal  pros- 
ecution is  able,  from  a  physical  examin- 
ation of  the  accused  subsequent  to  the 
criminal  act,  to  determine  satisfactorily 
the  condition  of  the  brain  of  the  ac- 
cused, and  can  state  from  that  examina- 
tion that  there  was  a  disease  of  such 
long  standing  affecting  it  that  it  must 
have  existed  when  the  crime  was  com- 
mitted, the  accused  is  entitled  to  such 
evidence.  People  v.  Wood,  120  N.  Y. 
251,  27  N.  E.  362. 

And   a   medical    witness    may    testify 


in  a  prosecution  for  a  criminal  act  in 
which  insanity  is  alleged,  from  an  ex- 
amination made  in  July,  as  to  whether 
the  accused  was  insane  on  the  preceding 
March.  Freeman  v.  People,  4  Denio,  9, 
47  Am.  Dec.  210. 

And  physicians  who  had  attended  a 
testator  on  his  deathbed  may  be  permit- 
ted to  give  their  opinions  as  to  his  men- 
tal condition  immediately  before  and 
after  the  execution  of  his  will,  made 
during  such  sickness.  Eastings  v.  Rid- 
er, 99  Mass.   624. 

''"State  V.  Felter,  25  Iowa,  67;  Doe  ex 
dem.  Pritchard.  v.  Roe,  3  Penn.  (Del.) 
128.  50  Atl.  217. 

But  the  opinions  of  medical  men  who 
gave  certificates  adjudging  a  partly  to  a 
contract  to  be  insane  at  or  about  the 
time  of  making  it  are  evidence  only 
\ipon  the  question  of  his  insanity  at  the 
time  they  were  given.  Lovatt  v.  Tribe, 
3  Fost.  &  F.  9. 

"^C/irtse  V.  Winans,  59  Md.  475. 

A  physician  who  attended  a  person  a 
week  after  he  had  a  stroke  of  paralysis 
cannot  be  asked,  on  application  to  set 
aside  the  probate  of  his  will,  whether  he 
considered  him  possessed  of  testamen- 
tary capacity  between  the  time  of  his 
shock  and  the  time  of  his  death.  Re  Ar- 
nold, 14  Hun,  -525. 


410  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         l§  347 

tion,  inquiries  may  be  put  to  them  upon  cross-examination,  tending 
to  test  their  skill  and  capacity,  and  the  correctness  of  their  conclu- 
sions.^^ And  where  an  opinion  has  been  expressed,  based  upon  facts 
assumed  to  have  been  proved,  or  u]X)n  a  hypothetical  case,  the  witness 
may  be  cross-examined  by  taking  his  opinion  based  on  any  other  state 
of  facts  assumed  by  the  cross-examiner,  or  upon  a  hypothetical  case.^"*^ 
And  the  cross-examiner  is  not  confined  to  tlie  use  of  the  same  hypo- 
thetical questions  used  on  direct  examination.^*  The  witnesses  may 
be  cross-examined  on  purely  imaginary  and  abstract  questions,  as- 
suming facts  and  theories  which  have  or  have  not  foundation  in  the 
evidence,  the  allowance  of  such  questions  resting  mthin  the  sound 
discretion  of  the  court.^^     An  expert  witness,  however,  cannot  be 


''People  V.  Lalce,  12  N.  Y.  358,  Af- 
firmod  in  1  Park.  dim.  Rep.  495 ; 
Clark  V.  ^tate,  12  Ohio,  483.  40  Am.  Dec. 
481;  State  v.  Reddick,  7  Kan.  143:  Hor- 
ton  V.  United  States,  15  App.  D.  C.  310. 
And  see  Berry  v.  Safe  Deposit  d  T.  Co. 
96  Md.  45.  53  Atl.  720:  Davis  v.  United 
States,  165  U.  S.  373,  41  L.  ed.  750,  17 
Sup.   Ct.   Rep.   360. 

And  where  it  appears  in  a  prosecu- 
tion in  a  proceeding  in  the  nature  of  a 
had  examined  the  defendant  for  the 
people  while  he  was  in  jail,  awaiting 
trial  upon  a  previous  charge,  and  evi- 
dence of  the  former  trial  and  convic- 
tion were  introduced  into,  and  made  a 
part  of,  the  hypothetical  question  asked, 
it  is  not  incompetent  to  elicit,  upon  his 
cross-examination,  the  facts  about  such 
previous  examination.  People  v.  Hoch, 
150  N.  Y.  291,  44  N.  E.  976. 

And  it  is  proper,  upon  cross-examina- 
tion in  a  proceeding  in  the  nature  of  a 
writ  de  lunatico  inquirendo,  to  show 
that  an  expert  witness  testifying  against 
the  alleged  lunatic,  in  order  to  qualify 
himself  as  a  witness,  obtained  admission 
to  her  house  by  fraudulent  means,  with- 
out the  consent,  and  against  the  will,  of 
those  present,  and  in  the  absence  of 
her  attending  physician.  Re  Mason,  60 
Hun,  46,  14  N.  Y.  Supp.  434. 

'"Davis  V.  State,  35  Ind.  496,  9  Am. 
Rep.  760;  Gruhb  v.  State,  117  Ind.  277, 
20  N.  E.  257,  725;  Williams  v.  Stat^ 
(Fla.)  34  So.  279;  People  v.  Lake,  12 
N.  Y.  358;  People  v.  Sutton,  73  Cal. 
243,  15  Pac.  86.  And  see  McGinnis  v. 
Kempsey,  27  Mich.  363. 

Error  in  refusing  to  permit  the  de- 
fense in  a  criminal  prosecution  to  ex- 
amine an  expert  witness  on  the  ques- 
tion of  saniity  or  insanity,  introduced  by 
the  prosecution,  and  who  had  given  an 


opinion  based  upon  facts  assumed  by  the 
party  introducing  him,  by  taking  his 
opinion  based  on  another  set  of  facts 
assumed  by  the  defense,  however,  is 
cured  where  the  defense  calls  the  same 
witness  in  its  behalf  and  examines  him 
fully  as  to  matters  which  would  have 
been  elicited  by  the  questions  put  in 
cross-examination.  Grubb  v.  State,  117 
Ind.  277,  20  N.  E.  257,  725. 

^'Fester  v.  Dickerson,  64  Vt.  233,  24 
Atl.  253;  Prentis  v.  Bates,  93  Mich.  234. 
17   L.  R.  A.  494,  53  N.  W.   153. 

Opposing  counsel  may,  on  cross-exam- 
ination, add  to  hypothetical  questions 
such  facts  as  they  deem  the  evidence  to 
have  established,  or  subtract  from  them 
such  facts  as  they  suppose  to  have  been 
disproved,  or  not  to  have  been  proved. 
Goodwin  v.  State,  96  Ind.  550:  Grubb 
V.  State,  117  Lid.  277,  20  N.  E.  257,  725. 

But  requiring  the  accused  in  a  crim- 
inal prosecution  to  submit  his  hypothet- 
ical case  to  medical  experts  before  the 
state's  rebutting  evidence  on  the  ques- 
tion of  sanity  is  given  is  not  error,  since 
he  is  entitled,  upon  application  to  the 
court,  after  the  state  has  finished,  to  re- 
examine them  upon  the  additional  evi- 
dence.    Dove  V.  State,  3  Heisk.  348. 

And  an  expert  witness  whose  testi- 
mony on  direct  examination  was  con- 
fined to  a  contradiction  of  the  theory  of 
another  expert  witness  called  by  the 
other  side  cannot  be  asked,  on  cross-ex- 
amination, a  hypothetical  question  in  all 
respects  similar  to  the  questions  pro- 
pounded by  the  cross-examiner  to  his 
own  witnesses.  Gridley  v.  Boggs,  62 
Cal.   190. 

^'-Schieffelin  v.  Schieffelin,  127  Ala.  14. 
28  So.  687;  Norton  v.  United  States, 
15  App.  D.  C.  310;  Bever  v.  Spangle^, 
93  Iowa,  576,  61  N.  W.  1072;  People  v. 


§  347]  EVIDENCE.  411 

asked  hypothetical  questions  upon  cross-examination  npon  the  ques- 
tion of  sanity  or  insanity,  where  the  hypothesis  is  wholly  unsupj)orte(l 
by  the  evidence.^*^  And  it  is  improper  to  select  a  few  facts  and  ask 
the  expert  whether  they  changed  his  opinion;  all  the  facts  bearing 
upon  the  question  should  be  included.^^  And  an  expert  who  had 
made  an  examination  cannot  be  asked,  on  cross-examination,  why  and 
for  what  purpose  he  made  it.^^  Nor  can  a  medical  book,  stated  by 
an  expert  witness  to  be  an  authority,  be  read  in  evidence  for  tlie  pur- 
pose of  contradicting  his  evidence  given  upon  cross-examination.®* 
But  objection  to  hypothetical  questions  on  cross-examination  is 
waived  if  not  taken  at  the  tirae.^"°  And  the  opinion  of  an  export 
witness  that,  from  facts  adduced,  the  accused  was  sane,  produced  by 
the  people  in  rebuttal,  does  not  constitute  new  matter  which  will 
entitle  the  other  party  to  the  privilege  of  calling  experts  for  the  pur- 
pose of  procuring  contrary  opinions.^ 

Augshury,  97  N.  Y.  501;  West  Chicago  asked  what  medical  science  tenches  on 
Street  R.  Co.  v.  Fishman,  169  111.  196,  the  subi'ect.  Davis  v.  United  States,  105 
48  N.  E.  447,  Affirming  68  111.  App.  U.  S.  373,  41  L.  ed.  750,  17  Sup.  Ct. 
445.     And  see  Lord  v.  Beard,  79  N.  C.    Rep.  360. 

8;  Snell  v.  United  States,  16  App.  D.  C.  And  a  statement  of  his  opinion,  made 
501.  by  a  medical  expert  in  a  criminal  pros- 

But  refusal  to  permit  an  expert  wit-  ecution,  as  to  the  mental  condition  of 
ness  who  had  declared  his  opinion  that  the  accused,  at  the  instance  of  the  at- 
the  person  whose  sanity  was  in  ques-  torney  general,  which  is  placed  in  the 
tion  was  suffering  from  recurrent  insan-  hands  of  the  prisoner's  counsel  by  the 
ity  to  state  whether  he  could  give  an  il-  attorney  general,  for  use  in  framing 
lustration  of  recurrent  insanity  which  questions  on  cross-examination,  will  not 
had  come  within  his  own  personal  ex-  be  permitted  to  be  put  in  cA-idence, 
perience  is  not  reversible  error.  Leache  against  the  objection  of  the  attorney 
V.  State,  22  Tex.  App.  279,  58  Am.  Rep.  general,  especially  where  the  counsel  for 
638,  3  S.  W.  539.  the    accused    acquiesces    in,    and    avails 

^"Kearneij  v.  State,  68  Miss.  233,  8  So.  himself  of,  the  offer  of  the  attorney 
292;  State  v.  Eanley,  34  Minn.  430,  26  general,  by  using  it  in  cross-examina- 
N.  W.  397.  And  see  People  v.  Youngs,  tion.  Com.  v.  Pomeroy,  117  Mass.  143. 
151  N.  Y.  210,  45  N.  E.  460.  ""TF/ieeZocfc  v.   Godfrey,  100  Cal.  578, 

In  Wheeler  v.  State,  158  Ind.  687.  63    35   Pac.   317.    • 
N.   E.    975,   however,   it   was   held   that        ^People  v.  Hill,  116  Cal.  562,  48  Pac. 
an  expert  witness  may  be  asked,  on  cross-    711. 

examination  in  a  criminal  case,  as  to  So,  evidence  of  a  qualified  expert  as 
the  insanity  of  a  notorious  assassin  at  to  whether  alcohol  taken  internally  acts 
the  time  of  the  commission  of  a  mur-  upon  the  brain  and  is  a  direct  brain  poi- 
der  by  him,  for  the  purpose  of  ascertain-  son  and  a  cause  of  insanity,  offered 
ing  whether  his  views  were  peculiar  and  by  the  defense  in  a  criminal  prosecution 
extreme.  on  redirect  examination,  is  not  objection- 

"'Prentis  v.  Bates,  88  Mich.  567,  50  N.  able  as  a  reopening  of  the  case,  where 
W.  637.  the  prosecution  had  introduced  evidence 

"^Hall  v.  Com.  22  W.  N.  C.  25,  12  Atl.  tending  to  show,  and  the  opinions  of  wit- 
169.  nesses   to   the   effect   that,   all   the   con- 

^Macfarland's  Trial,  8  Abb.  Pr.  N.  S.  duct  and  conditions  shown  by  the  defense 
57.  to    establish    insanity   might   be   attrib- 

So,  one  who  has  testified  as  a  medical    uted    to    intoxication,    the    purpose    be- 
export,  who  has  stated  all  that  he  had    ing  to  disprove  the  theory  of  the  pros- 
seen  or  heard,  and  given  his  own  opin-    ecution.      People    v.    Strait,    154    N.    Y. 
ion   thereon  concerning  the  sanity  of  a    16.>,  47  N.  E.  1090. 
person,    need    not    be    permitted   to   be 


412  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         I§  348 

348.  Weight  generally. —  Expert  opinion  is  not  necessarily  re- 
quired to  establish  insanity.^  And  opinions  of  medical  men  as  to 
sanity  or  insanity  are  not  conclusive,  but  are  to  be  weighed  as  other 
testimony,^  though  they  are  all  on  one  side.'*  The  opinions  of  pro- 
fessional men  on  the  question  of  sanity  or  insanity,  however,  are  fre- 
quently entitled  to  great  weight;^  particularly  where  tliey  have  had 
special  opportunities  for  observation;^  though  where  there  is  consid- 
erable conflict  between  the  opinions  of  expert  witnesses,  their  opin- 
ions are  entitled  t-o  but  little,  if  any,  weight.'^  Expert  opinions  as  to 
insanity,  however,  are  to  be  received  with  caution,  and  subjected  to 
intelligent  investigation.^  And  where  mental  condition  is  thor- 
oughly established  by  other  evidence,  the  speculations  of  experts  on 
the  subject  should  receive  but  little  consideration.^ 

^Reg.  V.  Dart,  14  Cox  C.  C.  143;  Peo-  Pac.  18;  Jarrett  v.  Jarrett,  11  W.  Va. 

pie  V.  Finlev,  38  Mich.  482;  Beaubien  v.  584;    Farnf^u-orth  v.   Wo ff singer,   46   W. 

Cicotte,  12  Mich.  459.  Va.  410.  33  S.  E.  246.     And  spr  Spon- 

^McAllister  v.  State,  17   Ala.  434,  52  able  v.  Hanson,  87  Mich.  204,  49  N.  W. 

Am.    Dec.    180;    TFi/Zwns   v.    State,    50  644. 

Ark.  511,  9  S.  W.  5;  Choice  v.  State,  31  And  evidence  that  a  person  was  sub- 
Ga.  428:  Guctig  v.  State,  66  Ind.  94,  ject  to  insane  delusions,  and,  in  the 
32  Am.  Rep.  99 :  Eggers  v.  Eggers,  57  opinion  of  several  competent  and  expert 
Ind.  461;  Chandler  v.  Barrett,  21  La.  medical  witnesses  who  had  excellent  op- 
Ann.  58,  99  Am.  Dec.  701 :  Francke  v.  portunities  for  observing  him,  was  so 
His  Wife,  29  La.  Ann.  302 ;  Re  Kie-  insane  as  to  be  unlit  to  manage  his  af- 
daisch,  2  Connoly.  438,  13  N.  Y.  Supp.  fairs,  is  sufficient  to  justify  the  settinj: 
255;  Lovatt  v.  Tribe,  3  Fost.  &  F.  9.  aside  of  the  return  to  a  commission  of 

And  a  witness  giving  his  opinion  that  lunacy  that  he  was  not  of  unsound  mind 

another  was  sane  at  a  designated  time  to  such  a  degree  as  to  incapacitate  him 

may   be   contradicted,    after    laying   the  for  the  management  of  himself  and  his 

proper  foundation,  by  showing  that  sub-  estate.     Re  Fitzgerald,  30  N.  J.  Eq.  59. 

sequently  he  had  expressed   a  contrary  'Jamison  v.  Jamison,  3  Houst.   (Del.) 

opinion.      Montgomery  v.   Com.  88   Ky.  108;  Burgo  v.  State.  26  Neb.  639,  42  N. 

509,  11  S.  W.  475.  W.  701;  People  v.  Montgomery,  13  Abb. 

^Williams  v.  State,  50  Ark.  511,  9  S.  Pr.  N.  S.  207. 

W.  5.  But  an  instruction  in  a  will   contest 

^Eraser  v.  Jennison,  42  Mich.  206,   3  upon   the  ground   of  mental    incapacity 

N.  W.  882;  Com.  v.  Rogers,  7  Met.  500,  of  a,  testator,  that  no    medical    experts 

41   Am.   Dec.   4.58;   Pannell  v.   Com.  80  have   testified   and   that   the   finding  as 

Pa.  260;   Choice  v.   State,  31   Ga.  481;  to  testamentary  capacity  must  be  based 

Nicholas  v.  Kershner,  20  W.  Va.  251.  upon  the  testimony  of  neighbors  and  in- 

And    the    court,    in    a    liabeas    corpus  timate  friends,  is  erroneous  where  phy- 

proceeding  to  discharge  a   person   from  sicians  did  testify  as  to  testator's  men- 

an  asylum,  will  not  reject  as  erroneous  tal  condition,  though  their  opinions  were 

the  uncontradicted  opinions  of  unpreju-  conflicting,      Vanvalkenherg   v.    Vanval- 

diced  experts  of  high  standing  that  the  Jccnberg,    90   Ind,   433. 

party  is  insane,  simply  because  of  its  in-  *Wilcox  v.  Stale,  94  Tonn.   106.  28  S. 

ability  to  itself  discover  the  existence  of  W.  312;   People  v.  Lake,  12  N.  Y.  358. 

mental  disorder.     Re  Sherman,  17  R.  I.  And    evidence    of    a    medical    expert 

350,  22  Atl.  276.  called   by   the   defendant   in   a   criminal 

"Cheatham  v.    Hatcher,   30  Gratt.   56,  prosecution  will  not  justify  a  verdict  of 

32  Am.  Rep.  650;  Montague  v.  Allan,  78  insanity,  where  he  gives  his  opinion  that 

Va,  592,  49  Am.  Rep.  384;  State  v.  Mil-  the    defendant    was    in    a    measure    able 

ler,  7  Ohio  N,  P,  458.  5  Ohio  S.  &  C.  P.  to  distinmiisl)  right  from  wrong.     State 

Dec.  V03;  Thayer  v.  Thayer,  9  R.  I,  377:  v.    I\alh.^2  Ohio  Legal   News.  364. 

Richardson  v.  Moore,  30  Wash.  400,  71  'Rankin  v.  Rankin,  61  Mo.  295;  Bur- 


i  349] 


EVIDENCE. 


413 


349.  As  affected  by  facts,  opportunity  to  observe,  character,  etc. — 

The  reliance  to  be  placed  upon  the  opinions  of  expert  witnesses  on  a 
question  of  sanity  or  insanity  depends  upon  their  means  of  judging 
■of  the  true  mental  condition  of  the  person,  and  the  facts  upon  which 
the  opinions  are  based.^'^  The  opinion  of  an  expert  is  of  little  or  no 
value  where  tlie  facts  upon  which  it  is  predicated  are  not  established, 
or  the  hypothesis  is  incorrect. -"^  N"or  will  much  weight  be  given  the 
opinion  of  an  expert  as  to  mental  capacity  where  it  is  founded  upon 
reasons  which  are  absurd  or  not  well  founded  ;^^  or  where  the  wit- 
nesses had  had  limited  opportunities  for  observing  the  patient.-'^ 
The  weight  of  opinion  of  an  expert  also  depends  upon  the  experience, 
study,  scientific  eminence,  and  professional  character  and  understand- 
ing of  the  witness.^*     And  the  judge  should  consider  whether  the 


leif  V.  McGoiigh,  115  111.  11,  3  N.  E. 
738 ;  State  v.  Thomas,  Houst.  Crini.  Rep. 
(Del.)  511;  Dobie  v.  Armstrong,  27 
App.  Div.  520,  50  N.  Y.  Supp.  801. 

Letters  of  a  testator,  written  at  or 
about  the  time  he  made  his  will,  evi- 
dencing a  sound,  discriminating  mind, 
are  more  reliable  in  a  will  contest  than 
speculations  and  opinions  of  witnesses, 
expert  or  nonexpert,  as  to  testamentary 
incapacity.  Harper  v.  Harper,  1  Thomp. 
&  C.  354. 

So,  in  Russell  v.  State,  53  Miss.  367, 
it  was  said  that,  medicine  not  being  an 
exact  science,  the  testimony  of  a  medi- 
cal witness  on  the  question  of  sanity  or 
insanity  of  another  is,  at  best,  of  an 
exceedingly  unsatisfactory  character, 
and  is  often  as  much  calculated  to  mis- 
lead as  to  guide  to  a  correct  conclusion. 

^"People  V.  Lake,  2  Park.  Crim.  Rep. 
215;  State  v.  Miller,  7  Ohio  N.  P.  458,  5 
Ohio  S.  &  C.  P.  Dec.  703;  Ward  v. 
Brown  (W.  Va.)  44  S.  E.  488;  Gay  v. 
Union  Mut.  L.  Ins.  Co.  9  Blatchf.  142, 
Fed.  Cas.  No.  5,282 ;  Prinsep  v.  Dyce 
Sombre,  10  Moore  P.  C.  C.  232.  And  see 
Kirsher  v.  Kirsher  (Iowa)  94  N.  W. 
846. 

The  extent  of  an  expert  witness's  ac- 
quaintance with  the  subject  of  insanity 
may  always  be  inquired  into  to  enable 
the  jury  to  estimate  the  weight  of  tlie 
opinion  given  by  him  on  that  question. 
Davis  V.  State,  35  Ind.  496,  9  Am.  Rep. 
760. 

'^First  Nat.  Bank  v.  Wirehach,  106 
Pa.  37;  Palmer's  Estate,  5  W.  N.  C. 
542;  Richmond's  Estate,  206  Pa.  219, 
55  Atl.  970;  Re  Redfield,  116  Cal.  037, 
48  Pac.  794;  Gu.etig  v.  State,  66  Ind. 
94,  32  Am.  Rep.  99;  Kirsher  v.  Kirsher 


(Iowa)  94  N.  W.  846;  Staclchouse  v. 
Horton,  15  N.  J.  Eq.  202 ;  Re  Andrews, 
33  N.  J.  Eq.  514;  Bristed  v.  Weeks,  5 
Redf.  529;  Hagan  v.  Sone,  68  App.  Div. 
60,  74  N.  Y.  Supp.  109;  Clark  v.  State, 
12  Ohio,  483,  40  Am.  Dec.  481 ;  Sharkey 
V.  State,  4  Ohio  C.  C.  101,  2  Ohio  C.  D. 
443.  And  see  Reg.  v.  Southey,  4  Post  & 
F.  804;  Re  Connor,  29  Misc.  391,  61  N. 
Y.  Supp.  910. 

^-Crockett   v.   Davis,   81   Md.    134,    31 
Atl.  710;  State  v.  Hockett,  70  Iowa,  442, , 
30  N.  W.  742. 

The  opinion  of  an  expert  in  a  pro- 
ceeding to  set  aside  a  will  that  the  tes- 
tator was  insane,  founded  upon  the  fact 
that  he  was  in  a  dying  condition,  the  ex- 
pert judging  his  mental  condition  from 
his  physical  condition,  is  entitled  to  but 
little  weight,  as  against  proof  of  facts 
tending  to  show  mental  capacity.  Biir- 
ley  V.  McGough,  115  111.  11,  3  N.  E.  738. 

And  the  conflicting  opinions  of  experts 
as  to  the  sanity  of  the  testator  in  answer 
to  hypothetical  questions  embracing  as- 
sumed and  isolated  facts  covering  a 
long  lifetime,  and  separated  from  each 
other  by  years,  are  weak  and  unreliable, 
and  do  not  present  a  question  of  fact 
for  the  jury,  as  against  evidence  of  ex- 
cellent business  ability,  and  that  his 
will  was  written  by  himself,  and  carried 
out  previously  existing  plans.  Dobie 
V.  Armstrong,  27  App.  Div.  520,  60  N. 
Y.  Supp.  801. 

^'State  V.  Kalb,  2  Ohio  Leg.  News, 
364;  Watson's  Interdiction,  31  La.  Ann. 
757 ;  Slais  v.  Slais,  9  Mo.  App.  96 ;  Cro- 
lius  v.  Stark,  04  Barb.  112;  Tomkins  v. 
Tomkins,  1  Bail.  L.  92,  19  Am.  Dec.  656; 

"Jamison  v.  Jamison,  3  Houst.  (Del.) 
108;    Steele   v.    Helm,    2    Marv.    (Del.) 


414 


JIENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  349 


testimony  of  the  expert  witness  is  partisan  in  its  character,  or  biased 
bj  any  leanings  for  or  against  any  of  the  parties.^ ^  So,  an  expert 
witness  who  states  precise  facts  in  science  as  ascertained  and  settled, 
or  states  the  necessary  or  inevitable  conclusion  which  results  from  the 
facts  stated,  is  entitled  to  greater  weight  than  one  who  only  gives 
probable  inferences,  or  whose  opinion  is  speculative  or  theoretical. -^^ 
350.  As  compared  with  other  opinions. —  The  opinion  of  a  physi- 
cian who  attended  a  testator  or  other  person  during  his  last  illness  ia 
entitled  to  more  weight  on  the  question  of  testamentary  capacity  or 
competency  than  the  opinions  of  physicians  who  had  not  a  like  advan- 
tage,^''' though  the  evidence  of  experts  who  have  had  opportunity  to 


237,  43  Atl.  153;  Clark  v.  Fisher,  1 
Paige,  171,  19  Am.  Dec.  402;  People 
V.  Lake,  2  Park.  Crim.  Rep.  215 ;  People 
Y.  Kemmler,  119  N.  Y.  580,  24  N.  E.  9 ; 
mate  V.  Miller,  7  Ohio  N.  P.  458,  5  Ohio 
S.  &  C.  P.  Dec.  703 ;  Qay  v.  Union  Mut. 
L.  Ins.  Co.  9  Blatchf.  142,  Fed.  Gas.  No. 
5,282.  And  see  Fan  Horn  v.  Keenan, 
28  111.  448;  State  v.  Bradford,  156  Mo. 
91,  56  S.  W.  898. 

So  far  as  medical  opinions  bear  upon 
the  degree  of  cerebral  disease  indicated 
by  epilepsy,  paralysis,  loss  of  sleep,  con- 
versations, and  other  physical  symp- 
toms, they  are  to  be  regarded  as  the 
opinions  of  experts ;  but  so  far  as  they 
rest  upon  evidence  going  to  show  a  want 
of  intellect  directly,  and  not  merely  as 
a  result  of  the  disease  of  the  brain,  they 
derive  little  if  any  additional  force  from 
the  piofessional  education  of  the  wit- 
ness.    Delafield  v.  Parish,  25  N.  Y.  115. 

'-Ktish  v.  Megee,  36  Ind.  69. 

The  opinions  of  experts  who  are  em- 
ploj'cd  for  the  purpose  of  giving  them, 
and  paid  for  their  services,  and  who  are 
brought  to  testify  as  witnesses  for  their 
employers,  are  to  be  closely  scanned,  and 
due  effect  is  to  be  given  to  the  means  by 
which  such  opinions  are  procured.  Gay 
V.  Union  Mnt.  L.  Ins.  Co.  9  Blatchf.  142, 
Fed.  Cas.  No.   5,282. 

But,  the  fact  that  the  chief  beneficiary 
under  a  will  procured  two  alienists  as 
witnesses  to  the  testator's  will,  with  a 
view  to  producing  their  testimony  upon 
an  anticipated  contest  thereof,  is  not 
a  suspicious  circumstance,  or  one  which 
affects  the  weight  of  their  testimony 
that  the  testator's  mind  and  memory 
were  sound.  lie  Journeay,  15  App.  Div. 
567,  44  N.  Y.  Supp.  548,  Affirmed  in  162 
N.  Y.  611,  57  N.  E.  1113. 

"^01/  V.  Union  Mut.  L.  Ins.  Co.  9 
Blatchf.  142,  Fed.  Cas.  No.  5,282;  Peo- 


ple V.  Barberi,  12  N.  Y.  Crim.  Rep.  89, 

47  N.  Y.  Supp.  168. 

The  fact  that  a  person  is  unable  to 
discriminate  between  right  and  wrong 
is  best  ascertained,  not  by  any  medical 
theory,  but  by  the  acts  of  the  person 
himself.  United  States  v.  Shults,  6  Mc- 
Lean, 121,  Fed.  Cas.  No.  16,286. 

And  acts  and  conduct  of  a  person  ac- 
cused of  crime,  showing  conclusively  that 
he  had  sullicient  reason  to  contemplate 
the  act  and  its  consequences,  are  of  more 
value  as  evidence  on  the  question  of  ca- 
pacity than  tlie  opinions  of  witnesses, 
however  learned  or  experienced.  State 
V.  Thomas,  Houst.  Crim.  Rep.  (Del.) 
511. 

^''Harrison  v.  Roican,  3  Wash.  C.  C. 
580,   Fed.   Cas.    No.    6.141;    Re   Blakely, 

48  Wis.  294,  4  N.  W.  337 ;  Whclpley  v. 
Loder,  1  Dem.  308;  Re  Seagrist,  1  App. 
Div.  615.  37  N.  Y.  Supp.  496;  Re  Rear- 
ney,  69  App.  Div.  481,  74  N.  Y.  Supp. 
1045. 

A  statement  by  the  judge  in  a  will 
contest,  that  he  relied  with  more  confi- 
dence upon  the  opinion  of  an  intelligent 
attending  physician  than  he  did  upon 
the  subsequent  opinion  of  four  physi- 
cians who  had  not  seen  the  testator  dur- 
ing his  illness,  and  who  based  their 
opinions  as  to  his  sanity  upon  the  na- 
ture of  the  disease,  is  not  reversible  er- 
ror. Eii-kwood  v.  Gordon,  7  Rich.  L. 
474,  62  Am.  Dec.  418. 

And  evidence,  in  a  criminal  prose- 
cution, of  insanity  in  the  family  of  the 
defendant,  and  testimony  of  his  family 
physician  and  persons  who  had  known 
him  for  years,  tending  to  show  insanity, 
preponderate  over  evidence  given  by  a 
person  who  had  known  him  but  a  short 
time,  and  whose  opinion  was  not  sub- 
stantiated by  reason,  and  the  opinions 
of  experts  who  were  not  specially  qual* 


350] 


EVIDENCE. 


415 


observe  cannot  be  said  to  be  entitled  to  greater  weight,  as  matter  of 
law,  than  that  of  experts  who  fonnd  their  opinions  upon  hypothetical 
questions.^ ^  And  as  a  general  rule,  proof  made  by  expert  witnesses 
who  have  devoted  their  time  and  attention  to  cases  of  mental  derange- 
ment is  of  much  greater  value  than  that  of  persons  who  have  no  scien- 
tific or  experimental  knowledge  of  the  subject,  and  who  only  speak 
from  observation  of  outward  signs  and  appearances.^^  But  it  is  the 
duty  of  the  jury  to  weigh  the  whole  evidence,  and  decide  according  to 
their  convictions,  though  the  medical  witnesses  were  of  a  different 
opinion.^"  And  jurors  are  not  bound  to  give  more  weight  to  the  tes- 
timony of  medical  experts  on  the  question  of  insanity  than  to  that  of 
nonexpert  witnesses  who  state  facts  within  their  own  knowledge;  it 
is  not  for  the  court  to  pronounce,  as  matter  of  law,  which  of  the  two 
classes  should  receive  greater  w^eight.^^  And  opinions  of  neighbors 
of  good  common  sense,  who  had  opportunity  to  observe,  are  sometimes 
regarded  as  of  more  weight  than  those  of  experts,^^  especially  where 
the    opinions   of  the  experts   are   not  well    supported   by  facts    and 

23 


reasons. 


ified  as  such.  McLeod  v.  State,  31  Tex. 
Crim.  Rep.  331,  20  S.  W.  749. 

'"Bever  v.  Spangler,  93  Iowa,  576,  61 
N.   W.    1072. 

'"State  V.  Reidell,  9  Houst.  (Del.) 
470,  14  Atl.  550;  Watson  v.  Anderson, 
13  Ala.  203;  Hendrix  v.  Money,  1  Bush, 
306 ;  Com.  ex  rel.  Hehnbold  v.  Kirkbride, 
11  Phila.  427;  Ward  v.  Broicn  (W.  Va.) 
44  S.  E.  488;  Jarrett  v.  Jarrett,  11  W. 
Va.  584;  Kerr  v.  Lunsford,  31  W.  Va. 
659,  2  L.  R.  A.  668,  8  S.  E.  493;  Nich- 
olas V.  Kershner,  20  W.  Va.  255.  And 
see  Forman  v.  Smith,  7  Lans.  443. 

An  instruction  in  a  will  contest  that 
the  testimony  of  medical  men  of  large 
experience  on  the  question  of  insanity, 
as  a  general  rule  is  entitled  to  more 
weight  than  that  of  nonprofessional  men, 
but  that  the  question  of  the  weight  is  for 
the  jury,  is  not  erroneous,  where  the 
medical  men  testifying  were  not  mere 
experts  whose  testimony  was  founded 
upon  facts  testified  to  by  other  wit- 
nesses, but  they  had  made  a  personal 
examination  of  the  decedent  for  the  very 
purpose  of  ascertaining  his  mental  ca- 
pacity.' Blake  V.  Rourke,  74  Iowa,  519, 
38  N.  W.  392;  Meeker  v.  Meeker,  74 
Iowa,  352,  7  Am.  St.  Rep.  489,  37  N.  W. 
773. 

-"Watson  V.  Anderson,  13  Ala.  202. 

-''Sanders  v.  State,  94  Ind.  147;  Car- 
penter V.  Calvert,  83  111.  02;  Ihock  v. 
Luckeit,  4  How.    (Miss.)    459;   Re  Kie- 


dnisch,  2  Connoly,  438,  13  N.  Y.  Supp. 
255;  People  v.  Ferraro,  101  N.  Y.  365, 
55  N.  E.  931. 

And  an  instruction  in  a  criminal 
prosecution  that  the  opinions  of  medical 
experts  are  to  be  considered  in  con- 
nection with  all  the  other  evidence  in 
the  case,  and  that  the  jury  are  not  bound 
to  act  upon  them  to  the  exclusion  of 
other  evidence,  and  that  they  are  to  de- 
termine the  question  on  the  whole  evi- 
dence, is  not  subject  to  objection  that  it 
informs  the  jury  that  the  testimony  of 
the  experts  is  not  entitled  to  greater 
weight  than  that  of  nonexpert  witnesses. 
Goodwin  v.  State,  96  Ind.  550. 

-"  See  Rutherford  v.  Morris,  77  111. 
397;  Kelly  v.  Perrault,  5  Idaho,  221, 
48  Pac.  45;  Maynard  v.  Vinton,  59  Mich. 
139,  60  Am.  Rep.  276,  26  N.  W.  40l'; 
Kane's  Estate,  206  Pa.  204,  55  Atl.  917; 
Re  Smith,  22  Pa.  Co.  Ct.  487. 

Probate  will  not  be  refused  a  will  on 
the  opinion  of  a  medical  expert  against 
testamentary  capacity,  where,  in  order 
to  do  so,  it'  Avould  be  necessary  to  find 
as  a  fact  that  each  of  the  subscribing 
witnesses  had  committed  wilful  perjury. 
Re  Lyddy,  17  N.  Y.  S.  R.  2,  4  N.  Y. 
Supp.  468. 

-'Re  Laicrence,  27  Misc.  473,  59  N.  Y, 
.Supp.  174;  Buchanan  v.  Bclsey,  65  App. 
Div.  58,  72  N.  Y.  Supp.  601  :  Brooks 
V.  Pratt,  55  C.  C.  A.  515.  118  Fed.  72.5. 

Affirmative   evidence   of   persons   wel) 


416 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  351 


351.  A  question  for  the  jury. —  The  matter  of  the  weight  of  expert 
opinion,  though  one  with  reference  to  which  the  court  is  usually  per- 
mitted to  make  suggestions,  is  one  for  the  jury,  the  opinion  of  an  ex- 
pert witness  as  to  sanity  or  insanity  being  a  fact  bearing  upon  that 
question,  the  proper  weight  of  which  falls  within  the  province  of  the 
jury  to  determine,^*  though  the  court  must  decide  whether  a  witness 
called  to  give  his  opinion  has  the  necessary  experience  to  enable  him 
to  testify  as  an  expert.""  And  a  charge  that  the  opinions  of  one  class 
of  witnesses  should  be  given  either  gi-eater  or  less  weight  than  the 
opinions  of  another  class  is  improper,  as  an  invasion  of  the  province 
of  the  jury.-*'  An  instruction  that  the  law  attaches  peculiar  impor- 
tance to  the  opinions  of  medical  men  who  have  had  opportunity  to 
observe,  upon  the  question  of  mental  capacity,  however,  is  not  objec- 
tionable   as  an  expression   of  opinion   on  the   weight  of   evidence.-^ 


ficquainted  with  one  alleged  to  be 
insane  is  entitled  to  more  weight  than 
testimony  of  persons  w'ho  had  inter- 
views witli  him  near  the  time  in  ques- 
tion, merely  to  the  effect  that  they  saw 
no  indications  of  insanity.  Emery  v. 
Hoyt,  4G   111.   258. 

And  an  instruction  in  a  will  contest 
that  the  testator's  manner  of  conducting 
himself  is  of  more  weight  than  the  mere 
opinions  of  witnesses  as  to  his  sanity 
or  insanity  is  not  objectionable  as  char- 
acterizing opinion  evidence  as  of  the 
lowest,  order.  Howe  v.  Richards,  112 
Iowa,  220,  83  N.  W.  909. 

"Kempseii  v.  McGinniss,  21  Mich.  123; 
Rivard  v.  Rirord,  109  Mich.  98,  63  Am. 
St.  Rep.  506,  60  N.  W.  681;  Davis  v. 
State,  35  Ind.  496,  9  Am.  Rep.  760; 
Goodidn  v.  State,  96  Ind.  550 :  Gay  v. 
U7no7i  Muf.  L.  Ins.  Co.  9  Blatchf.  142, 
Fed.  Cas.  No.  5.282 ;  Bever  v.  Spangler, 

93  Iowa,  576,  61  N.  W.  1072;  Re  Red- 
field,  116  Cal.  637,  48  Pac.  794;  State 
V.  Del  Bello,  8  Ohio  S.  &  C.  P.  Dec.  455. 

'It  is  witliin  the  province  of  the  jury, 
in  an  action  involving  the  question  of 
sanity  or  insanity,  to  reject  each  and 
every  opinion  uttered  by  experts.  Peo- 
ple v.  Barberi,  12  N.  Y.  Crim.  Rep.  89, 
47  N.  Y.  Supp.  168. 

^'FUjnt  v.  Bodenhamer,  80  N.  C.  205. 
^Goodwin  v.  State,  96  Ind.  .5,50;  7?»r- 
ney  v.  Torrey,  100  Ala.  157,  46  Am.  St. 
Rep.  33,  14  So.  685;  People  v.  Barthle- 
man,  120  Cal.  7,  52  Pac.  112;  Carpeyxtcr 
V.  Calvert,  83  111.  62;  Broion  v.  Riggin, 

94  111.  560;  Eygers  v.  Eggers,  57  "ind. 
4C1 ;  Sanders  v.  State,  94  Ind.  147  ;  The 
Berry  Will  Case,  93   Md.   560,   49   Atl. 


401;  Rivard  v.  Rivard.  109  Mich.  98, 
66  Am.  St.  Rep.  566.  66  N.  W.  681; 
Pannell  v.  Com.  86  Pa.  260:  ^Vard  v. 
Brown    (W.  Va.)   44  S.  E.  488. 

So,  an  instruction  that  the  opinions 
of  expert  witnesses  on  the  question  of 
insanity  are  entitled  to  great  weight, 
and  so  are  those  of  persons  who  asso- 
ciated and  lived  with  the  person  whose 
sanity  is  in  question,  is  erroneous,  it  be- 
ing safer  and  better  to  leave  these  mat- 
ters to  be  weighed  bv  the  jury.  Ryder 
V.  Stale,  100  Ga.  528,"^38  L.  R.  A.  721,  62 
Am.  St.  Rep.  334,  28  S.  E.  246. 

And  an  instruction  that  the  testimony 
and  opinions  of  medical  witnesses  on  the 
question  of  insanity  should  be  received 
with  caution,  and  are  entitled  to  but 
little  weight  unless  sustained  by  rea- 
sons and  facts  that  admit  of  no  miscon- 
struction, and  that  they  are  not  binding 
upon  the  jury,  is  objectionable,  as  a 
comment  upon  the  sufficiency  and  weight 
of  the  evidence,  under  a  statute  prohibit- 
ing such  comment.  State  v.  Hundley, 
46  Mo.  414. 

And  a  remark  by  the  judge  in  charg- 
ing the  jury  as  to  insanity  in  a  criminal 
prosecution,  that,  in  his  experience  and 
observation,  doctors  can  be  gotten  to 
swear  on  both  sides  of  any  question,  is 
objectionable,  as  adding  the  testimony 
derived  from  the  experience  of  the  judge, 
and  a-s  a  statement  of  convictions  and 
conclusions  created  by  listening  to  the 
testimony  of  this  class  of  transactions 
in  other  cases.  People  v.  Webster,  50 
Hun.  398,  13  N.  Y.  Supp.  414. 

"Flynt  V.  Bodenhamei;  80  N.  C.  205. 

And   an    instruction,   in  an   action   to 


i  351] 


EVIDENCE. 


417 


Likewise,  whether  the  facts  upon  which  the  opinion  of  a  medical  ex- 
pert on  the  question  of  mental  capacity  is  based  are  established  or  not 
is  a  question  for  the  consideration  of  the  jury.^®  And  where  the 
opinion  of  a  medical  expert  has  been  admitted,  and  the  facts  hypo- 
thetically  stated  vary  somewhat  from  the  facts  proved,  a  charge  that 
his  opinion  is  entitled  to  but  little  weight  is  properly  refused.^^  The 
jury  should  be  left  at  liberty  to  apply  the  same  rules  to  the  testimony 
of  experts  that  are  applicable  to  the  testimony  of  other  witnesses, 
when  estimating  its  value.^*^  They  are  to  be  assisted,  but  their 
functions  are  not  to  be  superseded,  by  the  expert.^* 

2,  Nonexperts. 

352.  Admissibility  generally. —  The  unsupported  opinions  of  wit- 
nesses other  than  experts  and  subscribing  witnesses  to  an  instrument, 
as  to  the  capacity  of  a  person,  considered  merely  as  opinions,  are  not 
admissible  in  evidence.^^     A  witness  who  is  not  an  expert  cannot  tes- 


contesrt  the  validity  of  a  will  upon  the 
ground  of  testamentary  incapacity,  that 
the  evidence  of  an  expert  was  of  little 
value,  is  not  reversible  error,  as  against 
the  plaintiff,  where  he  was  called  by,  and 
testified  strongly  in  favor  of,  the  de- 
fendants. Bundy  v.  McEnight,  48  Ind. 
502. 

•^First  Nat.  Bank  v.  Wirehach,  106 
Pa.  37;  Guetig  v.  State,  66  Ind.  94,  32 
Am.  Rep.  99 ;  Lake  v.  People,  1  Park. 
Crim.   Rep.   495. 

And  a  refusal  to  instruct  the  jury  in 
a  will  contest  upon  the  ground  of  insan- 
ity, that  no  weight  is  to  be  given  to  the 
evidence  of  experts  when  some  of  the 
facts  upon  which  the  hypothetical  ques- 
tions are  based  are  not  found  to  be 
true,  will  not  be  regarded  as  prejudi- 
cial error,  where  the  court  had  instruct- 
ed that  the  weight  of  such  opinions  was 
for  the  jury  to  consider,  in  view  of  all 
the  other  testimony  in  the  case.  Bevcr 
V.  Spangler,  93  Iowa,  576,  61  N.  W. 
1072. 

^Gunter  v.  Btate,  83  Ala.  96,  3  So. 
■600.  And  see  Guiteau's  Case,  10  Fed. 
161. 

But  an  instruction  in  a  will  contest 
upon  the  ground  that  the  testator  was 
afflicted  with  senile  dementia,  that  the 
jury  ought  to  consider  and  weigh  all  the 
evidence,  including  the  evidence  of  ex- 
perts tending  to  show  the  condition  of 
the  testator's  mind,  is  not  subject  to  ob- 
jection that  it  directs  the  jury  that  they 
might  give  more  weight  to  the  opinions 
Vol.  I.  Med    Juk.— 27. 


of  experts,  though  some  of  the  assumed 
facts  stated  in  the  hypothetical  ques- 
tions might  have  been  found  to  be  un- 
true. Bever  v.  Spangler,  93  Iowa,  576. 
61  N.  W.  1072. 

^"C'uneo  V.  Bessoni,  63  Ind.  524:  Ry 
der  V.  State,  100  Ga.  528,  38  L.  R.  A. 
721,  62  Am.  St.  Rep.  334,  28  S.  E.  246. 

A  verdict  will  not  be  disturbed  on  ap- 
peal, though  against  the  validity  of  a 
will  which  was  rational  in  its  provi 
sions.  and  was  written  and  attested  by 
a  physician  without  interest  in  the  mat- 
ter, who  testified  in  favor  of  testa- 
mentary capacity,  where  the  other  at- 
testing witnesses  testified  that  the  tes- 
tator was  not  competent  by  reason  of 
his  physical  and  mental  condition,  and 
that  he  signed  the  will  to  avoid  offending 
the  physician,  and  other  witnesses,  in- 
cluding another  attending  physician,  tes- 
tified against  testamentary  capacity. 
Snyder  v.  Cunningham,  13  Ky.  L.  Rep. 
24,  16  S.  W.  130. 

^^Re  Red  field,  116  Cal.  637,  48  Pac. 
794. 

^^  This  rule,  in  the  above  broad  and 
general  form,  is  supported  by  many 
cases,  among  which  are:  Ragland  v. 
State,  125  Ala.  12,  27  So.  983;  McDan- 
iel  V.  Crosby.  19  Ark.  53.3 ;  Turner's  Ap- 
peal, 72  Conn.  305,  44  Atl.  310;  Doe  ex 
dcm.  Pritchard  v.  Roe,  3  Penn.  (Del.) 
128.  50  Atl.  217;  Armstrong  v.  State, 
30  Fla.  170,  17  L.  R.  A.  484,  11  So.  618; 
Potts  V.  House,  6  Ga.  324,  50  Am.  Dec. 
329;  Sta-ser  v.  Uogan,  120  Ind.  207.  21 


tl8 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


I§  352 


tif  V  as  to  his  opiniou  with  reference  to  the  mental  capacity  of  another, 
witliout  stating  the  facts  or  reasons  upon  which  his  opinion  is  based.^^ 
Opinions  must  be  founded  on  facts,  which  must  be  given  to  the  jury, 
that  they  may  determine  the  weight  to  be  given  to  the  opinions.^* 
An  exception  exists,  however,  to  the  general  rule  of  evidence  that  wit- 
nesses can  ,only  speak  as  to  facts,  and  cannot  be  permitted  to  state 
their  opinions,  where  the  issue  is  as  to  sanity  or  insanity ;  and  the  rule 
generally  laid  doA\Ti  is  that  opinions  of  nonexpert  witnesses  on  the 
question  of  sanity  or  insanity  are  admissible  in  evidence,  where  they 
state  the  facts  and  circumstances  upon  which  the  opinions  expressed 


N.  E.  911,  22  N.  E.  990;  State  v.  Geddis, 
42  Iowa,  2G8;  Godden  v.  Burke,  35  La. 
Ann.  IGO;  Tlw  Berry  Will  Case,  93  Md. 
500,  49  Atl.  401;  Re  Pinney,  27  Minn. 
280,  6  N.  W.  791,  7  N.  W.  144; 
Croicson  v.  Crowson,  172  Mo.  691,  72 
S.  E.  1065;  Hyer  v.  TMtle,  20  N.  J.  Eq. 
443;  Crowell  v.  Kirk,  14  N.  C.  (3  Dev. 
L. )  355;  Puryear  v.  Reese,  6  Coldvv.  21; 
Cannon  v.  State,  41  Tex.  Crim.  Rep.  467, 
56  S.  W.  351. 

A  statement  by  a  witness  that  a  wife 
treated  her  husband  as  a  parent  would 
treat  a  child  is  inadmissible  to  prove  the 
insanity  of  the  husband,  being  ambigu- 
ous, and  a  mere  expression  of  opinion. 
Waters  v.   M^aters,    35   Md.   531. 

^  This  is  merely  a  more  particularized 
statement  of  the  general  rule  above 
given.  In  this  form  it  is  also  supported 
by  numerous  cases,  among  which  are: 
Burney  v.  Torrey,  100  Ala.  157,  46  Am. 
St.  Rep.  33,  14  So.  085 ;  Jarvis  v.  State, 
70  Ark.  61.3,  67  S.  W.  76;  Grant  v. 
Thompson,  4  Conn.  203,  10  Am.  Dec. 
119;  Elhridge  v.  Bennett,  9  Houst. 
(Del.)  295,  31  Atl.  813;  Eorton  v. 
United  States,  15  App.  D.  C.  310;  Boic- 
den  V.  Achor,  95  Ga.  243,  22  S.  E.  254; 
Doe  ex  dcm.  Sutton  v.  Reagan,  5  Blackf. 
217,  33  Am.  Dec.  466;  Rarick  v.  IJlmer, 
144  Ind.  25,  42  N.  E.  1099;  Alvord  v. 
Ahord,  109  Iowa,  113,  80  N.  W.  306; 
Moors  V.  San  ford,  2  Kan.  App.  243.  41 
Pac.  1064;  Shirley  v.  Taylor,  5  B.  Mon. 
99;  Eloi  V.  Eloi,  36  La.  Ann.  563; 
Braslvears  v.  Oi-me,  93  Md.  442,  49  Atl. 
^i20;  Hathorn  v.  King,  8  Mass.  371,  5 
Am.  Dec.  106:  Re  Hogmire,  108  Mich, 
410,  66  N.  W.  327;  Re  Pinney,  27  Minn. 
280,  6  N.  W.  791,  7  N.  W.  144;  Sheehan 
V.  Kearney  (Miss.)  35  L.  R.  A.  102,  21 
So.  41;  State  v.  Williamson,  106  Mo. 
162,  17  S.  W.  172;  Snider  v.  State,  56 
Nob.  309,  76  N.  VV.  574;  Re  Vanmiken, 
10  N.  J.  Eq.  190;  People  v.  O'DonneU. 
51  App.  Div.  115,  64  N.  Y.  Supp.  256; 


Roush  V.  Wensel,  15  Ohio  C.  C.  133,  8 
Ohio  D.  C.  146;  State  v.  Ahrams,  11  Or. 
169,  8  Pac.  327;  Doran  v.  McConlogue, 
150  Pa.  98,  24  Atl.  357;  Williams  V. 
State,  37  Tex.  Crim.  Rep.  348,  39  S.  W. 
687 ;  Yanke  v.  State,  51  Wis.  464,  5  N. 
W.  276. 

jMerely  showing  that  the  witness  had 
opportunity  to  observe  is  not  sufficient. 
Hurst  V.  State  (Tex.  Crim.  App.),  40  S. 
W.  264. 

But  an  objection  to  the  admission  of 
the  opinion  of  witnesses  as  to  the  sanity 
of  the  accused  in  a  criminal  prosecution, 
on  the  ground  that  the  reasons  upon 
which  they  were  based  were  not  given, 
cannot  be  first  taken  on  appeal,  where 
it  was  not  made  on  the  trial,  and  wit- 
nesses were  not  required  to  give  their 
reasons,  and  their  refusal  made  a  spe- 
cific ground  of  objection.  State  v.  Mur- 
ray, 11  Or.  413,  5  Pac.  55. 

^^  Among  the  cases  holding  the  rule  in 
this  form  are:  Elcessor  v.  Elcessor, 
140  Pa.  359,  23  Atl.  230;  Burney  v. 
Torrey,  100  Ala.  157,  46  Am.  St.  Rep. 
33,  14  So.  685;  Slmeffer  v.  State,  61 
Ark.  241,  32  S.  W.  679:  Goodioin  v. 
State,  96  Ind.  550;  Goldthorp  v.  Gold- 
thorp,  106  Iowa,  722,  77  N.  W.  471; 
Godden  v.  Burke,  35  La.  Ann.  160;  Rice 
V.  Rice,  50  Mich.  448,  15  N.  W.  545,  53 
Mich.  432,  19  N.  W.  132;  State  v. 
Crisp,  126  Mo.  605,  29  S.  W.  699; 
Hoover  v.  State,  48  Neb.  184,  66  N.  W. 
1117;  DeWitt  v.  Barly,  17  N.  Y.  340; 
Williams  v.  State,  37  Tex.  Crim.  Rep. 
348,  .39  S.  W.  687;  Anderson  v.  Cran- 
mer,  11  W.  Va.  562. 

An  affidavit  on  an  application  for  a 
continuance  in  a  criminal  case,  stating 
that  the  witnesses  named  will  testify 
that  the  defendant  was  of  unsound  mind. 
is  insufficient  where  they  are  not  expert 
witnesses,  and  it  docs  not  state  specific 
facts  indicating  insanity,  upon  which 
their    opinions    are    base/i.     Warner   v. 


§  352]  EVIDENCE,  419 

by  them  are  predicated  ;^^  and  that  nonprofessional  witnesses  should 
be  allowed  to  state  their  opinions  as  to  the  sanity  of  a  person  ac- 
cused of  crime,  derived  from  their  acquaintance  with  him,  and  obser- 
vation of  his  conduct  and  appearance,  described  by  them.^®     This 

State,  114  Ind.  137,  16  N.  E.  189;  Ear-  latter  is  limited  to  his  opinion  based 
rison  v.  State  (Tex.  Crim.  App.)  69  S.  upon  the  facts  to  which  he  has  himself 
W.  500.  deposed.     Foster   v.    Dickerson,    64    Vt. 

A   mere  objection   that  such  evidence    233,  24  Atl.  253. 
is   incompetent,   however,   is   insufficient        And  the  absence  of  several  nonexpert 
to  raise  the  point  on  appeal.     Rivard  v.    witnesses,    intimately    acquainted    with 
Rivard,  109  Mich.  98,  63  Am.  St.  Rep.    the  accused  from  childhood,  who  would 
o()6,  66  N.  W.  681.  swear  to  his   insanity,   setting  forth    in 

^^  The  exception  is  as  well  supported  detail  the  facts  upon  which  their  testi- 
as  the  broad  general  rule.  Among  the  mony  is  based,  is  a  sufficient  ground  for 
many  cases  supporting  it  are:  Burney  a  continuance  in  a  prosecution  for  mur- 
V.  Torrey,  100  Ala.  157,  46  Am.  St.  Rep.  der.  Ryder  v.  State,  100  Ga.  528,  38  L, 
33,  14  So.  685;  Green  v.  State,  64  Ark.  R.  A.  721,  62  Am.  St.  Rep.  334,  28  S.  E. 
523,.  43  S.  W.  973;   People  v.  Sanford,    246. 

43.  Ca).  29;   Shapter  v.  Pillar,  28  Colo.        And  the  acts  and  conduct  of  a  person 
209,  63  Pac.  302 ;  Dunham's  Appeal,  27    in  jail  under  arrest  may  be  given  as  a 
Conn.    192;    Steele    v.    Helm,    2    Marv.    basis  for  the  opinion  of  a  witness  upon 
(Del.)    237,  43  Atl.   153;   Armstrong  v.    the     prosecution     as     to     his     insanity. 
State,  30  Fla.  170,  17  L.  R.  A.  484,  11    though  the  accused  was  not  warned  that, 
So.  618;  Ryder  v.  State,  100  Ga.  528.  38    his  acts  and  expressions  would  be  used 
L.  R.  A.  721,  62  Am.  St.  Rep.  334,  28  S.    against  him.     Adams  v.  State,  34  Tex. 
E.   246;    Hutchinson  v.   Hutchinson,   50    Crim.  Rep.  470,  31  S.  W.  372. 
111.  App.  87;  Johnson  v.  Culver,  116  Ind.       ^  Among  the  many  cases  stating    the 
278,  19  N.  E.  129;  Kostelecky  v.  Scher-   rule   in    substantially    this    form    are: 
hart,    99    Iowa,    120,    68    N.    W.    591;    Florey  v.  Florey,  2i  Ala.  2U ;  Boiling  x. 
Baughman  v.  Baughman,  32  Kan.  538,  4   State,  54  Ark.  588,  16  S.  W.  658;  People 
Pac.  1003;  Abbott  v.  Com.  107  Ky.  624,   v.  Barthleman,  120  Cal.  7,  52  Pac.  112; 
55  S.  W.  196;   Godden  v.  Burke,  35  La.    State  v.   Cross,   72   Conn.    722,   46   Atl. 
Ann.  160;  The  Berry  Will  Case,  93  Md.    148;  Choice  v.  State,  31  Ga.  424;  Jami- 
560,  49  Atl.  401;  Cannady  v.  Lynch,  27    son   v.   People,    145   111.    357,   34   N.   E. 
Minn.  435,  8  N.  W.  164;  Wood  v.  State,   486;    Hertrich   v.    Hertrich,    114    Iowa, 
58    Miss.    741;    Sharp    v.    Kansas    City    643.  86  Am.  St.  Rep.  389.  87  N.  W.  689: 
Cable  R.  Co.  114  Mo.  94,  20  S.  W.  93;    Phelps  v.  Com.  17  Ky.  L.  Rep.  706,  32 
Clarke  v.  Irioin,  63  Neb.  539,  88  N.  W.    S.  W.  470;  Rivard  v.  Rivard,  109  Mich. 
783;   Be  Witt  v.  Barly,   17   N.  Y.   340;    98,  63  Am.  St.  Rep.  566,  66  N.  W.  681; 
State  v.  Ketchcy,  70  N.  C.  621 ;  Queenan    People  v.   Casey,   124  Mich.   279,  82  N. 
v.  Territory,  11   Okla.  261,  61  L.  R.  A.    W.  883;  State  v.  Erb,  74  Mo.  199;   Ter- 
324,    71    Pac.    218;    Com.,   v.    Gcarhardt,    ritory  v.  Hart,  7  Mont.  489,  17  J?ac.  718; 
205  Pa.  387,  54  Atl.  1029;  Scarborouqh    Genz  v.  State,  58  N.  J.  L.  482,  34  Atl. 
V.  Baskin,  65   S.   C.   558,  44   S.   E.   63;    816:  Schlencker  v.  State,  9  Neb.  241,  1 
Gibson  v.  Gibson,  9  Yerg.  329;  Burt  v.    N.   W.   857;   State  v.   Potts,   100  N.   C. 
State,  38  Tex.  Crim.  Rep.  397,  39  L.  R.    457,   6    S.    E.    657;    Clark   v.   State,    12 
A.   305,   330,  40   S.   W.   1000,  43  S.   W.    Ohio,   483,   40   Am.   Dec.   481;    Com.   v. 
344;    Re   Van  Alstine    (Utah)    72   Pac.    Wireback,  190  Pa.  1.38,  70  Am.  St.  Rep. 
942;    Sargent  v.  Burton,  74  Vt.  24,  52    625,  42  Atl.  542;   Price  v.  Richmond  & 
Atl.  72;   Biggins  v.  Nethe7-y,  30  Wash.    D.  R.  Co.  38   S.   C.   199,   17  S.  E.  732; 
239,  70  Pac.  489;  Hempton  v.  State,  111    State  v.  Leehman,  2  S.  D.  171,  49  N.  W. 
Wis.  127,  86  N.  W.  596;  Wheeler  v.  Al-    3;  Dove  v.  State,  3  Heisk.  348;   Burt  v. 
derson,  3  Hagg.  Eccl.  Rep.  602.  State,  38  Tex.  Crim.  Rep.  .397,  39  L.  R. 

There  is  no  difference  between  the  rule  A.  305,  330,  40  S.  W.  1000.  43  S.  W. 
permitting  an  expert,  and  that  permit-  344 ;  State  v.  Maier,  36  W.  Va.  757,  15 
ting  a  nonexpert,  to  give  his  opinion  as   S.  E.  991. 

to  mental  capacity,  except  that  the  The  absence  of  witnesses  in  a  criininal 
former  is  able  to  give  his  opinion  upon  prosecution  in  which  insanity  is  alleged 
facts  testified  to  by  other  witnesses,  and  as  a  defense,  who  would  give  their  opin- 
which  are  assumed  to  be  true,  while  the   ions   as   to   the   sanity   of   the   accused. 


420  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  352 

rule  applies  to  opinions  of  such  witnesses  as  to  capacity  of  a  party  to 
make  a  contract  ;^'^  and  the  opinions  of  witnesses  as  to  the  sanity  of 
a  grantor  may  be  given  in  evidence  on  the  question  of  the  validity  of 
his  deed;  but  the  facts  upon  which  they  are  founded  must  also  be 
given.^* 

Likewise,  nonexpert  witnesses  in  a  will  contest  may  give  their  opin- 
ions as  to  testamentary  capacity,  where  the  facts  and  circumstances 
upon  which  they  are  founded  are  disclosed.^^  And  the  same  rule  ap- 
plies to  nonexpert  opinions  on  an  inquisition  of  lunacy ,^^  and  also  to 
..such  evidence  as  to  insanity  at  the  time  of  committing  suicide,  in  an 
action  upon  an  insurance  policy.*^      And  nonexpert  v/itnesses  who 

gathered  from  their  association  with  120;  Parkhurst  v.  Hosford,  10  Sawy. 
him   and   their   observation   of   his   con-    401,  21  Fed.  829. 

duct,  language,  and  appearance  for  some  So,  a  nonexpert  witness  is  competent 
time  prior  to  and  including  the  day  of  to  express  an  opinion  as  to  the  mental 
the  criminal  act,  is  a  sufficient  ground  capacity  of  a  grantor  whose  deed  if 
for  a  continuance.  Webb  v.  State,  5  sought  to  be  set  aside  for  undue  influ 
Tex.  App.  596.  ence  and   fraud,   founded   upon   associa- 

And  that  the  opinion  of  a  nonexpert  tion  with  the  grantor.  Smith  v.  Smith, 
witness  on  the  question  of  insanity  117  N.  C.  326,  23  S.  E.  270. 
would  be  cumulative  only  is  not  a  suffi-  ^  This  is  asserted  by  many  cases, 
cient  reason  for  its  exclusion,  and  is  not  among  which  are:  Abraham  v.  Wil- 
a  good  ground  for  overruling  an  appli-  kins,  17  Ark.  292;  Brooke's  Estate,  54 
cation  for  continuance,  otherwise  suffi-  Cal.  451;  Shanley's  Appeal,  62  Conn, 
cient,  for  the  purpose  of  procuring  such  325.  25  Atl.  245 ;  Ethridge  v.  Bennett, 
evidence.  Harris  v.  State,  18  Tex.  App.  9  Houst.  (Del.)  295,  31  Atl.  813;  Potts 
287.  V.  House,  6  Ga.  324,  50  Am.  Dec.  329; 

^^C'ram,  v.  Cram,  33  Vt.  15;  Better  v.  American  Bible  Soc.  v.  Price,  115  111. 
Jones.  22  Ark.  92;  Steicart  v.  Spedden,  023,  5  N.  E.  126;  Blume  v.  State,  154! 
5  Md!  433;  Whitnlcer  v.  Hamilton,  126  Ind.  343,  50  N.  E.  771;  Re  Norman,  72 
N.  C.  465,  35  S.  E.  815;  Bricker  v.  Iowa,  84,  33  N.  W.  374;  Wise  v.  Foote, 
JAfihtner,  40  Pa.  199;  Kilgore  v.  Cross,  81  Ky.  10;  Williams  v.  Lee,  47  Md.  321: 
1  Fed.  578.  Carpenter  v.  Hatch,   64   N.   H.   573,    15 

►;o,  the  opinion  of  a  nonexpert  wit-  Atl.  219;  Bost  v.  Bost,  87  N.  C.  477; 
ness  as  to  the  mental  capacity  of  a  per-  Elcessor  v.  Elcessor,  146  Pa.  359,  23  Atl. 
Bon  signing  a  release,  who  had  stated  the  230;  Puryear  v.  Reese,  6  Coldw.  21; 
opportunities  he  had  had  for  judging,  Broicn  v.  Mitchell,  75  Tex.  9,  12  S.  W. 
and  detailed  his  conversations  with  her  606;  Foster  v.  Dickerson,  64  Vt.  233,  24 
for  a  period  of  about  three  years  with  Atl.  253;  Whitelatv  v.  Sims,  90  Va.  588, 
reference  to  the  matter  in  question,  is  19  S.  E.  113;  Tatham  v.  Wright,  2  Russ. 
admissible  in  evidence  on  a  question  in-  &  M.  1 ;  Wright  v.  Tatham,  5  Clark  & 
volving  the  validity  of  the  release,  when  F.  092,  6  Scott,  58,  4  Bing.  N.  C.  489. 
confined  to  the  question  of  mental  ca-  The  right  to  give  opinions  as  to  the 
pacitv.  Chickering  v.  Brooks,  61  Vt.  capacity  of  a  testator  is  not  confined  to 
554    18  Atl.  144.  subscriljing  witnesses  to  a  will,  though 

^Woe  ex  dem.  Sutton  v.  Reagan,  5  execution  thereof  is  required  to  be 
Blackf.  217,  33  Am.  Dec.  466;  Frizxetl  proved  by  them.  Martin  v.  Perkins,  56 
V  Reed,  77  Ga.  724:  Stumph  v.  Miller,  Miss.  204;  Morton  v.  Eeidorn,  135  Mo 
142  Ind'  442,  41  N.  E.  812:  Woodcock  v.  008,  37  S.  W.  504. 
Johnson,  36  Minn.  217,  30  N.  W.  894:  '"Re  Vanaukcn,  10  N.  J.  Eq.  190. 
Culver  V.  Haslam,  7  Bnrh.  3U;  De  Witt  ^^Connecticut  Mut.  L.  Ins.  Co.  v. 
V.  Barley,  13  Barb.  550;  Brand  v.  Brand,  Lathrop,  111  U.  S.  612,  28  L.  ed.  536,  4 
39  How  Pr.  193;  Barker  v.  Pope,  91  N.  Sup.  Ct.  Rep.  533;  Mutual  L.  Ins.  Co.  v. 
C.  165;  Elcessor  v.  Elcessor,  146  Pa.  Leubrie,  18  C.  C.  A.  332,  38  U.  S.  App. 
359  23*  Atl  230:  Doe  ex  dem.  McDoug-  37,  71  Fed.  843;  Charter  Oak  L.  Ins.  Co. 
aw'v.  McLean,  60  N.  C.   (1  Wisst.  L.)    v.  Rodel,  95  U.  S.  235,  24  L.  ed.  433.     ^ 


8  352]  EVIDENCE.  AZi 

have  stated  their  observations  may  be  permitted  to  state  their  conclu- 
sions or  opinions  based  upon  such  observations  by  making  a  compari- 
son of  the  mental  condition  of  a  person  suffering  a  personal  injury 
alleged  to  have  affected  his  mind,  both  before  and  after  the  injury.^^ 
And  it  has  been  held  that  it  is  not  material  whether  the  witness  details 
the  describable  facts  upon  which  his  conclusion^  are  founded  before 
or  after  the  expression  of  his  opinion.^^  But  the  rule  as  stated  gen- 
erally is  that  such  opinions  are  admissible  after  the  witness  has  stated 
the  facts  and  reasons  upon  which  they  are  based.^*  And  there  are 
numerous  direct  decisions  that  a  nonexpert  witness  will  not  be  permit- 
ted to  give  an  opinion  as  to  the  mental  condition  of  another,  without 
first  stating  the  facts  upon  which  the  opinion  is  based.^^  The  admis- 
sibility of  the  opinions  of  nonexpert  witnesses  is  a  question  for  the 
court.  "^^ 

353.  Grounds  of  admissibility. —  The  grounds  upon  which  the  opin- 
ions of  nonexpert  witnesses  on  an  issue  of  insanity  are  admitted  arc 

*^New  York,  C.  d  St.  L.  R.  Co.  V.  Lue-  37,  Affirming  12  W.  N.  C.  150;  El 
beck,  157  111.  595,  41  N.  E.  897;  West  cessor  v.  Elcessor,  146  Pa.  359,  23  Atl. 
Chicago  Street  K.  Co.  v.  Fishman,  169  230;  Williaiiis  v.  State,  37  Tex.  Crim. 
111.  196,  48  N.  E.  447.  Rep.  348,  39  S.  W.  687 ;  Adams  v.  State. 

"^Garrison  v.  Blanton,  48  Tex..  299;  34  Tex.  Grim.  Rep.  470,  31  S.  W.  372; 
Jones  V.  Galbraith  (Tenn.  Ch.  App.)  59  Re  Gorkoic,  20  Wash.  563,  56  Pac.  385; 
S.  W.  350.  Yanke  v.  State,  51   Wis.  464,  5  N.  W. 

**People  V.  Wreden,  59  Cal.  392;  276;  Crawford  v.  Christian,  102  Wia.  ol. 
American  Bible  Soc.  v.   Price,   115   111.    78  N.  W.  406. 

623,  5  N.  E.  126 ;  Re  Norman,  72  Iowa,  But  the  opinion  of  nonexpert  wit- 
84,  33  N.  W.  374;  State  v.  Stickley,  41  nesses  in  a  criminal  prosecution,  that 
Iowa,  232;  Parsons  v.  Parsons,  66  Iowa,  the  accused  was  not  insane  after  a  con- 
754,  21  N.  W.  570,  24  N.  W.  564;  jKcw^/i-  flict  with  a  designated  person,  is  not 
man  v.  Banghman,  32  Kan.  538,  4  Pac.  rendered  incompetent  by  the  fact  that 
1003;  Territory  v.  Hart,  7  Mont.  489,  17  they  had  not,  before  expressing  their 
Pac.  718;  Sheehan  v.  Kearney  (Miss.)  opinions,  detailed  the  facts  and  circum- 
35  L.  R.  A.  102,  21  So.  41;  Wood  v.  stances  upon  which  they  were  formed. 
State,  58  Miss.  743 ;  Hay  v.  Miller,  48  where  they  testified  that  they  had  been 
Neb.  156,  06  N.  W.  1115;  State  v.  Leeh-  well  acquainted  with  him  before  tlie  con 
man,  2  S.  D.  171,  49  N.  W.  3;  Dove  v.  flict,  and  had  observed  his  manner  and 
State,  3  Heislc.  348 ;  Cockrill  v.  Cox,  65  conduct,  and  had  seen  him  frequently 
Tex.  669;  Foster  v.  Dickerson,  64  Vt.  after  that,  and  observed  his  manner,  con- 
233,  24  Atl.  253;  Hathaway  v.  National  duct,  and  conversations,  and  had  ob- 
L.  Ins.  Co.  48  Vt.  336.  served  nothing  different  in  his  conduct, 

"'Pennsylvania  Co.  v.  Neiomeyer,  129  the  theory  sought  to  be  established  be- 
Ind.  401,  28  N.  E.  800;  Rarick  v.  ZJlmer,  ing  that  he  became  insane  after  the  con 
144  Ind.  25,  42  N.  E.  1099;  Grubb  v.  flict.  State  v.  Winter,  72  Iowa,  027,  34 
State,  117  Ind.  277,  20  N.  E.  257,  725;    N.  W.  475. 

Roberts  v.  Trawick,  13  Ala.  68;  Domi-  In  Berry  v.  State,  10  Ga.  512,  liow- 
niek  v.  Randolph,  124  Ala.  557,  27  So.  ever,  it  was  questioned  whether  it  is 
481 ;  Shaeffer  v.  State,  61  Ark.  241,  32  best  to  draw  a  line  of  demarcation,  and 
S.  W.  679;  State  v.  Pennyman,  68  Iowa,  to  state  distinctly  in  what  class  of  cases 
216,  26  N.  W.  82;  Sheehan  v.  Kearney  the  opinions  of  the  witnesses  may  be  em- 
(Miss.)  35  L.  R.  A.  102,  21  So.  41;  braced,  and  when  they  must  be  excluded. 
State  V.  Abrams,  11  Or.  169,  8  Pac.  327;  "^Commoniveaith  Title  Ins.  d  T.  Co. 
Dickinson  v.  Dickinson,  61  Pa.  401;  v.  Grai/,  150  Pa.  255,  24  Atl.  640;  CoZee 
First  Nat.  Bank  v.   Wircbach,   106   Pa.    v.  State,  75  Ind.  513. 


422 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  353 


that,  from  the  nature  of  the  subject  to  be  investigated,  it  cannot  be  so 
described  in  language  as  to  enable  persons  not  eye  witnesses  to  form 
a  correct  judgnient  in  regard  to  it.^^  The  opinions  are  received  in 
evidence  because  the  observation  of  the  witnesses  must  con- 
vey to  them  little,  indefinable,  and  almost  imperceptible  actions  and 
perceptions  which  language  cannot  adequately  describe.^^  And  they 
are  admissible  when  based  upon  facts  and  circumstances  which,  from 
their  nature  and  number,  it  would  be  impossible  to  bring  before  the 
jury,***  or  when,  from  the  nature  of  the  subject  under  investigation, 
no  better  evidence  can  be  obtained.^*  But  such  opinions  are  compe- 
tent only  upon  the  theory  that  it  is  necessary  to  admit  them  to  get  be- 
fore the  jury  impressions  of  the  witnesses,  derived  from  observation 
such  as  would  form  the  basis  of  a  belief  in  the  mind  of  a  juror  if  he 
had  the  same  opportunity  the  witness  had.^^  The  testimony  of  a  non- 
expert witness  as  to  how  the  person  whose  sanity  is  in  question  con- 
ducted himself,  however,  does  not  call  for  an  opinion  as  to  his  sanity, 
but  for  a  statement  of  fact  as  to  his  conduct  and  appearance,^^  which 
is  a  subject  of  inquiry  by  either  party.^^     And  the  character  and 


"De  Win  V.  Barly,  17  N.  Y.  340;  Cul- 
ver v.  Haslam,  7  Barb.  314. 

A  nonexpert  witness  may  state  facts 
on  the  issue  of  insanity,  including  the 
looks  and  actions  of  the  person  whose 
sanity  is  in  question,  and  it  is  frequent- 
ly necessary  that  he  should  be  permitted 
to  tell  what  they  indicate ;  or,  in  other 
words,  be  permitted  to  express  an  opin- 
ion, since  he  cannot  otherwise  convey  to 
the  mind  distinctly  the  condition  which 
sucli  acts  and  looks  betray.  Re  Van- 
auken,  10  N.  J.  Eq.  190. 

"^Clifton  V.  Clifton,  47  N,  J.  Eq.  227, 
21  Atl.  333;  Poivdl  v.  State,  25  Ala.  21. 

Tlie  opinion  of  an  intelligent  nonex- 
pert witness  having  adequate  opportuni- 
ty of  observing  and  judging  as  to  the 
mental  condition  of  another  is  the  best 
testimony  which  can  be  adduced;  for  no 
mere  description  of  the  acts,  or  of  words, 
of  tone  of  voice,  of  glance  of  the  eye.  or 
general  expression  of  the  face,  or  man- 
ner, or  bearing  of  the  person,  can  con- 
vey to  the  jury  the  same  impression  or 
indications  of  insanity  or  mental  debil- 
ity which  they  will  create  in  the  mind 
of  a  competent  observer.  Appleby  v. 
Brock,  7G  Mo.  314. 

^Pelaniourgcs  v.  Clark,  9  Iowa,  1; 
West  Chicago  Street  R.  Co.  v.  Fishmati, 
109  111.  196,  48  N.  E.  447,  Affirming  08 
111.   App.    445;    Whitaker  v.   Hamilton, 


126  N.  C.  465,  35  S.  E.  815:  Meijers  v. 
State,  37  Tex.  Grim.  Rep.  208,  39  S.  W. 
111. 

""Broicn  V.  Com.  14  Bush,  400. 

"Sjriith  V.  Smith,  117  N.  C.  326,  23  S. 
E.  270. 

"-Re  Wax,  106  Cal.  343,  39  Pac.  624; 
Marceau  v.  Travelers'  Ins.  Co.  101  Cal. 
338,  35  Pac.  856,  36  Pac.  813;  Parsons 
V.  Parsons,  66  Iowa,  75^,  21  N.  W.  570, 
24  N.  W.  504;  Nash  v.  Hunt,  116  Mass. 
237;  Townshend  v.  Townshcnd,  7  Gill, 
10;  Williams  v.  State,  37  Tex.  Crim. 
Rep.  348,  39  S.  W.  687. 

'^Wilkinson  v.  Pearson,  23  Pa.  117; 
Poole  V.  Richardson,  3  Mass.  330;  State 
V.  Wright,  112  Iowa,  436,  84  N.  W.  541; 
Hcrtrich  v.  Hertrich,  114  Iowa.  643,  86 
Am.  St.  Rep.  389,  87  N.  W.  689;  Hogan, 
V.  Roclie,  179  Mass.  510,  61  N.  E.  57. 

And  so  as  to  his  health  and  physical 
condition.  State  v.  Wright,  112  Iowa, 
436.  84  N.  W.  541. 

These  are  matters  of  fact,  not  of  opin- 
ion. Hoqan  v.  Roche,  179  Mass.  510,  61 
N.  E.  57.' 

But  vague  and  indefinite  expressions 
of  a  nonexpert  witness  that  a  person 
looked  and  acted  like  an  insane  person 
are  not  admissible  upon  the  issue  of  in- 
sanity.    Geltrke  v.  State,  13  Tex.  508. 

And  a  witness  who  is  not  a  medical 
man   cannot   state   what   kind   of   fita   a 


353J 


EVIDENCE. 


423 


quality  of  a  person's  mind,  as  to  whether  it  was  weak  or  strong,  is  a 
material  fact,  to  which  a  witness  may  testify  ;"^  and  so  is  the  question 
whether  there  was  an  apparent  change  in  a  man's  intelligence  or  un- 
derstanding. °^  N^or  is  the  right  to  testify  as  to  whether  a  person  ap- 
peared to  be  rational  or  irrational  confined  to  expert  witnesses  and 
immediate  acquaintances,  as  this  does  not  constitute  giving  an  opin- 
ion as  to  his  mental  sanity,  but  is  the  statement  of  an  open,  patent 
fact,  indicated  to  all  alike.^^ 

354.  Effect  of  rules  as  to  privilege  of  witnesses. —  Statutes  prohib- 
iting certain  persons  from  testifying  against  a  deceased  person  apply 
to  cases  where  a  claim  is  asserted  against  a  decedent's  estate,  or  where 
a  claim  asserted  by  a  representative  of  the  decedent  is  resisted.^^ 
But  they  do  not  prohibit  heirs  from  testifying,  in  a  suit  to  set  aside 
a  will,  as  to  the  mental  capacity  of  the  testator,  though  his  executor  is 
a  party  to  the  action.^*  And  the  contestant  of  a  will,  or  a  legatee 
thereunder,  is  not  incompetent  to  testify  as  to  the  mental  capacity  of 
the  testator,  as  a  party  to  the  issue.^^  And  neither  of  the  litigants  in 
a  will  contest  can  be  permitted  to  invoke  the  rule  respecting  priv- 
ileged communications  for  the  purpose  of  excluding  material  and 


person  claimed  to  be  insane  was  affected 
with.     McLean  v.  State,  16  Ala.  672. 

And  refusal  to  permit  a  nonexpert 
witness  who  had  stated  how  the  accused 
acted  and  talked,  especially  on  the  day 
of  the  homicide,  to  state  whether  or  not 
he  talked  like  a  sane  or  insane  man  dur- 
ing the  night,  is  not  a  violation  of  the 
rule  that  nonexpert  witnesses  may  give 
their  opinions  as  to  the  sanity  of  an  in- 
dividual after  having  first  testified  to 
his  actions,  declarations,  general  de- 
meanor, and  peculiarities.  Blanton  v. 
State,  1  Wash.  205.  24  Pac.  4.39. 

'^^People  v.  Worlhington,  105  Cal.  16G, 
38  Pac.  689.  And  see  O'Brien  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.  89  Iowa,  644, 
57  N.  W.  425 ;  Highee  v.  Guardian  Mut. 
L.  Ins.  Co.  66  Barb.  466. 

And  a  question  in  a  will  contest  in 
which  insanity  is  alleged,  as  to  whether 
or  not  the  testator  was  an  eccentric  man, 
is  not  objectionable,  as  calling  for  a  con- 
clusion instead  of  a  fact.  Frascr  v. 
Jennison,  42  Mich.  206,  3  iS^.  w.  882. 

^Barker  v.  Comins,  110  Mass.  477: 
Hertrich  v.  Hertrich,  114  Iowa,  643,  86 
Am.  St.  Rep.  389,  87  N.  W.  689. 

And  evidence  as  to  the  feeling  mani- 
fested by  a  testator  toward  his  brother 
is  evidence  of  a  fact  rather  than  an  opin- 
ion, and  is  admissible  in  a  will  contest 
as  bearing  upon  the  question  of  the  tes* 


tator's  insanity.  Pelamourges  v.  Clark, 
9  Iowa,  1. 

""Holland  v.  ZoUner,  102  Cal.  633,  36 
Pac.  930,  37  Pac.  231 ;  People  v.  Lavelle, 
71  Cal.  351,  12  Pac.  226;  People  v.  Mc- 
Carthij,  115  Cal.  255.  46  Pac.  1073:  Peo- 
ple V.  Koerner,  154  N.  Y.  355,  48  N.  E. 
730. 

"Lamb  v.  Lamb,  105  Ind.  456,  5  N.  E. 
171.  And  see  Anderson  v.  Cranmer,  11 
W.  Va.  562. 

^^Lamb  v.  Lamb,  105  Ind.  456,  5  N.  E. 
171;  Davis  v.  Tarver,  65  Ala.  98. 

And  an  administrator  who  had  been 
the  family  physician  of  a  testator  for 
many  years  may  testify,  as  a  witness 
for  himself  on  the  trial  of  an  applica- 
tion to  sell  lands  for  the  payment  of 
debts,  in  which  the  issue  was  the  validi- 
ty of  a  promissory  note  signed  by  the  in- 
testate, as  to  the  general  insanity  of  the 
deceased,  stating  the  facts  upon  which 
liis  opinion  is  founded ;  but  under  Ala- 
bama Code,  §  3058,  forbidding  testi- 
mony as  to  any  transactions  with,  or 
statement  by,  the  deceased,  he  cannot 
state  what  was  the  condition  of  his  mind 
at  the  time  the  note  was  given.  Davis 
V.  Tarver,  65  Ala.  98. 

"■"Foster  v.  Dicherson,  64  Vt.  233.  24 
Atl.  253;  Burkhart  v.  Gladi.'ih.  123  Ind. 
338,  24  N.  E.  118;  Re  Goldthorp,  94 
ffim^  236,  58  Am.  St.  Rep.  400,  62  N. 


424  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         l§  3o4 

important  evidence  by  a  witness  who  had  been  the  attorney  for  the 
testator,  where  such  evidence  is  necessary  as  a  basis  for  his  opinion 
as  to  the  testator's  mental  condition.^^  So,  though  the  rule  were 
deemed  to  apply,  a  request  by  a  testator  to  his  attorney  to  sign  his 
will  as  a  subscribing  witness  is  a  waiver  of  objection  to  his  compe- 
tency, which  leaves  him  free  to  perform  the  duties  of  a  witness,  and 
he  can  testify  with  reference  to  matters  of  which  he  acquired  knowl- 
edge by  virtue  of  his  professional  relation,  including  the  testator's 
mental  condition.^^  And  the  executor  may  waive  such  privilege.®^ 
So,  such  evidence  is  competent  where  it  does  not  involve  a  personal 
transaction  with  the  deceased. "^^ 

W.  845;  Ducker  v.  Whitson,  112  N.  C.  tent  as  in  violation  of  the  New  York  pro- 

44.  16  S.  E.  854.  hibition    against   disclosing   communica- 

And  a  witness  in  an  action  to  set  aside  tions  made  by  a  client  to  his  attorney 
a  deed,  who  has  testified  to  the  grantor's  under  sanction  of  professional  employ- 
want  of  capacity  to  make  a  deed,  and  ment.  Re  Coleman,  111  N.  Y.  220,  19 
that  her  opinion  was  formed  from  con-  N.  E.  71. 

versations  and  communications  between  ^^McAIaster  v.   Scriven,   85   Wis.    162, 

them,    is   not    rendered    incompetent    to  39  Am.  St.  Rep.  828,  55  N.  W.  149;  Re 

prove  such  conversations  and  communi-  Nelson,  132  Cal.  182,  64  Pae.  294;  Den- 

cations  in  order  that  the  jury  might  see  ning  v.  Butcher,  91  Iowa,  425,  59  N.  W. 

whether  the  opinion  was  well   founded,  69;  Re  Coleman,  11  N.  Y.  220,  19  N.  E. 

by  a  statutory  provision    forbidding    a  71.     And  see  Re  Downing  (Wis.)   95  N. 

witness  who  has  a  legal  or  equitable  in-  W.  870. 

terest    which    may    be    affected    by    the  "'^Denning  v.  Butcher,  91  Iowa,  425,  59 

event,  to  be  examined  in  regard  to  any  N.  W.  69. 

transaction    or    communication   between  Under  the  New  York  statute  the  priv- 

hiniself  and  a  person  since  deceased,  in-  ilege    of    an    expert    witness    cannot   be 

Bane,  or  lunatic,  since  such  conversations  waived  by  an  executor  or  administrator, 

are  offered,  not  to  prove  any  facts  stated  Westover  v.  Jf^tna  L.  Ins.  Co.  99  N.  Y. 

or  implied,  but  the  mental  condition  of  56,  52  Am.  Rep.  1,  1  N.  E.  104. 

the  part}-;  and  the  declarations  are  not  '^^Kostelecky    v.    Scherhart,    99    Iowa, 

received  to  show  the  truth  of  the  things  120.  68  N.  W.  591. 

declared,  but  as  evidence  of  disordered  The  observation  of  a  legatee  under  a 

intellect.     McLeary  v.   Norm.ent,  84   N.  will   as   to   the  demeanor,  gait,   expres- 

C.  235.  sion,   or  appearance  of  the  testator,   is 

But  the  daughters   of  a  testator  are  not    a    personal    transaction    with    him 

not   competent    witnesses   in    their   own  which  will  render  her  evidence  inadmis- 

behalf   to    prove    the    insanity    of   their  sible    on    a    contest   of   his    will,    under 

father  at  and  prior  to  the  time  he  exe-  Iowa   Code,    §    3639,   excluding   transac- 

cuted  his  last  will,  upon  a  bill  in  equity  tions  with  persons  since  deceased.     Deii- 

to  contest  its  validity,  where  the  pur-  ning  v.  Butcher,  91  Iowa,  425,  59  N.  W. 

pose  of  the  suit  was  not  merely  to  ad-  69. 

just  the  rights  of  .  the  heirs  between  And  testimony  of  an  attorney  that  a 
themselves,  but  to  take  the  estate  from  testatrix  talked  with  him  about  the  set- 
legatees  who  were  not  heirs,  and  vest  it  tlemcnt  of  an  estate,  and  wislied  liim  to 
in  the  heirs.  Brace  v.  Black,  125  111.  33,  ascertain  how  much  she  was  likely  to  re- 
17  N.  E.  66.  ceive  from  it,  given  with  a  view  of  as- 

'^Re  Layman,  40  Minn.  371,  42  N.  W.  certaining  her  testamentary  capacity, 
280;  Daniel  v.  Daniel,  39  Pa.  191;  does  not  amount  to  a  disclosure  by  him 
O'Brien  v.  Spalding,  102  Ga.  490,  60  of  a  confidential  and  privileged  corn- 
Am.  St.  Rep.  202,  31  S.  W.   100.  munication,  even  if  it  is  assumed  that 

But  testimony  by  attorneys  as  to  con-  the  relation  of  attorney  and  client  ex- 

versatkins  had  with  them  by  a  testator  isted    between    them.     Turiicr's   Appeal, 

at   the  time  of  giving  the  instructions  72  Conn.  305,  44  Atl.  310. 

for  the  will  offered  for  probate,  and  an-  Wb.ere   evidence   of   an   attorney   con-, 

other  will,  previously  drawn,  is  incompe-  cerning   conversations   with   a  testatrix 


S  355J  EVIDENCE.  426 

355.  Who  may  give. —  Tlie  general  rule  is  that  anyone  who  had 
opportunity  to  know  and  observe  a  person  whose  sanity  is  inipeacbed 
may  give  an  opinion  *as  to  his  mental  condition.^^  This  rule  includes 
parties  to  the  suit,  where  parties  are  permitted  to  testify.*'*'  And  a 
legatee  under  a  will  is  compc^tcnt  in  an  action  to  set  it  aside  f^  and 
so  are  the  contestants  of  a  will.^^  And  the  guardian  of  a  testatrix  is 
a  competent  witness  to  prove  her  capacity  to  make  a  will  f'^  and  so  is 
a  brother  of  a  testator,'^''  or  a  daughter. '^'^  And  a  wife  may  testify  as 
to  the  mental  condition  of  her  husband.^^  It  has  been  held,  however, 
that  one  who  would  inherit  a  part  of  a  testator's  property  but  for  his 
will  is  incompetent  to  give  his  opinion  as  to  capacity  to  make  it."^ 
And  a  previously  expressed  opinion  of  a  person  killed  is  not  admis- 
sible on  the  question  of  sanity  of  the  person  doing  the  killing. '^^  Nor 
is  a  person  who  suffered  a  personal  injury  competent  to  testify  as  to 
the  effect  it  had  upon  his  mind.'^^ 

356.  The  acquaintance  and  observation  necessary. —  The  question 
whether  the  opinions  of  nonexpert  witnesses  as  to  the  sanity  of  a  per- 
son were  based  on  sufficient  acquaintance  and  observation  to  entitle 
tliem  to  testify  is  addressed  to  the  sound  discretion  of  the  trial 
court. '''^     And  its  determination  as  to  such  question  will  not  be  in- 

are  offered  on  the  question  of  her  testa-  the  privacy  and  confidence  of  the  mar- 

mentary  capacity  in  a  will  contest,  the  riage  relation.     United  States    v.    (iui- 

burden   rests   upon   the   party  objecting  leau,  1  Mackey,  498,  47  Am.  Rep.  247. 

thereto  to  show  that  the  conversations  ''-Kerr  v.  Lunsford,  31  W.  Va.  680,  2 

occurred  while  the  testatrix  was  consult-  L.  R  A.  668,  8  S.  E.  493. 

ing  the  witness  professionally  as  an  em-  ''Lake  v.  People,   1  Park.  Crim.  Rep. 

ployed    attorney.     Turner's    Appeal,    72  495. 

Conn.  305,  44  Atl.  310.  ^'O'Connell  v.   Beecher,  21   App.   Div. 

^'Doe  ex  dem.  McDougald  v.  McLean,  298.  47  N.  Y   Supp.  334. 

60  N.  C.  (IWinst.  L.)   120.  ''People   v.    McCarthy,    115    Cal.    255, 

O'Severin  v.  Zack,  55  Iowa,  28,  7  N.  W.  46  Pac.   1073;   Re  Keithley,  134  Cal.  9, 

404.  66   Pac.   5;    People  v.   Barthleman,   120 

'^Burkhart  v.   Gladish,   123  Ind.   338,  Cal.  7,  52  Pac.   112;   People  v.  Hubert, 

24  N.  E.  118;  Staser  v.  Hogan,  120  Ind.  119   Cal.   216,   63  Am.   St.   Rep.   72,   51 

227,  21  N.  E.  911,  22  N.  E.  990;   Den-  Pac.   329;    People  v.   Schmitt,    100   Cal. 

ning  v.  Butcher,  91  Iowa,  425,  59  N.  W.  48,  39  Pac.  204;  Re  Wax,  106  Cal.  343, 

69.  39  Pac.  624;   Wheelock  v.  Godfrey,  100 

"'Williams  v.  Williams,  90  Ky.  28,  13  Cal.    578,    35    Pac.    317;    Carpenter    v. 

S.  W.  250;  Dennis  v.  Weekes,  51  Ga.  24.  Bailey,  94  Cal.  406,  29  Pac.  1101;  Peo- 

^Howard  v.  Coke,  7  B.  Mon.  655.  pie  ex  rel.  Clough  v.  Levy,  71  Cal.  618, 

•'Weemsv.  Weems,  19  Md.  334.  12  Pac.  791;  People  v.  Pico,  62  Cal.  50r 

"•Moore  V.  Moore,  67  Mo.  192.  People   v.   Hill,    116   Cal.    562,   48    Pac. 

'^Haney   v.    Clark,    65    Tex.    93;    Den-  'ill;  drand  Lodge  I.  0.  of  M.  A.  \.  Wiet- 

ning  v.  Butcher,  91  Iowa,  425,  59  N.  W.  ing,  168  111.  408,  61  Am.  St.  Rep.   123, 

69;  Burnham  v.  Mitchell,  34  Wis.  117;  48  N.  E.  59;  Colee  v.  State,  75  Ind.  513; 

Re  Van  Alstine  (Utah)   72  Pac.  942.  Hull  v.  Hull,   117  Iowa,  738,  89  N.  W. 

The  divorced  wife  of  a  person  accused  979;Hite  v.   Com.   14   Ky.  L.  Rep.  308, 

of  crime  may  testify  as  to  whether,  from  20  S.  W.  217;  First  Nat.  Bank  v.  Wire- 

her  association  with  him,  she  ever  saw  bach,  12  W.  N.  C.  150;  State  v.  Hansen, 

anything   that   would    indicate   thnt   he  25  Or.  391,  35  Pac.  976,  36  Pac.  296. 

was   a  man  of  unsound   mind,   without  What  is  required  to  establish  a  suffi- 

violating  the  rule  of  law  which  protects  cient  opportunity  for  judging  as  to  the 


426 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  356 


terfered  with  on  appeal,  where  such  discretion  was  not  abusod."^^  It 
is  impossible  to  lay  down  any  precise  rule  as  to  the  length  or  charac- 
ter of  the  acquaintance  necessary."^'  The  geneTal  statement  of  the 
rule  is  that  nonexpert  witnesses  may  testify  as  to  their  opinions  upon 
the  question  of  the  sanity  or  insanity  of  another,  where  there  has  been 
such  a  long  and  intimate  acquaintance  between  them  as  to  enable 
them  to  form  a  correct  judgTuent  as  to  mental  condition,'^ ^  and  they 
form  their  opinions  from  facts  within  their  ovm  knowledge.'^ ^  And 
the  rule  is  also  laid  down  that  nonexperts  having  favorable  opportu- 
nities for  ascertaining  the  facts  by  observation  may  testify  as  to  their 
opinions  respecting  the  sanity  or  insanity  of  another.**^ 


soundness  of  mind  of  another  depends 
upon  circumstances,  which  may  properly 
affect  the  judicial  discretion,  the  testi- 
mony being  more  or  less  valuable  as  the 
circumstances  are  more  or  less  convinc- 
ing. People  V.  Borgetto,  99  Mich.  336, 
58  N.  W.  328. 

A  statement  by  a  witness  that  he  did 
not  regard  himself  as  intimately  ac- 
quainted with  a  person  whose  sanity 
was  questioned  does  not  render  him  in- 
competent to  give  an  opinion  as  to  his 
sanity  or  insanity,  since  the  question 
of  their  intimacy  is  one  for  the  judge, 
and  not  for  the  witness.  People  v. 
McCarthy,  115  Cal.  255,  46  Pac.  1073. 

''^People  ex  ret.  Clough  v.  Levy,  71 
Cal.  618,  12  Pac.  791;  People  v.  Mc- 
Carthy, ns  Cal.  255,  46  Pac.  1073;  Re 
Wax,  106  Cal.  343,  39  Pac.  624;  People 
V.  Schmitt,  106  Cal.  48.  39  Pac.  204; 
People  V.  Lane,  101  Cal.  513,  36  Pac.  16; 
Wheelock  v.  Godfrey,  100  Cal.  578,  35 
Pac.  317;  People  v.  Fine,  77  Cal.  147, 
19  Pac.  269;  People  v.  Pico,  62  Cal.  50; 
People  V.  Hill,  116  Cal.  562,  48  Pac.  711; 
State  V.  Hansen,  25  Or.  391,  35  Pac. 
976,  36  Pac.  296. 

A  ruling  admitting  the  opinion  of  a 
nonexpert  witness  as  to  the  sanity  or  in- 
sanity of  another  will  not  be  reviewed 
on  appeal,  where  the  conclusion  reached 
was  one  which  can  be  reasonably  enter- 
tained consistently  with  the  idea  that 
the  intimacy  must  be  such  that  the  wit- 
ness would  appreciate  the  varjing  moods 
and  temperament  of  the  other,  and  be 
able  to  judge  his  case  with  full  knowl- 
edge of  his  peculiarities.  Carpenter  v. 
Bailey,   94  Cal.  406,   29   Pac.    1101. 

But  refusal  to  allow  a  witness  to  give 
his  opinion  as  to  the  mental  capacity  of 
another  where  the  showing  of  intimacy 
is  sufficient,  is  error  and  ground  for  re- 
versal. Re  Carpenter,  79  Cal.  382,  21 
Pac.  835. 


''•Powell  V.  State,  25  Ala.  21;  Beau- 
bien  v.  Cicotte,  12  Mich.  459. 

"  The  rule  so  stated  is  supported  by 
numerous  authorities;  among  them  are: 
Ragland  v.  State,  125  Ala.  12,  27  So. 
983;  Beller  v.  Jones,  22  Ark.  92; 
Brooks's  Estate,  54  Cal.  471;  Shanley's 
Appeal,  62  Conn.  325,  25  Atl.  245;  State 
v.  Shuff  (Idaho)  72  Pac.  664;  Neely  v. 
Shephard,  190  111.  639,  60  N.  E.  922,  Af- 
firming 92  111.  App.  422 ;  Johnson  v. 
Culver,  116  Ind.  278,  19  N.  E.  129;  Den- 
ning V.  Butcher,  91  Iowa,  425,  59  N.  W. 
69;  Phelps  v.  Com.  17  Kv.  L.  Rep.  706, 
32  S.  W.  470;  Townshend  v.  Toion- 
shend,  7  Gill,  10;  Wood  v.  State,  58 
Miss.  741 ;  Territory  v.  Roberts,  9  Mont. 
12.  22  Pac.  132;  Pflueger  v.  State,  46 
Neb.  493,  64  N.  W.  1094;  State  v.  Lew- 
is, 20  Nev.  333,  22  Pac.  241;  Culver  v. 
Haslam,  7  Barb.  314;  State  v.  Ketcliey, 
70  N.  C.  621 ;  Commonwealth  Title  Ins. 
d  T.  Co.  V.  Gray,  150  Pa.  255,  24  Atl. 
640;  Scarborough  v.  Baskin,  65  S.  0. 
558,  44  S.  E.  63;  Thomas  v.  State,  40 
Tex.  60;  State  v.  Hayden,  51  Vt.  296; 
Fishburne  v.  Ferguson,  84  Va.  87,  4  S. 
E.  575;  Higgins  v.  Nethery,  30  Wash. 
239,  70  Pac.  489 ;  State  v.  Maier,  36  W. 
Va.  757,  15  S.  E.  991;  Hempton  v.  State, 
111  Wis.  127,  86  N.  W.  596. 

The  extent  to  which  nonexpert  opin- 
iorrs  on  the  question  of  incompetency 
may  be  received  depends  upon  the  famil- 
iarity of  the  witnesses  Avith  the  person 
whose  sanity  is  in  question,  the  charac- 
ter of  the  disqualification,  tlie  nature 
and  number  of  the  extraordinary  cir- 
cumstances detailed,  and  their  proximity 
to  tlie  act  involved  in  point  of  time. 
O'Connor  v.  Madison,  98  Mich.  183,  57 
N.  W.  105. 

'■'Polin  v.  State,  14  Neb.  540,  16  N. 
W.  898;  Culver  v.  Haslam,  7  Barb.  314. 

""Shanley's  Appeal,  62  Conn.  325,  25 
Atl.    245;    Jamison   v.   People,    145    111. 


K\' I  HENCE 


Nonexpert  witnesses,  however,  cannot  give  opinions  as  to  sanity  or 
insanity  of  a  person,  where  they  had  but  a  slight  or  passing  ac/jiiaint- 
ance  with  him,  or  had  no  opportunity  for  forming  an  opinion.**' 
The  opinions  of  witnesses  upon  the  question,  if  competent,  are  admis- 
sible only  when  it  appears  that  they  w^ere  sufficiently  acquainted,  and 


357,  34  N.  E.  486;  Keithley  v.  Stafford, 
126  111.  507,  18  N.  E.  740;  Wise  v. 
Foote,  81  Kv.  10;  Woodcock  v.  Johnson, 
36  Minn.  217,  30  N.  W.  894;  State  v. 
Bryant,  93  Mo.  273,  6  S.  W.  102;  Clary 
V.  Clary,  24  N.  C.  (2  Ired.  L.)  78; 
State  V.  Fotts,  100  N.  C.  457,  6  S.  E. 
657;  Bost  v.  Bost,  87  N.  C.  477;  Com.  v. 
Gerade,  145  Pa.  289,  27  Am.  St.  Rep. 
689,  22  Atl.  464;  Doe  ex  dem.  McDoug- 
ald  V.  McLean,  60  N.  C.  (1  Winst.  L.) 
120;  Rambler  v.  Tryon,  7  Serg.  &  R.  90, 
10  Am.  Dec.  444 ;  Commonicealth  Title 
Ins.  t6  T.  Co.  V.  Gray,  150  Pa.  255,  24 
Atl.  640;  Reed  v.  State,  62  Miss.  405. 

A  jailer  or  officer  having  charge  of  a 
prisoner  for  a  long  time,  and  having  an 
excellent  opportunity,  of  which  he 
availed  himself,  to  acquire  knowledge 
and  form  an  intelligent  judgment  as  to 
his  mental  condition,  may  give  evidence 
as  to  such  condition  though  he  did  not 
know  him  previously.  People  v.  Mc- 
Carthy, 115  Cal.  255,  46  Pac.  1073; 
State  V.  Fiester,  32  Or.  254,  50  Pac.  561. 

And  a  stenographer  who  officiated  at 
the  taking  of  depositions  of  a  testatrix, 
which  consumed  two  hours,  shortly  be- 
fore the  time  of  the  execution  of  her 
will,  and  who  observed  her  in  the  mean- 
time, may  be  asked,  on  a  contest  of  the 
will,  to  state  from  his  observations  of 
her  at  that  time,  and  her  answers,  con- 
duct, and  actions,  if  she  was  of  sound 
mind.  Re  Fenton,  97  lo^va,  192,  66  N. 
W.  99. 

And  the  brother  of  a  testator,  with 
whom  he  had  been  engaged  in  conducting 
a  joint  business,  their  intimacy  having 
continued  during  the  Avhole  of  the  life 
of  the  testator,  may  give  an  opinion  a,s 
to  his  mental  capacity,  in  a  will  contest, 
though  he  had  not  stated  facts  upon 
which  he  based  his  opinions.  Weems  v. 
Weems,  19  Md.  334. 

And  the  wife  of  a  party  to  a  settle- 
ment of  a  claim  who  was  suffering  from 
a  stroke  of  paralysis  is  competent  to 
give  her  opinion  as  to  whether  or  not 
he  comprehended  the  facts  concerning  it, 
in  an  action  involving  its  validity,  wliero 
she  Avas  constantly  with  him,  and  had 
the  principal  care  of  him,  and  was  the 
means   of   communication   t^etween    him 


and   the   world.     Burnham   v.   Mitchell, 
34  Wis.  117. 

So,  a  witness  who  had  known  another 
from  childhood,  and  been  intimate  with 
him,  may  give  his  opinion  as  to  the  lat- 
ter's  mental  status  generally,  though  ho 
saw  but  little  of  him  during  the  two  or 
three  months  immediately  preceding  the 
time  in  question.  Stubbs  v.  Houston, 
33  Ala.  555. 

'^Staie  V.  Crisp,  123  Mo.  605,  29  S. 
W.  699;  Grand  Lodge  I.  0.  of  M.  A.  v. 
Wieting,  168  111.  408,  61  Am.  St.  Rep. 
123,  48  N.  E.  59;  Eolcomb  v.  State,  41 
Tex.  125;  State  v.  Murray,  11  Or.  413, 
5  Pac.  55;  Boiling  v.  State,  54  Ark.  588, 
16  S.  W.  658;  Denning  v.  Butcher,  91 
Iowa,  425,  59  N.  W.  69;  Murphree  v. 
Senn,  107  Ala.  424,  18  So.  264;  Frizzell 
V.  Reed,  77  Ga.  724. 

Evidence  that  a  nonexpert  witness 
had  known  the  accused  in  a  criminal 
prosecution  for  five  or  six  years,  and 
that  he  had  seen  him  often  on.  the  street, 
but  that  he  had  not  worked  with  him, 
does  not  show  sufficient  information  to 
warrant  his  opinion  as  to  sanity  or  in- 
sanity. Shaeffer  v.  State,  61  Ark.  241, 
32  S.  W.  679. 

And  a  witness  in  a  will  contest  who 
had  been  away  for  three  years,  and  had 
not  conversed  with  the  testator  for  two 
years  before  he  died,  is  not  competent  to 
give  an  opinion  as  to  his  sanity  during 
the  year  when  he  did  not  see  him.  Den- 
ning V.  Butcher,  91  Iowa,  425,  59  N.  W. 
69. 

And  a  nonexpert  witness  who  testifies 
in  a  prosecution  for  burglary  that  he 
had  known  the  accused  for  many  years, 
and  that  he  did  not  think  that  he  could 
distinguish  between  right  and  wrong  so 
as  to  know  that  it  was  wrong  to  commit 
burglary,  does  not  show  himself  compe- 
tent to  give  an  opinion  as- to  whether  he 
would  have  sufficient  mental  power  to 
keep  from  committing  the  crime  even  if 
he  could  distinguish  between  right  and 
wrong.  Shaeffer  v.  State.  61  Ark.  241, 
32  S.  W.  679. 

In  Shults  V.  State,  37  Neb.  481,  55  N. 
W.  1080,  it  was  held  that  only  such  in- 
timate acquaintances  of  a  person  as  had 
seen  him  almost  daily  for  several  months 


428 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  356 


had  sufficient  opportunity  to  observe,  to  form  correct  ones.^^  And 
witnesses  who  are  not  medical  experts  should  be  required  to  show  that 
their  acquaintance  with  the  party  whose  sanity  is  questioned  had  been 
sufficiently  intimate  to  justify  the  formation  of  a  correct  judgment  as 
to  his  mental  status.^^  And  the  acquaintance  must  consist  of  some- 
thing more  than  mere  occasional  brief  interviews  on  general  or  indif- 
ferent subjects:  it  must  be  one  which  will  enable  the  witness  to  as- 
sert, with  some  confidence,  that  he  has  knowledge  of  the  intellectual 
workings  and  mental  status  of  the  person  in  question.^'*  But  the  ac- 
quaintance need  not  be  extensive,  and  the  showing  of  intimacy  need 


preceding  the  time  in  question  are  com- 
petent as  nonexpert  witnesses  to  testify 
as  to  his  sanity  or  insanity. 

''O'Connor  v.  Madison,  98  Mich.  183, 
57  N.  W.  105;  Turner  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.  23  Mo.  App.  12; 
Dominick  v.  Randolph,  124  Ala.  557,  27 
So.  481;  Poicell  v.  State,  25  Ala.  21; 
Taylor  v.  United  States,  7  App.  D.  C. 
27;  State  v.  SticJcley,  41  Iowa,  232; 
Williams  v.  State,  37  Tex.  Crim.  Rep. 
348,  39  S.  W.  687  ;  Merritt  v.  State,  39 
Tex.  Crim.  Rep.  70,  45  S.  W.  21. 

One  year  of  acquaintance,  living  in 
the  same  house,  is  sufficient.  Re  Kee- 
gan,  139  Cal.  123,  72  Pac.  828. 

The  term  "intimate  acquaintances,"  as 
used  in  a  statute  providing  that  the 
opinion  of  an  intimate  acquaintance  re- 
specting the  mental  sanity  of  a  person 
may  be  given,  where  the  reason  for  the 
opinion  is  given,  requires  that  the  wit- 
ness should  be  more  than  a  casual  and 
ordinary  acquaintance:  it  requires  close 
friendship  and  familiarity.  State  v. 
Murray,  11  Or.  413,  5  Pac.  55. 

And  it  excludes  all  evidence  of  others 
than  intimate  acquaintances  Avho  are, 
by  unreserved  intercourse,  familiar  with 
the  varying  moods  and  temperament  of 
the  person  whose  soundness  is  ques- 
tioned. Carpenter  v.  Bailey,  94  Cal. 
40(5,  29  Pac.  1101. 

'^Moore  v.  Spier,  80  Ala.  129;  Brown 
V.  Com.  14  Bush,  400;  O'Connor  v.  Mad- 
ison, 98  Mich.  183,  57  N.  W.  105;  Wil- 
liams V.  State,  37  Tex.  Crim.  Rep.  348, 
39  S.  W.  G87. 

Before  the  opinion  of  a  nonexpert  wit- 
ness on  the  question  of  sanity  or  in- 
sanity can  be  considered,  it  must  appear 
not  only  that  the  witness  had  the  oppor- 
tunity of  learning  the  facts  upon  whicli 
the  opinion  is  predicated,  but  that  tlie 
opinion  was  in  fact  based  upon  the 
facts  and  circumstances  so  ascertained. 


and  not  upon  bare  conjecture.  Welch 
V.  Stipe,  95  Ga.  762,  22  S.  E.  670. 

And  the  court  may  properly  require 
the  witness  to  state  all  the  circum- 
stances upon  which  his  opinion  is  based, 
and  it  would  not  be  a  great  stretch  of 
discretion  to  permit  cross-examination 
before  allowing  the  opinion  to  be  given. 
O'Connor  v.  Madison,  98  Mich,  183,  57 
N.  W.  105. 

^*Re  Carmichael,  36  Ala.  514;  Mur- 
phree  v.  Sc«n,  107  Ala.  424,  18  So.  264; 
McLeod  V.  State,  31  Tex.  Crim.  Rep. 
331,  20  S.  W.  749.  And  see  Apland  v. 
Pott  (S.  D.)  92  N.  W.  19;  State  v. 
Brooks,  4  Wash.  328,  30  Pac.  147. 

An  opinion  formed  from  physical  con- 
dition only  is  inadmissible.  The  Berry 
Will  Case",  93  Md.  560,  49  Atl.  401. 

And  a  nonexpert  witness  cannot  give 
his  opinion  as  to  the  sanity  of  a  person 
accused  of  crime,  where  it  is  not  shown 
that  he  knew  anything  in  regard  to  his 
condition,  except  what  he  learned  as 
foreman  of  the  jury  by  which  such  per- 
son was  previously  tried.  State  v. 
Klinger,  46  Mo.  224. 

Nor  can  one  give  his  opinion,  formed 
since  the  commission  of  a  crime,  as  to 
the  accused's  mental  condition  at  the 
time  the  oiTense  was  committed,  where 
his  only  knowledge  in  respect  thereto 
Avas  derived  from  his  familiarity  with 
the  accused  as  a  patron  of  the  latter's 
barber  shop.  Qiieenan  v.  Oklahoma,  190 
U.  S.  548,  47  L.  ed.  1175,  23  Sup.  Ct. 
Rep.  762.  But  see  Lowe  v.  Stale  (Wis.) 
96  N.  W.  417. 

The  objection  that  a  person  called  up- 
on for  an  opinion  as  to  the  sanity  or  in- 
sanity of  another  is  not  an  intimate  ac- 
quaintance is  not  avoided  by  varying  the 
form  of  the  question,  and  asking  the 
witness  how  such  person  appeared  men- 
tally. Carpenter  v.  Bailey,  94  Cal.  406, 
29  Pac.   1101. 


356] 


EVIDENCE 


420 


not  be  very  strong.^''  And  the  same  degree  of  intimacy  is  not  nec- 
essary to  render  the  opinion  of  a  witness  admissible  on  the  question 
of  the  mental  condition  of  another  in  case  of  general  insanity,  where 
there  is  total  incapacity,  as  in  the  case  of  monomania  or  partial 
derangement.^^ 

357.  Facts  and  reasons  as  a  basis  of  an  opinion. — Facts  and  circum- 
stances, and  not  the  opinions  of  nonexpert  witnesses,  are  the  pri- 
mary evidence  on  which  a  jury  must  rely  upon  the  question  of  men- 
tal capacity.^'^^  And  opinions  of  witnesses  as  to  capacity  are  not  usu- 
ally regarded  as  evidence  unless  tlie  facts  upon  which  they  are  predi- 
cated are  stated.^^  Nor  can  a  nonexpert  witness  be  asked  whether  a 
person  was  weak-minded,  where  the  question  did  not  limit  the  opin- 
ion to  what  he  had  observed.^^  And  it  has  been  held  that  witnesses 
eannot  give  an  opinion  as  to  sanity  or  insanity,  based  on  their  owi\ 
observation  and  what  they  had  heard,  and  not  confined  to  facts  to 
which  they  had  testified.^*^     It  is  not  necessary,  however,  where  the 


"./o7(,«so,i  V.  Culver,  llfi  Tnd.  278,  10 
N.  E.  129;  Goodivin  v.  State,  96  Ind. 
550;  Carpenter  v.  Bailey,  79  Cal.  382, 
21  Pac.  835.  And  see  State  v.  Fiesler, 
32  Or.  254,  5U  Pac.  501 ;  Poicell  v.  State, 
25  Ala.  21;  Loice  v.  State  (Wis.)  96  N. 
W.  417;  Sage  v.  State,  91  Ind.  141; 
Mull  V.  Carr,  5  Ind.  App.  491,  32  N.  E. 
591. 

Personal  acquaintance  is  unnecessary 
if  there  was  opportunity  to  observe. 
Com.  V.  Broicn,  193  Pa.  507,  44  Atl.  497. 

And  a  nonexpert  witness  may  give  an 
opinion  as  to  the  sanity  or  insanity  of 
another,  based  upon  observation  as  to 
the  way  others  treated  him,  although  he 
had  never  seen  him  transact  any  busi- 
ness. Ring  v.  Larvless,  190  111.  520,  60 
N.  E.  SSI. 

^"Powell  V.  State,  25  Ala.  21 :  Com.  v. 
Buccieri,  153  Pa.  535,  26  Atl.  228. 

Witnesses  in  a  prosecution  for  homi- 
cide are  not  competent  to  express  an 
opinion  as  to  the  prisoner's  mental  con- 
dition at  the  time  of  the  act.  when  for 
months  they  had  not  seen  him,  merely 
because,  on  some  occasions  when  they 
had  seen  him,  he  gave  evidence  of  mental 
unsoundness,  his  mental  aberrations  be- 
ing fitful  or  rare,  and  in  the  interval  his 
mind  being  lucid.  Com.  v.  Buccieri,  153 
Pa.  535,  26  Atl.  228. 

^''Broione  v.  Molliston,  3  Whart. 
129;  McCullough's  Will,  35  Pittsb.  L.  J. 
169;  Clarke  v.  Carticright,  1  Phillim. 
Eccl.    Rep.    90:    Neictoii   v.    Carhery,    5 


Cranch  C.  C.  626,  Fed.  Cas.  No.  10,189; 
Eunt  v.  Hunt,  3  B.  Mon.  575. 

The  court,  in  forming  its  opinion  as 
to  the  soundness  of  mind  of  a  testator, 
will  look  to  the  facts  upon  which  the 
witnesses  based  their  opinions  rather 
than  to  the  opinions  themselves;  but 
will  form  its  opinion  from  the  whole 
evidence,  consisting  of  facts  and 
opinions.  Newton  v.  Carhery,  5  Cranch 
C.  C.  626,  Fed.  Cas.  No.  10,189. 

^"Uimt  V.  Hunt,  3  B.  Mon.  575;  Fos- 
ter v.  Dickerson,  64  Vt.  233,  24  Atl.  253; 
Doe  ex  dem.  Suit  on  v.  Reagan,  5  Blackf. 
217,  33  Am.  Dec.  406;  Pennsylvania  Co. 
V.  Neicmeyer,  129  Ind.  401,  28  N.  E. 
860;  Welch  v.  Stipe,  95  Ga.  702,  22  S. 
E.  070;  State  v.  Coleman,  27  La.  Ann. 
691;  Shaeffer  v.  State,  61  Ark.  241,  32 
S.  W.  679.     And  see  supra,  §  349. 

^"Re  Goldthorp,  94  Iowa,  330,  58  Am. 
St.  Rep.  400,  62  N.  W.  845 ;  Roe  v.  Tay- 
lor, 45  111.  485;  Schlenckcr  v.  State,  9 
Neb.  241,  1  N.  W.  857;  Genz  v.  State, 
58  N.  J.  L.  482,  .34  Atl.  810;  De  Witt  v. 
Barley,  13  Barb.  550;  Parkhurst  v.  Hos- 
ford,  21  Fed.  829. 

'^Parsons  V.  Parsons,  66  Iowa,  754,  21 
N.  W.  570,  24  N.  W.  564 ;  State  v.  Rob- 
bins,  109  Iowa,  650,  80  N.  W.  1061. 
And  see  Williams  v.  State,  37  Tex.  Crim. 
Rep.  348,  39  S.  W.  687. 

Where  evidence  of  a  conversation  is 
given  for  the  mere  purpose  of  laying  a 
foundation  for  the  admission  of  the  wit- 
ness's opinion  as  to  the  sanity  of  a  per- 


430 


^lENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  35T 


witnesses  testify  to  sanity  of  a  party,  that  they  should  accompany 
their  opinions  with  the  facts  upon  which  they  are  based,  since  there 
may  be  no  abnormal  facts  to  be  stated.^^  And  many  of  the  cases 
hold  that  the  opinion  of  a  nonexpert  witness  as  to  the  sanity 
or  insanity  of  anotlier  is  admissible,  though  he  does  not  state  the  facts 
upon  which  he  bases  it,  where  he  shows  acquaintance  and  the  fact  of 
observation,''^  the  jury  being  left  to  judge  as  to  its  value. ''^  Nor  does 
the  rule  tliat  Avitnesses  must  state  the  facts  upon  which  their  opinions 
are  based  require  them  to  describe  what  is  not  susceptible  of  descrip- 
tion, or  relate  facts  enough  to  enable  the  jury  to  form  an  opinion  from 
them  alone ;  it  is  sufficient  if  they  describe  visible  and  intelligible  ap- 
pearances and  acts.^*     And  it  has  been  stated  tliat  the  opinion  of  a 


son  accused  of  crime,  the  entire  conver- 
sation must  be  given,  so  far,  at  least,  as 
it  formed  a  part  of  the  ground  upon 
which  the  witness's  opinion  was  based. 
Jamison  v.  People,  145  111.  357,  34  N.  E. 
486. 

But  where  witnesses  had  previously 
given  testimony  of  circumstances  show- 
ing an  opportunity  to  judge  as  to  the 
soundness  or  unsoundness  of  a  person 
whose  sanity  is  in  question,  they  may 
properly  testify  as  to  their  opinion  on 
the  question,  without  repeating  the  cir- 
cumstances in  connection  with  the  opin- 
ion. People  V.  Borgetto,  99  Mich.  336, 
58  N.  W.  328 ;  Van  Huss  v.  Rainbolt,  2 
Coldw.  139. 

^'Ford  V.  State.  71  Ala.  385;  People 
V.  Borgetlo,  99  Mich.  336,  58  N.  W.  328; 
Lamb  v.  Lippincott,  115  Mich.  611,  73 
N.  W.  887;  Hull  v.  Hull,  117  Iowa,  738, 
89  N.  W.  979;  State  v.  Soper,  148  Mo. 
217,  49  S.  W.  1007  ;  State  v.  Holloway, 
156  Mo.  222,  56  S.  W.  734. 

That  witnesses  in  a  criminal  prosecu- 
tion knew  the  defendant,  and  had  knowai 
}iim  for  a  considerable  length  of  time, 
and  that  he  always  acted  like  a  sane 
man,  is  sufficient  to  warrant  them  in 
forming  and  giving  an  opinion  as  to  his 
sanity.  Taylor  v.  State,  83  Ga.  647,  10 
S.  E.  442. 

''■Stuniph  V.  Miller,  142  Ind.  442,  41 
N.  E.  812;  Mull  v.  Carr,  5  Ind.  App.  491, 
32  N.  E.  591 ;  Cotrell  v.  Com.  13  Ky.  L. 
Eep.  305,  17  S.  W.  149;  Newcomb  v. 
^'Cu:comb,  96  Ky.  120,  27  S.  W.  997; 
Parley  v.  Parker,  6  Or.  105,  25  Am.  Rep. 
104;  Stubbs  V.  Huston,  33  Ala.  555.  And 
see  Taylor  v.  United  States,  7  App.  D. 
C.  27. 

All  that  is  necessary  to  admit  the  evi- 
dence of  a  nonexpert  witness  as  to  in- 


sanity is  that  he  shall  describe  the  con- 
versation, conduct,  and  manner  of  the 
person  whose  sanity  is  in  question. 
State  V.  Murray,  11  Or.  413,  5  Pac.  55. 

Proof  of  insanity  by  ordinary  wit- 
nesses is  not  restricted  to  proof  of  facts 
coming  within  the  knowledge  of  wit- 
nesses, and  upon  which  the  jury  may 
draw  an  inference  of  sanity  or  insanity, 
but  may  include  the  belief  of  such  wit- 
nesses, founded  on  opportunities  of  per- 
sonal observation,  which  may  be  given 
to  the  jury  to  aid  them  in  forming  a  cor- 
rect conclusion.  Baldwin  v.  State,  12 
Mo.  231. 

And  a  witness  whose  attention  had 
been  called  to  the  condition  of  another's 
mind  may  be  asked  whether  he  saw 
enough,  in  his  intercourse  with  him,  to 
warrant  him  in  expressing  an  opinion 
as  to  his  sanity  or  insanity.  Pannell 
V.  Com.  86  Pa.  260. 

'"Cotrell  v.  Com.  13  Ky.  L.  Rep.  305, 
17  S.  W.  149;  Stubbs  v.  Huston,  33  Ala. 
555. 

Where  there  are  any  material  facts 
stated  by  a  witness  in  a  trial  for  homi- 
cide, warranting  an  inference  that  he 
has  sufficient  knowledge  to  form  an  opin- 
ion as  to  the  sanity  of  the  accused,  it 
is  the  duty  of  the  court  to  permit  it  to 
go  to  the  jury  for  whatever  it  may  be 
worth.     Goodicin  v.  State,  96  Ind.  550. 

^*Beaubien  v.  Cicotie,  12  Mich.  459. 

The  testimony  of  witnesses  in  an  ac- 
tion upon  a  promissoj-y  note,  in  which 
the  insanity  of  the  maker  is  alleged,  will 
not  be  stricken  out  as  wholly  irrelevant 
and  immaterial  to  the  issue  of  insanity 
merely  because  the  facts  testified  to  by 
each,  taken  separately,  may  not  prove, 
or  tend  lo  prove,  sanity  or  insanity  to  a 
sufficient  extent  to  qualify  the  witness 


§  357] 


EVIDENCE. 


431 


witness  who  had  an  adequate  opiX)rtunity  to  obsen-e  is  admissible, 
where  he  states  some  of  the  facts  upon  which  it  is  based,^^  or  where 
he  states  such  facts  as  he  is  able  to  give  f^  the  question  being  one  of 
weight  rather  than  competency.'''^ 

What  statement  of  facts  would  show  a  sufficient  foundation  to  war- 
rant the  giving  of  an  opinion  by  an  expert  witness,  however,  depends 
upon  the  circumstances  of  each  case,  and  it  must  be  left  to  the  trial 
court  to  determine,  in  the  exercise  of  a  wise  legal  discretion,  which 
will  not  be  disturbed  except  in  cases  of  abuse,''^  though  the  weight  of 
both  fact  and  opinion  is  to  be  determined  by  the  jury.''^  And  the 
rule  has  been  asserted  that  a  witness  may  express  an  opinion  based 
solely  upon  the  appearance  or  countenance  of  the  person  claimed  to 
be  insane.^"''  But  to  authorize  the  expression  of  an  opinion,  such 
facts  or  such  circumstances  must  appear  as  have  some  significance 
upon  the  question  of  the  mental  condition  of  the  person,  and  the 


to  express  his  individual  opinion  on  the 
question.  First  Nat.  Bank  v.  Wirebach, 
106  Pa.  37. 

^'•'Turner  v.  Kansas  City,  St.  J.  &  C. 
B.  R.  Co.  23  Mo.  App.  12 ;  Crowe  v. 
Peters,  63  Mo.  429 ;  Massie  v.  Com.  15 
Ky.  L.  Rep.  562,  24  S.  W.  611. 

Opinions  are  presumed  to  be  based  on 
observation  rather  than  hearsay,  in  the 
absence  of  evidence  to  the  contrary,  lie 
McCabe,  70  Vt.  155,  40  Atl.  52. 

'^Williams  v.  Lee,  47  Md.  321 :  Beau- 
bien  v.  Cicotte,  12  Mich.  469;  De  Witt 
V.  Barly,  17  N.  Y.  340.  And  see  People 
V.  Borgetto,  99  Mich.  336,  58  N.  W.  328 ; 
People  V.  Sanford,  43  Cal.  29. 

Witnesses  called  upon  to  prove  the 
mental  capacity  of  a  testator  may  be 
asked  questions  relating  to  the  whole 
period  of  their  acquaintance  with  him. 
.routes  V.  Collins,  94  Md.  403,  51  Atl. 
398. 

And  one  who  is  competent  to  give  an 
opinion  as  to  the  mental  capacity  of  a 
testator  may  state  all  she  knows  about 
him,  both  before  and  after  it  is  claimed 
that  his  mind  failed,  together  with  what 
he  did  and  said,  and  the  change,  if  any, 
in  his  manner.  Staser  v.  Hogan,  120 
Ind.  227,  21  N.  E.  911,  22  N.  E.  990. 
And  see  Re  Norman,  72  Iowa,  84,  33  N. 
W.  374. 

""Kettemann  v.  Metzger,  23  Ohio  C.  C. 
61 ;  Re  Gorkoio,  20  Wash.  563,  56  Pac. 
385. 

^^Denning  v.  Butcher,  91  Iowa,  425, 
59  N.  W.  69;  Shaeffer  v.  State,  61  Ark. 
241,  32  S.  W.  679;  State  v.  Barry  (N. 
D.)   92  N,  W.  809;   First  Nat.  Bank  v. 


Wirebach,  12  W.  N.  C.  150;  Boorman  v. 
Northwestern  Mut.  Relief  Asso.  90  Wis. 
144,  62  N.  W.  924 :  Re  Wel-.h,  108  Wis. 
387,  84  N.  W.  550;  Hcmpton  v.  State, 
111  Wis.  127,  86  N.  W.  596. 

'""Shneffer  v.  State,  61  Ark.  241,  32  S. 
W.  679;  Denning  v.  Butcher,  91  Iowa, 
428,  59  N.  W.  69;  Frizzell  v.  Reed,  11 
Ga.  724. 

To  aid  in  determining  the  weight  to 
be  given  such  evidence  particular  acts 
and  conduct  may  be  asked  for  on  cross- 
examination.  Petefish  V.  Becker,  176 
111.  448,  52  N.  E.  71. 

""See  First  Nat.  Bank  v.  Wirebach, 
12  W.  N.  C.  150;  Irish  v.  Smith,  8  Serg. 
&  R.  573,  11  Am.  Dec.  648;  Wilkinson 
V.  Pearson,  23  Pa.  117. 

But  the  rule  that  a  witness  may  ex- 
press an  opinion  on  the  question  of  san- 
ity or  insanity,  based  upon  tiie  coun- 
tenance alone,  is  of  doubtful  application 
in  a  case  in  which  the  countenance  of 
the  person  was  distorted  by  paralysis, 
and  does  not  apply  where  it  is  clear  that 
the  witnesses  did  not  base  their  opin- 
ions upon  the  mere  appearance  of  the 
face.  First  Nat.  Bank  v.  Wirebach,  12 
W.  N.  C.   150. 

And  a  nonexpert  witness  cannot  give 
his  opinion  whether  a  person  was  of 
sound  mind  from  her  conversation  and 
looks,  and  from  his  knowledge  of,  and 
acquaintance  with,  her,  where  he  de- 
scribed her  appearance  and  manner,  but 
paid  little  attention  to,  and  did  not  un- 
dertake to  detail,  what  she  said.  State 
V.  Stickley,  41   Iowa,  232. 


432 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  35^ 


knowledge  thereof  of  the  witness,^  tlie  rule  being  that  such  opinions 
may  be  given  in  connection  witli  the  facts  upon  which  they  are 
foraied,  where  the  facts  are  of  such  a  nature  as  to  enable  the  witness 
to  form  a  knowledge  of  the  person's  intellect  f  and  the  facts  must  not 
be  such  as  to  present  collateral  and  immaterial  issues.^ 

358.  Scope  generally. —  To  render  the  opinions  of  nonexpert  wit- 
nesses  admissible  on  the  question  of  sanity  or  insanity,  they  must  be 


^Bvrney  v.  Torrcy,  100  Ala.  157,  46 
Am.  St.  Rep.  3.3,  14  So.  685 ;  Sutherland 
V.  Ilanlinf!,  56  Ind.  343 ;  Rarick  v.  Ul- 
mer,  144  Ind.  25.  42  N.  E.  1099;  Colee 
v.  State,  75  Ind.  513;  Alvord  v.  Alvord, 
109  fowa,  113.  80  N.  W.  306;  Stewart 
V.  Rcdditt,  3  Md.  67;  Waters  v.  Waters, 
35  Md.  531;  Dorsexj  v.  Warfield.  7  Md. 
65;  Ex  parte  Schneider,  21  D.  C.  433; 
Prentis  v.  Bates,  88  Mich.  507,  50  N.  W. 
637;  Lynch  v.  Doran,  95  Mich.  395,  54 
N.  W.  882;  People  v.  Borgetto.  99  Mich. 
336,  .''18  N.  W.  .328:  O'Connor  v.  Madi- 
son, 98  Mich.  183.  57  N.  W.  105;  State 
V.  WilUamson,  106  Mo.  165,  17  S.  W. 
172:  State  v.  Barry  (N.  D.)  92  N.  W. 
800:  Eleessor  v.  Elcessor,  146  Pa.  359, 
23  Atl.  230;  First  Nat.  Bank  v.  Wire- 
hach,  100  Pa.  37,  Affirming  12  W.  N. 
C.  150:  Stokes  v.  Miller,  10  W.  N.  C. 
241:  State  v.  Leehman.  2  S.  D.  171; 
State  V.  Brooks,  4  Wash.  328,  30  Pac. 
147  :  Bnonnan  v.  Northicestcrn  Mut.  Re- 
lief Asso.  90  Wis.  144,  62  N.  W.  924. 
And  see  Brashears  v.  Orm.e,  93  Md.  442, 
49  Atl.  620;  The  Berry  Will  Case,  93 
Md.  560,  49  Atl.  401 ;  Ramsdell  v.  Rams- 
dell,  128  Mich.  110.  87  N.  W.  81:  Page 
V.  Beach  (Mich.)  10  Det.  L.  N.  337,  95 
N.  W.  981. 

The  particular  facts  stated  by  each 
of  several  witnesses  as  to  mental  capac- 
ity of  another  must  be  taken  alone  as 
the  basis  of  the  proposed  opinion  of  that 
witness,  and  if  they  are  found  by  them- 
selves inconclusive  in  their  nature,  or 
of  such  neutral  character  as  to  be  con- 
sistent either  with  soundness  or  un- 
soundness of  mind,  they  cannot  be  as- 
sum«d  as  a  basis  of  an  opinion.  Elces- 
sor V.  Elcessor,  146  Pa.  359,  23  Atl. 
2.30. 

And  a  witness  in  a  will  contest  who 
testifies  that  she  had  known  the  testa- 
trix for  si.K  years  before  she  had  made 
her  will,  and  was  quite  intimate  with 
her  during  that  time,  and  had  frequent 
conversations  with  her  aboiit  her  chil- 
dren, her  life,  hardships  which  she  had 
pone  through,  and  other  family  matters, 
states  no  facts  or  circumstances  which 


justify  the  court  in  permitting  her  to 
give  any  opinion  as  to  the  mental  ca- 
pacity of  the  testatrix.  Buys  v.  Buys, 
99  Mich.  354,  58  N.  W.  331. 

-Steicart  v.  Reddiit,  3  Md.  67;  Jami- 
son V.  Jamison,  3  Houst.  (Del.)  108; 
Potts  V.  Bouse,  6  Ga.  324.  50  Am.  Dec. 
329;  Dicken  v.  Johnson,  7  Ga.  484;  Pit- 
tard  V.  Foster,  12  111.  App.  132;  Gib- 
son V.  Gibson,  9  Yerg.  329 ;  Foster  v. 
Dickerson,  64  Vt.  233,  24  Atl.  253;  El- 
cessor V.  Elcessor,  146  Pa.  359,  23  Atl. 
230;  Com.  v.  Wireback,  190  Pa.  138,  70 
Am.  St.  Rep.  025,  42  Atl.  542. 

The  evidence  required  to  show  suffi- 
cient opportunity  upon  the  part  of  a 
witness  to  judge  as  to  the  mental  capac- 
ity of  a  person  alleged  to  be  insane 
should  be  such  as  might  properly  move 
judicial  discretion  by  apprising  the  court 
tluit  the  witness  may  believe  in  the  com- 
petency of  the  person  upon  reasonable 
grounds,  in  order  to  justify  his  opinion 
that  the  person  in  question  is  sane,  the 
testimony  being  more  or  less  valuable 
as  the  circumstances  are  more  or  less 
convincing.  People  v.  Borgetto,  99 
Mich.  330,  58  N.  W.  328;  O'Connor  v. 
Madison,  98  Mich.  183,  57  N.  W.  105. 

An  attempt  upon  the  part  of  a 
testator  to  commit  suicide,  years  before 
making  his  will,  does  not  furnish  suffi- 
cient foundation  for  the  opinion  of  a 
witness  as  to  his  mental  soundness  at 
the  time  of  the  execution  of  the  will. 
Brashears  v.  Orme,  93  Md.  442,  49  Atl. 
620. 

Opinions  of  nonexpert  witnesses  on 
the  question  of  testamentary  capacity, 
however,  are  not  rendered  inadmissible 
by  the  fact  that  the  opinions  are  not 
shown  to  be  based  on  any  correct  un- 
derstanding of  the  true  criterion  of  men- 
tal capacity  to  make  a  will,  where  no 
objection  was  made  to  the  introduction 
of  opinions  in  evidence,  and  the  wit- 
nesses were  not  required,  as  they  migh"t 
have  been,  to  state  the  grounds  of  their 
belief.     Appleby  v.  Brock,  76  Mo.  314. 

*Re  McCabe,  70  Vt.   155,  40  Atl.  52. 


§  358] 


EVIDENCE. 


433 


limited  to  conclusions  drawn  from  specific  acts  and  facts  testified  to 
by  them;'*  or  they  must  be  founded  upon  their  own  observation  of 
acts  and  conduct  of  the  party  whose  sanity  is  in  question,  which  they 
had  witnessed,  and  to  which  they  had  testified.^  Nonexpert  wit- 
nesses cannot  give  their  opinions  as  to  sanity,  based  on  evidence  which 
they  have  heard  other  witnesses  detaiL*^  And  they  cannot  give  opin- 
ions based  on  experience,'''  or  upon  the  question  whctlior  a  hypothetic- 
al state  of  facts  would  or  would  not,  if  true,  be  evidence  of  insan- 
ity,^ even  upon  cross-examination.**     And  while  nonexpert  opinions 


\Tamison  v.  People,  145  111.  357,  34 
N.  E.  486;  Butler  ,v.  St.  Louis  L.  Ins. 
Co.  45  Iowa,  03;  Re  Ross,  87  N.  Y. 
514;  Ex  parte  Schneider,  21  D.  C.  433; 
Re  Blood,  62  Vt.  359,  19  Atl.  770.  And 
see  I'Uccssor  v.  Elcessor,  146  Pa.  359, 
23  Atl.  230;  First  Nat.  Bank  v.  Wire- 
bach.   106  Pa.  37. 

And  the  facts  upon  which  an  opinion 
of  a  nonexpert  witness  as  to  the  mental 
capacity  of  another  are  founded  must 
afford  a  fair  foundation  for  an  opinion 
on  the  particular  point  in  dispute.  El- 
cessor V.  Elcessor,  146  Pa.  359,  23  Atl. 
230:  Battle  v.  State,  105  Ga.  703,  32  S. 
E.  100. 

That  a  testator  "acted  foolish"  is  a 
mere  conclusion,  and  not  admissible. 
Wallace  v.  Whitman,  201  111.  59,  66  N. 
E.  311. 

But  the  opinions  of  witnesses  as  to  the 
mental  capacity  of  a  party  should  not 
be  rejected  in  a  proceeding  before  a 
master,  because  based  on  facts  which, 
in  the  opinion  of  the  master,  did  not 
indicate  mental  incapacity,  though,  if 
based  on  conversations  only,  they  might 
properly  be  rejected.  Chiclcering  v. 
Brooks,  61  Vt.  554,  18  Atl.  144. 

^Applchij  V.  Brock,  76  Mo.  314;  Brand 
V.  Brand,  30  How.  Pr.  193;  Morse  v. 
Crauford,  17  Vt.  502,  44  Am.  Dec.  349. 

And  a  witness  in  a  will  contest  can- 
not be  asked  to  contrast  the  tcst;itor"s 
mental  condition  at  a  time  not  fixed  or 
limited  with  his  mental  condition  as  it 
had  been  in  prior  years.  Denning  v. 
Butcher,  91  Iowa,  425,  50  N.  W.  09. 

And  a  witness  in  a  criminal  prosecu- 
tion cannot  be  asked  whether  the  accused 
was  considered  partially  deranged,  since 
such  a  question  does  not  call  for  his  own 
opinion.  Yavke  v.  State,  51  Wis.  464, 
6  N.  W.  276. 

"State  V.  Klinger.  46  Mo.  224;  Appleby 

V.  Brock,  76  Mo.  314;  State  v.  Brinyea, 

5  Ala.  241 ;  State  v.  Peel,  23  Mont.  358, 

75  Am.  St.  Rep.  529,  59  Pac.  169;  State 

Vol.  I.  Mkd.  .Iuu— 28. 


V.  Polls,  100  N.  C.  457,  6  S.  E.  657  ;  Sis- 
son  V.  Conger,  1  Thomp.  &  C.  564;  flig- 
qins  V.  Carlton,  28  Md.  115,  92  Am.  Dec. 
'666. 

So,  witnesses  in  a  will  contest  who 
had  testified  to  acts  and  conduct  of  the 
testator,  and  that  their  impression  was 
that  he  was  rational,  cannot  be  asked, 
on  cross-examination,  if,  had  they  known 
of  certain  specified  acts  on  his  part, 
they  would  have  inlluenced  the  impres- 
sion received  by  tliem,  where  none  of 
them  testified  to  such  acts,  though  they 
appeared  in  the  evidence  of  other  wit- 
nesses.    Bell  V.  McMaster,  20  Hun,  272. 

'■Com.  V.  Rich,  14  Gray,  335;  State  v. 
Klinger,  46  Mo.  228 ;  Caleb  v.  State,  39 
Miss.  722;  Russell  v.  State,  53  Miss. 
368;  Ragland  v.  State,  125  Ala.  12,  27 
So.  083;  Dunham's  Appeal.  27  Conn. 
102;  Baker  v.  Baker,  202  111.'  595,  67  N. 
E.  410;  Pittard  v.  Foster,  12  111.  App. 
132;  Rice  v.  Rice,  50  Mich.  448,  15  N. 
W.  545,  53  Mich.  432,  19  N.  W.  132; 
St.  Louis  Mut.  L.  his.  Co.  v.  Graves, 
6  Bush,  268. 

And  testimony  of  a  witness  in  a  wiU 
contest  that  he  would  not  willingly  trust 
the  testator  to  make  an  important  trade 
for  him  is  not  competent  upon  the  ques- 
tion whether  the  testator  had  suflicient 
mental  capacity  to  make  a  codicil  to  his 
will.  Prather  v.  McClelland,  76  Tex. 
574,  13  S.  W.  543. 

In  Com.  V.  Wireback,  190  Pa.  138, 
70  Am.  St.  Rep.  625,  42  Atl.  542.  how- 
ever, it  was  held  that  a  nonexpert  wit- 
ness having  experience  and  opportunity 
to  observe  may  testify  that  feigned  in- 
sanity is  so  common  among  criminals 
that  it,  at  times,  deceives  even  experts, 

^^tate  v.  Klinger,  46  Mo.  224;  Apple- 
by v.  Brock,  76  Mo.  314;  Dunham,'s  Ap- 
peal, 27  Conn.  102;  Pittaj-d  v.  Foster, 
12  111.  App.  132;  Smith  v.  Bickcnbot- 
tom,  57  Iowa,  733,  11  N.  W.  064. 

And  the  opinion  of  a  nonexpert  wit- 


454  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§353 

are  admissible  in  case  of  such  insanity  as  may  be  readily  determined 
by  nonexperts,  and  in  cases  in  which  opinion  is  a  mere  rendering  of 
facts  at  short-hand,  it  is  otlierwise  as  to  occult  conditions  of  rare  oc- 
currence, concerning  which  those  versed  in  the  treatment  of  the  in- 
sane are  best  qualified  to  speak.  As  to  these,  inexperienced  lay  at- 
tendants or  friends  cannot  give  opinions,  but  are  limited  to  a  state- 
ment of  such  facts  as  are  within  their  range  of  observation.^'* 

Nor  can  an  opinion  of  a  nonexpert  witness  as  to  mental  capacity 
be  given  where  it  is  founded  upon  mere  hearsay.-'^  But  well-ac- 
quainted persons  may  testify  as  to  the  appearance  of  the  person  whose 
sanity  is  in  question,  and  describe  his  condition,  and  compare  it  with 
his  condition  when  in  health,  and  state  the  impression  made  upon 
them  by  the  facts,  as  to  the  soundness  of  his  raind.-^^     And  they  may 

ness  on  the  question  of  insanity  can  nei-  ^^Applehy    v.     Brock,     76     Mo.     314; 

ther  be   sustained   nor   attacked  by   Ms  Wallace  v.  Whitman,  201   111.  59,  66  N". 

further  opinion,  based  upon  a  hypothet-  E.  311;   EutcJiinson    v.    nutchinson,  50 

ical   question.     Re  Hogmire,   108   Mich.  111.  App.  87;  Staser  v.  Hoqan,  120  Ind. 

410,  60  N.  W.  327.  207,  21  N.  E.  911,  22  N.  E.  990;  State  v. 

^Dunham's  Appeal,  27  Conn.  192.  Gut,  13  Minn.  343,  Gil.  315;  Tatham  v. 

"As    limiting    nonexperts    to    a    bare  Wririht,  2  Russ.  &  M.   1 ;     Harrison    v. 

statement  of  facts,  see  State  v.  Pike,  49  Roican,  3  Wash.  C.  C.  580,  Fed.  Gas.  No. 

N.  H.  399,  6  Am.    Rep.    533;    Com.    v.  6,141.       And  see  Hughes  v.  Hughes,  31 

Wilson,  1  Gray,  337;  Dexcitt  v.  Barley,  Ala.   519;    People  v.   Schmitt,   106   CaJ. 

9  N.  Y.  371;  Clapp  v.  Fullerton,M'!>!.Y.  48.  39  Pac.  204. 

190,  90  Am.  Dec.  681 ;    Real   v.    People,  A  statute   permitting  the  opinion   of 

42  N.  Y.  270;  Sears  v.  Shafer,  1  Barb,  an  intimate  acquaintance  to  be  given  in 

408;  Higgins  v.  Carlton,  28  Md.  115.  92  a  criminal    prosecution,    respecting    the 

Am.  Dec.  666;  Runyan  v.  Price,  15  Ohio  sanity  of  the  accused,  does  not  authorize 

St.  1,  86  Am.  Dec.  459;  Farrell  v.  Bren-  the  accused,  as  a  matter  of  right,  to  call 

nan,  32  Mo.    328,    82    Am.    Dec.     137;  for   statements   made  by    him    to    wit- 

(lehrke  v.  State,   13  Tex.  568.     But  see  nesses,     in     various    conversations    had 

Hardy  v.  Merrill,  56  N.  H.  227,  22  Am.  with  them.     State    v.    Murray,    11    Or. 

Rep.  441;  Com.  v.  Sturtivant,  117  Mass.  413,  5  Pac.  55. 

122,  19  Am.  Rep.  401.  And  evidence  as  to  the  contents  of  a 

From  this  limitation,    however,    sub-  letter  upon  which  a  nonexpert  witness 

scribing  witnesses  are    excepted.     Ware  based  his  opinion  as  to  the  sanity  of  the 

V.  Ware,  8  Me.  42;  Poole  v.  Richardson,  accused  is  not  admissible  in   a   criminal 

3  Mass.  330;  Logan  v.  McGinnis,  12  Pa.  prosecution  unless  the  loss  or    destruc- 

27;  Titlow  v.  Titlovo,  54  Pa.  216,  93  Am.  tion  of  such  letter  had  been    previously 

Dec.  691;  Eqhert  v.  Egbert,  78  Pa.  326;  shown.     Adams  v.  Stale,  34  Tex.  Grim. 

Elder  v.  Ogletree,  36  Ga.  64.     And  see  Rep.  470,  31  S'.  W.  372. 

infra,  §  359.  Nor  is  it  competent  to  prove  the  ef- 

A  nonexpert  cannot  be  permitted   to  feet  of  the  conduct  of  a  person  accused 

testify     as     to     whether    insanity    w;vs  of  homicide  upon  the  mind  of  another 

permanent     or     temporary.        State    v.  person  on  the  day  before    the    commis- 

Peel,  23  Mont.  358,  75  Am.  St.  Rep.  529,  sion    of    the    act,    on    the    question    of 

59  Pac.  109.  sanity,   in   a   prosecution  for  the  homi- 

Or  as  to  whether  a  person    was  sub-  cide.     Lake  v.  People,    1    Park,    Grim, 

ject     to     delusions     or     hallucinations.  Rep.  495. 

Ratigan  v.  Judge,  181  Mass.  572,  64  N.  "Kenioorthy  v.  Williams,  5  Ind.  375; 

E.  204.  Richmond's  Appeal,  59   Conn.    226.    21 

And  it  is  not  error  to  refuse  to  permit  Am.  St.  Rep.  85,  22  Atl.  82 ;    Severin  v. 

a  nonexpert  witness  to  de^ne  the    word  Zack,  55  Iowa,  28,  7  N.  W.  404;  Meeker 

"inind."     Wheeler   v.    State,     158     Ind.  v.  Meeker,  74  Iowa,  352,  7  An^.  St.  Rep. 

687,  63  N.  E.  975.  489,  37  N.  VV.  773;  Manatt  v.  Scott,  lOG 


358] 


EVIDENCE. 


435 


be  asked  if  anytlimg  occurred  at  the  time  in  question,  or  if  Vuey  ob- 
served anything,  that  indicated  insanity.^^  And  it  is  proper  to  ask 
such  a  witness  for  his  opinion  as  to  whether  a  person  accused  of  crime 
had  sufficient  mind  to  discriminate  between  right  and  wrong  with 
reference  to  his  act,^^  or  whether  a  testator  had  capacity  to  compre- 
hend his  property  and  make  an  intelligent  disposition  thereof,^^  or 
whether  a  conti'actor  or  grantor  was  capable  of  making  a  contract  or 
deed,  or  transacting  important  business.^  ^'  Insanity  cannot  be  sho^^^l, 
however,  by  evidence  of  a  nonexpert  witness  comparing  the  person 
claimed  to  be  insane  with  other  insane  persons  known  to  the  vrit- 
nesses.^^  And  evidence  as  to  the  mental  capacity  of  a  person  is  not 
admissible  when  offered,  not  for  the  purpose  of  proving  him  non  com- 
pos mentis^  but  as  a  measure  of  his  intellectual  capacity.^* 


fowa,  203,  68  Am.  St.  Rep.  293,  76  N. 
W. '717;  Eraser  v.  Jennison,  42  Mich. 
206,  3  N.  W.  882;  United  mates  v. 
Ouiteau,  1  Mackey,  408.  47  Am.  Rep. 
247  ;  State  v.  Ryan,  cited  in  Jarman  on 
Wills,  p.  122,  note;  Irish  v.  Smith,  S 
Seror.  &  R.  573,  n  Am.  Dec.  648. 

This  does  not  call  for  the  witness's 
opinion  without  detailing  the  facts  to 
the  jury.  Manatt  v.  Scott,  106  Iowa, 
203,' 68*  Am.  St.  Rep.  203,  76  N.  W.  717 

And  after  one  accused  of  murder  has 
offered  evidence  of  his  demeanor  for 
the  purpose  of  convincing  the  jury  of  his 
insanity  at  the  time  of  the  trial,  for  tho 
purpose  of  raising  the  presumption  of 
insanity  when  the  crime  was  committed, 
a  person  who  is  acquainted  with  him 
may  testify  that  he  is  simulating. 
Burt  V.  State,  38  Tex.  Crim.  Rep.  397, 
39  L.  R.  A.  305,  40  S.  W.  1000,  43  S. 
W.  344. 

But,  while  a  nonexpert  witness  upon 
the  question  of  the  soundness  of  mind 
of  another  may  describe  his  conduct  and 
repeat  his  declarations,  the  declarations 
are  not  themselves  evidence  against  the 
adverse  party,  except  so  far  as  they 
constitute  a  part  of  the  facts  upon 
which  the  opinion  of  the  witness  is 
founded.  Johnson  v.  Culver,  116  Ind. 
278,  19  N.  E.  129. 

^■^Watson  V.  Anderson,  11  Ala.  43; 
Rice  V.  Rice,  53  Mich.  432,  19  N.  W. 
132;  State  v.  Maier,  36  W.  Va.  757,  15 
S.  E.  991;  Kimberleij's  Appeal,  68  Conn. 
428,  37  L.  R.  A.  261,  57  Am.  St.  Rep. 
101,  36  Atl.  847. 

A  witness  should  be  permitted  to 
state  in  what  manner  a  person's  conver- 
sation was  disconnected,  as  tending  to 
•show  his   qualifications    as    a    witness, 


and  as  bearing  upon  the  question  of 
such  person's  mental  capacitv.  Re 
Goldthorp,  94  Iowa,  336,  58  Am.  St. 
Rep.  400,  62  N.  VV.  845. 

^*Smith  V.  State,  59  Ark.  139,  26  S. 
W.  712;  Pflne(jer  v.  State,  46  Neb.  493, 
64  N.  W.  1094;  United  States  v.  Gui- 
teau,  1  Mackey,  498,  47  Am.  Rep.  247. 

And  a  witness  who  had  arrested  a 
person  accused  of  crime,  and  taken  him 
to  jail,  may,  after  describing  the  ap- 
pearance and  manner  of  the  accused 
during  that  time,  and  detailing  what  he 
said  and  did,  give  his  opinion  as  to 
whether  he  was  being  controlled  by,  or 
suffering  under,  an  insane  delusion  with 
reference  to  the  alleged  criminal  act. 
Boiling  v.  State,  54  Ark.  688,  16  S,  W. 
658. 

^''Shanlett's  Appeal,  62  Conn.  325,  25 
Atl.  245 1^ Kelt hley  v.  Stafford,  126  111. 
507,  18  N.  E.  740;  Overall  v.  Bland,  11 
Kv.  L.  Rep.  371,  12  S.  W.  273;  Re 
Pinney,  27  Minn.  280.  6  N.  W.  791,  7  N. 
W.  144;  Bost  V.  Bost,  87  N.  C.  477; 
Daniel  v.  Daniel,  39  Pa.  191.  ^ 

And  a  nonexpert  witness  in  a  will 
contest,  on  the  question  of  testamentary 
ca))acity,  may  be  asked  whether  the  eye- 
sight of  the  testator  was  good  enough 
to  have  enabled  him  to  recognize  him 
when  nearby  if  his  mind  had  been  right. 
Irish  v.  Sm'ith,  8  Scrg.  &  R.  573,  11  Am. 
Dec.  648.    • 

^^Wilkinson  v.  Pearson,  23  Pa. 
Melendy  v.  Spauldinq,  54  Vt.  517. 
see  Ohear  v.  Gray,  73  Ga.  455. 

"Gehrke  v.  State,  13  Tex.  568. 

^^Patterson  v.  People,  46  Barb. 
Gvrdiner  v.  People,   6  Park.  Grim.  Rep. 
135. 

So,  a  nonexpert  witness  cannot    give 


117; 
And 


625; 


436 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


f§  359 


359.  Limitation  of  scope  in  particular  states. —  In  Massachusetts, 
only  experts  and  subscribing  witnesses  to  wills  are  permitted  to  give 
their  opinions  npon  questions  of  mental  condition ;  and  ordinary  wit- 
nesses, whatever  their  opportunities  for  observation,  and  whether  they 
state  the  circumstances  or  not,  cannot  give  such  opinions,^ °  tliough 
they  may  state  whether  they  had  observed  any  facts  which  led  them 
to  infer  derangement  of  intellect.^"  And  the  rule  is  the  same  in 
Maine  ;^^  though  nonexperts  may  state  negatively  that  they  did  not 
observe  anytliing  peculiar  about  the  mental  condition  of  the  person 
whose  sanity  is  in  question."^  And  in  New  Hampshire  the  rule  for- 
5ierly  was  that  tlie  opinions  of  witnesses  who  were  not  experts,  as  to 
soundness  or  unsoundness,  were  not  admissible  in  evidence.^^  But 
this  rule  has  been  changed ;  nonexpert  witnesses,  though  not  the  sub- 
scribers to  a  will,  now  being  permitted  to  give  their  opinions  as  to 
the  sanity  of  the  testator,  when  founded  upon  their  knowledge  and 


his  opinion  as  to  the  sanity  or  insanity 
of  another  witness,  or  as  to  the  value  of 
his  testimonv.  Territort/  v.  Padilla,  8 
N.  M.  510.  46  Pac.  346;  Howard  v. 
Russell,  75  Tex.  171,  12  S.  W.  525. 

-%'om.  V.  Brajimnn,  136  Mass.  438; 
Com.  V.  'Wilson,  1  Gray.  337 :  Williams 
V.  Fipencer,  150  INIass.  346,  5  L.  R.  A. 
700,  15  Am.  St.  Rep.  206,  23  N.  E.  105; 
Coirles  V.  Merchants,  140  Mass.  377,  5 
N.  E.  288:  Toimsend  v.  Pepperell.  99 
Mass.  40;  Coi7i.  v.  Fairbanks,  2  Allen, 
5]  1 ;  Poole  v.  Richardson,  3  Mass.  330 ; 
Needham.  v.  Ide,  5  Pick.  510;  Smith  v. 
Smith,  157  Mass.  389,  32  N.  E.  348; 
Ellis  V.  Ellis,  133  IMass.  469. 

And  an  opinion  of  a  witness,  given  on 
cross-examination,  can  be  taken  into 
consideration  as  evidence  only  so  far  as 
it  tends  to  contradict  premises  seeming 
to  lead  to  a  different  conclusion.  Hoqan 
V.  Roche,  179  Mass.  510.  61  N.  E.  57. 

^ilay  V.  Bradlee,  127  Mass.  414;  71/ c- 
Conneil  v.  Wildes,  153  Mass.  487,  26  N. 
E.  1114.  And  see  Nash  v.  Hunt,  116 
Mass.  237. 

And  any  witness  of  ordinary  intelli- 
gence who  is  familiarly  acquainted  with 
another  m.ay  testify  whether,  within  a 
given  time,  he  has  failed  mentally  or 
phvsically.  Com.  v.  Brayman,  136 
Mass.  438. 

And  a  nonexpert  witness  may  be 
asked  whether  he  noticed  any  difference 
in  the  mode  of  doing  business  of  a  per- 
son whose  sanity  is  in  question  at  that 
*.ime  and  at  a.  previous  time.     Ihid. 

And  error  in  excluding  evidence  upon 


the  issue  of  the  sanity  of  a  party  at  the 
time  of  making  a  promissory  note,  as  to 
whether  he  talked  coherently,  is  ren- 
dered immaterial  where  the  witness  was 
subsequently  allowed  to  tell  how  he 
talked  and  acted.  Hodqes  v.  Scott,  118 
Mass.  530. 

And  in  Com.  v.  Sttirtivant,  117  Mass. 
122,  19  Am.  Rep.  401.  it  was  held  that 
nonexpert  witnesses  having  special  op- 
portunity for  observing  may  give  their 
opinions  as  conclusions  of  fact  if  the 
subject  matter  upon  which  their  testi- 
mony depends  cannot  be  reproduced  or 
described  precisely  as  it  appeared  to  the 
witnesses,  and  the  facts  upon  which 
their  opinions  are  based  are  such  as 
men  in  general  are  capable  of  compre- 
hending and  understanding,  and  the 
question  was  one  of  sanity  or  insanity. 

-'Heirett  v.  Hvrlei/.  88  Me.  431.  34 
Atl.  274;   Wj/man  v.' Gould.  47  Me.  159. 

-'-Rnhinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473. 

So,  evidence  on  behalf  of  the  con- 
testants of  a  will,  that  the  testntor.  a 
«hort  time  before  making  the  will,  was 
insensible  and  unconscious  of  what  was 
going  on  around  him.  and  that  he  was 
prostrated  by  sickness,  and  did  not  ap- 
pear to  know  an  intimate  acquaintance, 
and  that  efforts  to  converse  with  him 
proved  ineffectual  is  competent ;  such 
evidence  not  being  matter  of  opiiiion, 
but  matter  of  fact,  combining  many 
minute  particulars.  Halley  v.  Webster, 
21   Me.  401. 

"State  V.  Archer,  54  N.  H.  465;  Stat0 


f  359] 


EVIDENCE. 


437 


observation  of  liis  appearance  and  conduct.-^  Likewise,  in  New 
York,  a  nonexpert  witness  cannot  be  asked  for  his  opinion  as  to  the 
general  soundness  or  unsoundness  of  the  mind  of  a  person  whose  san- 
ity is  in  question,^"^  though  offered  in  connection  with  facts  and  cir- 
cumstances relied  on  to  prove  the  incapacity,  and  though  the-  wit- 
nesses had  personal  acquaintance  and  intercourse  with  the  party."^ 
The  evidence  must  consist  of  acts  and  declarations  of  the  parties 
evincing  a  want  of  capacity;  and  it  is  for  the  court,  and  not  the  wit- 
ness, to  form  an  opinion  from  the  facts.^^  jSTonexpert  witnesses,  how- 
ever, may  testify  to  facts  and  declarations,  and  incidents  in  relation 
to  the  person,  tending  to  show  soundness  or  unsoundness  of  mind, 
and  to  impressions  produced  upon  them  thereby,  as  to  whether  such 
acts  and  declarations  testified  to  impressed  them  as  rational  or  ir- 
rational."^    But  they  can  only  state  the  acts  and  conversations  of 


V.  Pike,  49  N.  H.  399,  6  Am.  Rep.  533 ; 
Boardman  v.  Woodman,  47  N.  H.  120; 
Hamblett  v.   Hamhictt,  6  N.  H.   333. 

"Hardy  v.  Merrill.  56  N.  H.  227,  22 
Am.  Rep.  441,  Overruling  previous  New 
Hampshire  cases  on  that  point. 

^Bradij  v.  limith,  8  Misc.  4G5,  28  N. 
Y.  Supp.  776;  People  v.  Strait,  148  N. 
Y.  566,  42  N.  E.  1045;  Re  Folts,  71 
Hun,  492,  24  N.  Y.  Supp.  1052;  John- 
son V.  Cochrane,  91  Hun,  165.  36  N.  Y. 
Supp.  283;  White  v.  Doris,  42  N.  Y.  S. 
R.  901,  17  N.  Y.  Supp.  548;  Bell  v.  Mc- 
Master,  29  Hun.  272;  Eeidelt  v.  Wo^l, 
55  N.  Y.  634;  Clapp  v.  Fullerton  34  N. 
Y.  190,  90  Am.  Dec.  681;  O'Brien 
V.  People,  36  N.  Y.  276;  Goodell 
V.  Harrington,  3  Thomp.  &  C. 
345;  Real  v.  People,  42  N.  Y. 
270;  Holcomh  v.  Holcomb,  95  N. 
Y.  316;  Laicrence  v.  Laicrence,  4  N.  Y. 
Week.  Dig.  299;  Rollioagen  v.  Roll- 
icagen,  3  Hun,  121 ;  Re  Rapplee,  66  Hun, 
.558,  21  N.  Y.  Supp.  801;  People  v. 
Fish,  125  N.  Y.  136,  26  N.  E.  319;  Wijse 
V.  Wyse,  155  N.  Y.  307,  49  N.  E.  942, 
Affirming  13  Misc.  773,  34  N.  Y.  Supp. 
1151;  Johnson  v.  Cochrane,  91  Hun, 
165,  36  N.  Y.  Supp.  283,  Affirmed  in 
159  N.  Y.  555,  54  N.  E.  1092. 

^^Dewiit  V.  Barley,  9  N.  Y.  371;  Hoi- 
<;omb  V.  Holcomh,  95  N.  Y.  316;  Real  v. 
Peoj)le,  42  N.  Y.  270;  Sears  v.  Shnfer, 
1  Barb.  408;  Paine  v.  Aldrich,  133  N. 
Y.  544.  30  N.  E.  725;  Re  Arnold,  14 
Hun,  525. 

"Sears  v.  Shafer,  1  Barb.  408;  RoU- 
wagen  v.  Rollwagcn,  3  Hun,  121. 

And  a  nonexpert  witness  in  a  hearing 
before  a  commissioner  and  a  jury,  aj)- 


pointed  to  inquire  as  to  the  unsoundness 
of  mind  of  a  party,  who  had  testified 
that  the  party's  mind  was  weak,  but 
that  he  could  not  call  it  rational  or  ir- 
rational, cannot  be  asked  to  state  his 
impression  as  to  whether  such  party 
was  failing  very  fast  physically  as  well 
as  mentally.  Re  Klock,  49  Hun,  450, 
3  N.  Y.  Supp.  478. 

In  DeWitt  v.  Barly,  17  N.  Y.  340; 
Culver  v.  Haslam,  7  Barb.  314;  Gardi- 
ner v.  Gardiner,  34  N.  Y.  155,  however, 
nonexpert  opinions  as  to  mental  ability 
of  another,  founded  upon  personal 
observation,  were  held  to  be  admissible, 
but  these  cases  must  be  deemed  to  have 
been  overruled  upon  that  question  by 
the  later  New  York  cases. 

"^People  v.  Strait,  148  N.  Y.  566,  42 
N.  E.  1045;  Paine  v.  Aldrich,  133  N.  Y. 
544,  30  N.  E.  725;  People  v.  Taylor,  138 
N.  Y.  398,  34  N.  E.  275;  People  v.  Con- 
roy,  97  N.  Y.  62;  Holcomh  v.  Holcomh, 
95  N.  Y.  316;  Re  Ross,  87  N.  Y.  514; 
Rider  v.  Miller,  86  N.  Y.  507;  Heulett 
v.  Wood,  55  N.  Y.  634 ;  Clapp  v.  Fuller- 
ton,  34  N.  Y.  190,  90  Am.  Dec.  681; 
O'Brien  v.  People,  36  N.  Y.  276;  John- 
son V.  Cochrane,  91  Hun,  165;  36  N.  Y. 
Supp.  283;  Re  Foils,  71  Hun,  492,  24  N. 
Y.  Supp.  1052;  Petrie  v.  Petrie,  2  Silv. 
Sup.  Ct.  438,  6  N.  Y.  Supp.  831;  Howell 
V.  Taylor,  11  Hun,  214;  Highce  v. 
Guardian  Mat.  L.  Ins.  Co.  06  Barb.  466: 
White  V.  Davis,  42  N.  Y.  S.  R.  901,  17 
N.  Y.  Supp.  548;  Re  Klock,  49  Hun, 
450,  3  N.  Y,  Supp.  478;  People  v.  Pack- 
enham,  115  N.  Y.  200,  21  N.  E.  1035; 
People  v.  Koerner.  154  N.  Y.  355,  48  N. 
E.  730;   Wyse  v.  Wyse,   155  N.  Y.  367, 


438  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  359 

which  they  have  personal  knowledge.^®  And  the  testimony  must  be 
limited  to  the  ^\dtness's  conclusion  from  the  facts  testified  to  by  him.^" 
Oklahoma  seems  to  have  adopted  the  New  York  rule.^^ 

360.  Scope  as  to  time. —  Nonexpert  witnesses  cannot  give  their 
opinions  that  another  was  insane  without  designating  any  particular 
time  when,  in  their  judgment,  such  insanity  existed.^^  And  the 
opinion  of  a  witness  as  to  the  sanity  of  a  party  must  relate  to  the  time 
of  his  examination  or  observation  of  his  conduct  and  appearance; 
and  he  cannot  be  required  to  give  his  opinion  as  to  capacity  previous 
to  tliat  time.^^     Nor  can  nonexpert  witnesses  give  their  opinions  as 


49  N.  E.  942,  Affirming  13  Misc.  773,  34 
N.  Y.  Siipp.  1151;  Johnson  v.  Cochrane, 
91  Hun,  165,  36  N.  Y.  Supp.  283,  Af- 
firmed in  159  N.  Y.  555,  54  N.  E.  1092. 

Such  testimony  relates  to  the  ap- 
pearance and  conduct  of  the  accused, 
and  not  to  his  mental  condition.  People 
V.  Packenham,  115  N.  Y.  200,  21  N.  E. 
1035. 

And  an  inquiry  addressed  to  a  non- 
expert witness  on  the  question  of  sanity 
or  insanity  should  be,  not  whether  the 
person  was  absolutely  rational  or  other- 
wise, but  as  to  his  opinion  or  impression, 
derived  from  his  acts  and  conversations 
at  the  time;  though  where  the  witness 
stated  nothing  more  than  opinions  and 
impressions  derived  from  such  acts  and 
conversations,  error  in  admitting  evi- 
dence as  to  whether  such  person  was 
absolutely  rational  or  otherwise  will  not 
be  deemed  prejudicial.  People  v. 
Yomios,  151  N.  Y.  210,  45  N.  E.  460. 

''Paine  v.  Aldrich,  133  N.  Y.  544,  30 
N.  E.  725. 

^"Re  Folts,  71  Hun,  492,  24  N.  Y. 
Supp.  1052;  Re  Ross,  87  N.  Y.  514; 
Clapp  V.  FuUerton,  34  N.  Y.  190,  90  Am. 
Dec.  681. 

'\See  Queenan  v.  Territory,  11  Okla. 
261,  61  L.  R.  A.  324,  71  Pac.  218. 

So,  in  Texas  and  South  Dakota, 
though  the  courts  of  those  states  usual- 
ly admit  nonexpert  opinions,  a  leaning 
in  the  direction  of  the  ^Massachusetts 
and  New  York  doctrine  has  appeared  to 
some  extent. 

Thus,  in  Hickman  v.  State,  38  Tex. 
190,  it  was  said  that,  in  the  opinion  of 
the  court,  it  v/ould  be  better  practice, 
as  a  gener.al  rule,  to  confine  nonexpert 
witnesses  to  a  .statement  of  those  demon- 
strations which  indicate  insanity,  and 
leave  the  jury  to  form  their  own  opinion 
as  to  the  cause;  but  in  the  case  in  hand 
facts  proved  rendered  the  ruling  of  the 


court  quite  immaterial  on  that  point, 
since  other  evidence  in  the  case  clearly 
established  the  fact  of  sanity. 

So,  in  State  v.  Leehman,  2  S.  D.  171, 
49  N.  W.  3,  it  was  held  that  refusal  to 
permit  a  nonexpert  witness  to  state, 
from  facts  within  his  personal  knowl- 
edge, which  he  had  related  upon  the 
witness  stand,  what  was  his  opinion  as 
to  the  sanity  or  insanity  of  a  person 
whose  mental  condition  was  in  question, 
is  not  error,  where  he  was  permitted  to 
state  that  during  the  times  he  had  seen 
him  he  had  always  considered  him  ir- 
rational when  excited. 

°-Moors  v.  Sanford,  2  Kan.  App.  243, 
41  Pac.  1064;  Denning  v.  Butcher,  91 
Iowa,  425,  59  N.  W.  69;  Brashears  v. 
Orme,  93   Md.  442,  49  Atl.  620. 

^Runi/an  v.  Price,  15  Ohio  St.  I,  80 
Am.  Dec.  459;  Shults  v.  State,  37  Neb. 
481,  55  N.  W.  1080. 

And  the  opinion  of  a  witness  as  to 
whether  a  person  accused  of  crime  could 
distinguish  between  right  and  wrong, 
who  had  stated  that  he  knew  him  some 
years  since,  will  be  taken  as  referring 
to  the  period  of  his  acquaintance  with 
him  up  to  the  time  he  last  saw  him  be- 
fore the  offense,  and  not  to  the  time  of 
trial.       Poicell  v.  State,  25  Ala.  21. 

But  a  question  addressed  to  a  non- 
expert wit;iess  in  a  will  contest,  as  to 
whether  he  ever  saw  the  testator  act 
rationally  from  a  designated  date  until 
the  last  time  he  saw  him,  though  inad- 
missil)le,  is  not  a  ground  for  reversal, 
where  it  appears  to  the  appellate  court 
that  the  result  would  have  been  the 
same  if  the  testimony  had  been  exclud- 
ed. Johnson  v.  Cochrane,  91  Hun,  165, 
36  N.  Y.  Supp.  283. 

And  in  forming  an  opinion  on  the 
subject  of  tlie  insanity,  a  nonexpert 
witness  may  take  into  consideration 
any    fact    or    circumstance    within    his 


§  MOl 


EVIDENCE. 


439 


to  the  mental  condition  of  a  person  on  a  particular  Jay,  when  they 
did  not  see  him  at  that  time.^"*.  Witnesses  may  give  their  opinions, 
however,  as  to  tlie  state  of  a  person's  mind  prior  to  and  at  the  time 
of  tlie  act  in  question.^^  And  the  fact  that  a  nonexpert  witness  had 
not  formed  his  opinion  at  the  time  he  saw  and  observed  the  facts  tes- 
tified to  by  him  does  not  render  his  testimony  upon  the  question  of 
insanity  inadmissible.^^ 

361.  Cross-examination,  rebuttal,  and  impeachment. — It  is  within 
the  discretion  of  the  court  to  permit  the  cross-examination  of  a  non- 
expert witness  before  admitting  his  opinion  as  to  the  mental  capacity 
of  a  person.^^  And  questions  maybe  asked  with  a  view  to  calling 
forth  contrary  statements,  declarations,  and  actions  upon  the  part  of 
the  witness  by  way  of  impeachment.^^  And  the  witness  may  be  asked 
as  to  any  business  transaction  which  he  may  have  had  with  the  person 
whose  sanity  is  in  question  at  the  time  he  claims  to  have  formed  his 
opinion,  and  as  to  the  manner  in  which  such  person  then  conducted 
himself,^''  and  as  to  whether  he  thought  he  was  of  unsound  mind  at 


knowledge  or  observation  which  to 
him  appears  to  afford  evidence  of  mental 
condition  at  the  time  in  question, 
whether  it  occurred  during  such  time  or 
at  a  time  prior  thereto.  Re  Norman, 
72  low-a.  84,  33  N.  W.  374. 

Tliough  conversations  held  with  the 
person  some  time  afterward  do  not 
qualify  a  witness  to  give  an  opinion  as 
to  capacity.  Eclcert  v.  Flowry,  43  Pa. 
46. 

^[itake  V.  RourkCr  74  Iowa,  519,  38  N. 
W.  392. 

"^Baldunn  v.  State,  12  Mo.  227. 

The  opinion  of  a  nonexpert  witness 
may  be  the  result  of  the  observation  of 
a  continuous  condition  or  series  of 
facts.  Neia  York,  C.  &  St.  L.  R.  Co.  v. 
Luebeck,  157  111.  595.  41  N.  E.  897. 

And  a  nonexpert  witness  in  an  action 
involving  the  validity  of  a  deed,  who 
had  testified,  without  objection,  that 
the  mind  of  the  grantor  was  very 
weak,  and  that  she  did  not  know  what 
she  was  about  in  making  the  deed,  may 
be  permitted  to  state  that  she  was  no 
more  competent  to  make  a  deed  two 
weeks  after  the  date  of  the  deed  ir. 
question  than  she  was  before.  Goodman 
v.  Sapp,  102  N.  C.  477,  9  S.  E.  483. 

'^"Hathaway  v.  National  L.  Ins.  Co.  48 
Vt.  336;  New  York,  C.  &  St.  L.  R.  Co. 
V.  Lueheck,  157  111.  595,  41  N.  E.  897. 

'"O'Connor  v.  Madison,  98  Mich.  183, 
57  N.  W.  105;  First  Nat.  Bank  v.  Wire 
hach,  12  W.  N.  C.  150. 


^^Staser  v.  Hogan,  120  Ind.  227,  21  N. 
E.  911,  22  N.  E.  990;  Rush  v.  Megee. 
36  Ind.  69;  Ware  v.  Ware,  8  Me.  42; 
BeauJjien  v.  Cicotte,  12  Mich.  459.  And 
see  Eaxton  v.  McClaren,  132  Ind.  235, 
31  N.  E.  48;  Foster  v.  Dickerson,  64  Vt. 
233,  ^4  Atl.  253. 

And  one  who  bases  his  opinion  as  to 
the  insanity  of  another  in  part  upon  the 
fact  that  the  latter  was  an  old  man  may 
be  asked,  on  cross-examination,  if  it  is 
not  his  belief  that,  as  a  rule,  old  men 
are  of  unsound  mind  because  of  failure 
of  memory.  Pence  v.  Waugh,  135  Ind. 
143,  34  N.  E.  860. 

But  the  exclu.sion  of  declarations  of  a 
witness  in  a  will  contest  that  the  tes- 
tator was  not  competent  ^.o  make  a  will 
cannot  be  held  erroneous  on  appeal, 
where  the  objection  was  that  it  was 
necessarily  inconsistent  with  his  testi- 
mony in  chief,  in  which  he  stated  that 
while  she  resided  with  him.  just  after 
the  execution  of  the  will,  he  had  ob- 
served no  change  in  her  mental  con- 
dition, and  gave  several  accounts  of  act>> 
and  conversations  tending  to  show 
soundness  of  mind.  Williams  v. 
Spencer,  150  Mass.  346,  5  L.  R.  A.  790. 
15  Am.  St.  Rep.  206.  23  X.  E.  105. 

^'■Roe  V.  Taylor,  45  111.  485. 

And  a  nonexpert  witness  who  based 
his  opinion  in  part  upon  a  contract,  in 
giving  evidence  as  to  mental  capacity 
may  be  asked  whether  iie  regarded  th.' 
contract  as  reasonable  or  unreasonable. 


440 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  3G1 


that  time.^*^  These  niles  apply  to  criminal  prosecutions,  and  a  non- 
expert witness  may  be  asked  as  to  his  opinion  whether  the  defendant 
was  not  competent  to  know  right  from  %vrong.*^  And  npon  an  issue 
of  testamentary  capacity,  such  a  witness  may  be  asked  whether,  from 
his  observation  and  acquaintance,  he  thought  the  testator  mentally 
incapable  of  transacting  ordinary  business.'*-  And  it  is  competent 
to  ask  a  witness,upon  an  inquisition  of  lunacy,  on  rebuttal,  whether, 
in  his  opinion,  the  subject  was  not  of  sound  mind.^^  A  nonexpert  v»'it- 
ness  who  has  given  an  opinion  founded  on  facts  known  to  him,  and 
conduct  observed  by  him,  however,  cannot  be  called  upon,  on  cross- 
examination,  to  say  what  his  opinion  would  be  under  a  different  state 
of  affairs.**^     Nor  can  he  be  called  upon  for  an  opinion  on  a  hjipo- 


Pence  v.  Waugh,  135  Ind.  143,  34  N.  E. 
800. 

^"Pence  v.  Waugh,  135  Ind.  143,  34  N. 
E.  860. 

Witnesses  who  detailed  facts,  and  ex- 
pressed opinions  upon  direct  examina- 
tion touching  the  mental  competency  of 
another  witness  in  the  same  cause,  with- 
out objection,  may  be  asked,  on  cross- 
examination,  whether,  from  their  obser- 
vation and  knowledge  of  her,  as  to 
which  they  had  testified,  the  character 
of  her  mind  was  such  that  she  had  not 
an  accurate  knowledge  of  facts,  or 
fancied  the  existence  of  facts  which  did 
not  exist.  Bricker  v.  Lightner,  40  Pa. 
199. 

*^State  V.  Porter.  34  Iowa,  131;  State 
V.  Leehman,  2  S.  D.  171,  49  N.  W.  3. 

And  a  witness  in  a  criminal  case, 
who  was  a  neighbor  of  the  defendant, 
and  who  had  testified  that  he  was  af- 
flicted with  insanity  of  long  standing, 
may  be  asked,  on  cross-examination,  if 
he  had  ever  heard  of  his  being  insane 
previous  to  the  alleged  criminal  act  in 
question.  Merritt  v.  State,  39  Tex. 
Grim.  Rep.  70,  45.  S.  W.  21. 

And  evidence  of  the  brother  of  the  ac- 
cused, in  a  prosecution  for  homicid'i,  as 
to  whether  he  would  regard  the  actions 
of  the  accused  as  irrational  if  he  were 
nervous  and  irritable  after  divorce 
papers  had  been  served  upon  him,  is  ad- 
missible as  tending  to  characterize  and 
develop  the  weight  to  be  given  evidence 
given  by  him  in  his  direct  examination. 
People  v.  Osmond,  138  N.  Y.  80,  33  N. 
E.  739. 

*'Gardiner  v.  Gardiner,  34  N.  Y.  155. 

But  questions  asked  a  witness  on 
croBS-examination   in   a  will   contest,  as 


to  whether  he  thought  the  testator  had 
mind  sufficient  at  the  time  of  making 
his  will  to  give  the  directions  required 
therefor,  are  not  competent  for  the  pur- 
pose of  ascertaining  the  degree  of  in- 
telligence possessed  by  the  witness,  in 
order  to  enable  the  court  to  determine 
what  reliance  should  be  placed  on  his 
evidence.  Re  McCarthy,  55  Hua,  7,  8 
N.  Y.  Supp.  578. 

So,  a  nonexpert  witness  in  an  action 
on  contract,  who  has  testified  to  the  in- 
sanity of  defendant,  may  be  asked,  on 
cross-examination,  for  the  purpose  of 
testing  his  sincerity,  whether,  at  the 
time  he  did  so,  the  defendant  was 
capable  of  making  a  deed  which  was 
shown  to  have  been  made  at  that  time. 
Dominick  v.  Randolph,  124  Ala.  557,  27 
So.  481. 

"Re  Vanauken,  10  N.  J.  Eq.  190; 
Westmore   v.    Sheffield,    56   Vt.    239. 

** Rambler  v.  Tryo?!,  7  Serg.  &  R.  90, 
10  Am.  Dec.  444. 

So,  a  witness  in  an  action  to  set  aside 
a  will  upon  the  ground  that  the  testator 
was  of  unsound  mind  cannot  be  asked, 
on  cross-examination,  if  he  would  have 
taken  the  testator's  note  during  the  last 
years  of  his  life,  and  if  he  had  heard 
anvbodj'  question  his  sanitv.  Staser  v. 
Hof/nn!  120  Ind.  227,  21  N.  E.  911,  22 
N.  E.  990. 

And  where  a  witness  stated,  upon 
cross-examination,  that  he  predicated 
his  opinion  as  to  the  capacity  of  a  per- 
son upon  what  he  saw  and  knew  of 
him,  and  not  ])articu]arly  upon  the  evi- 
dence of  another  \\itn('ss.  the  latter  can- 
not be  asked  if  he  had  stated,  in  giving 
evidence,  that  the  person  whose  sanity 
was    in    question    was     irrational     ami 


S  3G1] 


EVIDENCE. 


441 


thetical  case.*'  And  a  nonexpert  cannot  be  asked  as  to  the  intent 
of  another,  where  it  does  not  appear  that  he  had  any  means  of  judg- 
ing as  to  such  intent.'*'*  Nor  can  a  nonexpert  be  contradicted  by 
showing  acts  upon  his  part  indicating  a  person  to  be  of  sound  mind, 
where  he  had  given  evidence  tending  to  show  incompetency  on  the 
part  of  such  person,  but  had  not  given  his  opinion.*'^  And  a  nonex- 
pert cannot  state,  upon  redirect  examination,  his  opinion  as  to 
whether  an  irrational  man  can  always  know  right  from  wrong,  that 
being  a  question  for  an  expert."*^ 

362.  Weight  generally. —  The  weight  to  be  given  the  opinions  of 
nonexpert  witnesses  a.'^  to  sanity  or  insanity  depends  upon  a  consider- 
ation of  all  the  circumstances  under  which  they  are  formed  ;^^  and 
upon  the  extent  and  character  of  the  impairment  of  the  mind.^*^  And 
when  the  opinions  of  the  witnesses  seem  evenly  balanced,  the  court 
will  look  to  the  circumstances  concerning  the  transaction,  the  history 
and  character  of  the  person,  and  the  probability  that  one  in  the  pos- 
session of  his  faculties  would  not  perform  the  act  in  question. ^^     The 


wandering  in  his  conversation  or  other- 
wise. Higcjms  v.  Carlton,  28  Md.  115, 
92  Am.  Dec.  066. 

«/2e  nofltnire,  108  Mich.  410,  66  N. 
W.  327 ;  Dunham's  Appeal,  27  Conn. 
192;  I'itiard  v.  Foster,  12  111.  App.  132. 

But  a  nonexpert  witness  may  bo 
asked,  on  cross-examination,  what  he 
means  by  insanity,  where  no  effort  is 
made  to  confuse  him.  State  v.  Peel,  23 
Mont.  358,  75  Am.  St.  Rep.  529,  59  Pac. 
169. 

*^Mtate  V.  Garvey,  11  Minn.  154,  Gil. 
95. 

"Huhbell  V.  Bissell,  2  Allen,  196. 

And  inquiries  by  the  proponent  of  a 
will,  of  the  contestant's  witnesses, 
examined  for  the  purpose  of  proving 
facts  concerning  the  bodily  and  mental 
condition  of  the  testator,  as  to  whetlier 
or  not  he  appeared  or  acted  rationally, 
do  not  fall  within  the  province  of  mere 
cross-examination,  and  are  not  per- 
missible. Rollwagen  v.  Rolhcagen,  5 
Thomp.  &  C.  402. 

But  the  opinions  of  nonexpert  Avit- 
nesses  as  to  mental  capacity,  when  so 
connected  with  the  res  yestce  as  to  be 
inseparable  therefrom,  become  the  sub- 
ject of  contradiction,  and  may  be  re- 
butted by  proof  of  inconsistent  state- 
ments out  of  court.  United  States  v. 
Holmes,  1  Cliff.  98,  Fed.  Cas.  No.  15,- 
382. 

*^Sfate  V.  Leehman,  2  S.  D.  171,  49  N. 
W.  3. 


But  a  witness  for  the  state,  in  a 
criminal  prosecution,  who  was  well 
acquainted  with  the  accused  for  a  long 
time  immediately  preceding  the  com- 
mission of  the  criminal  act,  may  be 
asked,  on  rebuttal,  whether  or  not  he 
had  ever  observed  anything  about  him 
or  in  what  he  said  or  did  that  indicated 
insanity.  State  v.  Maier,  36  W.  Va. 
767,  15  S.  E.  991. 

And  evidence  of  a  jailor  as  to  the 
conduct  of  a  person  in  jail,  and  the  ap- 
parent condition  of  his  mind  at  the 
time,  is  admissible  in  rebuttal  of  evi- 
dence in  behalf  of  such  person  tending 
to  show  a  general  and  permanent  state 
of  dementia  and  a  diseased  condition  of 
the  mind.  People  v.  McCarthy,  115 
Cal.  255,  46  Pac.  1073. 

^''Moore  v.  Moore,  67  Mo.  192. 

^"Bnrnei/  v.  Torrey,  100  Ala.  157,  46 
Am.  St.  Rep.  33,  14  So.  685. 

Evidence  that  a  person  had  been  con- 
fined in  an  insane  hospital  as  an  insane 
man,  and  the  opinion  of  witnesses  that 
he  was  still  insane,  is  not  suflicient  to 
establish  insanity  to  such  an  extent  as 
to  deprive  him  of  capacity  to  distinguisii 
between  right  and  wrong.  Meyer  v. 
People,  156  111.  126.  40  N.  E.  490. 

'-'Hemphill  v.  Eolford,  88  Mich.  293, 
50  N.  W.  300.  And  see  Martinez  v. 
Moll,  46  Fed.  724. 

And  wltere  there  is  a  great  con- 
trariety of  evidence  as  to  the  feebleness 
of  a  grantor's  mind,    as,    for    instance. 


442 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


l§  362 


opinions  of  persons  well  acquainted  with  one  whose  sanity  is  in  ques- 
tion are  entitled  to  respectful  consideration,  although  they  are  not 
medical  men.^^  The  question  of  weight  and  effect,  however,  is  not 
one  of  law,  for  the  court,  but  one  of  fact,  for  the  jury;^^  to  be  deter- 
mined by  a  consideration  of  the  facts  testified  to  before  them,  upon 
which  s-sch  opinions  are  based."*  And  the  question  whether  the 
means  of  information,  or  the  facts  proved,  or  the  conclusions  drawn, 
by  a  nonexpert  witness  as  to  sanity  or  insanity,  are  sufficient  as  a 
basis  for  his  conclusion,  is  also  one  for  the  consideration  of  the  jury, 
under  proper  instructions  ;^^  and  so  is  the  question  of  the  sufficiency 
of  the  witness's  reasons  for  his  opinion.^^  And  it  is  for  the  jury  to 
consider  the  facts,  and  ascertain  if  the  opinions  are  sustained  by 
them  f  the  province  of  the  court  in  such  cases  being  suggestion  and 
explanation,  rather  than  direction. 

363.  As  affected  by  character,  capacity,  and  opportunity.  —  The 
weight  of  the  opinion  of  a  nonexpert  witness  as  to  sanity  or  insanity 
of  a  person  depends  upon  his  capacity  to  judge,  and  his  opportunity 
to  observe,^^  and  the  intelligence  and  honesty  of  the  witness,^^  and  his 


twelve  witnesses  for  it  and  nine  acfainst 
it,  an  admission  on  the  part  of  his 
grantee,  who  was  his  general  ageuL, 
that  such  grantor  was  incapable  of 
transacting  his  own  business,  corrobo- 
rates the  affirmative  of  the  issue,  and 
is  sufficient  to  control  the  grantee's 
answer,  denying  the  fact  of  mental  in- 
capacity.    Brooke  v.  Berry,  2  Gill,  83. 

^'Schlencker  v.  State,.  9  Neb.  241,  1 
N.  W.  857;  Com.  ex  rel.  Helmbold  v. 
Kirkbride,  11  Phila.  427. 

And  tlie  jury  in  a  will  contest  should 
not  be  told  that  the  opinions  of  wit- 
nesses on  the  question  of  insanity  who 
are  not  experts,  though  ever  so  honestlj- 
formed,  are  most  unsafe  guides  for  the 
ascertainment  of  truth.  Burneij  v. 
Torreij,  100  Ala.  157,  4G  Am.  St.  Rep. 
33,  14  So.  G85. 

But  an  instruction  in  a  prosecution 
for  homicide  in  which  insanity  was 
i.nterposed  as  a  defense,  that  the  con- 
duct, language,  and  appearance  of  the 
accused  should  be  considered  for  the 
double  purpose  of  testing  the  value  of 
the  opinions  of  witnesses  based  upon 
them,  and  of  determining  whether  the 
fact  of  insanity  is  established  inde- 
j)endently  of  such  opinions,  is  not  sub- 
ject to  the  objection  that  it  tells  the 
jury  that  if  they  find  the  accused  in- 
sane they  must  do  so  from  facts  inde- 
])pndeMt  from  opinions,  where  they  are 
eloewhere  told  that  weight    and    credit 


should  be  given  to  opinions  upon  the 
question  of  insanity.  State  v.  Jones, 
G4  Iowa,  350,  17  N.  W.  911,  20  N.  W. 
470. 

And  in  EJoi  v.  Eloi,  36  La.  Ann.  563, 
it  was  said  that  little  or  no  weight  can 
be  given  to  opinions  of  nonexpert  wit- 
nesses as  to  the  mental  condition  of  the 
defendant  in  an  action  for  interdiction. 

And  in  Charter  Oak  L.  Ins.  Co.  v. 
Rodel,  95  U.  S.  235,  24  L.  ed.  433,  it 
was  said  that  the  opinions  of  ordinary 
witnesses  as  to  the  sanity  of  the  in- 
sured who  committed  suicide,  are  not  of 
great  weight,  in  an  action  on  an  in- 
surance policy  conditioned  against 
liability  in  case  of  death  of  the  insured 
by  his  OA\Ti  hand. 

'''■Colee  V.  State.  75  Ind.  513;  Bhime  v. 
State,  154  Ind.  343,  56  N.  E.  771;  Neic- 
hard  v.  Yundt,  132  Pa.  324,  19  Atl.  288; 
Foster  v.  Dickerson,  64  Vt.  233,  24  Atl. 
253 ;  Ri/der  v.  State,  100  Ga.  528.  38  L. 
R.  A.  721,  62  Am.  St.  Rep.  334,  28  S.  E. 
24G. 

'^Sfate  V.  Uaijden,  51  Vt.  296. 

'\]frC1ackey  v.  State,  5  Tex.  App.  320. 

^"Gray  v.  Obear,  59  Ga.  675. 

•'A'eojsen  v.  Nexsen,  2  Keyes,  232; 
Petrie  v.  Petrie,  2  Silv.  Sup.  Ct.  438,  6 
N.  Y.  Supp.  831;  People  v.  Shuff 
(Idalio)   72  Pac.  664. 

'■^Burton  v.  Scott,  3  Rand.  (Va.)  399; 
Burney  v.  Torrexf  100  Ala.  157,  46  Am. 
St.  Rep.  33,  14  So.  685;    Armstrong  V. 


§  363] 


EVIDENCE. 


443 


freedom  from  interest  and  bias,®''  and  upon  the  incidents  actually  ob- 
served.^^  Opinions  of  nonexpert  witnesses  as  to  sanity  or  insanity 
■are  of  no  value  unless  it  appears  that  they  had  adequate  means  and 
opportunities  for  forming  a  conclusion.*'^  And  the  testimony  of  wit- 
nesses present  at  the  time  of  the  act  in  question  is  of  greater  weight 
than  the  opinion  of  other  witnesses  not  having  the  same  opportunities 
to  observe.*'^  And  evidence  of  witnesses  who  were  present  at  the  exe- 
cution of  a  will  is  entitlc^l  to  particular  weight  on  the  question  of 
testamentary  capacity,  especially  where  they  were  attesting  wit- 
nesses.'^^     It  cannot  be  said,  as  a  matter  of  law,  however,  that  the 


State,  30  Fla.  170,  17  L.  R.  A.  484,  11 
So.  618;  Baker  v.  Baker,  202  111.  595,  67 
N.  E.  410;  Hawley  v.  Griffin  (Iowa)  82 
X.  W.  905;  Re  Merriman,  108  Mich. 
454,  66  N.  W.  372;  Wood  v.  State,  58 
Miss.  741;  Sharp  v.  Kansas  City  Cable 
R.  Co.  114  Mo.  94,  20  S.  W.  93;  Wood 
V.  Carpenter,  166  Mo.  465,  60  S.  VV. 
172;  Clifton  v.  Clifton,  47  N.  J.  Eq.  227, 
21  Atl.  333;  Culver  v.  Haslam,  7  Barb. 
314;  State  v.  Kalb,  2  Ohio  Legal  News, 
364;  Com.  v.  Cressinger,  193  Pa.  326,  44 
Atl.  433;  Ward  v.  Brown  (W.  Va.)  44 
S.  E.  488 ;  Knickerbocker  L.  Ins.  Co.  v. 
Foley,  105  U.  S.  350,  26  L.  ed.   1055. 

Next  to  physicians  and  persons  who 
were  present  at  the  time  of  the  exe- 
cution of  a  deed,  either  as  attesting 
witnesses  or  otherwise,  the  evidence  of 
persons  who«e  intimacy  in  the  family 
had  given  them  an  opportunity  of  see- 
ing the  grantor  at  all  times,  and  watch- 
ing the  operations  of  his  mind,  is  im- 
portant upon  the  question  of  his  ca- 
pacity to  make  a  deed.  J  arret  t  v. 
Jarrett,  11  W.  Va.  584. 

And  a  continuance  should  be  granted 
because  of  tlie  absence  of  material  wit- 
nesses in  a  criminal  prosecution  who 
would  testify  as  to  the  mental  condition 
of  the  accused,  and  give  their  opinions 
that  he  was  insane,  though  there  were 
other  witnesses  upon  the  same  question, 
where  the  absent  witnesses  were  more 
friendly  and  intimate  with  the  accused, 
and  had  all  the  means  of  knowing  his 
condition,  and  were  better  able  to  give 
an  opinion  as  to  his  mental  condition 
than  any  other  persons.  Harris  v.  Slate, 
18  Tex.  App.  287;  Ryder  v.  State,  100 
Ga.  528,  38  L.  R.  A.  721,  62  Am.  SI. 
Rep.  334,  28  S.  E.  246. 

''Clifton  V.  Clifton,  47  N.  J.  Eq.  227, 
21  Atl.  333;  Julke  v.  Adam,  1  Redf. 
454. 

^Culver  V.  Haslam,  7  Barb.  314. 

A  will  will  not  be  set  aside    on    the 


ground  of  testamentary  incapacity  upon 
the  testimony  of  a  number  of  witnesses, 
all  of  whom  were  related  to  the  testator, 
as  against  that  of  three  witnesses  to  the 
will  who  had  no  interest  in  the  disposi- 
tion, and  were  unconnected  with  his 
family  and  were  apparently  free  from 
prejudice,  and  had  abundant  oppor- 
tunity to  form  a  judgment  as  to  his 
mental  condition,  that  he  was  of  sound 
mind.  Sutton  v.  Morgan,  30  N.  J.  Eq. 
629. 

"^Sharp  V.  Kansas  City  Cable  R.  Co. 
114  Mo.  94,  20  S.  W.  93;'  Culver  v.  Has- 
lam,  7  Barb.  314;  Battle  v.  State,  105 
Ga.  703,  32  S.  E.  160.  And  see  Emery 
y.  Hoyt,  46  111.  258. 

''■Bcaubien  v.  Cicotte,  12  IMich.  459. 

''Beverley  v.  Wulden,  20  Gratt.  147 ; 
Jarrelt  v.'^  Jarrett,  11  W.  Va.  584; 
Buckey  v.  Biickey,  38  W.  Va.  ir.8,  18  S. 
E.  383;  Delaplain  v.  Grubb,  44  W.  Va. 
612,  67  Am.  St.  Rep.  788,  30  S.  E.  201; 
Hoge  v.  Fisher,  Pet.  C.  C.  103,  Fed. 
Cas.  No.  6,585. 

And  where  there  is  a  conflict  in  the 
evidence  as  to  the  sanity  of  a  grantor, 
in  an  action  to  set  a.side  his  deed,  the 
evidence  of  witnesses  relating  to  the 
period  of  time  nearest  the  date  of  the 
execution  of  the  deed  is  entitled  to  tlie 
most  weight.  Exiim  v.  Canty,  34  Miss. 
533. 

'^Nicholas  r.  Kershner,  20  W.  Va. 
251;  Kerr  v.  Lunsjord,  31  W.  Va.  680, 
2  L.  R.  A.  668,  8  S.  E.  493. 

Evidence  of  neighbors  of  a  party,  who 
were  of  sound  judgment  and  fair  powers 
of  observation,  and  v.ho  liad  known  him 
long  and  well,  and  had  occasion  to  ob- 
serve and  test  the  vigor  of  liis  mental 
faculties',  and  could  give  tlie  facts  upon 
which  their  impressions  and  opinions 
were  based,  is  ordinarily  the  most  re- 
liable on  the  question  of  senile  dementia. 
Hielt  V.  Shull,  36  W.  Va.  56.3,  16  S.  E. 
146. 


444 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  363 


opinions  of  the  witnesses  who  had  less  acquaintance  with  the  person 
whose  sanity  is  in  question,  and  less  opportunities,  may  not  be  as  re- 
liable as  those  of  others,  where  they  have  had  special  training  and  ex- 
perience, or  habits  of  closely  observing  people.^^  The  question  as  to 
the  comparative  weight  of  expert  and  nonexpert  opinions  is  elsewhere 
considered."*^ 

364.  As  affected  by  facts  and  reasons  stated. — The  opinions  of  non- 
expert witnesses  on  the  question  of  mental  capacity  are  to  be  weighed 
by  the  facts  upon  which  they  are  based,*''  such  facts  being  of  more 
importance  than  the  opinions.®^  Mere  opinions  of  witnesses  as  to 
sanity  or  insanity  are  entitled  to  little  or  no  regard  unless  they  are 
supported  by  good  reasons,  founded  on  facts  which  will  warrant  them 
in  the  opinion  of  the  jury."^  And  if  such  reasons  are  frivolous  and 
inconclusive,  the  opinions  are  w'orth  nothing.'^*'  And  opinions  as  to 
the  absence  of  capacity  are  entitled  to  little  weight  as  against  proof  of 


''Cline  V.  Lindsey,  110  Ind.  337,  11  N. 
E.  441;  Durham  v.  Smith,  120  Ind.  463, 
22  N.  E.  333;  Fulunder  v.  higels,  87 
Ind.  414. 

But  the  testimony  of  an  attorney  who 
drew  a  will,  tending  to  show  that  the 
testator  knew  what  he  was  about,  and 
comprehended  the  cliaracter  of  the  in- 
strument, cannot  be  said,  as  a  matter 
of  law,  to  be  controlling,  where  there  iS 
evidence  that  the  testator  was  eighty 
years  of  age,  and  of  many  circumstances 
occurring  at,  about,  and  before  the  time 
the  will  was  made,  indicating  an  en- 
feebled mental  condition,  the  force  and 
weight  of  such  circumstances  being  a 
question  for  the  determination  of  the 
jury.  Petrie  v.  Pctrie,  2  Silv.  Sup.  Ct. 
438,  6  N.  Y.  Supp.  831. 

'^Hnpra,  §  3.50. 

"Fiscus  V.  Turner,  125  Ind.  46,  24  N. 
E.  Gr.2;  Rush  v.  Mcyee,  3()  Ind.  09; 
Blume  V.  State,  154  Ind.  343,  56  N.  E. 
771:  liaker  v.  Baker,  202  111.  595,  67  N. 
E.  410;  Hawley  v.  Griffin  (Iowa)  82  N. 
W.  905;  Ex  parte  Schneider,  21  D.  C. 
433 ;  Clarke  v.  Sawyer,  3  Sandf.  Ch. 
351;  Nexsen  v.  'S'exsen,  2  Kcyes,  232; 
Wilcox  V.  State,  94  Tenn.  106, "28  S.  W. 
312;  Kinlesidc  v.  Harrison,  2  Phillim. 
Eccl.  Rep.  449. 

''•''Clarke  v.  Saicyer,  3  Sandf.  Ch.  351; 
MDanieVs  Will,  2  J.  J.  Marsh.   331. 

''Harrison  v.  Ronan,  3  Wash.  C.  C. 
580,  Fed.  Cas.  No.  6,141;  Kinne  v. 
Kinire,  0  Conn.  102,  21  Am.  Dec.  732; 
Jamison  v.  Jamison,  3  Iloust.  (Del.) 
108;  Darnell  v.  Rowland,  30  Ind.  342: 
li' Daniel's   Will,   2   J.   J.    Marsh,    331; 


Jones  V.  Perkins,  5  B.  Mon.  222;  Chasr 
V.  Winans,  59  Md.  475;  Clifton  v.  Clif 
ton,  47  N.  J.  Eq.  227,  21  Atl.  333^ 
Doughty  v.  Doughty,  7  N.  J.  Eq.  643; 
Sloan  V.  Maxvell,  3  N.  J.  Eq.  563 , 
Lowe  V.  Williamson,  2  N.  J.  Eq.  82; 
Whitenack  v.  Stryker,  2  N.  J.  Eq.  8; 
Doran  v.  McConlogue,  150  Pa.  98,  24 
Atl.  357;  Nexsen  v.  Nexsen,  2  Keyes, 
232;  Young  v.  Earner,  27  Gratt.  96; 
Jarrett  v.  Jarrett,  11  W.  Va.  584;  Kerr 
V.  Lunsford,  31  W.  Va.  680.  2  L.  R.  A. 
608,  8  S.  E.  493;  Farnsuorth  v.  A'o/"/- 
singer,  46  W.  Va.  410,  33  S.  E.  240; 
Shenfe  v.   Roioe,  2  Lee  Eccl.  Rep.  415. 

A  continuance  will  not  be  granted  iit 
a  criminal  prosecution  for  the  purpose 
of  procuring  the  testimony  of  a  witness^ 
who  was  expected  to  testify  that  she  be 
lieved  the  defendant  to  be  insane,  based 
upon  the  facts  shown  by  the  evidence, 
tliat  he  was  a  somnambulist,  where  it 
is  not  probable  that  the  jury  would  havi- 
believed  her  conclusion  and  opinion  to 
be  correct  in  the  face  oi  other  testimony 
to  the  cirect  that  somnambulism  is  not 
a  symptom  or  evidence  of  insanitv. 
Fisher  v.  State,  30  Tex.  App.  502,  18  S. 
W.  90. 

''"Kinne  v.  Kinne,  9  Conn.  102,  21  Am. 
Dec.  732;  Sloan  v.  Muxiiell,  3  N.  J.  Eq. 
503;  Green's  Estate,  140  Pa.  137,  21  Atl. 
250. 

But  the  fact  that  a  nonexpert  witness 
is  unable  to  give  conversations  with  the 
person  whose  sanity  is  in  question,  and 
can  only  state  tlie  manner  in  which  he 
conversed,  and  that  the  facts  known  to 
him  were  limited  in  tiieir  character,  dqes 


364J 


EVIDENCE. 


44") 


facts  evincing  capacity.'''*  But  it  is  not  correct  to  say  that  the  opinion 
of  a  witness  as  to  the  mental  condition  of  a  person  is  entitled  to  con- 
sideration only  so  far  as  the  facts  stated  by  him  sustain  it,  unless  the 
proposition  is  understood  to  include,  among  the  facts  referred  to,  the 
acquaintance  of  the  witness  with  the  subject-matter,  and  his  oppor- 
tunities for  observation.'^^ 

3.  Subscribing  witnesses. 

365.  Admissibility  generally. —  The  law  places  subscribing  wit- 
nesses to  a  will  around  the  testator  to  try,  judge,  and  determine  as  to 
his  competency  to  execute  it.'^^  And  they  are  permitted  to  testify  as 
to  the  opinion  they  formed  at  the  time  as  to  the  condition  of  his  mind, 
whether  sound  or  unsound.'^^  An  attesting  witness  to  a  will  may  ex- 
press an  opinion  as  to  the  capacity  of  the  testator  the  same  as  an 
expert  may,  without  being  confined  to  narratives  of  the  facts  and  con- 
duct, as  other  witnesses  are.'^''    And,  as  a  general  rule,  they  may  give 


not  render  his  opinion  as  to  mental  ca- 
pacity inadmissible,  but  should  be  given 
to  the  jury  on  the  question  as  to  what 
credit  and  weight  should  be  given  his 
opinion.  Foster  v.  Dickerson,  64  Vt. 
233,  24  Atl.  253. 

^"^Carpenter  v.  Calvert,  83  111.  62; 
Rarick  v,  lllmer,  144  Ind.  25,  42  N.  E. 
1099. 

''^Shanlei/s  Appeal,  62  Conn.  325,  25 
Atl.  245. 

''^Poole  V.  Richardson,  3  Mass.  330; 
Hastings  v.  Rider,  99  Mass.  623;  Need- 
ham  V.  Ide,  5  Pick.  510;  McDaniel  v. 
Crosby,  19  Ark.  533;  Potts  v.  House,  6 
Ga.  324,  50  Am.  Dec.  329;  Kelly  v.  Mc- 
Guire,  15  Ark.  600;  Chase  v.  Lincoln,  3 
Mass.  236;  Field's  Appeal,  30  Conn. 
277;  Heytvard  v.  Hazard,  1  Bay,  335. 

A  witness  sliould  not  subscribe  his 
name  to  a  will  as  such  until  he  is  clear- 
ly satisfied  that  the  testator  is  pos- 
sessed of  a  sound  and  disposing  mind 
and  memory,  and  that  in  executing  it  he 
acts  understandingly,  with  full  knowl- 
edge of  its  contents.  Scribner  v.  Crane, 
2  Paige,   147,  21  Am.  Dec.  81. 

'"'Ethridge  v.  Bennett,  9  Houst.  (Del.) 
295,  31  Atl.  813;  Jamison  v.  Jamison,  3 
Houst.  (Del.)  108;  Steele  v.  Helm,  2 
Marv.  (Del.)  237,  43  Atl.  153;  Walker 
V.  Walker,  34  Ala.  469;  McDaniel  v. 
drosby,  19  Ark.  533;  Kelly  v.  McGuire, 
15  Ark.  600;  Potts  v.  House,  6  Ga.  324, 
50  Am.  Dec.  329;  Entioistle  v.  Meikle, 
180  111.  9,  54  N.  E.  217;  Call  v.  Byram, 


39  Ind.  499 ;  Harper's  Will,  4  Bibb,  244 ; 
Poole  V.  Richardson,  3  Mass.  330;  Hast- 
ings V.  Rider,  99  Mass.  623;  Needham 
V.  Ide,  5  Pick.  510;  Chase  v.  Lincoln,  3 
Mass.  236;  Martin  v.  Perkins,  56  Miss. 
204;  Hamblett  v.  Hamblett,  6  N.  H. 
333,  dictum;  Castner  v.  Sliker,  33  N.  J.i 
L.  95;  Deidtt  v.  Barley,  9  N.  Y.  371; 
Clapp  V.  FuUerton,  34  N.  Y.  190,  90  Am. 
Dec.  681;  Holcomb  v.  Holcomb,  95  N.  Y. 
316.  dictum;  Re  Potter,  17  App.  Div, 
267,  45  N.  Y.  Supp.  563;  Crouell  v. 
Kirk,  14  N.  C.  (3  Dev.  L.)  355;  Gibson 
V.  Gibson,  9  Yerg.  329. 

The  opinions  of  attesting  witnesses  to 
a  will  as  to  the  capacity  of  a  testator 
are  admittetl  because  they  are  supposed, 
from  their  experience  and  study,  to  have 
peculiar  knowledge  upon  the  subject  of 
inquiry,  which  jurors  generally  have 
not;  and  they  are  thus  supposed  to  be 
more  capable  of  drawing  conclusions 
from  the  facts,  and  passing  opinions 
thereon,  than  the  jurors  would  be.  Re 
McCarthy,  55  Hun,  7,  8  N.  Y.  Supp. 
578. 

''^Martin  v.  Perkins,  56  Miss.  204; 
Foster  v.  Dickerson,  64  Vt.  233,  24  Atl. 
253;  Young  v.  Barner,  27  Gratt.  96; 
Parsons  v.  Parsont,  66  Iowa,  754,  21  N. 
W.  570,  24  N.  W.  564;  Hcrtrich  v. 
Hertrich,  114  Iowa,  643,  86  Am.  St.  Rep. 
389,  87  N.  W.  689. 

And  an  exception  exists  to  the  New 
York  rule  that  a  nonexpert  witness  can 
only    characterize    as    rational    or    ir- 


446 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [5  365 


such  opinions  without  giving  the  facts  upon  which  they  are  found- 
ed •j''^  and  without  assigning  cause  or  reason  f'  and  without  stating 
the  grounds  upon  which  they  are  formed.^^  The  subscribing  wit- 
nesses to  a  will  may  be  examined  by  either  party,  however,  as  to  what 
transpired  at  the  time  they  witnessed  the  instrument.'^^  And  the  rule 
has  been  laid  down  in  some  of  the  cases  that  a  subscribing  witness 
cannot  give  an  opinion  as  to  sanity  or  insanity,  in  the  absence  of  evi- 
dence as  to  facts  indicating  insanity ;®''  and  that  the  opinions  of  the 
witnesses  as  to  testamentary  capacity  or  incapacity  are  competent 
when  the  facts  and  circumstances  on  which  they  are  founded  are  dis- 
closed.^^    Likewise,  a  nonexpert  witness  who  is  the  subscribing  wit- 


rational  the  acts  and  declarations  to 
which  he  testifies,  and  cannot  express  an 
opinion  on  the  general  question  whether 
the  mind  of  a  testator  was  sound  or  un- 
sound, in  case  of  attesting  witnesses  to 
a  will.  Clapp  v.  Fullerton,  34  N.  Y. 
190,  90  Am.  Dec.  C81. 

But  if  the  opinion  of  a  subscribing 
witness  purports  to  be  based  upon  testi- 
mony given  by  him,  it  is  not  competent, 
where  he  had  not  testified  to  facts  tend- 
ing to  prove  unsoundness  of  mind.  Fur- 
long V.  Carraher,  108  Iowa,  492,  79  N. 
\V.  277. 

'•^Tiilow  V.  Titlow,  54  Pa.  216,  93  Am. 
Dec.  G91;  Logan  v.  McGinnis,  12  Pa.  27; 
Polts  V.  House,  6  Ga.  324.  50  Am.  Dec. 
329;  Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473;  Williams  v.  Lee,  47  Md. 
321;  Jones  v.  Collins,  94  Md.  403,  51 
Atl.  398;  Croicell  v.  Kirk,  14  N.  C.  <3 
Dev.  L. )  355;  Van  Hvss  v.  Rainholt,  2 
Coldw.  139;  First  Nat.  Bank  v.  Wire- 
bach,  12  W.  N.  C.  150. 

The  condition  of  a  testator's  mind  as 
evidenced  by  his  actions,  conduct,  and 
conversations  at  the  time  of  making  his 
will  is  a  part  of  the  res  gestw  of  the 
transaction,  and  witnesses  to  the  will 
are  competent  to  speak  thereof  and  give 
opinions  in  relation  thereto  without  anj' 
knowledge  other  than  that  derived  from 
his  conduct  on  such  occasions.  Re  Cole- 
man, 111  N.  Y.  220,  19  N.  E.  71. 

"Gibson  v.  Gibson,  9  Yerg.  329;  Pur- 
year  V.  Reese,  6  Coldw.  21. 

^^Lodge  v.  Lodge,  2  lloust.  (Del.)  419; 
Re  D'Avignon,  12  Colo.  App.  489,  55 
Pac.  936;  Hcott  v.  McKee,  105  Ga.  256, 
31  S.  E.  183. 

But  a  refusal  to  permit  a  witness  to 
a  will  who  had  testified  as  to  what  oc- 
curred when  he  witnessed  it,  and  that 
the  conversations  and  acts  of  the  testa- 
tor detailed   by   liini   impressed   him   as 


perfectly  rational,  to  answer  a  question 
whether  there  was  anything  in  his  man- 
ner or  appearance  different  from  what 
he  had  seen  for  the  year  past,  is  not 
erroneous,  within  the  rule  that  a  sub- 
scribing witness  can  give  his  opinion 
generally  as  to  soundness  of  mind  of  a 
testator,  where  the  objection  was  gen- 
eral. If  the  party  asking  the  question 
desired  the  benefit  of  the  exceptional 
rule  applicable  to  such  witnesses,  the 
form  of  the  question  should  have  dis- 
tinctly indicated  it.  Petrie  v.  Petrie, 
2  Silv.  Sup.  Ct.  438,  6  N.  Y.  Supp.  931. 

•^Robinson  v.  Adams,  62  Me.  369,  16 
Am.  Rep.  473;  Puryear  v.  Reese,  6 
Coldw.  21. 

Permitting  the  contestants  of  a  will 
to  cross-examine  the  subscribing  wit- 
nesses on  the  question  of  the  soundness 
of  mind  of  the  testator  before  they  have 
opened  their  own  case,  is  not  a  de- 
parture from  the  rule  of  evidence  that 
a  defendant  who  has  not  opened  his 
case  will  not  be  allowed  to  introduce  it 
to  the  jury  by  cross-examining  the  wit- 
nesses of  the  adverse  party.  Egbert  v. 
Egbert,  78  Pa.  326. 

And  a  subscribing  witness  to  a  will, 
who  testified  in  chief  as  to  its  execution, 
and  the  testator's  sanity,  and  the  facts 
connected  with  its  preparation  and  in- 
terviews with  the  testator  concerning  it, 
may  be  examined  anew,  on  rebuttal, 
without  restriction,  upon  the  points  in 
controversy.  Nash  v.  Hunt,  116  Mass. 
237. 

'"Dickinson  v.  Dickinson,  64  Pa.  401. 

And  in  Kenuorthy  v.  Williams,  5  Ind. 
375,  it  was  held  that  the  evidence  of  <a 
subscribing  witness  to  a  will  as  to  the 
sanity  or  insanity  of  the  testator  is  not 
admissible  in  a  proceeding  to  contest  the 
will. 

^'Abraham   v.   Wilkins,   17   Ark.   292; 


§  365J 


EVIDENCE. 


44T 


ness  to  a  deed  or  contract  may  give  an  opinion  as  to  the  sanity  or  in- 
sanity of  a  party  upon  the  same  principle  which  allows  subscribing 
witnesses  to  a  will  to  give  opinions  as  to  the  sanity  of  a  testator.*^ 
And  the  opinions  of  subscribing  witnesses  to  a  contract  are  competent 
in  all  cases  where  the  facts  or  circumstances  are  disclosed  upon  which 
they  are  founded,^^ 

366.  Necessity  of  giving. —  The  purpose  of  attesting  an  instrument 
being  to  preserve  proof  both  of  its  execution  and  the  capacity  of  the 
party  executing  it,  a  party  interested  has  a  right  to  insist  that  the 
testimony  of  all  such  witnesses  be  given  to  the  jury  in  an  action  there- 
on, and  they  must  all  be  produced,  if  living  and  within  the  jurisdic- 
tion of  the  court.*'*  And  the  subscribing  witnesses  to  a  deed  must 
be  called  in  an  action  thereon,  where  71071  est  factum  is  pleaded.*^  It 
is  not  necessary  to  the  establishment  of  a  will,  however,  that  the  sub- 
scribing witnesses  should  have  stated  their  opinions  as  to  the  mental 
capacity  of  the  testator,  since  such  opinions  are  necessarily  mere  in- 
ferences drawTi  by  them  from  facts  observed.^®  And  where  there  is 
a  failure  to  prove  testamentary  capacity  of  a  testator  by  the  subscrib- 


Walker  v.  Walker,  14  Ga.  242;  CUleij  v. 
Cillexj,  34  Me.  162. 

A  subscribing  witness  to  a  codicil  is 
not  a  competent  witness  on  the  question 
of  the  sanity  of  the  testator  at  the  time 
of  making  it,  where  he  was  a  legatee 
vmder  the  original  will.  Gass  v.  Gass, 
3  Humph.  278. 

"■■Brand  v.  Brand,  39  How.  Pr.  193; 
Deiciit  V.  Barley,  9  N.  Y.  371. 

^^Kclly  V.  McGuire,   15  Ark.  5.55. 

In  Dean  v.  Fuller,  40  Pa.  474,  how- 
ever, it  was  held  that  deeds  are  good 
without  subscribing  witnesses,  and  that 
the  rule  allowing  subscribing  witnesses 
to  wills  to  testify  as  to  their  opinions 
of  the  testator's  capacity  to  make  a  will 
does  not  apjjly  to  the  subscribing  wit- 
nesses to  a  deed,  who  must  testify  to 
facts  only  on  the  question  of  sanity  or 
incapacity  of  the  grantor. 

"Chase  v.  Lincoln,  3  Mass.  236 ; 
Field's  Appeal,  36  Conn.  277 ;  Jauncey 
V.  Thome,  2  Barb.  Ch.  40,  45  Am.  Dec. 
424;  Bootle  v.  BItindell,  19  Ves.  Jr.  494, 
Cooper  Ch.  136,  15  Revised  Rep.  93. 

The  rule  of  English  courts  of  clian- 
cery  is  that  upon  a  bill  filed  to  estab- 
lish a  will  all  the  subscribing  witnesses, 
if  living  and  competent  to  testify,  may 
be  called  by  the  party  seeking  to  estab- 
lish it,  and  must  be  examined  by  him 
so  as  to  give  the  adverse  party  an  op- 
portunity  to  cross-examine  them  as   to 


the  sanity  of  the  testator,  and  the  cir- 
cumstances attending  the  execution  of 
the  will ;  and  the  rule  is  the  same  upon 
the  trial  of  an  issue  devisavit  vel  non, 
awarded  by  the  court  of  chancery. 
Jauncey  v.  Thorne,  2  Barb.  Ch.  40,  45 
Am.  Dec.  425. 

The  right  of  an  heir  in  a  will  contest, 
however,  to  insist  upon  having  the  opin- 
ions of  the  attesting  witnesses  as  to  the 
sanity  of  the  testator,  may  be  waived 
and  is  waived  unless  insisted  upon  at 
the  time.    Field's  Appeal,  36  Conn.  277. 

And  a  will  is  not  rendered  inadmis- 
sible in  evidence  by  failure  to  prove 
execution  and  testamentary  capacity  by 
the  subscribing  witnesses,  where  they 
are  called  and  examined,  and  testify  to 
the  execution  of  the  will  by  the  testator. 
Eobart  v.  Cook,  107  Mass.  55,  39  L.  R. 
A.  715,  44  N.  E.  1085. 

^^Crank  v.  Frith,  2  Moody  &  R.  202, 
9  Car.  &  P.   197. 

^Cilley  V.  Cilley,  34  Me.  162;  Mays 
V.  Mays,  114  Mo.  536,  21  S.  W.  921. 

The  inability  of  a  subscribing  witness 
to  a  will,  who  had  been  introduced  to 
the  testator  for  that  purpose,  to  testify 
to  his  capacity,  does  not  invalidate  the 
will,  but  goes  only  to  the  credibility  of 
such  witness  in  case  he  is  called  upon  to 
testify  as  to  sanitv  or  mental  capacity. 
Huf(  v.  Uuff,  41  Ga'.  GU6- 


44S  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         fS  30» 

ing  witnesses  to  a  will,  the  executor  or  proponent  is  not  pi-ecluded 
from  establishing  his  sanity  by  other  testimony.^^  Wills  are  estab- 
lished in  many  jurisdictions  upon  the  theory  that  subscribing  as  a 
witness  to  a  will  is  an  assertion  that  the  testator  was  of  sound  mind,^^** 
and  that  proof  of  the  signature  of  a  deceased  witness  prima  facie 
establishes  the  competency  of  the  testator  to  make  the  will.^^  The 
same  general  rules  apply  to  deeds  and  contracts.^''  The  opinions  of 
the  attesting  witnesses  as  to  the  sanity  of  a  party,  however,  are  not 
conclusive.^^  And  the  contrary  rule,  that  the  fact  that  a  person  at- 
tests a  will  does  not  furnish  evidence  of  any  opinion  on  his  part  as  to 
the  sanity  of  the  testator,  has  been  asserted.^-  Proof  by  both  sub- 
scribing witnesses  is  required  under  statutes  requiring  the  subscribing 
witnesses  to  a  will  to  attest  not  only  the  act  of  signing  it,  but  also  the 
sanity  of  the  testator.^^     But  the  witnesses  need  not  swear  positively 

"Frear  v.  Williams,  7  Baxt.  550;  But-  ^Pedler  v.  Paige,  1  Moody  &  R.  258; 

ler  V.  Benson,  1  Barb.  526;   Wheeler  v.  Toirart  v.  Sellars,  5  Dowl.  P.  C.  231. 

Alderso7i,   3   Hagg.   Eccl.   Rep.   574.  ^'Keithley    v.    Stafford,    12G    111.    507, 

While  a  will  is  required  to  be  attest-  18    N.    E.    740;    Starnes    v.    Marten,    1 

ed  by  two  witnesses,  it  may  be  proved  Curt.  Eccl.  Rep.  294. 

by  one  of  them, Who  testifies  to  the  at-  ""Baxter  v.  Abbott,  7  Gray,  71;  Board- 

testation  by  the  other,  and  to  the  compe-  man  v.  Woodman,  47  N.  H.  120;  Flan- 

tency  of  the  testator,  though  the  other  ders  v.  Davis,   19   N.  H.   139. 

does  not  testify.     Cheatham  v.  Hatcher,  ^''Withinton  v.  Withinton',  7  Mo.  589; 

30  Gratt.  66,   32  Am.  Rep.  650.  Bice  v.  Hall,  120  111.  597,  12  N.  E.  236; 

^'"Williams   v.   Lee,   47    Md.    321;    Eg-  Andrews  v.  Black,  43  111.  256;   Walker 

bert  V.  Egbert,  78  Pa.  326.  v.  Walker,  3  III..  291;  Ramsdell  v.  Viele, 

Where  "any  of  the  witnesses  of  a  will  C  Deni.   244;   Sicenarton  v.  Hancock,  9 

are   dead   or   in   such   a   situation   that  Abb.  N.  C.  326. 

their  testimony  cannot  be  obtained,  All  that  the  New  York  statute  re- 
proof of  their  signatures  is  received  as  quires  is  that  it  shall  appear  from  the 
secondary  evidence  of  the  facts  to  which  proof  taken  before  the  surrogate  that 
they  have  attested  by  subscribing  the  the  will  was  duly  executed  by  the  tes- 
will  as  witnesses.  Jauncey  v.  Thome,  tator,  who  was  competent  to  make  it, 
2  Barb.  Ch.  40,  45  Am.  Dec.  424.  and  free  from  restraint;   and  it  is  not 

^^ Harden  v.  Hajis,  9  Pa.  151.  necessary     that     each     witness     thereto 

A  will  is  established  where  the  attest-  should  be  able  to  swear  that  all  the  req- 

ing  witnesses,  who  must  necessarily  be  uisites  of  the  statute  had  been  complied 

called   to   prove   its   execution   if   living  with.     Jauncey  v.  Thome,  2  Barb.  Ch. 

and  within  the  reach  of  process,  do  not  40,  45  Am.  Dec.  424. 

impeach  the  testator's  sanity,  or,  if,  be-  Other  evidence  than  that  of  the  sub- 

ing  absent  or  dead,  their  handwriting  is  scribing  witnesses  may  be  heard,  under 

proved,   unless   proof  of  insanity   is  of-  the  Illinois  statute,  where  probate  of  the 

fered  by  the  contestants,  the  sanity  of  will     has     been     refused.      Andrews    v. 

the  testator  being  sustained  by  the  pre-  Black,  43  111.  250. 

sumption  that  every  one  is  sane.     Per-  But  testimony  of  a  witness,  on  an  ap- 

kins  V.  Perkins,  39  N.  H.  163.  plication   for   probata,   that   he   did   not 

But  failure  to  examine  the  scrivener  know  whether  the  testator  was  of  sound 

who  wrote  a   will,  and  the  subscribing  mind   or   not,   and   that  he  might   have 

witnesses    thereto,    to    uphold    it    in    a  been  sane  or  might  not,  is  not  sufficient 

will  contest,  is  a  material  and  damaging  to  procure  its  admission  to  probate.   Al- 

circumstance     against     the     proponent,  lison  v.  Allison,  46  111.  61,  92  Am.  Dec 

having    much    adverse    force.      Ulmer's  237. 

Appeal  (Pa.)   11  Cent.  Rep.  403,  12  Atl.  And  where,  at  the  probate  of  a  will, 

686.  •3ri'>    subscribing    witness    testifies    that 


§  366]  EVIDENCE.  449 

that  the  testator  was  sane:  their  opinion  or  belief  is  all  that  is 
required.^* 

367.  Scope. —  The  opinion  of  a  witness  in  regard  to  the  sanity  of 
another  is  not  rendered  competent  by  the  fact  that  he  was  a  subscrib- 
ing witness,  where  the  question  was  not  limited  to  an  inquiry  as  to 
his  opinion  in  regard  to  sanity  at  the  time  of  the  execution  of  the 
instrument  subscribed.^^  The  opinion  of  an  attesting  witness, 
formed  at  another  time,  before  or  after  the  execution  of  the  instru- 
ment attested,  in  respect  to  the  mental  capacity  of  a  party,  stands  like 
that  of  any  other  witness.^^  And  the  opinion  of  a  subscribing  witness 
is  incompetent  where  the  inquiry  embraces  the  whole  question  in  dis- 
pute.**^  A  witness  to  a  will,  however,  need  not  use  the  statutory 
formula  "sound  mind  and  memory"  in  stating  his  belief  as  to  the  tes- 
tamentary capacity  of  the  testator  in  a  proceeding  to  probate  his  will : 
it  is  sufficient  if  he  states  his  belief  in  equivalent  words.^^  Nor  are 
the  subscribing  witnesses  to  a  will  debarred  by  any  rule  of  law  from 
testifying  to  a  testator's  insanity,  however  improper  it  may  be  to  wit- 
ness a  will  believing  the  testator  incapable  of  making  it.^^ 

368.  Weight. — Opinions  of  attesting  witnesses,  and  facts  stated  by 
them  as  occurring  at  the  time  of  the  execution  of  the  instrument  at- 
tested, are  entitled  to  great  weight  on  the  question  of  capacity  to  make 
it/  if  they  are  persons  of  intelligence  and  veracity.^     But  the  testi- 

the  testator  was  sane  at  the  time  of  *'Btce  v.  Uall,  120  111.  .597,  12  N.  E, 
making   the   will,   and   the   other   testi-    236. 

fies  that  he  was  insane,  the  evidence  of  The  answer  of  a  subscribing  witness 
oth(ir  witnesses  is  not  admissible  to  es-  to  a  will  as  to  his  belief  in  the  testator's 
tablish  the  will.  Weld  v.  Sweeney,  85  mental  capacity  will  not  be  suppressed 
111.  50.  when  his  deposition  shows  that  he  used 

It  is  not  necessary,  however,  that  the  the  word  "belief"  as  synonj'nious  with 
subscribing  witnesses  to  a  will  should  opinion.  Hughes  v.  Hughes,  31  Ala. 
be  called   in  an   issue  out  of  chancery,    519. 

in  a  will  contest,  on  the  ground  of  tes-  ^'Garrison  v.  Blantori,  48  Tex.  299: 
tamentary  incapacitj^  or  that  when  Williams  v.  Lee,  47  Md.  321;  Houmrd 
called  they  should  concur  in  their  tes-  v.  Braithwaite,  1  Ves.  &  B.  202.  But 
timony;  and  other  witnesses  may  be  see  Dickinson  v.  Dickinson,  61  Pa.  401. 
examined  even  to  contradict  them.  Rigg  A  party  calling  a  subscribing  witness 
V.  Wilton,  13  111.  15,  54  Am.  Dec.  419.    to  a  will   who   declares   his   belief  that 

** Allison  V.  Allison,  46  111.  61,  92  Am.  the  testator  was  incompetent  at  the 
Dec.  237.  time  he  made  his   will   may  contradict 

'■"^Re  McCarthy,  55  Hun,  7,  8  N.  Y.  him  by  reading  his  evidence  taken  on  a 
Supp.  578.  former   trial,   and   by   proof  of  declara- 

'^Williams  v.  Spencei;  150  Mass.  346,   tions  previouslv  made.    Harden  v.  Hays, 
5  L.  R.  A.  790,  15  Am.  St.  Rep.  200,  23   !•    Pa.    151 ;    Thornton   v.    Thornton,    39  ' 
N.  E.  105;  Givin  v.  Gwin,  5  Idaho,  271,   Vt.  122. 
48  Pac.  295.  '^Whitenack  v.  Stryker,  2  N.  J.  Eq.  8; 

^'Re   McCarthy,   55   Hun,   7,   8   N.   Y.    Turner  v.  Cheesman,  15  N.  J.  Eq.  243; 

Supp.   578;    Melanefy   v.    Morrison,    152    Jtnnisoii    v.    Jamison,    3    Iloust.     (Del.) 

Mass.  473,  26  N.  E.  36;  Furlong  v.  Car-    108:   Ball  v.   Kane,  1   Penn.    (Del.)    90. 

raker,  108  Iowa,  492,  79  N.  W.  277.        39  Atl.  778;  Kelly  v.  Perrault,  5  Idaho. 

Vol.  I.  Med.  Jur  —29. 


450 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  368 


mony  of  subscribing  witnesses  is  not  the  only  evidence  as  to  mental 
capacity  that  can  be  given  f  and  it  is  not  conclusive.'*  And  subscrib- 
ing -witnesses  are  not  necessarily  the  best  to  prove  the  sanity  of  the 
person  when  it  is  questioned.^     The  mere  opinion  of  a  subscribing 


221,  48  Pac.  45 ;  Cornelius  v.  Cornelius, 
52  N.  C.  (7  Jones  L.)  593;  Martin  v. 
Thayer,  37  W.  Va.  38,  16  S.  E.  489; 
\icholas  V.  Kershner,  20  W.  Va.  251; 
Kerr  v.  Lunsford,  31  W.  Va.  680,  2  L. 
R.  A.  668,  8  S.  E.  493;  Harrison  v. 
Roican,  3  Wash.  C.  C.  580,  Fed.  Cas. 
No.  6,141 :  Field's  Appeal,  36  Confi.  277. 
And  see  Buckminster  v.  Perry,  4  Mass. 
593;  Re  Leicis,  51  Wis.  101,  7  N.  W. 
829;  Brock  v.  Luckett,  4  How.  (Miss.) 
459. 

The  attesting  witnesses  to  a  will  are 
called  upon  to  examine  into  and  satisfy 
themselves  as  to  the  capacity  of  the  tes- 
tator, and  their  evidence  is  most  to  be 
relied  upon ;  and  next  after  them  that 
of  persons  who  were  present  at  its  exe- 
cution, their  opportunities  being  equal. 
Den  ex  dem.  Stevens  v.  Vancleve,  4 
Wash.  C.  C.  2G2,  Fed.  Cas.  No.   13,412. 

Tlie  incapacity  of  a  testator  should 
be  sustained  by  strong  testimony  as  to 
facts  showing  a  defect  of  mind  existing 
in  a  form  that  the  subscribing  witnesses 
may  not  have  detected  to  invalidate  his 
will,  where  its  execution  was  marked  by 
the  circumstances  of  fair  dealing,  and 
the  subscribing  witnesses  were  above 
suspicion,  and  fully  aware  of  their  duty, 
and  competent  to  perform  it.  Means 
V.  Means,  5  Strobh.  L.  167. 

'Jamison  v.  Jamison,  3  Houst.  (Del.) 
108;  Kemble  v.  Church,  3  Hagg.  Eccl. 
Rep.  273. 

The  opinion  of  an  expert  witness  has 
been  held  to  be  entitled  to  little  weight 
as  against  the  evidence  of  attesting  wit- 
nesses. Kelly  V.  Perrault,  5  Idaho,  221, 
48    Pac.    45. 

And  in  Sutton  v.  Morgan,  30  N.  J. 
Eq.  629,  the  evidence  of  three  out  of 
fo'.jr  disinterested  subscribing  witnesses 
to  a  will  as  to  the  testamentary  capa- 
city of  a  testator  ninety-three  years 
of  age  was  held  to  outweigh  that  of  ten 
other  witnesses,  all  of  whom  were  re- 
lated to  the  testator  either  by  blood  or 
affinity,  where  the  other  subscribing  wit- 
ness was  dead,  and  the  testator's  at- 
tending physician,  although  subpoenaed 
and  present  at  tlie  trial,  was  not  exam- 
ined. 

But  an  inquiry  of  an  attesting  wit- 
ness  upon   cross-examination   in   a    will 


contest,  as  to  whether  he  thought  the 
testator  had  mind  sufficient  at  the  time 
he  is  alleged  to  have  executed  his  last 
will,  to  give  his  attorney  specific  direc- 
tions with  reference  to  the  disposition 
of  his  property,  is  not  competent  for  the 
purpose  of  ascertaining  the  degree  of  in- 
telligence possessed  by  the  witness,  to 
enable  the  court  to  determine  the  re- 
liance wliich  should  be  placed  upon  his 
evidence  given  on  direct  examination, 
where  he  had  only  stated  facts  which 
had  come  within  his  own  observation, 
and  expressed  no  opinion  as  to  the 
soundness  of  the  mind  and  memory  of 
the  testator.  Re  McCarthy,  55  Hun,  7, 
8  N.  Y.   Supp.  578. 

^FiekVs  Appeal,  36  Conn.  277;  Ma/r- 
tin  v.  Perkins,  50  Miss.  204;  Morton  v. 
Heidorn,  133  Mo.  G   ^.  37  S.  W.  504. 

^Hoiiard's  Will,  5  T.  B.  Mon.  199,  17 
Am.   Dec.   fiO. 

A  will  may  be  set  aside  on  the  ground 
of  testamentary  incapacity,  against  the 
testimony  of  subscribing  witnesses  to 
sanity,  where  there  was  proof  of  pre- 
vious insanity,  and  the  disposition  made 
by  the  will  was  not  rational  or  natural, 
and  circumstances  of  mystery  and  suspi- 
cion attfiuled  its  execution.  Griffin  v. 
Griffin,  R.  M.  Charlt.    (Ga.)   217. 

^McTaggart  v.  Thompson,  14  Pa.  149: 
The  Berry  Will  Case,  93  Md.  560,  49 
Atl.  401. 

The  testimony  of  a  subscribin^g  wit- 
ness to  a  will  as  to  the  sanity  of  a  tes- 
tator is  not  invested  by  law  with  any 
fictitious  value  as  testimony,  but  is  to 
be  weighed  with  reference  to  his  special 
opportunity  and  occasion  to  observe  at 
the  precise  moment  in  question,  as  well 
as  with  reference  to  his  care,  skill,  judg- 
ment, memory,  and  veracity.  Thornton 
v.  Thornton,  39  Vt.  122. 

The  opinion  of  a  witness  in  a  will 
contest  who  is  a  stranger  to  the  testa- 
tor, aiul  who  sees  or  hears  nothing  ex- 
cept what  is  necessary  to  enable  him  to 
attest  the  instrument,  should  be  given 
less  weight  than  that  of  a  neighbor  and 
familiar  acquaintance  of  the  testator, 
and  neither  is  of  any  weight  except  as 
proved  to  be  correct  from  facts  which 
justify  and  warrant  it.  Garrison  v. 
Garrison,  16  N.  J.  Eq.  266. 


S  368] 


EVIDENCE. 


451 


witness  to  a  will,  unsupported  by  facts,  is  entitled  to  no  more  weight 
than  that  of  other  witnesses;  reliance  should  be  placed  on  the  facts 
proved  rather  than  on  the  opinions,^ 

A  witness  to  an  instrument,  by  his  act  of  attestation,  however, 
solemnly  affirms  the  sanity  of  the  party  executing  it,  and  if  he  after- 
wards attempts  to  impeach  its  validity,  his  evidence,  though  not  posi- 
tively inadmissible,  is  to  be  received  with  most  scrupulous  jealously, 
his  act  detracting  largely  from  its  weight,'^  especially  Avhere  he  as- 
signs no  satisfactory  reasons  for  his  opinion.®  And  wills  may  be  es- 
tablished against  the  testimony  of  subscribing  witnesses  who  depose 
against  the  testator's  capacity,  by  other  evidence  f  evidence  as  to  men- 


'Cillej/  V.  Cillei/,  34  Me.  162:  Garri- 
son V.  Garrison,  15  N.  J.  Eq.  266.  And 
see  Foot  v.  Stanton,   1   Deane  &  S.   19. 

But  an  instruction  in  a  will  contest 
that  ordinarily  those  witnesses  whose 
testimony  comes  nearest  to  the  very 
time  of  making  the  will  would  be  the 
most  valuable  if  they  seemed  worthy  of 
credit,  and  that  therefore  the  testimony 
of  the  subscribing  witnesses  is  to  be 
carefully  considered  and  scrutinized,  is 
not  objectionable  as  telling  the  jury 
that  i".he  testimony  of  an  attesting  wit- 
ness is  entitled  to  greater  weight  than 
that  of  other  witnesses  having  the  same 
means  of  knowledge.  Foster  v.  Dick- 
erson,   64   Vt.   233,'"24   Atl.  2.53. 

''Gwin  V.  Giijin,  5  Idaho,  271,  48  Pac. 
295;  Re  Storey,  20  111.  App.  183;  Stev- 
ens V.  Leonard,  154  Ind.  67,  77  Am.  St. 
Rep.  446,  56  N.  E.  27;  Southicorlh  v. 
Southzcorth,  173  Mo.  59,  73  S.  W.  129; 
Hoerth  v.  Zable,  92  Ky.  202,  17  S.  W. 
360;  McMeekin  v.  McMeekin,  2  Bush, 
79;  Howard's  Will,  5  T.  B.  Mon.  199,  17 
Am.  Dec.  60;  Garrison  v.  Ga/rrison,  15 
N.  J.  Eq.  266;  Cook's  Estate,  16  Phila. 
322;  Young  v.  Earner,  27  Gratt.  96; 
Lamhert  v.  Cooper,  29  Gratt.  61 ;  Cheat- 
ham V.  Hatcher,  30  Gratt.  56,  32  Am. 
Rep.  650;  Ward  v.  Broion  (W.  Va.)  44 
S.  E.  488;  Harrison  v.  Rouan,  3  Wash. 
G.  C.  580,  Fed.  Cas.  No.  6,141:  Den  ex 
dem.  Stevens  v.  Vancleve,  4  Wash.  C. 
C.  202,  Fed.  Cas.  No.  13,412:  Bootle  v. 
Blundell,  19  Ves.  Jr.  494,  Cooper  Ch. 
136,  15  Revised  Rep.  93;  Howard  v. 
BraitMcaite,  1  Ves.  &  B.  202;  Jones  v. 
Goodrich,  5  Moore  P.  C.  C.  16.  And  see 
Maupin  v.  Wools,  1  Duv.  223 ;  Digges' 
Case,  cited  in  Powell  on  Devises,  710; 
Lowe  V.  Joliffe,  1  W.  Bl.  365;  Davis  v. 
Denny,  94  Md.  390,  50  Atl.  1037;  Pil- 
kington  v.  Gray,  C8  L.  J.  P.  C.  63  [1899] 
A.  C.  401. 


And  refusal  to  instruct  that  certain 
testimony  against  the  sanity  of  a  tes- 
tator creates  a  strong  presumption 
against  the  validity  of  his  will  is  not 
error  on  a  contest  thereof,  where  the  tes- 
timony was  that  of  an  attesting  witness, 
who  was  also  the  attending  physician 
of  the  testator.  Thornton  v.  Thornton, 
39  Vt.  122. 

But  where  a  subscribing  witness  to  a 
will  swore  at  the  trial  of  a  contest  there- 
of that,  in  his  opinion,  the  testatrix 
was  of  sound  and  disposing  mind  at  the 
time  of  the  execution  of  the  will,  and 
denied  that  he  had  ever  made  any  in- 
consistent statements,  proof  of  such  in- 
consistent statements,  though  admissi- 
ble as  discrediting  the  subscribing  wit- 
nesses, is  not  admissible  as  primary  evi- 
dence, since  it  would  be  mere  hearsay. 
Stirling  v.  Stirling,  64  Md.  138,  21 
Atl.   273. 

^Jones  V.  Goodrich,  5  Moore  P.  C.  C. 
16. 

And  evidence  of  one  of  the  attesting 
witnesses  to  a  will  that  the  testator 
was  not  competent  does  not  affect  the 
validity  of  the  will,  as  against  testimony 
of  the  other  in  favor  of  capacity,  where 
it  was  directly  at  variance  with  previous 
statements,  made  shortly  after  the  will 
was  executed.  Cheatham  v.  Hatcher,  30 
Gratt.  56,  32  Am.  Rep.  650. 

A  subscribing  witness  to  a  will,  who 
contradicts  his  own  attestation  by  state- 
ments that  the  testator  was  incompe- 
tent, and  not  in  his  right  senses,  how- 
ever, may  be  a  good  witness  to  STipport 
another  subscribing  witness  with  ref- 
erence to  other  circumstances.  Broome 
v.  Ellis,  2  Lee  Eccl.  Rep.  528. 

"Rigg  v.  Wilton,  13  111.  15,  54  Am. 
Dec.  419 ;  Hovard's  Will,  5  T.  B.  Men. 
199.  17  Am.  Dec.  60;  Sechrest  v.  Ed- 
wards,   4   Met.    (Ky.)      163;     Jones    v. 


452 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  368 


tal  capacity  contradicting  that  of  attesting  witnesses,  including  con 
trary  declarations  and  admissions,  being  admissible.^**  And  wherei 
the  subscribing  witnesses  do  not  agree  in  opinion  as  to  the  capacity  of 
a  party,  or  as  to  the  facts  upon  which  they  found  their  opinions, 
either  side  may  show,  either  by  collateral  circumstances  or  by  direct 
proof,  that  one  is  more  credible  than  the  other,  or  that  one  of  them  is 
mistaken."  The  rule  has  been  adopted  by  some  of  the  cases,  how- 
ever, that  declarations  of  a  deceased  subscribing  witness,  tending  to 
show  that  he  thought  the  party  to  the  instrument  subscribed  to  be  in- 
sane, are  not  admissible  in  evidence  to  defeat  the  instrument,^  ^  and 
that  a  witness  should  not  be  permitted  to  give  evidence  against  an  in- 
strument which  he  had  attested  as  a  subscribing  witness. ^^ 

4.   Opinions  covering  the  issue. 
369.  General  and  prevailing  rule. —  The    general    and     prevailing 


Evans,  7  Dana,  96;  Biggins  v.  Carlton, 
28  Md.  115j  92  Am.  Dec.  066;  Martin 
y.  Perkins,  56  Miss.  204;  Cheatham  v. 
Hatcher,  30  Gratt.  56,  32  Am.  Rep.  650 ; 
Jenkins'  WM,  43  Wis.  610;  Le  Breton 
V.  Fletcher,  2  Hagg.  EccL  Rep.  558 :  Boo- 
fle  V.  Blundell,  19  Ves.  Jr.  494,  Cooper 
Ch.  136,  15  Revised  Rep.  93;  Ahhot  v. 
Plumbe,  1  DougL  216;   Lowe  v.  Joliffe, 

1  W.  Bl.  365;  Hudson's  Case,  Skinner, 
79:  Perkins  v.  Perkins,  39  N.  H.  163, 
citing  Le  Breton  v.  Fletcher,  2  Hagg. 
Ecci.'^Rep.  558;  Austin  v.  Willes,  Bull. 
N.  P.  264;  Pike  v.  Badmering,  cited  in 

2  Strange.  1096;  1  Wms.  JExrs.  290, 
note;  Phillipps'  Ev.  Cowen  &  Hill's 
notes,  392. 

^"Spencer  v.  Moore,  4  Call  (Va.)  423; 
Townshend  v.  Toioishend,  9  Gill,  506; 
Colvin  V.  Warford,  20  Md.  357 ;  Harden 
V.  Hays,  9  Pa.  151;  Thornton  v.  Thortv- 
ton,  39  Vt.  122. 

But  the  declarations  of  one  of  three 
subscribing  witnesses  to  a  will,  that  the 
testator  was  insane  when  it  was  ex- 
ecuted, are  not  admissible  to  defeat  the 
will,  where  he  was  absent  from  the 
state,  and  no  proof  as  to  his  handwrit- 
ine  had  been  given,  and  the  will  had 
been  proved  by  the  other  two  witnesses. 
Fox  V.  Evans,  3  Yeates,  500. 

And  it  is  not  competent  to  ask  a  sub- 
scribing witness  to  a  will  whether  he 
would  have  attested  it  had  he  known  of 
the  dispositions  contained  in  it,  for  the 
purpose  of  establishing  fraud  or  imbe- 
cility.    Spence  v.  Spence,  4  Watts,  165. 

''Bell  V.  Clark,  31  N.  C.  (9  Ired.  L.) 
239. 


Where  the  subscribing  witness  to  a 
will  concurred  in  the  facts  which  go  to 
make  up  the  execution,  but  differ  as  to 
the  degree  of  intoxication  of  the  testa- 
tor, and  its  effect  on  his  mind  and  mem- 
ory, the  weight  due  to  their  respective 
opinions  may  depend  upon  their  intelli- 
gence and  the  opportunity  they  had  of 
knowing  how  far  the  party's  faculties 
were  ordinarily  overcome  by  intoxica- 
tion, and  the  actual  effect  at  the  time  of 
the  execution  of  the  instrument.  Bell 
V.  Clark,  31  N.  C.   (9  Ired.  L.)   239. 

But  in  such  cases  it  is  improper  to 
tell  the  jury  that  the  evidence  of  per- 
sons present  is  entitled  to  great  weight. 
Ward  V.  Brown   (W.  Va.)  44  S.  E.  488. 

And  a  verdict  against  a  will  will  not 
be  disturbed  though  the  will  was  natural 
and  was  attested  by  a  disinterested  phy- 
sician, who  testified  in  favor  of  testa- 
mentary capacity,  where  the  other  at- 
testing witnesses  testified  that  the  tes- 
tator was  incompetent,  and  that  they 
signed  to  avoid  giving  offense ;  and  oth- 
er witnesses,  including  another  attend- 
ing physician,  testified  against  capacity. 
Sydner  v.  Cunningham,  13  Ky.  L.  Rep. 
24,   16  S.  W.   130. 

'^Boardman  v.  Woodman,  47  N.  H. 
120;  (Cellars  v.  Sellars,  2  Heisk.  430; 
Baxter  v.  Abbott,  7  Gray,  71;  Rum/an 
v.  Price,  15  Ohio  St.  1,  86  Am.  Dec.  459. 

'^Goodtiile  ex  dem.  Alexander  v.  Clay- 
ion,  4  Burr.  2225;  Stephenson  v.  Ste- 
phenson, 62  Iowa.  163,  17  N.  W.  456; 
Sen-all  v.  Rohbins,  139  Mass.  104.  29  N. 
E.  050;  Colvin  v.  Warford,  20  Md.  357. 


3G9] 


EVIDENCE. 


453 


rule  is  that,  to  render  the  opinions  of  witnesses  admissible  on  the 
question  of  sanity  or  insanity,  they  must  be  limited  to  conclusions 
drawn  from  specific  acts  or  facts  testified  to  by  them.^*  And  thej 
must  be  confined  to  facts  alone,  and  not  embrace  any  matter  of  law.^^ 
And  they  cannot  be  asked  to  state  opinions  upon  the  whole  case,  since 
that  necessarily  requires  them  to  determine  what  are  the  facts ;  which 
can  only  be  done  by  the  jury,^^  especially  where  the  evidence  is  con- 
flicting.^'^ Inferences  from  facts  proved  are  to  be  drawn  and  found 
by  the  jury,  and  cannot  be  proved  as  facts  by  the  opinions  of  wit- 


"Jamison  v.  People,  145  111.  357,  34 
N.  E.  486 ;  Butler  v.  St.  Louis  L.  Ins. 
Co.  45  Iowa,  93 ;  Re  Goldthorp,  94  Iowa, 
336,  58  Am.  St.  Rep.  400,  62  N.  W.  845. 

Questions,  in  a  prosecution  for  hom- 
icide, a.sked  a  medical  expert,  extending 
over  an  almost  imlimited  field  of  in- 
quiry, involving  a  discussion  of  the  law 
of  insanity  in  all  its  complicated  phases, 
are  also  objectionable  as  consuming  the 
time  of  the  court,  and  tending  to  con- 
fuse and  mislead  the  minds  of  the  jury. 
Dejarnett  v.  Com.  75  Va.  867. 

"Z)e  Witt  V.  Barly,  17  N.  Y.  340; 
Purnell  v.  Gandtj,  46  Tex.  190;  Re 
Blood,  62  Vt.  359,  19  Atl.  770. 

But  the  admission  of  evidence  in  an 
action  upon  an  insurance  policy,  in 
which  liability  is  sought  to  be  avoided 
because  the  insured  was  killed  by  anoth- 
er, which  killing  was  claimed  to  be  ac- 
cidental because  of  the  insanity  of  the 
murderer,  giving  an  inexorable  test  as 
to  insanity,  not  addressed  to  the  mental 
condition  of  the  murderer,  but  to  prin- 
ciples touching  a  certain  branch  of  in- 
sanity generally,  is  harmless  error,  and 
affords  no  ground  for  complaint,  since 
it  is  for  the  court  to  fuinish  the  rule 
by  which  the  murderer's  mental  con- 
dition is  to  be  measured.  Marceau  v. 
Travelers'  Ins.  Co.  101  Cal.  338,  35  Pac. 
856,  36  Pac.  813. 

^^Stuckey  v.  Bellah,  41  Ala.  700;  Shap- 
ter  V.  Piliar,  28  Colo.  209.  63  Pac.  302; 
Choice  V.  State,  31  Ga.  424;  Bishop  v. 
Spining,  38  Ind.  143;  Pelamourgcs  v. 
Clark,  9  Iowa,  1 ;  Phillips  v.  Starr,  26 
Iowa,  349;  Butler  v.  St.  Louis  L.  Ins. 
Co.  45  Jowa,  93;  State  v.  Medlicott,  9 
Kan.  257  ;  Woodbury  v.  Ohear,  7  Gray. 
467;  Miller  v.  Smith,  112  Mass.  475; 
Draper  v.  Sa^-lon,  118  Mass.  431;  Co7n. 
V.  Rogers,  7  Met.  500,  41  Am.  Dec.  458; 
Kemps.ey  v.  McGinniss,  21  Mich.  123; 
Willey  V.  Portsmouth,  35  N.  H.  303; 
Perkins   v.    Concord    R.    Co.    44    N.    H. 


223;  Slate  v.  Powell,  7  N.  J.  L.  244; 
Brill  V.  Flagler,  23  Wend.  354;  People 
v.  McCann,  3  Park.  Crim.  Rep.  272;  Re 
McCarthy,  55  Hun,  7,  8  N.  Y.  Supp. 
578 ;  Reynolds  v.  Robinson,  64  N.  Y.  589, 
Yardley  v.  Cuthbcrtson,  108  Pa.  395, 
56  Am.  Rep.  218,  1  Atl.  765;  McMechen 
v.  McMechen,  17  W.  Va.  683,  41  Am. 
Rep.  682;  Dexter  v.  Hall,  15  Wall.  9, 
21  L.  ed.  73;  Reg.  v.  Higginson,  1  Car. 
&  K.  129;  Sills  v.  Brown,  9  Car.  &  P. 
604;  Reg.  v.  Frances,  4  Cox  C.  C.  57; 
Reg.  v.  Richards,  1  Post.  &  F.  87.  But 
see  Getchell  v.  Hill,  21  Minn.  404. 

A  witness  cannot  be  asked  to  pass  up- 
on the  precise  question  at  issue  before 
the  jury.  Re  Blood,  62  Vt.  350,  19  Atl. 
770. 

And  a  statement  by  a  nonexpert  wit- 
ness, in  answer  to  a  question  as  to  how 
the  person  whose  mental  condition  was 
questioned  acted,  that  his  acts  were  in- 
sanity, is  neither  a  statement  of  fact  as 
to  such  person's  conduct,  nor  the  expres- 
sion of  an  opinion  that  he  was  author- 
ized to  make,  and  its  exclusion  is  not 
error.  State  v.  Leehman,  2  S.  D.  171, 
49  N.  W.  3. 

"Fairchild  v.  Bascomb.  35  Vt.  398: 
Gunter  v.  State,  83  Ala.  96,  3  So.  600; 
Coyle  V.  Com.  104  Pa.  117;  Bennett  v. 
State,  57  Wis.  69,  46  Am.  Rep.  26,  14 
N.  W.  912. 

But  the  giving  of  an  opinion  by  an 
expert  witness  in  a  will  contest,  who 
had  heard  all  the  evidence  as  to  the 
liabits.  conduct,  etc.,  of  the  testator, 
as  to  whether  the  testator  was  of  sound 
mind,  from  a  consideration  of  all  the 
evidence  in  the  case,  is  not  an  assump- 
tion of  the  province  of  the  jury,  where 
tliore  does  not  appear  to  have  been  any 
substantial  dispute  as  to  the  facts  upon 
which  the  testimony  was  predicated. 
Hutchinson  v.  Hutchinson,  50  111.  App. 
87. 


454 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         [§  3G9 


nesses.^*  Nor  should  hypothetical  questions  be  asked  on  the  question 
of  insanity,  based  upon  facts  in  relation  to  which  there  is  contradict- 
ory testimony,  virtually  requiring  the  witness  to  assume  the  province 
of  the  jury,  and  weigh  the  testimony.^*  Witnesses  acquainted  with 
a  person  whose  sanity  is  questioned,  however,  are  given  wide  latitude 
in  the  expression  of  their  opinions,  short  of  declaring  their  judgment 
upon  the  point  directly  in  issue.^*'  And  they  may  give  opinions  as 
to  the  mental  condition  of  a  person  as  a  matter  of  fact,  as  distin- 
guished from  opinions  as  to  legal  capacity  for  the  performance  of 
specified  acts.^^ 

370.  Application  to  particular  clasf£s  of  cases. —  The  rules  above 
given  apply  to  criminal  prosecut'.ons,  and  under  them  a  witness 
should  give  his  opinion  as  to  the  state  of  mind  of  the  accused,  and  not 
as  to  his  responsibility,  that  being  a  question  for  the  jury.-^     And  a 


^'People  V.  Barber,  115  N.  Y.  475,  22 
N.  E.  182;  Van  Zandt  v.  Mutual  Ben. 
L.  Ins.  Co.  55  N.  Y.  169,  14  Am.  Rep. 
215;  Jerry  v.  Toicnshend,  9  Md.  145; 
Morrison  v.  Maciline,  24  Scotch  Sess. 
Cas.  626. 

And  the  admission  of  evidence  of  a 
physician  in  a  will  contest,  that  it  is 
the  duty  of  a  physician,  when  called 
upon  to  treat  a  patient,  to  examine  in- 
to his  mental  condition,  is  erroneous,  the 
material  question  being  what  examina- 
tion was  in  fact  made ;  and  it  being 
for  the  jury  to  determine  the  weight  to 
be  given  to  the  testimony  of  the  phy- 
sician. Maynard  v.'  Vinton,  59  Mich. 
139,  60  Am.  Rep.  276,  26  N.  W.  401. 

But  questions  asked  witnesses  in  a 
will  contest,  competent  to  give  opinions, 
as  to  the  testator's  appearance,  and 
whether  they  thought  he  knew  them,  and 
«,s  to  whether  liis  mind  was  simply  weak- 
ened or  was  impaired  in  some  of  its 
faculties,  and  whether  he  got  worse  or 
better,  and  whether  he  could  hold  an 
extended  conversation,  are  not  objec- 
tionable as  calling  for  opinions  upon 
questions  of  which  the  jury  was  equallj' 
qualified  to  judge  if  possessed  of  the 
same  facts  as  the  witnesses.  Meeker  v. 
Meeker,  74  Iowa,  352,  7  Am.  St.  Rep. 
489.   37  N.  W.  773. 

"Smith  V.  Bickenhottom,  57  Iowa, 
733,  11  N.  W.  664:  Deshon  v.  Merchants' 
Bank,  8  Bosw.  461. 

In  putting  hypothetical  questions  to 
expert  witnesses  in  a  will  contest  upon 
the  issue  of  insanity,  the  facts  should 
be  excluded  which  the  jury  can  inter- 
pret as  well  as  the  expert.  Prentis  v. 
Bates,  88  Mich.  507,  50  N.  W.  637. 


"""Fayette  v.  Chesterville,  77  Me.  28, 
52  Am.  Rep.  741.  And  see  Koenig  v. 
Globe  Mut.  L.  Ins.  Co.  10  Hun,  558. 

An  expression  of  opinion  by  a  medi- 
cal expert  which  will  aid  the  jury  on 
the  question  of  soundness  of  mind  nec- 
essarily involves  the  consideration  of 
questions  which  are  similar  to  that  in 
issue;  but  that  alone  does  not  render 
the  evidence  incompetent  if  the  witness 
is  not  permitted  to  express  opinions  up- 
on the  evidence,  and  if  the  questions  are 
so  framed  as  to  confine  him  to  a  state- 
ment of  his  conclusions,  and  not  to 
submit  to  him  the  precise  issue  which 
is  presented  to  the  jury.  Poole  v.  Dean, 
152  Mass.  589,  26  N.'E.  406. 

^Eayes  v.  Candee,  75  Conn.  131,  52 
Atl.   826. 

While  an  expert  witness  cannot  be 
asked  his  opinion  as  to  the  condition  of 
a  person's  mind,  based  upon  the  evi- 
dence submitted  to  the  jury,  he  may  be 
asked  for  his  opinion  on  a  similar  case, 
hvpothetically  stated.  Jerry  v.  Towns- 
hend,  9  Md.'l45;  Gunter  v.  State,  83 
Ala.  96,  3  So.  600;  Coyle  v.  Com.  104 
Pa.   117. 

And  an  opinion  as  to  the  mental  ca- 
pacity of  a  party  to  make  a  deed,  or  a 
will,  or  a  contract,  offered  in  an  action 
for  fraud  in  procuring  a  convej-ance,  is 
admissible,  where  that  is  simply  the 
witness's  way  of  stating  the  mental  con- 
dition of  the  party  as  a  matter  of  fact, 
Hayes  v.  Candee,  75  Conn.  131,  52  AtL 
826. 

"Keg.  V.  Richards,  1  Fost.  &  F.  89; 
People  V.  Thurston,  2  Park.  Crim.  Rep. 
49. 

A  question  asked  an  expert  witness  hi 


§  370]  EVIDENCE.,  455 

witness  cannot  give  his  opinion  as  to  whether  the  accused  was  sane  or 
insane.^'  Nor  should  he  be  asked  his  opinion  as  to  whether  the  ac- 
cused was  capable  of  distinguishing  right  from  wrong.^^  And  an 
opinion  as  to  the  sanity  of  the  accused,  formed  from  his  conduct  at 
the  trial  and  the  testimony  in  the  case,  should  not  be  given,  as  this 
would  practically  put  a  witness  in  the  place  of  the  jury.^^  ISTor  can 
a  witness  testify  as  to  the  mere  existence  of  an  insane  delusion.^*^ 
So,  a  witness  will  not  be  permitted  to  give  his  opinion  as  to  the  capac- 
ity of  another  to  make  a  contract  or  deed,  when  such  opinion  assumes 
the  shape  of  one  upon  the  legal  capacity  of  the  party  in  question,  or 
permits  the  witness  to  determine  what  the  facts  are,  and  give  his  opin- 
ion upon  them.^'^  And  in  proceedings  in  the  nature  of  a  writ  de 
lunatico  inquirendo,  while  opinions  as  to  soundness  or  unsoundness, 
or  what  capacity  is,  are  admissible,  opinions  as  to  what  is  legal  capac- 
ity, as  a  question  of  law  or  mixed  law  and  fact,  or  as  to  capacity  to 
conduct  the  ordinary  affairs  of  life,  are  not  admissible,  since  that  is 

a  criminal  prosecution,  "Wlien  the  de-  where  the  mind  comes  and  goes,  leav- 
fendant  has  been  undeniably  subject  to  ing  a  blank,  since  it  calls  for  a  fact, 
fits  of  epilepsy,  should  he  not  have  the  and  is  not  of  a  nature  which  makes 
benefit  of  every  reasonable  doubt  that  hypothesis  necessary.  People  v,  Os- 
might  arise  as  to  his  sanity,"  is  objec-  mond,  138  N.  Y.  80,  33  N.  E.  739. 
tionable  as  substituting  the  witness  in  ^Powell  v.  State,  2.5  Ala.  21;  State 
place  of  the  court  and  jury,  and  mak-  v.  Scott,  41  Minn.  365,  43  N.  W.  C2; 
ing  him  the  judge  of  the  weight  and  ef-  Patterson  v.  State,  86  Ga.  70,  12  S.  E. 
feet  of  the  testimony.  State  v.  Klinger,  174;  M'Naghten's  Case,  10  Clark  &  F. 
46  Mo.  224.  200,  8  Scott  N.  R.  595,  1  Car.  &  K.  130, 

^^Reg.  V.   Burton,   3   Fost.   &  F.   772;    note. 
Reed  v.   State,   62   Miss.   405 ;    Com.  v.        Nor    can    an    expert    witness    testify 
Rich,  14  Gray,  335.     But  see  Powell  v.   whether   particular   conduct,   not   of   it- 
State,  25  Ala.  21.  self  irrational,  was  prompted  by  an  in- 

'^Reg.   V.   Layton,   4   Cox   C.   C.    149 ;    sane  delusion.     State  v.  Scott,  41  Minn. 
Shults  V.  State,  37  Neb.  481,  55  N.  W.    365,  43  N.  W.  62. 
1080.  Or  that  a  person  committing  a  crime 

But  the  opinion  of  an  expert  witness  was  impelled  by  an  irresistible  impulse, 
as  to  whether  the  person  whose  sanity  Patterson  v.  State,  86  Ga.  70,  12  S.  E. 
is   in   question   knew   moral   good    from    174. 

evil,  and  right  from  wrong,  is  not  ob-  "Schneider  v.  Manning,  121  111.  376, 
jectionable  as  calling  for  the  opinion  12  N.  E.  267;  Poole  v.  Dean,  152  Mass. 
of  a  witness  as  to  the  moral  insanity  589,  26  N.  E.  406;  Smith  v.  Smith,  117 
of  such  person.  State  v.  Leehman,  2  N.  C.  326,  23  S.  E.  270;  Mills  v.  Cook 
S.  D.  171,  49  N.  W.  3.  (Tex.  Civ.  App.)    57  S.  W.  81;   Dexter 

'^State  V.  Felter,  25  Iowa,  67;  Reed  v.  Hall,  15  Wall.  9,  21  L.  ed.  73.  And 
V.  State,  62  Miss.  405.  see  Wi/se  v.  Wi/se.  155  N.  Y.  367,  49  N. 

Instead,  he  should  be  asked  his  opin-  E.  942,  Affirming  13  Misc.  773,  34  N.  Y. 
ion  upon  the  assumption  that  the  symp-    Supp.   1151. 

toms  and  indications  testified  to  by  the  And  opinions  of  witnesses  that  a  per- 
other  witnesses  are  proved  to  the  satis-  son  was  incapable  of  understanding  a 
faction  of  the  jury.  Reed  v.  State,  62  release  when  he  executed  it  are  inad- 
Miss.   405.  missible   to   prove   his   incompetency   10 

But  a  medical  expert  may  properly  be  execute  it,  since  the  question  of  com- 
asked,  in  a  prosecution  for  homicide  in  petency  would  be  made  to  depend  upon 
which  insanity  is  pleaded  as  a  defense,  the  degree  of  intelligence  which  each 
if  tiiere  is  any  known  form  of  insanity   witness   might  think  necessary  to  sus- 


156 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  370 


the  point  which  it  is  the  duty  of  the  jury  to  determine.-^  Nor  is  ca- 
pacity to  make  a  will  a  simple  question  of  fact:  it  is  a  conclusion 
which  the  law  draws  from  certain  facts ;  and  a  witness  in  a  will  con- 
test cannot  state  his  opinion  with  reference  to  it,  that  heing  the  pre- 
cise question  at  issue.^^  A  witness  may  state  whether  or  not  a  tes- 
tator was  of  sound  mind,  but  he  cannot  give  his  opinion  as  to  whether 
he  was  of  disposing  memory.^^     And  he  cannot  be  asked  whether  the 


tain  such  an  instrument.  Aiman  v. 
St  out,  42  Pa.   114. 

^Hamrick  v.  State,  134  Ind.  324,  34 
N.  E.  3 ;  Re  Rush,  53  N.  Y.  Supp.  581. 

In  ChicJcering  v.  Brooks,  61  Vt.  554, 
18  Atl.  144,  it  was  held  that  a  witness 
could  not  be  asked  as  to  a  party's 
capacity  to  transact  business  intelligent- 
ly and  understandingly ;  but  that  he 
might  express  the  extent  of  his  inca- 
pacity, or  an  inquiry  as  to  his  capacity 
to  manage  his  estate,  by  saying  that  he 
had  not  sufficient  mental  capacity  to 
transact  business,  when,  from  the  con- 
nection in  wliich  the  words  were  used, 
they  must  have  been  understood 
properly. 

So,  a  witness  in  an  action  involving 
the  question  of  the  mental  capacity  of 
a  party  to  acquire  a  settlement  may  be 
asked  whether  he  considered  him  non 
compos  mentis.  Westmore  v.  Sheffleld, 
56  Vt.  239. 

^Walker  v.  Walker,  34  Ala.  469;  Tur- 
ner's Appeal,  72  Conn.  305,  44  Atl.  310; 
Schneider  v.  Manning,  121  111.  376,  12 
N.  E.  207;  Pelamourges  v.  Clark,  9 
Iowa,  1;  Marshall  v.  Hanhy.  115  Iowa, 
318,  88  N.  W.  801;  Re  Taylor,  92  Cal. 
564,  28  Pac.  603;  May  v.  Bradlee,  127 
Mass.  414;  Kempsey  v.  McGinniss,  21 
Mich.  123;  White  v.  Bailey,  10  Mich. 
155;  Page  v.  Beach  (Mich.)  95  N.  W. 
981;  Farrell  v.  Brennan,  32  Mo.  328,  82 
Am.  Dec.  137;  Hewlett  v.  Wood,  55  N. 
Y.  634;  Crowell  v.  Kirk,  14  N.  C.  (3 
Dev.  L.)  355;  Horah  v.  Knox,  87  N.  C. 
490;  Runyan  v.  Price,  15  Ohio  St.  1, 
80  Am.  Dec.  459;  Ilopkins  v.  Wheeler, 
21  R.  I.  533,  79  Am.  St.  Rep.  819.  45 
Atl.  551;  Broicn  v.  Mitchell,  88  Tex. 
350,  36  L.  R.  A.  64,  31  S.  W.  621. 

A  witness  in  a  will  contest,  whether 
he  be  a  subscribing  witness,  an  expert, 
or  a  nonexpert,  cannot  state  his  opin- 
ion of  the  capacity  of  the  testator  to 
make  a  will,  when  such  opinion  as- 
sumes the  shape,  and  has  the  effect,  of 
being  an  opinion  upon  the  legal  capacity 
of    the    party    in    question.      Brown    v. 


Mitchell,  88  Tex.  350,  36  L.  R.  A.  64, 
31   S.   W.   021. 

But  a  competent  witness  may  give  an 
opinion  as  to  the  mental  condition  of 
the  testator.     Ibid. 

And  evidence  of  a  nonexpert  witness 
in  a  will  contest,  who  had  seen  the  tes- 
tatrix on  the  evening  of  the  day  the 
will  was  executed,  that  she  seemed  to 
be  competent  at  the  time,  and  her  mind 
seemed  to  be  clear,  will  not  be  con- 
strued into  an  opinion  as  to  her  com- 
petency to  make  a  will,  and  held  inad- 
missible, but  will  be  regarded  only  as 
a  statement  as  to  her  condition  at  that 
time.  McHugh  v.  Fitzgerald,  103  Mich. 
21,   61   N.   W.   354. 

So,  an  expert  witness  in  an  action  in- 
volving capacity  to  make  a  gift  may  give 
his  opinion  as  to  the  donor's  capacity 
to  dispose  of  and  manage  property  to 
the  A'alue  of  several  hundred  dollars  in 
one  transaction.  Melendy  v.  Spaulding, 
54  Vt.  517. 

^Wiseiter  v.  Maupin,  2  Baxt.  342; 
Keithley  v.  Stafford,  126  111.  507,  18  N. 
E.  740 :  Kempsey  v.  McGinniss,  21 
Mich.    123. 

Expert  witnesses  in  a  will  contest 
should  be  asked  questions  calling  for  an 
opinion  as  to  the  real  state  of  the  tes- 
tator's mind,  how  much  intelligence  he 
possessed,  how  far  he  was  capable  of 
understanding  the  nature  and  situation 
of  his  property,  his  relations  to  others, 
and  the  reasons  for  giving  or  withhold- 
ing his  bounty  as  to  any  of  them,  as 
distinguished  from  questions  as  to 
whether  he  had  a  disposing  mind  and 
memory,  or  whether  he  was  capable  of 
making  a  will.  Kemps.ey  v.  McGin- 
niss, 21   Mich.   123. 

And  they  should  not  be  asked  if  the 
testator  had  mind  enough  to  give  the 
specific  directions  given  with  reference 
to  the  disposition  of  the  property.  Re 
McCarthy,  55  Hun,  7,  8  N.  Y.  Supp. 
578. 

Nor  should  a  nonexpert  witness  be 
asked  whether  the  testator  had  capacity 


§  370]  EVIDENCE.  457 

testator  was  subject  to  a  delusion  affecting  the  provisions  of  his  will.-"*^ 
And  the  question  whether  a  change  in  a  testator's  lifelong  purpose, 
occurring  without  apparent  motive  or  reason,  and  unexplained,  indi- 
cates a  change  in  his  mental  powers,  is  not  one  for  the  opinion  of 
experts.^^ 

371.  The  contrary  rule.—  The  contrary  rule,  that  the  right  to  ex- 
press an  opinion  as  to  the  sanity  or  insanity  of  another  includes  the 
right  to  give  it  as  to  the  degTce  or  extent  of  the  mental  infirmity,  and 
to  apply  it  to  the  particular  matter  in  controversy,  and  that  the  wit- 
ness may  do  so,  notwithstanding  the  fact  th^t  his  answer  embraces  the 
full  issue  on  trial,  has  been  adopted  to  some  extent.^^  And  it  has 
been  held  that  the  opinions  of  witnesses  that  a  person  is  insane,  or 
incapable  of  doing  one  thing  or  another,  are  not  objectionable  as 
usurping  the  oifice  of  the  jury.^^  So,  questions  calling  for  an  opinion 
as  to  the  capacity  of  a  person  accused  of  crime  to  distinguish  between 
right  and  wrong,  or  between  right  and  wrong  with  reference  to  the 
particular  act,  have  been  frequently  sustained  ;^^  and  so  have  ques- 

to  transact  business  or  make  a  will,  to  the  sanity  or  insanity  of  a  testatrix 
Fairchild  v.  Bascomb,  35  Vt.  398.  Von-  does  not  furnish  ground  for  reversal  up- 
tra,  Horah  v.  Knox,  87  N.  C.  483.  on  appeal,  as  calling  upon  them  to  take 

But  a  nonexpert  witness  is  competent  the  place  of  the  jury,  and  determine  the 
to  testify  in  a  will  contest  as  to  the  issue,  where  the  objection  was  general, 
testator's  capacity  to  transact  ordinary  and  did  not  call  attention  to  the  form 
business.  Keithley  v.  Stafford,  126  III.  of  the  questions.  Foster  v.  DicJcerson, 
.507,  18  N.  E.  740.  C4  Vt.  233,  24  Atl.  253. 

^^Rush  V.  Megee,  36  Ind.  69;  Taylor  And  a  question  asked  a  medical  ex- 
V.  Trich,  165  Pa.  586,  44  Am.  St.  Rep.  pert,  whether  a  testator  was  capable  of 
679,   30  Atl.   1053.  making   an    intelligent   will,   or   compe- 

A  medical  expert  in  a  will  contest  tent  to  make  a  reasonable  disposition  of 
should  be  asked  whether  a  given  state  his  property,  or  to  transact  any  busi- 
of  facts  tends  to  prove  delusion  or  in-  ness,  though  objectionable,  is  not  ground 
sanity.     Rush  v.  Megee,  36  Ind.  69.  for  reversal,  where  the  answer  gave  facts 

But  the  testimony  of  an  attending  on  which  the  witness's  conclusion  was 
physician,  that  the  fact  that  a  testator  based.  Vance  v.  Upson,  66  Tex.  476,  1 
had   judiciously   managed    his    property    S.  W.  179. 

prior  to  his  last  illness  and  the  making  ^^Scalf  v.  Collin  County,  80  Tex.  514, 
of  his  will  tends  to  show  that  he  was  16  S.  W.  314;  Rivard  v.  Rivard,  109 
subject  to  no  delusion  while  making  it,  Mich.  98,  63  Arn.  St.  Rep.  566,  66  N.  W. 
is  competent.  Coryell  v.  Btone,  62  Ind.  681;  Re  Pinney,  27  Minn.  280,  6  N.  W. 
307.  791,  7  N.  W.  144;  Bost  v.  Bost,  87  N.  C. 

^"Re  Nelson,  39  Minn.  204,  39  N.  W.    477. 
143.  ^*BeauUen  v.  Cicotte,  12  Mich.  409. 

The  admission  in  evidence  in  a  will  So,  in  St.  George  v.  Biddeford,  76  Me. 
contest  of  the  opinions  of  witnesses  on  593,  it  was  held  that  an  expert  may 
the  general  question  of  testamentary  give  his  opinion  in  an  action  involving 
capacity,  however,  though  erroneous,  the  validity  of  a  marriage,  in  which 
does  not  require  a  reversal,  where  the  imbecility  of  the  husband  is  alleged, that 
facts  established  by  legal  and  competent  the  alleged  imbecile  was  not  .".apable  of 
evidence  are  plainly  sufficient  to  up-  understanding  his  duties  toward  his 
hold  the  determination.  Clapp  v.  Fut-  wife,  arising  out  of  the  matrimonial 
terton,  34  N.  Y.  190,  90  Am.  Dee.  681.    union. 

And  the  allowance  of  questions  calling  '^Poicell  v.  State,  25  Ala.  21 ;  Smith 
for  the  opinions  of  witnesses  in  regard    v.   State,   55   Ark.   259,   18   S.   W.   237; 


458 


MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS. 


[§  371 


tions  calling  for  opinions  as  to  the  capacity  of  a  party  to  make  a  con- 
tract or  deed.^^  And  the  right  to  ask  questions  calling  for  an  opinion 
as  to  testamentary  capacity,  or  capacity  to  make  a  will,  or  the  will  in 
question,  has  also  been  sustained.^^  And  so  have  questions  calling 
for  an  opinion  as  to  the  capacity  of  a  party  to  manage  his  estate,  in  a 
proceeding  in  the  nature  of  a  writ  de  lunatico  inquirendo.^^  But  it 
is  to  be  observed  that  in  all  these  cases  the  rulings  were  made  on  other 
grounds,  and  the  objection  that  the  question  involved  the  issue  does 
not  seem  to  have  been  made. 

-  h.  With  reference  to  drunkenness. 

372.  Who  may  give;  nature  of. —  Whether  a  person  was  drunk  or 
sober  is  a  fact  patent  to  the  observation  of  all,  requiring  no  special 
skill  or  learning  to  discern  it,  and  may  be  testified  to  by  anyone  know- 
ing the  fact;^^  the  belief  of  the  witness,  when  material  to  the  issue, 
being  admissible,  from  necessity,  as  a  fact  based  upon  his  orwn  judg- 
ment and  observation,  and  not  as  an  opinion,  since  the  witness  can  sel- 


Bolling  v.  State,  54  Ark.  588,  16  S.  W. 
658;  State  v.  Porter,  34  Iowa,  131; 
Pflueger  v.  State,  46  Neb.  493,  64  N.  W. 
1094;  Clark  v.  State,  12  Ohio,  483,  40 
Am.  Dec.  481;  United  States  v.  Guiteau, 
1  Mackev,  498,  47  Am.  Rep.  247; 
M'Naghteirs  Case,  10  Clark  &  F.  200; 
8  Scott  N.  R.  595,  1  Car.  &  K.  130, 
note. 

"^Beller  v.  Jones,  22  Ark.  92;  Stewart 
V.  Spedden,  5  Md.  433;  Townshend  v. 
Toicnshend,  7  Gill,  10;  WiUcinson  v. 
Pearson,  23  Pa.  117;  Doe  ex  dem.  Mc- 
Dougald  v.  McLean,  60  N.  C.  (Winst. 
L.)  120;  Cram  v.  Cram,  33  Vt.  15; 
Kilgore  v.  Cross,  1  Fed.  578 ;  and  over- 
ruled in  Smith  v.  Smith,  157  Mass.  389, 
.32  N.  E.  348,  and  Hyer  v.  Little,  20  N. 
J.  Eq.  443. 

^Roberts  v.  TrOAJciclc,  13  Ala.  68; 
Stuclcey  v.  Bellah,  41  Ala.  700;  Ethridge 
V.  Bennett,  9  Houst.  (Del.)  295,  31  Atl. 
813;  Coryell  V.  Stone,  62  Ind.  307;  Over- 
all V.  Bland,  11  Ky.  L.  Rep.  371,  12  S. 
W.  273;  Chandler  v.  Barrett,  21  La. 
Ann.  58,  99  Am.  Dec.  701 ;  Waters  v. 
Waters,  35  Md.  531 ;  Dors.cy  v.  War- 
field,  7  Md.  65;  Hastings  v.  Rider,  99 
Mass.  624;  Rice 'v.  Rice,  53  Mich.  432; 
19  N.  W.  132;  Porter  v.  Throop,  47 
Mich.  313,  11  N.  W.  174;  Eempsey  v. 
McGinniss,  21  Mich.  123;  McGinnis  v. 
Kempsey,  27  Mich.  363;  McHugh  v. 
Fitzgerald,  103  Mich.  21,  61  N.  W.  354; 
Appleby  V.   Brock,  76  Mo.   314;    Garri- 


son V.  Garrison,  15  N.  J.  Eq.  266;  Wo- 
gan  v.  Small,  11  Serg.  &  R.  141;  Bitner 
V.  Bitner,  65  Pa.  347 ;  Daniel  v.  Daniel, 
39  Pa.  191;  Commonwealth  Title  Ins. 
&  T.  Co.  V.  Gray,  150  Pa.  255,  24  Atl. 
640;  Shaver  v.  McCarthy,  110  Pa.  339, 
5  Atl.  014;  Doe  ex  dem.  McDougaJd  v. 
McLean,  60  N.  C.  (Winst.  L.)  120; 
Broicn  v.  Mitchell,  87  Tex.  140,  26  S. 
W.  1059;  Cockrill  v.  Cox,  65  Tex.  676; 
Garrison  v.  Blanton,  48   Tex.   299. 

'^Re  Mason,  60  Hun,  46,  14  N.'Y. 
Supp.  434;   Olear  v.  Gray,  73  Ga.  455. 

^''Di^nick  v.  Downs,  82  111.  570;  Parker 
V.  Parker,  52  111.  App.  333 ;  Campbell  v. 
Fidelity  d  C.  Co.  109  Ky.  661,  60  S.  W. 
492;  Gahagan  v.  Boston  &  L.  R.  Co.  1 
Allen,  1S7,  79  Am.  Dec.  724;  State  v. 
Pike,  49  N.  H.  399,  6  Am.  Rep.  533; 
Castner  v.  Sliker,  33  N.  J.  L.  95 ;  People 
ex  rel.  Flood  v.  Martin,  15  Misc.  6,  36 
N.  y.  Supp.  437;  People  v.  Gaynor,  3.3 
App.  Div.  98,  53  N.  Y.  Supp.  86;  Mar- 
shall V.  Riley,  38  Misc.  770,  78  N.  Y. 
Supp.  827;  Re  Van  Alstine  (Utah)  72 
Pac.  942. 

The  eflfect  of  intoxication  upon  the  ca- 
pacity of  a  person  to  make  a  will  is  not 
a  scientific  question,  to  be  determined 
by  experts,  but  one  within  common  ob- 
servation, depending  upon  the  facts  of 
each  case,  and  to  be  determined  from 
such  facts.  Pierce  v.  Pierce,  38  Mich. 
412. 

And  opinions  as  to  intoxication  of  a 


a  372] 


EVIDENCE. 


45'» 


dom  give  m  detail  all  the  points  going  to  make  up  his  helief.'*'^  And 
anyone  who  has  witnessed  a  person's  acts,  appearance,  and  speeclj, 
may  express  an  opinion,  when  material  to  the  issue,  as  to  whether  or 
not  he  was  intoxicated,^^  or  as  to  the  extent  of  the  intoxication.^^  g^,^ 
after  describing  the  appearance  and  conduct  of  a  party,  a  witness^ 
may  give  his  opinion,  based  upon  his  conduct  and  deportment,  as  to 
whether  or  not  he  was  intoxicated,^^  q^  ^g  ^^  whether  or  not  he  wa^ 
rational  or  irrational,  the  question  simply  relating  to  his  appearance 
and  conduct,  and  not  to  his  mental  condition.^*  The  rule  has  been 
laid  down,  however,  that  the  means  of  judging  correctly,  possessed  by 
a  witness  testifying  as  to  the  intoxication  of  another,  must  be  submit- 

person  are  admissible  in  evidence  with-  *^State  v.  Gather  (Iowa)  96  N.  W. 
out  a  statement  of  the  conduct  and  de-    722. 

meanor  of  the  party  inquired  about.  And  this  may  be  done  without  stat- 
S{tate  V.  Huxford,  47  Iowa,  16;  Castner  ing  the  facts  upon  which  the  opinion 
V.  Sliker,  33  N.  J.  L.  95.  was  based.     Ibid. 

And  a  practising  physician  may  tes-  But  the  rejection  of  the  opinion  of  a 
tify  to  an  injury  or  depression  of  the  thirteen-year-old  girl  as  to  the  extent 
skull  of  a  person  accused  of  crime,  and  of  her  father's  intoxication  is  not  error, 
as  to  what  effect,  in  his  judgment,  the  in  a  prosecution  against  the  father  for 
use  of  intoxicating  liquors  would  have  the  killing  of  his  wife,  in  which  he  de- 
upon  him  while  in  that  condition,  though  fended  on  the  ground  that  he  was  help- 
he  is  not  sho\vn  to  have  been  expe-  lessly  drunk.  Collins  v.  J^ople,  194  III. 
rienced    in    the    treatment    or    care    of    506,  62  N.  E.  902. 

insane  persons,  or  to  have  been  con-  *^Pierce  v.  State,  53  Ga.  365  •  White  v. 
nected  with  any  asylum  for  the  insane.  State,  103  Ala.  72,  16  So.  63;  State  v. 
Territory  v.  Davis  (Ariz.)  10  Pac.  359.  Smft,  57  Conn.  496,  18  Atl.  664;  East- 
*''Stacy  v.  Portland  Pub.  Co.  68  Me.  wood  v.  People,  3  Park  Crim.  Rep.  25, 
279;  Edicurds  v.  Worcester,  172  Mass.  Affirmed  in  14  N.  Y.  562. 
104,  51  N.  E.  447.  ^  So,  one  who  has  seen  a  person  many 

*^McKillop  V.  Duluth  Street  R.  Co.  53  times  in  a  certain  condition,  resulting 
Minn.  532,  55  N.  W.  739;  People  v.  from  the  use  of  a  drug,  may  <rive  his 
Monteith,  73  Cal.  7,  14  Pac.  373;  Choice  opinion,  when  he  finds  the  same  condi- 
v.  State,  31  Ga.  424;  Parker  v.  Parker,  tion  existing,  that  it  was  caused  by  the 
52  111.  App.  333;  State  v.  Euxford,  47  same  drug,  whether  he  is  an  expert  or 
Iowa,  16.  not.    Burt  v.  Burt,  168  Mass.  204,  46  N. 

And  where  a  confession  of  a  criminal  E.  622. 
act  is  made,  and  there  is  evidence  tend-  **People  v.  Packenham,  115  N.  Y.  200 
ing  to  prove  that  the  person  making  it  21  N.  E.  1035;  Chicago  City  R.  Co.  v! 
was  laboring  under  delirium  tremens,  or  Wall,  93  111.  App.  411. 
was  otherwise  insane  at  the  time,  the  But  refusal  to  permit  an  expert  wit- 
opinion  of  an  expert  may  be  properly  ness  in  a  criminal  case,  who  had  ex- 
taken  as  to  his  mental  condition,  indi-  amined  the  accused  two  days  before  the 
cated  by  the  proved  facts.  State  v.  crime,  and  testified  that  he  was  then  de- 
Feltes,  51  Iowa,  495,  1  N.  W.  755.  ranged,  and  that    he    thought  delirium 

But  an  officer  in  charge  of  a  person,  tremens  was  the  cause  of  the  derange- 
to  whom  such  person  makes  a  confes-  ment,  to  state  whether,  in  his  opinion, 
sion,  cannot  be  asked,  on  an  offer  to  put  founded  on  such  examination,  the  same 
the  confession  in  evidence,  if  he  was  state  of  mind  existed  at  the  time  of  the 
familiar  with  the  effect  of  liquor  upon  act,  is  not  error,  where  the  witness  was 
those  who  drank  it  to  excess,  for  the  permitted  to  state  how  long  he  thought 
purpose  of  showing  that  the  person  was  the  accused  had  been  in  such  a  state, 
intoxicated  at  the  time  of  making  the  People  v.  McCann,  3  Park.  Crim.  Rep. 
confession.  '  State  v.  Swift,  57  Conn.  272. 
496,  18  Atl.  664.  And   wliere  a   witness   states  that  be 


460  MENTAL  UNSOUNDNESS  IN  ITS  LEGAL  RELATIONS.         f§  37J 

ted  to  the  jiirv.^'^  And  the  opinions  of  witnesses  in  a  criminal  pros- 
ecution in  which  intoxication  is  alleged  as  a  defense  are  not  admis- 
sible on  behalf  of  the  accused  on  the  question  of  his  mental  condition 
at  the  time  of  the  act,  where  they  did  not  see  him  at  the  time.^°  And 
whether,  at  the  time  of  the  commission  of  the  criminal  act,  the  ac- 
cused was  so  intoxicated  as  to  be  incapable  of  forming  a  design  or 
intent,  is  a  conclusion  to  be  dra^\^l  by  the  jury  from  facts  before  them, 
and  not  a  question  of  fact,  to  which  witnesses  can  testify.^ ^  IsTor  can 
a  nonexpert  witness  in  a  criminal  prosecution  in  which  insanity  is  in- 
terposed as  a  defense  be  asked  whether  the  accused  could  control  his 
appetite  for  intoxicating  liquor.'*^  And  the  opinion  of  a  witness  as 
to  the  effect  of  habits  of  intemperance  upon  the  health  of  another  is 
inadmissible  on  the  question  of  a  breach  of  warranty  against  intem- 
perate habits.*^ 

IV.  Books. 

373.  Admissibility  generally. —  The  doctrine  has  been  asserted  that 
standard  medical  books  on  insanity,  and  scientific  works  on  medical 
jurisprudence,  are  admissible  in  evidence,  and  may  be  read  to  the 
jury  by  counsel,  upon  the  question  of  sanity  or  insanity;^"  and  that 
counsel  may  read  to  the  jury  a  case  from  the  regular  law  reports  in 
which  the  question  of  insanity  is  discussed,  and  are  not  confined  to  the 
opinion  of  the  court,  but  may  also  read  the  facts  of  the  case,  and  com- 
ment thereon.^  ^     But  scientific  works  on  medical  jurisprudence  have 

liad  no  knowledofe  whether  or  not  a  per-  was  intoxicated  at  the  particular  time, 

son    was    intoxicated    at    a    designated  when   it   might   have  been   produced  by 

time,  the  exclusion  of  a  question  asking  what  he  heard   persons  other  than   the 

his    opinion    as    to    such    intoxication,  accused  say.     People  v.  Wreden,  59  Cal. 

which  is  not  confined  to  the  personal  ap-  392. 

pearance  or  conduct  of'  such  person,  is  *^NorthK-ester7i    Mut.    L.    Ins.    Co.    v. 

not  error.     Aurora  v.  Hillman,  90  111.  Muskegon  'Sat.  Bank,  122  U.  S.  501,  30 

01.  L.  od.  1100,  7  Sup.  Ct.  Rep.  1221. 

*'^Castner  v.  Sliker,  33  N.  J.  L.  95.  But  a  witness  in   an  action  upon  an 

*^Nevling  v.  Com.  98  Pa.  323.  insurance  policy  containing  a   warranty 

"Armor  v.  State,  G3  Ala.  176.  that  the  insured  was  not  a  person  of  in- 

Nor   can   a   witness   be   permitted   to  temperate  habits  may  be  asked  whether 

testify  in  a  criminal   case  that  the  ac-  he  had   ever    seen    the    insured  drunk, 

cused'  was  so    drunk    that    he  did  not  United     Brethren     Mut.     Aid     Soc.     v. 

know  what    he    was    doing.     White  v.  O'Hara,  120  Pa.  25G.  13  Atl.  932. 

State,  103  Ala.  72,  IG  So.  G3.  ^State  v.  Hoijt,  4G  Conn.  330;  State  v. 

'"■Goodwin  v.  State,  9G   Ind.  550.  West,  Houst.    Grim.    Rep.     (Del.)    371; 

And  a  question  in  a  criminal  case  as  State  v.  Coleman,  20  S.  G.  441. 

to  whether  the  accused,  by  reason  of  his  "State  v.  Hoyt,  46  Conn.  330.   Contra, 

drunkenness,   knew   the   witness  or  any  Cannon    v.   State,  41     Tex.   Crim.   Rep. 

one  else,    is    objectionable    as  assuming  4G7,  56  S.  W.  351. 

the  fact  of  drunkenness,  and  as  leading.  But  extracts  from  the  opinion  of  an- 

McCarty  v.  State,  4  Tex.  App.  4G1.  other  case  involving  the  question  of  in- 

And  a  witness  in  a  criminal  case  can-  sanity  should    not    be    permitted  to  be 

not  be  permitted  to  testify  to  an  impres-  read  to  the  jury,  in  a  criminal  prosccu- 

aion  aa  to  whether  or  not  the  accused  tion  defended    upon    the    ground  of  in- 


«  373] 


EVIDENCE. 


461 


not  the  weight  of  legal  authorities  except  so  far  as  the  views  expressed 
in  them  have  been  recognized  and  sustained  by  judicial  ruling.''- 
And  the  prevailing  rule  would  seem  to  be  that  books  on  the  subject 
of  insanity,  written  by  physicians  or  lawyers,  though  of  special  repu- 
tation, are  not  admissible  in  evidence,  and  cannot  be  read  to  the 
jury.°^  And  counsel  have  no  right,  in  addressing  the  jury,  to  quote 
the  opinions  of  medical  men,  as  given  in  their  works.''^  But  counsel 
may  use  such  books  and  statements  to  assist  in  framing'questions  for 
the  witness  as  to  his  own  opinion.^^  And  the  attention  of  expert  wit- 
nej'.ses  may  be  called  to  them  on  cross-examination,  with  a  view  to 
shew  that  their  opinions  differ  from  admitted  authority.^'*^ 


sanity,  where  they  were  such  as  might 
mislead  the  jury.  Loice  v.  State  (Wis.) 
96  N.  W.  417. 

So,  in  Baldnin's  Appeal,  44  Conn.  37, 
it  was  held  that  cases  decided  in  other 
states,  or  in  England,  should  not  be  al- 
lowed to  be  read  to  the  jury  from  books, 
for  the  pui'pose  of  showing  that  the 
facts  set  forth  in  such  cases  are  not  in- 
consistent with  soundness  of  mind 
necessary  to  the  performance  of  the  act 
in  question. 

"State  V.  West,  Houst.  Crim.  Rep. 
(Del.)   371. 

^^Com.  V.  Wilson,  1  Gray,  339;  Davis 
V.  State,  38  Md.  15;  Fraser  v.  Jennison, 
42  Mich.  206,  3  N.  W.  882;  Huffman  v. 
Click,  77  N.  C.  5.5;  Hall  v.  Com.  (Pa.) 
11  Cent.  Rep.  183,  12  Atl.  103;  Collier 
V.  Simpson,  5  Car.  &  P.  74;  Cocks  v. 
I'urday,  2  Car.  &  K.  270. 

Medical  writers  possess  no  power  to 
prescribe  the  rule  which  limits  the  ex- 
tent of  human  responsibility  for  crime. 
Com.   V.   Haggerty,   4   Clark    (Pa.)    187. 

And  evidence  of  a  medical  expert  as 
to  whether  delusions  or  transitory 
mania  is  a  condition  recognized  by  med- 
ical authorities,  offered  for  the  purpose 
of  proving  that  the  theory  in  question 
is  taught  by  the  authorities,  is  not  ad- 
missible, since  the  works  themselves 
would  be  the  only  competent  evidence  of 
what  they  teach,  but  perhaps  would  be 
admissible  on  cross-examination,  to  test 
the  accuracy  of  his  judgment.  State  v. 
Winter,  72  Iowa,  62"7,  34  N.  W.  475. 

In  Missouri  it  is  within  the  discretion 
of  the  court  to  permit,  or  refuse  to  per- 


mit such  writings  to  be  read  to  the 
jury.  State  v.  Soper,  148  Mo.  217,  49 
S.  W.  1007. 

"^Queen  v.  Crouch,  1  Cox  C.  C.  94 ; 
Burt  v.  State,  38  Tex.  Crim.  Rep.  397, 
39  L.  R.  A.  305,  330,  40  S.  W.  1000,  43 
S.  W.  344. 

So,  statistics  of  the  increase  of  in 
sanity,  as  stated  by  the  court  or  counsel 
in  another  state,  cannot  be  read  as  evi- 
dence in  a  criminal  case.  Com.  v.  Wil- 
son, 1  Gray,  339. 

"^State  v.  Coleman,  20  S.  C.  441. 

"•"Egan  v.  Dry  Dock,  E.  B.  d  B.  R.  Co. 
12  App.  Div.  556,  42  N.  Y.  Supp.  188. 

But  expert  witnesses  called  for  the  do 
fense  in  a  criminal  prosecution  in  which 
insanity  is  alleged  cannot  be  fsked  to 
name  the  circumstances  of  a  case  they 
have  read  in  which  violence  accom- 
panied hysterical  mania,  since  such  an 
examination,  if  allowed,  would  be,  in  ef- 
fect, the  introduction  of  the  medical 
work  containing  such  case,  in  evidence. 
People  v.  Goldenson,  76  Cal.  328,  19 
Pac.  161. 

And  refusal  to  permit  a  witness  who 
had  given  his  opinion  as  to  the  insanity 
of  another  to  answer  the  question 
whether  he  had  read  an  article  in  a 
journal  on  insanity  in  which  designated 
statements  were  made,  and  whether  the 
.same  concurs  and  agrees  with  his  knowl- 
edge and  experience  on  the  subject,  is 
not  an  abuse  of  discretion,  unless  the 
answer  would  necessarily  be  but  a  re- 
iteration in  another  form  of  the  opinion 
he  had  already  expressed.  Slate  v.  Win- 
ter, 72  Iowa,  627,  34  N.  VV.  475. 


BOOK  II. 

INSANITY-ITS  YAHIOUS  FORMS  AND  ITS  MEDICX)- 
LEGAL  ASPECTS. 


BY 

JAMES  HENDRIE  LLOYD,  A.  M.,  M.  D., 
OF  PHILADELPHIA. 


-ODiQiii.U  ci  4'i  Uy 


ii"j  li- 


BOOK  II. 

INSANITY-ITS  VARIOUS  FORMS  AND  ITS  MEDICO- 
LEGAL ASPECTS. 


CHAPTER  XXL 

INTRODUCTION. 

874,  The  subject  is  scientific. 

375.  Insanity  is  to  be  studied  in  the  hospitals. 

376.  It  is  a  disease. 

377.  Insanity  is  not  a  crime. 

378.  The  subject  is  both  medical  and  legal. 

379.  The  aim  of  this  treatise. 

380.  The  extensive  literature. 

381.  The  original  sources. 

374.  The  subject  is  scientific. — The  medical  iiirispmdence  of  insan- 
ity is,  at  bottom,  a  scientific  subject;  hence  it  should  be  discussed 
chiefly  from  the  clinical  standpoint.  The  first  aim  of  the  medical 
expert  is  to  make  a  diagnosis ;  his  function  in  court  is  practically  the 
same  as  in  the  hospital.  Le  Grand  du  Saulle^  has  well  said :  "What- 
ever may  be  the  point  of  view  in  which  one  places  himself  in  order  to 
study  mental  alienation,  whether  in  its  nature  or  in  its  consequences, 
it  is  no  longer  allowable  to-day  to  see  in  an  insane  man  anything  but 
a  patient  in  an  exceptional  situation.  The  philosopher,  the  jurist, 
the  physician,  can  no  longer  consider  insanity  as  an  error  or  disorder 
of  the  soul,  as  the  result  of  the  fury  or  the  anger  of  the  Deity,  as  a 
punishment  for  sin  or  as  the  excess  of  passion.  These  opinions  per- 
tain now  only  to  history." 

375.  Insanity  is  to  be  studied  in  the  hospitals. — Some  legal  writers, 
like  Wharton,  do  not  so  much  discuss  insanity  as  they  discuss  the 
opinions  of  the  courts.  Hence,  for  them,  the  subject  becomes  largely 
academic.     But  we  must  not  go  to  the  courts  to  study  insanity:  we 

*  Traite  de  Medecine  Legale,  deuxieme 
ed.,  Paris,  1886,  p.  688. 

Vol.  I.  Med.  Jub.— 30.  465 


4G6  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  375 

must  go  to  the  hospitals.  There  is  no  judge-made  science,  in  the  sense 
that  there  is  judge-made  law.  Neither  a  court  nor  a  legislature  can 
decree  a  principle  of  pathology,  any  more  than  it  can  decree  a  prin- 
ciple of  astronomy.  The  science  of  insanity,  in  any  of  its  relations, 
can  never  be  established  by  appealing  to  antiquated  opinions  either 
in  law  or  in  medicine.  It  must  take  its  chances,  like  the  other 
sciences,  in  the  broad  light  of  our  modern  day.  It  can  be  advanced 
only  by  a  candid  study  of  the  insane  themselves,  and  not  of  what  some 
learned  men  have  said  a  priori  about  them.  There  is  nothing  a  priori 
about  insanity.  This  disease,  or  assemblage  of  diseases,  is  a  fact,  or 
collection  of  facts ;  and  these  facts  are  among  the  most  stubborn  and 
incontrovertible  in  nature. 

376.  It  is  a  disease. — Insanity  is  a  disease ;  and  it  is  to  be  studied 
for  what  it  is,  not  for  what  it  ought  to  be.  It  is  not  a  thing  to  be  esti- 
mated by  preconceived  rules,  either  of  law  or  of  philosophy.  Insanity 
is  not  a  metaphysical  affair,  neither  is  it  a  matter  of  legal  definition.' 
Insanity  is  a  fact ;  but  it  is  not  a  fact  that  is,  as  yet,  thoroughly  under- 
stood. If  those  who  have  studied  it  most  are  the  most  ready  to  ac- 
knowledge that  insanity,  in  all  its  phases,  is  not  yet  fully  understood, 
it  surely  does  not  become  those  who  have  studied  it  little  or  not  at  all 
to  try  to  hedge  it  in  with  a  lot  of  definitions.^^ 

377.  Insanity  is  not  a  crime. — According  to  Dr.  Holmes^  it  may  be 
a  duty  sometimes  to  go  insane — but  certainly  it  is  never  a  crime. 
And  yet  the  insane  are  often  on  trial  in  our  courts  as  though  theii 
disease  were  a  crime.  This  is  inevitable,  because,  doubtless,  there  is  a 
close  kinship  between  criminality  and  insanity.  All  the  insane  are 
not  criminals,  nor  are  all  criminals  insane;  yet  a  certain  percentage 
of  persons  comes  within  both  classes.  It  is  part  of  the  heavy  burden 
which  insanity  carries  along  with  it,  that  it  may  impose  upon  its 
victim  tlie  stigma  of  blood-guiltiness. 

Moreover,  criminality  does  not  exhaust  the  jurisprudence  of  in- 
sanity. The  law  is  properly  jealous  of  the  civil  rights  of  the  insane, 
as  well  as  attentive  to  their  civil  responsibilities.  In  the  olden  time 
it  would  not  hear  to  it  that  a  man  should  stultify  himself  by  pleading 
his  own  insanity  in  civil  matters.  Blackstone^  says  that  the  maxim 
that  a  man  should  not  stultify  himself  had  been  handed  doA^ni  as  set- 
tled law  from  a  lot  of  "loose  authorities,"  dating  back  to  Edward  III. ; 
but  later  opinion,  feeling  the  inconvenience  of  the  rule,  had,  in  many 

li  La  vrai  science  est  une  ignorance  *2  Com.  292.  See  also  Beverley't 
qui  se  sait. — Montaigne.  Case,  4  Coke,  124. 

*  Autocrat    of    the    Breakfast    Table, 
D.  42. 


S  377]  INTRODUCTION.  467 

points,  endeavored  to  restrain  it.  This  passage  from  the  great  com- 
mentator is  significant  of  the  fact  that  some  of  the  advances  in  the 
medical  jurisprudence  of  insanity  have  required  centuries  in  order 
to  become  incorporated  in  English  law.  Still,  the  fact  is  encouraging, 
for  it  shows  that  there  is  a  tendency  to  advance,  and  it  illustrates  the 
point  of  view  of  the  true  scientist;  namely,  that  this  whole  subject, 
whether  viewed  from  the  legal  or  medical  standpoint,  miist  be  treated 
as  a  matter  of  scientific  evolution. 

378.  The  subject  is  both  medical  and  legal. — It  is  thus  evident  that 
the  medical  jurisprudence  of  insanity  has  two  aspects, — a  medical 
and  a  legal  one.  The  medical  aspect  is  purely  scientific.  The  legal 
aspect  is  practical.  The  two,  as  related  to  this  subject,  are,  however, 
inseparable;  at  least,  they  ought  not  to  be  separated.  Science  fur- 
nishes the  facts,  while  the  law  applies  them.  Confusion  has  arisen 
from  a  failure  to  recognize  these  separate  provinces.  The  medical 
and  the  legal  professions  should  act  in  harmony,  and  each  should 
respect  the  obligations  of  the  other.  Medical  jurisprudence  is  a 
mutual  science,  and  can  have  no  better  maxim  than  the  noble  precept 
of  the  civil  law, — Justitia  est  constans  et  perpetua  voluntas  jus  suwm 
quique  tribuendi.^^ 

379.  The  aim  of  this  treatise. — In  composing  this  article  I  have 
aimed  to  present  the  subject  in  its  evolutionary  aspect — from  both  the 
legal  and  the  medical  viewpoint — both  in  its  history  and  its  sub- 
stance. But  the  main  object  has  been  to  demonstrate  that  the  scien- 
tific method  has  been  struggling  from  almost  the  beginning  to  assert 
itself,  and  that  the  very  foundation  of  the  whole  subject  must  even- 
tually be  scientific. 

380.  The  extensive  literature. — The  literature  of  the  subject  is  enor- 
mous, and  I  make  no  pretensions  to  having  mastered  all  of  it.  This 
article  is  not  a  digest;  it  is,  in  a  humble  way,  a  treatise.  It  is  con- 
cerned more  with  principles  than  with  reports.*  But  I  have  endeav- 
ored to  illustrate  each  subject  copiously,  both  from  law  and  from 
medicine.  As  the  work  is  intended  especially  for  American  readers, 
it  relates  largely  to  Anglo-American  jurisprudence;  but  not  exclu- 
sively, for  I  have  not  hesitated  to  draw  upon  continental  sources. 

«J  Justinian,  Institutes,  Lib.  I.  Title  have  so  many  nisi  prius  courts  that  con- 

I.  fusion  reigns;  and  this  is  likewise  true 

*In  re  quotation  of  cases.     The  editor  of  our  courts  of  last  appeal,  for  we  have 

of  Hawkins'  Pleas  of  the  Crown  says,  in  at   least   fifty-one   supreme   courts.      In 

his  introduction,  that  he  had  frequently  fact,   some   states   have   more   than   one 

heard   two  Lord   Chief   Justices   of  the  appellate  court;  as,  for  instance,  Penn- 

King's  Bench  say  that  chey  never  wished  sylvania,  where  there  is  not  only  a  su- 

to  hear  of  nisi  prius  decisions  quoted  preme  court  but  also  a  superior  court. 
AS  authority.     In  the  United  States  we 


468  INSAiJITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  380 

The  laws  of  the  Roman  Empire  were  spoken  of  as  "a.  load  for  many 
camels;"  but  the  present  age  is  an  age  of  steam,  and  English  and 
American  law  books  would  fill  a  train  of  cars.^  The  medical  pro- 
fession also  is  not  backward  with  the  pen,  and  the  literature  of  psychi- 
atry, in  the  polyglot  science  of  Europe  and  America,  rivals  that  of 
the 'law. 

381.  The  original  sources. — I  have  always,  when  possible,  gone  to 
the  original  sources,  and  have  but  seldom  quoted  at  second  hand. 
Coke^  was  of  the  opinion  Melius  est  peters  fontes  quam  sectari  rivulos, 
— better  to  seek  the  fountains  than  to  follow  the  streams ;  but  I  have 
never  blindly  accepted  authority,  for  criticism  is  the  life-blood  of 
science.  St.  Austin  said  of  St.  Jerome's  knowledge  of  divinity,  Quod 
Hieronymus  nescivit,  nullus  mortalium  unquani  scivit.  This  kind 
of  maxim  may  be  good  in  theology,  and  is  sometimes  tolerated  in  law, 
but  it  is  heresy  in  the  science  of  medicine.'^ 

In  his  admirable  introduction,  "On  the  Study  of  the  Law," — a 
chapter  which  all  men  could  read  with  profit, — Blackstone*  frankly 
owns  that,  for  the  "gentlemen  of  the  faculty  of  physic,"  he  sees  no 
special  reason  why  they  in  particular  should  apply  themselves  to  this 
study ;  but  he  suggests,  "and  that  not  ludicrously,"  that  they  might 
learn  how  to  draw  up  wills.  Since  his  day,  however,  the  subject  of 
medical  jurisprudence  has  greatly  advanced  and  increased;  and  it  is 
not  open  to  doubt  that  those  physicians,  at  least,  who  make  a  specialty 
of  insanity,  can  no  longer  afford  to  remain  in  ignorance  of  so  much 
of  the  law  as  relates  to  the  insane. 

"  Coke,  in  view  of  the  great  number  of  '  Littleton's  observation  on  the  stat- 
law  books,  even  in  his  day,  exclaimed:     ute    of    Marlbridge,    "What    never    was 

ought  never  to  be,"  is  quoted  by  Col- 
"Quaeritur  ut  crescunt^tot  magna  volumina    u^g^^   (Lunacy,  p.  99). 

In  promptu  causa  est,  crescit  in  orbe  dolus.'  *        *  1  Com.  14. 
•1  Litt.  305ft. 


CHAPTER  XXIL 

HISTORICAL  NOTES. 

382.  Tlie  history  of  the  medical  jurisprudence  of  insanitj. 

383.  Among  the  ancients. 

384.  The  Greeks. 

385.  The   Roman    law. 

386.  The  civil  law  was  very  copious. 

387.  The   middle   ages. 

388.  Demonomania,   or  witchcraft. 

389.  The  subject  obscured  by  demonomania. 

382.  The  history  of  the  medical  jurisprudence  of  insanity. — Morel,  a 
distinguished  French  alienist,  wrote  the  history  of  the  medical  juris- 
prudence of  insanity.-'  From  his  work  it  is  evident  that,  among  the 
ancients,  the  subject  was  hut  little  appreciated  except  by  the  Roman 
law-makers.  Among  primitive  people  insanity  was  regarded  as  some- 
thing mysterious, — even  of  divine  origin.  This  superstition,  favor- 
able to  the  prestige  of  the  insane,  and  therefore  conducive  to  their 
safety,  was  not  advantageous  to  a  scientific  view  of  this  subject.  The 
madman  was  an  object  of  respect,  even  of  fear;  but  he  was  not  an 
object  of  study.  From  an  early  period  insanity  was  confused  with 
supernaturalism.  As  a  consequence  there  were  only  the  most  vulgar 
notions  about  mental  disease,  and  but  little  exact  observation.  When 
David  fled  from  the  wrath  of  Saul,  and  took  refuge  with  the  King  of 
•Gath,  he  simulated  insanity  in  the  most  extravagant  style.  He 
scrabbled  on  the  doors  of  the  gate,  and  let  his  spittle  fall  down  upon 
his  beard.^  This  was  enough  to  prove  his  case,  in  the  opinion  of  King 
Achish,  who  exclaimed :  "Have  I  a  need  of  madmen,  that  ye  have 
brought  this  fellow  to  play  the  madman  in  my  presence  ?  Shall  this 
fellow  come  into  my  house  ?"  Even  yet  this  question  of  King  Achish 
does  not  always  find  its  proper  answer  in  the  medical  jurisprudence  of 
insanity. 

383.  Among  the  ancients. — In  the  Hebraic  law  there  was  practically 
no  account  taken  of  insanity  as  a  factor  in  crime.  Morel  has  only 
been  able  to  point  to  the  absence  of  torture  in  that  legislation,  and  to 

•  Traite    de    la    Medecine    Legale    des        '  1   Samuel,  xxi. 
Aliengs,  Paris,  186G. 

46!) 


470  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  383 

conclude  that  this  absence  was  favorable  to  the  insane,  because  these 
patients,  as  is  well  kno-«m,  are  sometimes  only  too  ready  to  accuse 
themselves.  But  indirectly  the  Hebraic  law  was  responsible  for  great 
abuses,  which,  in  later  ages,  were  inflicted  on  lunatics.  By  the  law 
in  Leviticus  the  man  who  turned  from  God  to  go  and  consult  sorcerers 
or  magicians  was  condemned  to  death.^  This  text  had  great  authority 
in  the  middle  ages,  and  was  relied  on  as  law  for  the  condemnation  of 
many  of  the  insane,  who  were  accused  of  holding  converse  with  the 
Devil,  or  of  being  possessed  of  demons,  or  of  engaging  in  witchcraft. 
This  was  the  law  of  that  infernalism  which  was  so  rampant  all 
through  the  unspeakable  middle  ages.  It  was  a  law  which  owed  its 
origin,  in  large  part,  to  a  total  misapprehension  of  mental  pathology. 
It  was  a  law  of  priests, — cruel,  bloody,  ignorant,  and  fanatical. 

384.  The  Greeks. — The  Greek  school  of  Hippocrates  is  noteworthy 
in  that  it  took  a  scientific  view  of  insanity.  With  this  school  disease 
of  the  mind  was  a  disease  of  the  brain;  there  was  nothing  super- 
natural about  it.  This  was  all  the  more  creditable  because  the  primi- 
tive Greeks,  like  the  primitive  Jews,  had  had  their  legends  and  their 
superstitions  about  insanity.  Ajex,  Orestes,  and  Alcma^on  had  been 
celebrated  in  poetic  times  as  the  victims  of  the  anger  of  the  gods, 
whereas  the  poor  men  were  only  insane.  Hippocrates  and  his  suc- 
cessors taught  a  material  pathology:  madness  was  a  "phrensy"  or 
"frenitis" — an  inflammation  of  the  brain ;  melancholia,  as  its  name 
implies,  was  an  affair  of  black  bile  f^  hysteria  was  named  from  the 
womb,  because  it  was  held  to  be  a  disease  of  that  organ.^5  These  were 
scientific  conceptions  in  the  sense  that  there  was  no  element  of  super- 
naturalism  in  them.  However  much  in  error  the  Greek  physicians 
remained  in  their  doctrines  of  pathology,  they  were,  at  least,  critical ; 
they  did  not  run  after  witches,  nor  cast  out  demons,  nor  hunt  madmen 
down  for  being  in  league  with  the  Devil.^?  It  was  a  great  gain  for  that 
day  to  know  that  insanity  was  not  a  mere  disorder  of  the  ^'intellect" 
or  of  the  "emotions,"  nor  a  disease  of  the  "soul,"  but  the  result  of  an 
affection  of  the  organic  brain.^  Celsus  spoke  of  it  as  being  a  disease 
of  long  duration,  which  is  ordinarily  without  fever,  and  does  not 
always  compromise  life.  The  seat  of  the  malady  is  in  the  brain,  which 
can  be  affected  primarily  or  secondarily.  Hippocrates  had  been  able 
to  write  of  epilepsy,  the  sacred  disease,  that  it  did  not  appear  to  him 

*  Leviticus,  xx.  6.    Also  verse  27:     "A        s^^eAaf,  black,   and  x"^-^,  l*il^- 
man  also  or  woman  that  hath  a  familiar         ^SirrspT?,  the  womb, 
spirit,  or  that  is  a  wizard,  shall  surely        ^J  Consult    Payne,    English    Medicine 

be  put  to  death:  they  shall  stone  them  in  Aiigln  Saxon  Times.  Oxford,  1904,  for 

witli  stones;   their  blood  shall  be  upon  a  eulogy  of  Greek  medicine, 
them."  *  Morel,  op.  cit.  p.  52. 


§  384]  HISTORICAL  NOTES.  471 

more  divine  than  other  diseases,  but  that  it  had  the  same  nature  as 
the  others.^ 

Yet  in  all  the  Greek  medical  literature  there  does  not  appear  much 
evidence,  from  Morel's  researches,  that  a  special  study  was  made  of 
insanity  in  its  relation  to  the  law.  That  author,  it  is  true,  relates  the 
case  of  Democritus,  in  which  Hippocrates  is  represented  as  giving  an 
expert  opinion,  but  the  document  on  which  it  is  founded  appears  to 
be  apocryphal. 

385.  The  Roman  law. —  The  influence  of  the  Greek  scientific  school 
is,  however,  quite  evident  in  Roman  law.  The  Justinian  code  is  the 
first  system  of  law  in  which  a  just  appreciation  of  this  subject  appears. 
With  reference  to  the  medical  jurisprudence  of  insanity  the  fact  is 
incontestable,  as  Morel  says,^  that  the  sound  doctrines  of  the  great 
Greek  physicians  illumined  the  Roman  law.  Some  of  these  physicians 
— Coelius  Aurelianus,  Soranus,  and  Celsus — can'ied  to  Rome  the 
rational  traditions  of  Greek  pathology,  and  the  imperial  law  ap- 
plied these  to  the  problems  of  insanity.  They  still  form  the  basis  of 
the  civil  law  on  these  subjects,  and  have  thus  found  their  way  into 
the  legal  systems  of  modem  Europe. 

The  Roman  law,  however,  did  not  obtain  all  its  ideas  on  the  subject 
of  insanity  from  the  Greeks.  In  the  Twelve  Tables,  which  date  from 
the  fifth  century  b.  c,  it  is  written :  "If  any  one  becomes  mad,  or 
prodigal,  and  has  nobody  to  take  care  of  him,  let  a  relation,  or,  if  he 
has  none,  a  man  of  his  own  name,  have  the  care  of  his  person  and 
estate."'^  This  is  a  remarkable  statute  to  have  appeared  among  so 
early  a  people  as  the  Romans  of  that  age  of  the  Republic.  It  antici- 
pated, by  many  centuries,  the  writs  de  idiota  and  de  lunatico  of  the 
English  law,  and  may,  indeed,  have  remotely  suggested  them,  for  it 
was  handed  down  by  Justinian,^  who  was  copied  by  Bracton.  That 
law,  it  will  be  observed,  does  not  confine  itself  to  madmen,  but  in- 
cludes also  prodigals;  but  in  this  respect  it  has  not  been  followed  in 
all  jurisdictions,  though  some  jurisdictions  provide  for  guardianship 
of  the  estates  of  prodigals  and  drunkards.® 

386.  The  civil  law  was  very  copious. — To  follow  the  Roman,  or  civil, 
law  in  all  its  applications  to  insanity,  is  neither  possible  nor  desirable 

''This   was   written   several   centuries  p.  666),  the  laws  of  the  Twelve  Tables 

before  the  Gospel  of  St.  Mark,  in  whicli  may  have  been  derived  partly  from  tlie 

a  plain   case   of  epilepsy   is   introduced  Greeks. 

as  a  case  of  demon-possession,  cured  by  *  Institutes,  Lib.  I.  Title  XXIIl.,  §  3. 

a  miracle.     Mark,  ix.  14-29.  •  1  Bl.  Com.  306,  in  criticizing  the  Ko- 

*0p.  cit.  p.  66.  man  law,  gives,  as  a  reason  against    it, 

'  Table  V.  Law  VI.     According  to  Dr.  that  extravagance  is  a  good  thing  in  a 

Harris   ("Rise  and  Progress  of  the  Ro-  free  country,  since  it  keeps  property  in 

man     Law,"     in     Cooper's     Justinian,  circulation! 


472  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  386 

in  this  brief  notice ;  in  the  following  pages  reference  will  be  made  to 
that  code  as  occasion  suggests.  It  is  enough  here  to  indicate  briefly 
that  the  civil  law  treats  of  such  subjects  as  incapacity,  lucid  intervals, 
remissions,  continuous  and  intermittent  insanity,  testaments  and  con- 
tracts, criminal  responsibility,  deaf  mutes,  idiots,  senile  dements, 
infants,  trustees  and  commissions,  and  the  distinctions  between  in- 
sanity and  the  passions.  Surely  this  list  is  copious  enough  to  consti- 
tute the  basis  for  a  very  full  treatise  on  the  medical  jurisprudence  of 
insanity.^'' 

387.  The  middle  ages. — The  history  of  insanity  during  the  middle 
ages  is  a  disgrace  to  humanity.  The  light  of  reason  does  not  illu- 
minate that  dismal  period.  Insanity,  in  spite  of  the  teaching  of  the 
Greeks,  and  the  provisions  of  the  Roman  law,  had  again  taken  its 
place  among  supernatural  phenomena.  This  was  the  period  of  demon- 
possession;  of  witchcraft;  of  sorcery, — a  period  dominated  by  the 
medieval  church,  and  become  the  pandemonium  of  priests  and  courts, 
in  the  mad  attempt  to  stamp  out  diseases  of  the  mind  by  recourse  to 
torture  and  the  stake.  If  civilization,  as  has  been  justly  claimed,  was 
set  back  a  thousand  years  by  the  fall  of  the  Roman  Empire,  one  of  the 
proofs  of  this  fact  is  found  in  the  treatment  of  the  insane. 

388.  Demonomania,  or  witchcraft. — The  history  of  demonomania — 
of  epidemic  witchcraft — has  been  traced  by  able  hands.^^  One  fact 
stands  out  with  striking  prominence ;  and  that  is,  that  insanity  was 
the  one  factor  which  contributed  most  to  these  popular  crazes.  The 
subject  has  medico-legal  significance  from  that  fact  alone.  The  un- 
fortunate insane  were  not  only  involved  in  a  popular  prejudice  against 
them  which  relegated  them  to  the  class  of  evil  spirits,  but  they  them- 
selves contributed  to  this  error  by  their  self-accusations  and  their 
tendency  to  absorb  the  popular  ideas.  This  is  a  profound  law  of 
mental  pathology.  In  every  age  the  insane  are  affected  by  their  envi- 
ronment ;  and  one  of  the  most  significant  facts  brought  out  in  the  his- 
tory of  demonomania  is,  that  the  insane  themselves  became  infected 
with  the  ideas  of  the  times.  Just  as  to-day  an  insane  man  will  found 
his  delusions  on  the  electric  telegraph  and  telephone,  so  in  medieval 
Europe  he  became  the  victim  of  delusions  of  demon-possession.  What 
he  acquired  from  a  vicious  popular  environment  was  turned  against 
him  as  evidence  in  the  tribunals.  Out  of  his  own  mouth  he  was  con- 
demned, for  he  often  confessed  readily  to  implication  with  the  spirits 

"Students  who  desire  to  pursue  this  I'Antiquitie  ct  dans  les  Temps  Mod- 
subject  in  detail  are  referred  to  Morel's  ernes,  Paris,   18G3. 

■work,   already   quoted;    also    to   Loise-  "Morel,  op.  cit.     Also  Calmeil,  De  la 

leur,   Des    Crimes    et   des    Peines    dans  Folie,  etc.,  Paris,  1845. 


§  388] 


HISTORICAL  NOTES. 


473 


of  darkness.  This,  in  turn,  fed  the  popular  flame  until,  between 
insane  delusions  on  the  one  hand  and  popular  crazes  on  the  other,  it 
became  difficult  to  say  where  insanity  began  or  ended.  When  these 
frenzies  reached  their  height  there  w'as  no  safety  for  any  person ;  the 
innocent  were  accused ;  the  affrighted  were  confounded  with  real 
lunatics.  Even  the  mighty  did  not  escape;  and  it  is  related  of 
a  Salem  magistrate  that,  during  the  epidemic  of  witchcraft,  he  kept 
a  horse  always  saddled,  in  order  to  escape  at  the  first  moment  that  he 
found  himself  accused.  Husbands  accused  their  wives  of  cohabiting 
with  the  Devil  before  their  very  eyes ;  and  the  wives,  often  the  prey  of 
hallucinations  of  sight  and  touch,  acknowledged  the  offense.  ^- 

389.  The  subject  obscured  by  demonomania.  —  The  prevalence  of 
demonomania  during  the  14th,  15th,  16th,  and  17th  centuries  ob- 
scures the  whole  subject  of  a  rational  jurispiiidence  of  insanity.  It 
was  only  when  this  popular  debasement  began  to  recede  before  the 
light  of  modern  science,  that  such  a  jurisprudence  became  possible 
for  the  nations  of  Europe.  Its  traces  long  remained  in  the  popular 
and  even  the  legal  conscience  of  Germany,  France,  and  England.^^ 


"^Michaud,  in  his  History  of  the  Cru- 
sades (translated  by  Robson,  N.  Y. 
1881,  Vol.  III.  335-337),  refers  to  the 
influence  of  the  crusades  on  European 
science,  especially  medicine.  The  ori- 
entals of  those  times  were  far  ahead  of 
the  Europeans  in  medicine.  (The  first 
hospitals  for  the  insane  were  founded 
by  the  Moslems.)  But,  as  Michaud 
says,  the  physicians  of  Europe  were  too 
ignorant  to  profit  by  oriental  learning. 
That  author,  however,  makes  no  refer- 
ence to  insanity  in  this  connection. 

According  to  Lecky  (History  of  Euro- 
pean Morals,  Vol.  II.  p.  94),  the  Mo- 
hammedans established  the  first  asy- 
lums lor  the  insane  soon  after  the  proc- 
lamation of  Isleam,  in  the  seventh  cen- 
tury. 

"Lecl^    (History  of  European  Mor- 


als, London,  1869,  Vol.  II.  pp.  91  et 
seq.)  exposes  this  witchcraft  business  in 
a  few  well-written  pages.  "Most  com- 
monly," says  he,  "the  theological  no- 
tions about  witchcraft  either  produced 
madness  or  determined  its  form ;  and, 
tlirough  the  influence  of  the  clergy  of 
the  diflTerent  sections  of  the  Christian 
Church,  many  thousands  of  unhappy 
women  who,  from  tlieir  age,  their  loneli- 
ness, and  their  infirmity,  were  most  da- 
serving  of  pity,  were  devoted  to  the 
hatred  of  mankind ;  and  having  been 
tortured  with  horrible  and  injurious 
cruelty,  were  at  last  burnt  alive."  (P. 
93.) 

The  Anglo-Saxon  Leech-Book  of  Bald 
(cited  by  Payne,  English  Medicine  in 
Anglo-Saxon  Times),  contains  remedies 
for  the   "Hendsick"   man,  or  demoniac 


CHAPTER  XXin. 

DEFINITIONS. 

L  The  definition  of  insanity. 

390.  Definitions   are   difficult. 

391.  A   proposed   definition    of   insanity. 

392.  Dreams  are  a  disorder  of  the  mi-nd. 

393.  Idiocy  is  a  form  of  insanity. 

394.  Objections  stated  and  met. 

395.  Insanity  is  a  disease  of  the  brain. 
n.  Illusion,    hallucination,   and  delusion. 

396.  The  proper  and  improper  use  of  these  tervoMt 

397.  The  definition  of  illusion. 

398.  The  definition  of  hallucination. 

399.  The  definition  of  delusion. 

400.  Varieties   of  delusions. 
m.  Lunatic. 

401.  The  origin  of  the  term. 

402.  The  later  use  of  the  term. 

403.  Usage  in  the  United  States. 

I.  The  definition  of  iNSAiaTT. 

390.  Definitions  are  difficult. — Winslow^  cautions  medical  witnesses 
not  to  attempt  to  define  insanity.  "Above  all  things,"  says  he,  "the 
medical  man  should  avoid  defining  insanity."  The  advice  is  useless 
and  misleading.  Medical  men  cannot  always  avoid  defining  insanity, 
and  the  attempt  to  avoid  it  is  sometimes  worse  than  even  an  ill  attempt 
to  do  it.  Insanity  can  be  defined,  although,  perhaps,  no  definition  of 
it  can  be  given  that  is  absolutely  perfect.  The  difficulty  has  been 
recognized  by  all  persons  who  have  attempted  this  feat,  and  usually 
too  much,  rather  than  too  little,  has  been  essayed.  "I  have  read 
every  definition  that  I  could  meet  with,"  said  an  English  jurist.  Lord 
Justice  Blackburn,  before  a  committee  of  the  House  of  Commons, 
"and  never  was  satisfied  with  one  of  them ;  and  have  endeavored  in 
vain  to  make  one  satisfactory  to  myself.  I  verily  believe  that  it  is 
not  in  human  power  to  do  it."^     This  confession  from  high  authority 

'Plea  of  Insanity,  p.  76.  19)   that  definitions  are  almost  peculiar 

'  Quoted    in    Church     and     Peterson's    to  Anglo-Saxon  countries  is  hardly  sus- 

Nervous    and    Mental    Diseases,  p.  529.    tained  by  the   facts.     See  R^is,   Ment. 

Spitzka's  statement    (Insanity,  1883,  p.    Med.  p.  29. 

474 


§  390]  DEFINITIONS.  476 

is  valuable,  and  might  be  quoted  by  medical  witnesses  when  they  are 
harassed  on  the  subject.  But  because  the  task  is  difficult,  or  even,  in 
a  strict  sense,  impossible,  is  no  reason  why  a  working  definition 
should  not  be  attempted.^ 

391.  A  proposed  definition  of  insanity. —  Insanity  may  be  defined  as 
an  affection  of  the  brain  which  is  characterized  by  derangement  of 
the  mental  faculties.  Objections  to  this  definition  may  be  raised,  but 
they  are  mostly  sophistical.  For  instance,  it  may  be  objected  that 
this  definition  includes  the  delirium  of  fever.  So  it  does,  and  prop- 
erly; because  the  delirium  of  fever  is,  in  a  strictly  scientific  sense, 
a  temporary  form  of  insanity,  and  is  closely  similar  to,  if  not  identi- 
cal with,  several  well-recognized  clinical  types  of  insanity,  such  as 
delirium  grave  or  even  delirium  tremens.  In  fact,  the  delirium  of 
fever  tends  to  throw  a  strong  light  upon  the  pathology  of  some  forms 
of  insanity,  especially  in  reference  to  infection,  or  blood  poisoning,  as 
a  cause  of  mental  disease.  It  has  also  not  a  little  medico-legal  impor- 
tance; for  some  deliria,  such  as  those  occurring  after  child-birth,  are 
often  practically  the  same  as  the  delirium  of  fever,  and  may  lead  to 
homicidal  acts.  Moreover,  a  criminal  act  committed  in  the  delirium 
of  fever  would  have  to  be  defended  on  precisely  the  same  grounds  as 
the  act  of  an  insane  person.  This  alone  would  bring  it  strictly  within 
the  medico-legal  definition  of  insanity.^  The  same  may  be  said  of 
other  temporary  derangements  of  the  mind,  such  as  occur  after  in- 
jury to  the  brain,  or  from  poisoning, — as  from  alcohol,  lead,  or 
uremia ;  these  are  instances,  certainly,  in  which  the  mind,  for  the 
time,  is  "insane,"  or  not  sound.^ 

392.  Dreams  are  a  disorder  of  the  mind. — Even  in  the  matter  of 
<lreams,  which  certainly  occur  in  otherwise  normal  minds,  these 
phenomena  are  strictly  evidences  of  a  temporarily  disordered  action 

^  Esquirol's    well-known    definition    is  removed  to  asylums.     Such  cases  show 

as  follows:     "Insanity  is  a  cerebral  af-  conclusively  that  the  distinction  between 

fection,  ordinarily  chronic,  and  without  febrile  delirium  and  insanity  is  a  purely 

fever;  characterized  by  disorders  of  sen-  artificial  one.     Similar  cases  may  occur 

sibility,  understanding,  intelligence,  and  after  surgical  operations,  and  are  prob- 

will."      (Mental    Maladies,    Am.    Trans,  ably  due  to  nerve-shock  or  blood  infec- 

p.  21.)      But  this  is  too  restricted,  for  tions.    or    both.     Consult    KraflFt-Ebing, 

insanity    is    not    always     chronic    and  Traite  Clinique  de  Psychiatrie,  p.  211; 

afebrile,  and  other  mental  faculties  are  Spitzka,  Insanity,   1883,  p.  373;   Clous- 

often  involved  than  those  mentioned,  as,  ton,    Clinical   Lectures   on   Mental   Dis- 

for  instance,  memory  and  imagination,  eases,  1884,  p.  416. 

*  In  some  cases  of  typhoid  and  other  ^  These  facts  were  recognized  by  Lord 
fevers  the  delirium,  or  mental  confusion.  Chief  Justice  Hale,  for  he  included  un- 
continues  for  a  long  time  after  the  fever  der  his  Dementia  Accidcntalis  vel  Ad- 
has  departed.  This  is  called  "post-feb-  ventitia  rJTections  due  to  a  "fever  or 
rile  insanity;"  and  cases  have  occurred  palsey;"  also  those  due  to  a  "concussion 
in  which   the   patients  have  had   to   be  or  hurt  of  the  brain."   1  P.  C.  Chap.  IV. 


476  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  392 

of  the  brain ;  and  this  is  proved  bj  the  fact  that  the  delusional  state 
of  the  insane  is  not  a  little  like  the  disorder  of  dreaming;  and,  what 
is  more  to  the  point,  in  somnambulism,  which  is  a  disorder  of  sleep 
clearly  akin  to  dreaming,  acts  of  medico-legal  import  may  be  com- 
mitted.® Science  cannot  exclude  these  various  temporary  disorders^ 
from  a  strictly  comprehensive  definition  of  insanity ;  and  the  law  can- 
not do  so,  either,  as  is  proved  by  the  fact  that  the  medico-legal  defense 
in  all  these  classes  of  cases  would  be  the  same  as  in  cases  of  mental 
disease.  Practically,  however,  it  must  be  admitted  that  the  delirium 
of  fever,  and  the  other  temporary  affections  above  referred  to,  are  not 
ordinarily  included  in  insanity;  but  the  distinction  is  arbitrary. 

393.  Idiocy  is  a  form  of  insanity. — The  same  may  be  said  of  idiocy. 
Alienists,  as  well  as  jurists,  distinguish  idiots  from  the  insane,  and 
include  in  the  former  great  class  those  patients  whose  mental  affection 
is  due  to  a  disorder  occurring  before  or  during  birth  or  in  early  life, 
before  the  brain  has  developed ;  but  here,  again,  the  distinction,  while 
proper  and  of  great  practical  importance,  is,  in  a  sense,  arbitrary. 
An  idiot  is  an  insane  person  in  the  wider  sense  of  the  term  ''in- 
sanity." 

394.  Objections  stated  and  met. — It  may  be  objected  to  the  defin- 
ition of  insanity,  given  above,  that  it  defines  in  a  circle ;  that  the  term 
"derangement  of  the  mental  faculties"  is  only  another  term  for  in- 
sanity itself;  but  this  objection  is  not  valid.  The  two  terms  are  not 
identical  in  the  ideas  they  express,  but  the  one  term  supplements,  or 
explains,  the  other.  "Insane"  means  "unsound ;"  while  "derange- 
ment of  the  mental  faculties"  indicates  in  what  respect  the  unsound- 
ness shows  itself.  Hence,  the  above  definition  fulfils  its  proper  func- 
tion, which  is  simply  explanatory.  To  do  more  would  be  to  write  a 
description ;  and  this  is  an  error  into  which  some  writers  have  fallen 
in  their  attempts  to  define  insanity.' 

•"Madness,"    says    Sauvages,    "is   the  Bracton's    definition,     as    quoted    by 

dream  of  him  wlio  is  awake."  some  h'gal  writers,  is  as  follows:     Furi- 

'  For  other  definitions  by  well-known  osiis  non  inielHgit  quod  agit,  et  anima 

writers,  see  Esquirol.  Mental  Maladies,  et  ratione  caret,  et  non  multum  distat 

Am.  Trans,  p.  21,  footnote;  also  an  arti-  a  hrvtis, — An  insane  person  is  one  who 

f'le    by    Dr.    Borie    in    the    Edin.    Med.  does  not  know  what  he  is  doing,  and  is 

.Tourn.,    1805,  Vol.   XL,  p.  21,  "On  the  lacking  in  mind  and  reason,  and  is  not 

Definition  of  Insanity,"  etc.  far    removed    from    the    brutes.      But. 

Dr.  Brigham.  of  New  York,  many  while  this  represents  truthfully  Brae- 
years  ago  gave  the  following:  "insanity  ton's  ideas,  it  seems  to  be  compounded 
is  a  chronic  disease  of  the  brain,  pro-  of  two  diflVrent  passages  in  his  great 
ducing  either  derangement  of  the  in-  work,  De  Legibus.  In  Lib.  V.  fol.  4206, 
tellectunl  faculties,  or  prolonged  change  he  says  of  madmen,  non  multum  distant 
of  the  feelings,  allections,  and  habits."  a  brutis  qui  ratione  carent ;  and  again,. 
The  main  objections  to  this  are  the  use  in  Lii).  III.  fol.  100,  speaking  of  those 
of  the  word  "chronic,"  and  the  alterna-  who  are  not  competent  to  stipulate,  he 
tive  in  the  latter  clauses.  says:       Furiosus    autcni    stipulari    nqn 


§  395]  DEFINITIONS.  477 

395.  Insanity  is  a  disease  of  the  brain. — Finally,  the  above  definition 
indicates  an  important  truth  in  the  matter  of  insanity,  and  that  truth 
is  that  insanity  is  an  affection  of  the  organic  brain.  This  is  the  scien- 
tific conception,  and  is  opposed  to  the  old  error  (not  yet  entirely 
eradicated)  that  insanity  is  something  spiritual,  or  metaphysical,  or 
purely  mental,  as  distinct  from  physical.^ 

The  objection  that  temporary  "derangement  of  the  mental  facul- 
ties" may  be  caused  by  fatigue,  grief,  anger,  etc.,  and,  when  thus 
caused,  would  be  included  in  this  definition  of  insanity,  is  rather  a 
captious  criticism.  Besides,  all  such  causes,  if  they  act  long  enough 
or  profoundly  enough,  may,  in  reality,  contribute  to  produce  genuine 
insanity. 

11.  Illusion,  hallucination,  and  delusion. 

396.  The  proper  and  improper  use  of  these  terms. — In  common  par- 
lance these  three  terms  are  often  used  interchangeably;  and  even  in 
legal  and  other  learned  writings  the  proper  distinctions  between  them 
are  not  always  observed ;  but  by  scientific  writers,  and  especially  by 
alienists,  these  terms  are  now  sharply  demarcated,  and  confusion 
need  no  longer  occur.  Indeed,  for  the  purposes  of  precise  thinking 
and  exact  writing,  these  terms  should  be  distinguished  from  one 
another;  for  they  stand  for  things  which  are  quite  distinct  and  easily' 
apprehended  in  mental  pathology.  Therefore  it  is  much  to  be  wished 
that  legal  writers  would  join  with  medical  writers  in  observing  these 
distinctions,  which  all  persons  who  are  once  fully  informed  about 
them  must  acknowledge  are  founded  in  fact. 

potest,  nee  aliquod  negotium  agere,  quia        *The  spiritual   conception  of  insanity 

non    intelligit    quid    agit, — A    madman  was  held  by  Ideler  and  some  of  the  old- 

cannot  stipulate,  nor  transact  any  busi-  er  alienists.    It  is  now  practically  aban- 

ness,  because  he  does  not  know  what  he  doned  by  psychiatrists,  who  refjard  in- 

is  doing.  sanity  as  a  disease  of  the  organic  brain. 

Bracton,   who  was   a   learned   ecclesi-  Sir  Fitzjamea   Stephen  defines   insanity 

astic  and   High   Justiciary   of   England  as  a  state  in  which  one  or  more  of  the 

in  the  reign  of  Henry  III.,  in  the  1.3th  mental    functions    is    performed    in    an 

century,    often    quoted    verbatim    from  abnormal  manner,  or  not  performed  at 

Justinian,  and  is  himself  entitled  to  be  all,   by   reason   of   some   disease   of   the 

correctly  quoted  in  turn.  brain   or   nervous   system.      (2   History 

Bishop  (Criminal  Law,  Vol.  I.  §  376)  Crim.  Law,  p. .130.)      This  is  an  excel 

says  that  the  legal  doctrine  of  insanity,  lent  definition ;  but  some  exacting  critic 

t.  e.,  "a  lack  of  mental  capacity  to  en-  may  ask,  "What  is  the  definition  of  the 

tertain  a  criminal  intent,"  is  axiomatic,  word  'abnormal'?" 

But  this  also  includes  infancy;  and,  as        Casper    (Forensic  Medicine,  Vol.   IV. 

a  definition,  it  only  shifts  the  difficulty,  p.    98,    Eng.    Trans.)    says:     "Criminal 

for  the  question  at  once  arises,  What  is  responsibility  is    therefore    the    psycho- 

a  criminal   intent?     The  answer  would  logical  possibility  of  the  efficaciousness 

be,    that    a    "criminal    intent"    presup-  of  the  Penal  Code."     Every  reader  must 

poses  a  sane  mind;  and  so  this  is  mere-  try   for   himself  to  interpret  this   Teu- 

ly  defining  in  a  circle.  tonic  utterance. 


478  INSANITY— FORMS  AND  MEDICO-LEGAL   ASPECTS.  [§397 

397.  The  definition  of  illusion. — By  an  "illusion"  is  meant  a  mis- 
interpretation of  a  sensation.  In  every  act  of  the  senses,  as  of  sight 
and  of  hearing,  an  impression  is  made  on  the  sense-organ  by  some  ex- 
ternal object,  and  this  impression  is  conveyed  to  the  brain,  where,  as 
a  rule,  it  is  correctly  recognized.  Thus,  the  song  of  a  bird,  the  voice 
of  a  friend,  or  the  sight  of  an  animal  walking  in  the  distant  landscape, 
is  kno\vn  at  once.  But  occasionally  something  interferes  with  the 
correct  action  of  the  sensory  organism,  and  the  person  misinterprets 
the  sensory  impression ;  thus,  an  individual  walking  along  a  path  in 
the  dusk  may  mistake  a  bush  for  an  animal;  or  a  man  in  a  crowd 
may,  in  the  babel  of  voices,  think  he  hears  someone  call  him  by  name. 
In  these  cases  there  has  simply  been  a  misinterpretation  of  a  sensa- 
tion, but  this  sensation  was  real ;  that  is  to  say,  it  was  excited  by  a 
real  external  object.  Evidently,  therefore,  an  illusion  is  not  neces- 
sarily an  evidence  of  a  serious  disorder  of  the  nervous  system ;  in  fact, 
the  organism  may  be  perfectly  healthy,  but  it  acts  at  a  disadvantage, 
so  that  a  mistake  occurs.  Therefore  healthy  persons  may  have  illu- 
sions; but,  when  they  do  have  them,  there  is  a  tendency  to  correct 
them  at  once.  On  the  other  hand,  the  insane  also  may  have  illusions, 
but  these  illusions  are  the  results  of  a  disordered  nervous  system ;  and 
the  insane  do  not  tend  to  correct  their  illusions,  but  adhere  to  them, 
often  with  great  tenacity.  Thus,  a  hypochondriac  may  mistake  the 
normal  movements  of  gas  in  the  intestines  for  the  movements  of  an 
animal  which  he  believes  he  has  in  his  belly.  In  this  way  in  the  in- 
sane illusions  tend  to  confirm  erroneous  beliefs.^ 

398.  The  definition  of  hallucination. — An  "hallucination"  is  also  a 
disorder  of  sensation,  but  it  differs  from  an  illusion  in  the  fact  that 
it  is  entirely  subjective.  For  instance,  a  person  believes  that  he  hears  a 
voice  when  there  is  no  voice  or  any  other  sound  whatsoever ;  or  he  be- 
lieves that  he  sees  some  object  when  there  is  no  external  object  an- 
swering to  or  exciting  the  vision.  In  other  words,  the  disorder  is  en- 
tirely within  the  person's  mind ;  it  is  subjective ;  there  is  no  objective 
reality  whatsoever  corresponding  to  the  supposed  sensory  phenomenon. 
Therefore,  clearly,  an  hallucination  is  an  evidence  of  a  disorder  which 
is  far  deeper  seated  than  one  creating  an  illusion ;  in  fact,  it  is  of  an 
entirely  different  kind.  Good  authorities,  indeed,  contend  that  a 
true  hallucination  never  occurs  in  a  normal  person;  that  where  such 
cases  are  claimed  to  have  occurred  an  illusion  has  been  mistaken  for 
an  hallucination.^"    Be  that  as  it  may,  hallucinations  occur  not  infre- 

•An    insane    man    whom    I    once    had  sory  impression  acted  as  an  illusion  to 

under  my  care  in  the  Philadc]])hia  Hos-  confirm  this  belief. 

pital  believed  that  his  whole  body  was        '"The  case  of  Nicolai  is  often  referreS 

encased  in  a  serpent's  skin.    Every  sen-  to   by    older   writers.     Nicolai   claimed 


§  398]  DEFINITIONS.  479 

quently  in  the  Insane,  and  when  they  do  occur  they  are  often  of  grave 
import.  The  insane  cling  to  their  hallucinations  with  unswerving 
tenacity;  they  do  not  tend  to  correct  them;  no  argument,  no  proof, 
can  disabuse  their  minds.  So  real  are  these  hallucinations  to  the 
insane  that  these  patients  often  act  in  response  to  their  promptings ; 
and  criminal  acts  are  committed  in  response  to  voices  which  the 
patient  firmly  believes  are  real.  Hallucinations  are  very  confirma- 
tory, also,  of  the  delusions  of  the  insane. ^*^^ 

399.  The  definition  of  delusion.— A  "delusion"  differs  from  both  an 
illusion  and  an  hallucination  in  the  fact  that  it  is  not  a  sensory  dis- 
order, but  occurs  entirely  within  the  intellectual  sphere.  It  is  an 
erroneous  belief,  but  of  such  a  kind  as  is  due  to  a  disordered  mind. 
The  latter  clause  of  this  definition  is  essential,  for  an  insane  delu- 
sion is  something  different  from  an  ordinary  mistake  of  judgment  or 
opinion.  All  men  are  subject  to  errors  of  opinion ;  this  is  a  matter  of 
common  observation  in  science,  in  politics,  in  religion,  and  in  every- 
day affairs ;  but  all  men  are  not  therefore  insane,  even  though  some  of 
their  opinions  may  be  most  extravagant  and  unreasonable.^^  But  an 
insane  delusion  is  an  erroneous  belief  which  is  due  to  the  fact  that 
the  patient's  mind  is  deranged ;  and  the  delusion  is  of  such  a  character 
as  would  not  be  entertained  by  him  if  he  were  in  a  normal  state.     In 

that  he  had  a  vision  of  a  human  form        lOJThe     origin     of     hallucinations — 

"like   that  of  a   deceased  person."     He  whether  they  occur  in  the  brain  proper 

was  not  insane,  although  mentally  dis-  or    in    the    sensory     organs — has    been 

turbed   by  grief  and  anger,   and   rocog-  much  discussed.    White,  in  a  recent  pa- 

nized  that  the  figure  was  unreal.     Has-  per    (Journal    of    Nervous    and    Mental 

lam's  Medical  Jurisprudence,  etc.  Diseases,  Nov.   1904),  claims  that  they 

In  the  shipwreck  of  the  Lady  Hobart,  are  of  peripheral  origin;   that  is,   that 

the  crew,  in  their  distress,  often  thought  they  occur  in  the  sensory  nerves,  not  in 

they  saw  land  or  even  heard  breakers,  the  brain  itself.     But  the  weiglit  of  au- 

and  some  thought  they  heard  the  firing  thority  is  in  favor  of  their  origin  in  the 

of  guns.     Shipwrecks  and  Disasters  at  brain  proper. 
Sea,  1812,  Vol.  III.,  p.  391.  "Napoleon  Bonaparte  had  some  very 

For    examples    of    hallucinations    due  queer  opinions.     "I  think  that  man  was 

to  organic  disease  of  the  brain  or  of  the  formed   by  the  heat   of  the   sun   acting 

eye,    see   an    article   by   Posey,    "Visual  upon  mud.     Herodotus  tells  us  that,  in 

Perceptions   as   Symptoms   of  Disease,"  his  time,  the  slime  of  the  Nile  changed 

in  Univ.  Med.  Mag.  Dec.  1895.  into  rats,  and  that  they  could  be  seen  in 

Hallucinations  must  be  distinguished  process    of    formation."      Talks    of   Na- 

from  the  mere  images  which  a   person  poleon  at  St.  Helena  with  Baron  Gour- 

can  conjure  up  at  will  by  an  act  of  tlie  gaud.       Translated     by     Elizabeth     W. 

imagination.    Thus,  it  is  related  of  Ben  Latimer,  p.  69. 

Jonson  that  he  used  to  spend  the  nights  Sir  Isaac  Newton  was  a  very  credu- 
looking  at  his  great  toe,  about  which  ho  lous  man,  and  also  had  odd  conceits, 
saw,  in  his  imagination,  Turks  and  Watsun  (Life  of  Jefferson)  tells  how 
Tartars,  Romans  and  Carthagenians,  Newton  cut  a  big  hole  in  the  door  for 
fighting.  (Collinson,  Limacy. )  Sucli  im-  the  old  cat  and  a  little  hole  for  the  kit- 
ages  are  not  due  to  an  action  of  the  ten.  This  was  not  a  delusion,  but  it 
sensory  organism,  and  they  are  not  be-  was  a  funny  mistake  for  a  great  math- 
lieved  in.  -^matieian. 


180 


INSANITY— FORMS   AND  MEDICO-LEGAL  ASPECTS. 


[§   3!)!l 


other  words,  the  delusion  is  not  the  cause  of  the  insanity,  but  the  in- 
sanity is  the  cause  of  the  delusion,  and  is  shown  by  other  symptoms 
besides  the  delusion  itself.  A  sane  man  may  believe  that  INIahomet 
went  to  the  seventh  heaven  and  returned  in  an  instant  of  time;  or 
another  may  believe  that  his  king  rules  by  divine  right;  or  still 
another  may  hold  that  the  proper  test  for  insanity  is  the  knowledge 
of  right  and  wrong.  These  are  matters  of  opinion.  But  if  an  insane 
pauper  believes  that  he  is  a  millionaire,  or  that  he  is  Emperor  of  the 
United  States,  he  evidently  has  a  belief  which  contains  some  element 
in  it  that  marks  it  as  different  from  a  mere  error  of  judgment  or 
opinion.  It  is  a  belief,  obviously,  which  he  could  not  entertain  if  he 
were  of  sound  mind.  The  insane  cling  to  their  delusions  with  logical 
consistency,  and  these  erroneous  beliefs  often  dominate  their  whole 
life  and  conduct. 

400.  Varieties  of  delusions. — Delusions  are  of  two  kinds ;  systemat- 
ized and  unsystematized,  A  systematized  delusion  is  one  that  is 
fixed  and  coherent;  an  unsystematized  delusion  is  one  that  is  com- 
posed of  elements  that  are  more  or  less  fleeting  and  changeable,  and 
which  do  not  cohere  so  as  to  constitute  a  definite  opinion  in  the 
patient's  mind.^^ 

III.  Lunatic. 

401.  The  origin  of  the  term. — This  word  comes  from  luna,  the  Latin 


'MVliarton  in  the  4th  edition  of 
Wharton  &  Still6's  Med.  Jur.  pp.  132, 
133  has  an  amusing  paragraph  on  de- 
lusions in  judges,  but  it  is  not  all  very 
pertinent.  For  instance.  Lord  Erskine 
had  a  superstitious  dread  of  thirteen  at 
table.  Lord  Lyndhursc  had  pliysical, 
and  Lord  nrougham  intellectual,  vanity. 
Judge  Brackinridge,  of  Pennsylvania, 
holding  court  on  a  hot  day.  gradually 
took  off  his  clothes  until  at  last  he  sat 
naked.  Judge  Baldwin,  of  the  Supreme 
Court,  was  a  hypochondriac.  A  dis- 
tinguished New  England  judge  believed 
he  was  pregnant.  "Yet,"  says  Mr. 
Wharton,  "in  none  of  these  cases  was  in- 
sanity ever  charged."  Because  it  was 
not  charged  was  no  evidence  that  it  did 
not  exist.  A  man,  for  instance,  who  be- 
lieved he  was  pregnant,  must  have  had 
a  seriously  disordered  mind,  and  .should 
not  liave  been  allowed  to  sit  on  the 
bench   another  day. 


Very  few  of  these  cases  are  instances 
of  "insane"  delusions.  The  dread  of 
thirteen  at  table,  or  denuding  oneself  on 
a  liot  day,  or  showing  personal  vanity, 
or  displaying  deep-rooted  animosity 
towards  a  particular  man  (as  in  the 
case  of  Lord  Chancellor  Clare  towards 
Curran), — these  are  not  cases  of  insane 
delusion. 

Horace  Binney,  the  eminent  Philadel- 
phia lawyer,  had  a  flot  very  flattering 
opinion  of  Judge  Brackinridge,  and 
also  relates  how  the  latter  once  sat  in 
court  in  his  bare  feet.  "It  is  not  cer- 
tain that  Brackinridge  was  at  all  time.? 
sane,  and  he  would  have  been  just  as 
good  a  judge  as  lie  was  if  he  had  been 
crazy  outright."  L'^pon  such  slight 
grounds  do  lawyers  as  well  as  doctors 
sometimes  make  a  diagnosis!  Life  of 
Horace  Binnev,  by  Charles  Chauncey 
Binney.  Philadelphia,  1903,  p.  41. 


5  401]  DEFINITIONS.  481 

word  for  the  moon ;  and  has  been  used  in  law  for  that  somewhat  hypo- 
thetical patient  who  is  supposed  to  have  ''lucid  intervals."  In  fact, 
the  idea  of  "lucid  intervals"  was  formerly  always  associated  in  law 
with  the  idea  of  a  "lunatic."  The  patient  was  called  a  lunatic  quia 
lucidis  intervallis  gaudet, — because  he  enjoys  lucid  intervals, — these 
intervals  being  determined  by  the  changes  of  the  moon.  According  to 
Collinson,^^  the  term,  in  its  legal  acceptation,  signifies  one  who  has 
had  understanding,  which  he  has  lost  by  the  visitation  of  God.  This 
is  in  contrast  with  "idiot,"  which  signifies  one  who  has  had  no  under- 
standing since  his  birth.  Although  the  lunar  pathology  has  long 
since  given  way,  yet  the  idea  of  a  lunatic  being  one  who  has  lucid 
intervals  still  lingers  in  curious  ways  in  the  law.  The  tendency  in 
recent  years,  however,  both  in  this  country  and  in  England,  has  been 
to  ignore  any  special  significance  in  the  term,  and  to  regard  "lunatic" 
as  synonymous  with  "insane"  person,  or  person  of  "unsound  mind," 
or  non  cotnpos  mentis,  and  kindred  terms.  This  is  also  according  to 
scientific  usage. 

402.  The  later  use  of  the  term.  —  Thus,  according  to  the  act  25 

6  26  Vict,  chap.  54  (1862),  the  term  "lunatic"  "shall  mean  and  in- 
clude every  person  certified  by  two  medical  persons  to  be  a  lunatic, 
an  insane  person,  an  idiot,  or  a  person  of  unsound  mind."  In  this 
definition  the  term  "lunatic"  is  given  the  widest  generic  significance, 
including  even  idiots;  and  ha-?  quite  lost  the  original  or  special  mean- 
ing which  it  had  in  law. 

403.  Usage  in  the  United  States. — Similar  usage  now  prevails  in  the 
United  States  almost,  if  not  quite,  universally.  A  lunatic  is  simply 
an  "insane"  person.  More  or  less  opprobrium  clings  to  the  term,  how- 
ever, and  it  is  not  a  popular  word  with  alienists.  This  may  be  due  to 
the  false  ideas,  entirely  unscientific,  which  were  at  one  time  asso- 
ciated with  the  word,  and  to  which  it  owed  its  origin. 

The  history  of  the  term  is  inseparable  from  the  history  of  the  terms 
non  compos  mentis  and  "lucid  intervals,"  and  is  fully  discussed  in 
the  definitions  of  those  terms  in  the  present  work.^'* 

"Law  of  Lunacy.  vals"  in  the  present  work.     For  a  state- 

"  For    reference,    see   the   articles    on  mont    of    American    laws,    see    Beaker, 

Non  Compos  Mentis  and  "Lucid  Inter-  op.  cit. 
Vol.  I.  Med.  Jub.— 31. 


CHAPTEE  XXIV. 

NON    COMPOS    MENTIS. 

404.  Confusion  about  this  term. 

405.  Tlie  classical  meaning. 

406.  Its  earliest  use  in  English  law. 

407.  Tlie  statute  De  Prerogativa  Regis. 

408.  The   distinction   between    idiots   and   lunatics. 

409.  The   importance  of  the  term    non  compos  menti$, 

410.  Coke's  use  of  the  term. 

411.  Hale's  use  of  the  term  "lunatic." 

412.  Hale's  ideas  prevailed. 

413.  His  ideas  were  artificial. 

414.  Trouble  in  the  court  of  chancery. 
41.5.  Lord  Hardwicke's  opinion. 

416.  Objections  to  the  term  "lunatic." 

417.  Lord  Eldon's  opinion. 

418.  Lord  Erskine's  opinion. 

419.  How  confusion  arose. 

420.  The  various  uses  of  the  term. 

421.  The  American  usage. 

422.  Common-law  definitions  binding  in  America. 

423.  Some  hair-splitting  distinctions. 

424.  Later  and  better  usage. 

425.  Distinctions   ignored. 

426.  A  brief  review  of  the  subject. 

427.  Conclusion. 

404.  Confusion  about  this  term. — Great  confusion  lias  existe(?  as  to 
the  exact  meaning  of  this  term  in  English  law,  in  spite  of  the  fact 
that  the  term  itself  is  most  simple,  and  easily  rendered  in  simple 
English  words.  As  the  history  of  the  term  throws  a  strong  light  on 
the  confusion  of  ideas  on  the  subject  of  insanity  that  long  prevailed 
in  British  jurisprudence,  a  brief  sketch  of  this  history  is  essential 

here. 

405.  The  classical  meaning. — Non  compos  mentis  means  simply  "of 
unsound  mind."^     According  to  Shelf ord^  the  terms  compos  animi  et 

'It  means   literallv   "not  having  the    the    cLT'sics    (in    the    definition    of   the 
mastery   of   the   mind."      See   Andrew's    word  com-pos). 
Latin  Dictionary  for  illustrations  from        '  Lunatics. 

482 


§  405]  NON  COI\IPOS  MENTIS.  483 

compos  mentis  were  used  bj  classical  Roman  authors,  such  as  Teren- 
tius,  Cicero,  Sallust,  and  Livy  to  signify  "one  in  his  senses."  It 
occurred  also  in  the  Roman,  or  civil,  law;  and  Justinian  uses  the 
term  com^pos  mentis  when  speaking  of  the  testamentary  capacity  of 
insane  persons.^  Hence,  the  term  was  not  original  in  the  English 
common  law,  but  was  imported  from  Latin  authors.  The  direct  source 
was  probably  Justinian.  In  fact,  the  words,  so  far  as  we  know,  were 
first  used,  not  in  the  common,  but  in  the  statute,  law.^^ 

406.  Its  earliest  use  in  English  law. — A  very  early,  if  not  the  ear- 
liest, use  of  this  term  in  the  written  law,  was  in  the  statute  DePreroga- 
tiva  Regis,  which  was  passed  in  the  seventeenth  year  of  King  Edward 
II.,  A.  D.  1342.  This  statute,  according  to  Collinson,*  completely 
established  the  King's  jurisdiction  over  idiots  and  lunatics, — a  part 
of  the  royal  prerogative  which  has  been  recognized  ever  since,  and 
which  is  exercised  through  the  court  of  chancery.^  The  distinction 
between  these  two  classes  was  early  recognized,  and  for  the  following 
reason :  Under  the  feudal  customs,  since  an  idiot  could  not  render 
military  service,  on  which  his  tenure  of  land  was  based,  and  could  never 
be  expected  to  do  so  (because  the  presumption  of  the  law  was  that  one 
who  was  born  without  the  use  of  his  reason  would  always  remain  so),^ 
therefore  his  lands  were  seized  by  his  overlord,  and  held  during  the 
idiot's  life.  It  was  not  unlike  the  case  of  a  man  who  cannot  pay  his 
rent;  except  that  in  the  case  of  the  idiot  his  lands  reverted  to  his 
heirs  at  his  death.  In  other  words,  the  overlord  had  the  right  to  the 
profits  of  the  land,  on  the  principle  of  reimbursing  himself  for  the 
loss  of  the  military  service  of  his  idiotic  vassal.  In  that  rude  age 
this  was  considered  a  fair  bargain,  especially  as  the  idiot's  support 
had  to  be  paid  out  of  the  proceeds  of  the  land,  and  as  his  overlord  also 
became  his  guardian.  In  the  case  of  the  insane,  it  was  rather  differ- 
ent. They  were  looked  upon  merely  as  sick  persons,  who  might  re- 
cover; there  was,  therefore,  not  the  same  reason  for  seizing  their 
property.    jSTevertheless,  the  insane  often  needed  a  guardian,  and  this 

'Institutes,    Lib.    II.    Tit.    XII.,    §    1.  distinct  from  the  court  of  eliiincery.  for 

Translated  by  Thomas  Collett  Sandars,  the   custody    of   idiots   and    lunatics    is 

M.  A.,  9th  ed.  London,  1808.  lodf^ed  in  the  Lord  Keeper  of  the  Great 

3i  The  slang  word  "nincompoop"  is  Seal,  under  a  special  warrant  of  the 
derived  from  non  compost  mentis.  The  Crown  (Sheruood  v.  Sanderson,  19  Ves. 
explanation  that  it  means  a  person  Jr.  285,  13  Revised  Rep.  193).  But  the 
"nine  times  worse  than  a  fool"  seems  to  Lord  Keeper  is  always  the  Lord  Chan- 
be  based  on  the  erroneous  idea  that  it  is  cellor  {Ex  parte  Brom field,  1  Ves.  Jr. 
derived  from  "nine."  See  the  Century  463,  3  Bro.  C.  C.  510,  2  Revised  Rep. 
dictionary.  126.     See    Shelford,    also    (Chap.    II.    § 

*  Treatise  on  Law  Concerning  Idiots,  2),   for   the  line  distinctions  as  to  the 

Lunatics,  and  other  Persons   'Non  Com-  various  powers  of  the  Lord  Chancellor, 

pos  Mentis,  London,  1812.  "  1    Bl.    Com.    *304. 

'  The  jurisdiction  in  lunacy  is  really 


484  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  40G 

was  finally  provided  in  the  person  of  the  King,  who  was  not  empow- 
ered, however,  to  use  the  proceeds  of  their  lands,  except  for  their 
support.  As  the  lands  of  idiots  were  doubtless  often  abused  by  the 
overlords,  the  care  of  them,  as  well  as  of  the  lands  and  persons  of 
the  insane,  was  taken  from  these  overlords  and  lodged  in  the  King; 
but  the  distinction  as  to  the  use  of  the  lands  in  the  two  classes  is  plain- 
ly shown  in  the  statute.'^ 

407.  The  statute  De  Prerogativa  Regis. — This  statute  was  as  follows, 
translated  from  the  original  Latin: 

"Cap.  XI.  The  King  shall  have  the  custody  of  the  lands  of  natural 
fools,  taking  the  profits  of  them,  without  waste  or  destruction,  and 
shall  find  them  their  necessaries,  of  whose  fee  soever  the  lands  be 
holden.  And  after  their  death  he  shall  render  them  to  the  right 
heirs,  so  that  nothing  shall  be  aliened  by  these  fools,  nor  their  heirs 
be  disinherited. 

"Cap.  XII.  Also  he  shall  provide,  when  any  one  who  before  time 
had  his  memory  and  intellect,  shall  become  non  compos  mentis  (non 
fuerit  compos  mentis),  just  as  some  are  per  lucida  intervalla,  that 
their  lands  and  tenements  shall  be  safely  kept  without  waste  or 
destruction,  and  that  they  and  their  household  shall  live  and  be  main- 
tained competently  with  the  profits  of  the  same;  and  the  residue, 
besides  their  support,  shall  be  kept  to  their  use,  to  be  delivered  unto 
them  when  they  come  to  right  mind ;  so  that  the  aforesaid  lands  and 
t-enements  shall  in  no  wise  be  aliened  within  the  time  aforesaid,  and 
the  King  shall  take  nothing  to  his  own  use.  And  if  the  person  die 
in  such  state,  then  the  residue  shall  be  distributed  for  his  soul  by  the 
advice  of  the  ordinaries."^ 

408.  The  distinction  between  idiots  and  lunatics.  — It  is  to  be  noted 

'  Collinson,  op.  cit.     Tlie  first  act  giv-  Writing  in   Norman   French,  he  uses 

ing  power  over  idiots  et  stultes,  being  the  word  "sot,"  not  "idiot,"  and  refers 

sucli    a    nativiiatc,    was    made    in    the  to  the  insane  as  those  wlio  become  sots 

reign  of  King  Edward  I.,  but  it  is  now  "by  any  malady."     15ut  even  in  the  case 

lost    (Fleta).     Shelford     says     that     it  of  those  who  are  sots  from  birth    (i.  e., 

seems   from   Fleta    that,     in    his    time,  idiots),    the    possibility   of   their    recov- 

there  was  no  provision  for  lunatics  sini-  ery  is  recognized,  for  the  guardianship 

ilar  to  that  made  for  idiots.     The  dis-  is  only  to  continue  so  long  as  they  con- 

tinction   was   first  made   in  the  statute  tinue    in    their    sottishness    (taut    come 

De  Prerogativa  Regis   (1342).  77s  diirent  en  lour  sotise). 

But  this   latter   statement  cannot  be  N.    B.     Tiiis   was   before   the   statute 

entirely   accurate    (unless   restricted   to  De  Prerogativa  Regis,  for  Britton  dates 

statute  law),  for  Britton  also  draws  the  back  to  the  reign  of  Edward  L 

distinction    between    idiots    and  insane  'This  translation  follows  Collinson's, 

persons    (1G76)    and    the    right   of    the  but  not  verbatim.     Collinson's    transla- 

King  to  act  as  custodian  of  the  former,  tion  is  a  rather  free  one. 
with  all  their  inheritances.       But  this 
rule  was  not  to  hold  of  those  who  be- 
came insane  by  any  sickness. 


§  408]  NON  COMPOS  MENTIS.  486 

that  in  this  statute,  while  the  distinction  is  clearly  drawn  between 
idiots  and  lunatics  (or  insane  persons),  these  two  words  are  nowhere 
used.  An  idiot  was  called  fatuus  naluralis, — a  "natural  fool ;"  and 
an  insane  person  was  called  non  compos  mentis.  Hence,  this  latter 
term  was  applied  to  the  insane  as  distinct  from  idiots.  Collinson  says 
that  the  term  "lunatic"  does  not  appear  to  have  been  at  that  time 
in  legal  use.  Later,  however,  it  came  to  be  largely  used,  and  acquired 
a  very  distinct  and  restricted  meaning.^  As  to  the  term  idiota,  it  was 
used  in  early  legal  papers  much  more  loosely  than  at  present.^^  Thu«, 
Collinson  shows  that  in  one  of  the  earliest  writs  issuing  out  of  chan- 
cery to  inquire  into  the  mental  state  of  a  person,  the  word  idiota  was 
used  to  apply  to  all  kinds  of  mental  disease.^"     The  writ  ran  thus: — 

Whether  A  is  a  natural  fool  (fatuus)  and  idiot,  as  aforesaid,  or 
not;  and  if  he  be,  then  whether  from  his  birth  or  from  some  other 
time;  and  if  from  some  other  time,  then  from  what  time,  in  what 
manner,  and  how;  and  whether  he  enjoys  lucid  intervals.^^ 

This  implies  clearly  that  an  idiot  may  not  necessarily  be  so  from 
his  birth,  but  may  have  acquired  his  disease  in  after  life,  and  that 
he  may  enjoy  lucid  intervals, — all  of  which  are  the  characteristics  in 
later  legal  writings  of  a  lunatic.  Here  it  is  evident  that  confusion 
of  terms  had  already  arisen.  This  is  important  to  bear  in  mind  in 
view  of  the  rigid  and  narrow  definitions  adopted  later  by  the  judges, 
and  claimed  by  them  to  be  legal  and  consistent. 

409.  The  importance  of  the  term  "non  compos  mentis." — The  term 
non  compos  mentis,  being  thus  preserved  in  statute  law,  acquired 
great  importance,  and  was  used  by  Littleton^"  more  than  a  hundred 
years  later;  and  Coke,  in  commenting  on  Littleton,  called  it  "the 
most  sure  and  legal"  term. 

410.  Coke's  use  of  the  term. — But  Coke,  probably  unconsciously, 
used  the  term  in  a  different  sense  from  that  in  which  it  had  been 
used  in  the  old  statute,  for  he  made  of  it  a  generic  term  for  all  forms 

•The  influence  of  the  moon   (lima)   in  alio  tempore;  ct  si  ah  alio  temj)ore,  tunc 

causing  insanity  has  been  widely  cred-  a  quo  tempore,  qualiter,  i]uimodo;  et  si 

ited.     The  Greeks  called  an  insane  man  lucidis   jjuadeat   intervallis."  —  Collin- 

lE?.r/vMKog,      from      "LElt'ivrj,     the     moon;  son,  op.  cit. 

and  the  Germans  have  the  term  "Mond-  "  Fitzherbert      (Nat.     Brev.    p.    2.32) 

suchtig," — literally,  "moonstruck."  jjives   the   writ   in    whicli    idiots   of  two 

9A  Cockeram,    who    published    a    die-  kinds    were    recognized,— namcdy,    those 

tionary  in   1623,  defined  an  "idiote"  as  born  so,  and  those  who  fall  into  "such 

"an  unlearned  asse."  infirmity  afterwards."     He  says  nothing 

"The  escheator,  who  acted  as  a  mod-  about   a   writ   de   lunatico.     Blackstone 

ern   commission  de  hmatico  inquirendo,  also   says    (1    Com.    304)    that   the   old 

was  to  inquire:      "Si  A  fatuus  et  idiota  conunon-law  writ  was  dc  idiota  inquir- 

sit,   sicut  praedictum  est,  nee  ne;    et  si  aidn.     He  mentions  no  other, 

sit,  tunc  utrum  a  nativitate  sua,  an  ab  "  Co.  Litt.  Lib.  III.  Chap.  VI.  §  405. 


486  INSANITY— FOR^IS  AND  MEDICO-LEGAL  ASPECTS.  [§410 

of  mental  disease,  including  idiocy.  He  says^^  "Non  compos  mentis 
is  of  four  sorts :  1.  /dio^a^  which  from  his  nativitie  .  .  .  is  non 
compos  mentis.  2.  Hee  that  by  sickness,  grief,  or  other  accident 
wholly  loseth  his  memorie  and  understanding.  3.  A  lunatic  that 
hath  sometimes  his  understanding  and  sometimes  not,  aliquando 
gaudet  lucidis  intervallis.  4.  ...  he  that  is  drunken."  Here 
is  more  confusion;  for  idiocy  is  now  included  under  non  compos 
mentis,  and  a  new  division  is  introduced  under  the  term  "lunatic." 

411.  Hale's  use  of  the  term  "lunatic." — It  was  the  part  of  Lord  Chief 
Justice  Hale^*  to  define  a  lunatic  with  a  narro\^Tiess  that  was  respon- 
sible for  still  more  confusion  of  thought.  In  Hale's  definition,  a 
lunatic  was  an  unfortunate  being  whose  mental  disorder  depended 
largely  on  the  moon;  and  who  enjoyed  "lucid  intervals,"  which  were 
caused  by  the  changes  of  that  luminary. 

".  .  .  For  the  moon  hath  a  great  influence  on  all  diseases  of 
the  brain,  especially  in  this  kind  of  dementia :  such  persons,  com- 
monly in  the  full  and  change  of  the  moon,  especially  about  the  equi- 
noxes and  summer  solstice,  are  usually  at  the  height  of  their  distem- 
per ....  But  such  persons  as  have  their  lucid  intervals 
(which  ordinarily  happens  between  the  full  and  change  of  the  moon) 
in  such  intervals  have  usually  at  least  a  competent   use    of    reason 

"15 

412.  Hale's  ideas  prevailed. — This  idea  of  a  lunatic,  as  given  by 
Lord  Chief  Justice  Hale,  played  an  important  role  in  English  law  for 
many  years ;  and,  for  that  matter,  does  so  yet.  It  was  not  necessarily 
the  same  thing  as  non  compos  mentis.  Its  one  distinguishing  mark 
was  the  occurrence  of  "lucid  intervals."  In  fact,  the  terra  "lucid 
intervals"  is  always  associated  in  law  with  the  idea  of  a  "lunatic." 
The  two  terms  inevitably  go  together,  and  this  for  the  evident  reason 
that  they  took  their  origin  in  the  same  conceit;  namely,  that  lunacy 

'» Co.  Litt.  247a.     In  Beverley's  Case,  "  P.  C.  Chap.  IV. 

4  Coke,  124,  the  term  is  used  very  fre-  "P.   C.    Chap.    IV.    p.    31.     I   do  not 

quently;    and   in   referring  to   old   stat-  intend  to  imply  that  Sir  ]\Iattliew  Hale 

utes   as    far   back   as    16    Edward    III.,  was  entirely  responsible  for  the  absurd 

Coke  seemed  to  make  no  distinction  as  ideas   expressed    in   his   definition   of   a 

to  whether   the   term   was   in   use   thus  lunatic;  or  that  these  ideas  were  newly 

early  or  not.     But  he  nowliere,  in  this  introduced   by   him   in   legal    literature, 

report,  says  anything  about  its  ancient  This,  of  course,  is  not  so.     Hale  reflect- 

use.  ed  the  opinions  of  iiis  own  and  prcced- 

Bracton   uses   furiosus,   but   not   non  ing  agos  about  the  moon's  in II nonce  in 

compos  mentis  for  an  insane  person;  at  causing   mental     disease;     but,     for    all 

least,   in   all    places   wliere   1    liave   fol-  that,  his  definition  did  mucli  to  fix  er- 

lowed  him.     But   Bracton   copied   close-  roneous  ideas  in  English  law. 
ly  the  civil  law.     In   fact,  as  Sir   Wil- 
liam Jones  remarked,  he  often  copied  it 
verbatim. 


§  412]  NON  COMPOS  MENTIS.  487 

depends  on  the  moon,  and  that  the  changes  of  the  moon  canse  changes 
for  better  and  worse  in  the  patient's  mental  state.  Such  a  hold,  indeed, 
did  this  term  acquire  in  English  law,  after  the  time  of  Lord  Chief 
Justice  Hale,  that  it  came  near  to  pushing  the  older  term,  non  compos 
mentis,  to  one  side,  and  created  infinite  confusion.  The  term  ''lucid 
intervals"  had,  indeed,  been  used  in  the  old  statute  De  Prerogativa 
Regis,  in  connection  with  non  compos  mentis,  but,  as  defined  by  Hale 
in  connection  with  a  "lunatic,"  it  became  firmly  associated  with  the 
idea  of  "lunacy." 

413.  His  ideas  were  artificial. — The  idea  of  a  "lunatic,"  as  thus  de- 
fined by  Hale, — namely,  an  insane  man  whose  disease  depends  upon 
the  moon,  and  who  enjoys  "lucid  intervals," — is  entirely  artificial, 
and  stands  for  nothing  ever  seen  in  actual  insanity.  To  this  fact  is  to 
be  ascribed  not  a  little  of  the  confusion ;  for  judges  and  lawyers,  as 
the  knowledge  of  insanity  advanced,  found  it  impossible  to  make  this 
artificial  term  fit  all  varieties  of  mental  disorder. 

414.  Trouble  in  the  court  of  chancery. — The  trouble  arose  mainly  in 
the  court  of  chancery,  which,  as  already  stated,  has  the  control  of  the 
persons  and  the  estates  of  the  idiotic  and  the  insane.  Separate  writs, 
one  for  idiots  and  one  for  lunatics,  had  been  issued  ever  since  a 
clear  distinction  had  been  recognized  between  these  two  classes. ^"^  At 
what  time  the  terms  "idiot"  and  "lunatic"  were  first  used  in  English 
law  in  their  technical  sense,  and  whether  they  were  first  used  thus  in 
writs,  is  apparently  not  kno^vn;  but  evidently  neither  term  is  as 
time-honored  in  the  usage  of  English  law  as  non  compos  mentis.  Aft- 
er Lord  Chief  Justice  Hale  had  fixed  his  artificial  definition  of 
"lunatic,"  the  court  of  chancery  evidently  began  to  have  doubts  about 
including  under  this  term  such  persons  as  were  only  of  weak  mind, 
as,  for  instance,  from  old  age,  epilepsy,  and  other  causes.  Certainly 
such  patients  were  not  moon-struck  "lunatics,"  neither  did  they  al- 
ways or  even  often  have  "lucid  intervals ;"  and  yet  they  often  required 
the  protection  of  the  law  for  their  persons  or  estates.^ '^  In  order  to 
include  these  non-lunatics  a  tendency  arose  to  revert  to  the  old 
term,  non  compos  mentis. 

415.  Lord  Hardwicke's  opinion. —  Lord  Hardwicke,  ^  ^  in  1744,  said 
that  this  term  was  of  a  "determinate  significance,  and  well  understood 

'"  Collinson,  op.  cit.  tis ;  indeed,  even  finding  him  lunatic,  as 

"The  desire  to  escape  the  provision  in   the   Case   of  Lord   Weninan,   3   Atk. 

of   the    statute    De    Prerogativa    Regis,  173.     This  may  have  been  one  way  in 

which  gives  a  beneficial  interest  in  the  which  confusion  arose  over  the  various 

lands  of  the  idiot  to  the   King  during  terms.     Collinson,  op.   cit.  p.    100;   also 

the  idiot's  life,  led  to  juries  finding  the  Bl.  1  Com.  *304. 
idiot  not  an  idiot,  but  non  compos  men-        "£a;  parte  Barnsleij,  3  Atk.   163. 


488  INSANITY— FORjMS  AND  MEDICO-LEGAL  ASPECTS.  [§  4\5 

ill  courts  of  law;"  and  jet  he  failed  to  indicate  clearly  what  it  meant. 
In  his  opinion  it  seems  to  have  meant  lunacy,  and  nothing  else;** 
and  did  not  import  mere  weakness  of  understanding,  but  a,  "total 
deprivation  of  sense."  The  word  "lunatic"  was  used  by  him  in  its 
legal  sense,  for  a  patient  having  "lucid  intervals."  But  the  preju- 
dice excited  by  the  term  "lunatic"  was  shown  plainly  in  the  opinion 
given  by  Lord  Hardwicke  in  the  Barnsley  Case,  for  he  spoke  of  it 
as  "coined  in  more  ignorant  times." 

416.  Objections  to  the  term  "lunatic." — Barnsley,  who  was  merely 
broken  down  with  old  age,  did  not  seem  a  proper  person  to  be  de- 
scribed as  a  "lunatic,"  and  the  jury  had  found  merely  that  he  had 
"weakness  of  mind."  This  was  the  root  of  the  whole  difficulty.  The 
law  in  those  days  recognized  only  idiocy  and  lunacy,  and  by  the 
old  writs  and  commissions  a  person  must  be  found  to  be  either  one 
or  the  other  of  these  two  things.  But  "lunatic,"  owing  to  the  defini-' 
tion  of  Hale,  was  an  artificial  conception :  it  meant  a  man  who  had 
"lucid  intervals,"  who  Avas  affected  by  the  moon,  and  who,  when  he 
was  in  a  crazy  paroxysm,  suffered  a  "total  deprivation  of  sense."  Ob- 
viously it  was  impossible  to  fit  all  kinds  of  mental  disease  into  this 
narrow  definition.  People  suffering  with  old  age,  or  otherwise  of 
weak  understanding  (and  these  were  just  the  kind  of  cases  to  get 
into  chancery)  were  not  "lunatics"  in  the  legal  sense. 

Lord  Hardwicke  declared  that  an  act  of  Parliament  would  be  nec- 
essary to  change  the  law  ere  it  could  include  persons  of  merely  weak 
mind.^'^  Later,  however,  in  Donegal's  Case,  2  Ves.  Sr.  407,  this 
same  Lord  Hardwicke  drew  a  distinction  between  a  lunatic  and 
one  non  compos  mentis,  and  said  that  a  commission  could  issue  for 

"In  this  opinion  Lord  Hardwicke  find  a  man  a  "lunatic;"  but  Lord  Hard- 
was  closely  in  accord  with  the  statute  wicke  evidently  did  not  like  the  word 
De  Prerogativa  Regis   (1342).  "lunatic,"  for  he  says  it  "is  a  teclinical 

'^Ex  parte  Barnsleif  (July,  1744)  3  word,  coined  in  more  ignorant  times. 
Atk.  1G8.  The  inquisition  was  quashed  as  imagining  these  persons  were  affected 
in  this  case  because  the  return  was  by  the  moon ;  but  discovered  by  philoso- 
"that  the  said  Barnsley  ...  is,  phy  and  ingenious  men,  that  it  is  en- 
from  the  weakness  of  his  mind,  incapa-  tirely  owing  to  a  defect  of  the  organs 
ble  of  governing  himself  and  his  lands  of  the  body."  In  short.  Lord  Hard- 
and  tenements,  etc."  The  pith  of  th'e  wicke  saw  the  defects  of  the  word  "luna- 
objection  was  in  the  term  "weakness  of  tic,"  and  decided  that  n07t  compos  men- 
mind"  which  was  held  by  Lord  Hard-  tis  was  a  good  and  sufficieni,  term;  but 
wicke  not  to  be  a  legal  term.  The  in-  he  did  not  attempt,  in  the  Barnsleii 
quest  had  been  de  lunntico  inquirendo.  Case,  to  draw  a  distinction  between  the 
and  the  finding  should  have  been  non  meanings  of  these  two  terms.  He  evi- 
compofs  mentis,  which  is  a  "certain  term  dently  thought  that  they  practicallv 
in  law."  It  is  not  explained,  however,  meant  the  same  tiling,  except  that  non 
wh}',  if  the  word  luiiaticus  is  used  in  compos  mentis  was  broader,  better,  and 
the  inquest,  it  is  not  also  insisted  on  in  more  scientific. 

the  finding.     It  seems,  in  fact,  to  have  Blackstone,  who  wrote  about  the  same 

be«n,  in  former  times,  a  good  finding  to  time  as  Lord  Hardwicke,  uses  non  com- 


§  41G]  NON  COMPOS  MENTIS.  489 

both  these  conditions,  but  that  it  must  expressly  find  the  person  to 
be  of  unsound  mind,  or  non  compos  mentis.  Such  was  the  legal  con- 
fusion about  terms. 

But  in  tiine  the  English  chancery  practice  changed  still  more,  as 
is  shown  by  Collinson.^^  Lord  Thurlow  believed  that  a  senile  dement 
could  be  found  to  be  a  "lunatic"  under  the  old  writ.  Lord  Eldon-- 
was  apparently  of  a  slightly  different  opinion;  but  he  decided  that 
the  term  7ion  compos  mentis  must  be  used  in  the  finding  to  make  it 
legal. 

417.  Lord  Eldon's  opinion. — Lord  Eldon^^  said  that  it  seemed  to 
liave  been  a  very  long  time  before  the  lord  chancellors  thought  them- 
selves at  liberty  to  issue  a  commission  when  the  person  Avas  repre- 
sented as  being  not  an  idiot  or  a  lunatic,  but  of  unsound  mind  (non 
compos  mentis),  importing  by  those  words  the  notion  that  the  party 
was  in  some  such  state  as  was  to  be  contradistinguished  both  from 
idiocy  and  from  lunacy,  and  yet  such  as  made  him  the  proper  object 
of  a  commission  in  the  nature  of  a  commission  either  de  idiota  or 
de  lunatico.  As  soon,  however,  as  that  distinction  was  established,  it 
became  necessary,  in  Lord  Eldon's  opinion,  that  the  jury  should  find 
in  express  words  that  the  party  was  of  unsound  mind  {non  compos 
mentis).  In  other  words.  Lord  Eldon  decided  that  non  compos  men- 
tis was  a  distinct  afl^ection  from  both  idiocy  and  lunacy,  and  that 
the  exact  words  (or  their  English  equivalent)  must  be  used  in  the 
finding;  but  he  fails  to  state  at  what  exact  time  this  change  was  made 
in  English  law,  or  by  whom.  A  man  who  was  non  compos  mentis  was 
distinct  from  an  idiot  or  a  lunatic,  and  therefore  he  might  be  a 
proper  case  for  a  commission  similar  to  (in  the  nature  of),  but  not 
identical  with,  the  old  writ  de  idiota  or  de  lunatico.^'^ 

418.  Lord  Erskine's  opinion. — Lord  Erskine-^   recognized  the  ne- 

pos  mentis  both  in  a  generic  and  a  spe-  nary  opinion  in  any  old  writ,  or  any  old 

cific  sense;  thus  it  is,  first,  the  same  as  statute,  or  any  old  text  writer,  such  as 

the  moon-struck  "lunatic,"  with  his  lu-  Coke  or  Hale,  or  even  in  the  opinion  of 

cid  intervals;   and,  second,  it  comprises  any  former  Lord  Chancellor.     It  seems 

all  sorts  of  mental  affections,  including  to  have  been  an  entirely  arbitrary  opin- 

"such    as   are   judged   by   the   court   of  ion  of  Lord  Eldon.     In  the  old  commis- 

chancery   incapable  of   conducting  their  f^on  de  lunatico  (as  given  by  Shel ford) , 

own   aflFairs."     The    confusion    is    note-  the  word  "lunatic"  alone  was  used;  but 

worthy.      1  Com.  ^304.  in  the  finding  of  the  jury,  the  words  "of 

-'  Op.  cit.  pp.   65  et  seq.  unsound  mind"  were  interpolated  after 

"°  See    Lord    Eldon's     opinion     in   the  the  word  "huiatic;"  but  when  this  was 

J'almer   Case,   discussed   by   Haslam,    in  first  done  is  not  stated. 

Medical  Jurisprudence  as  it  Relates  to  ^'  Erskine,  with  his  clear  insight  and 

Insanity.  lucid  style,  gave  a  rational  statement  of 

^lie  Earl  of  Portsmouth.     Quoted  by  this   whole  subject  {Ex  parte  Cranmer, 

Shelf ord,  op.  cit.  p.  105.  12  Ves.  Jr.  445),  and  found  ample  war- 

"  I   do  not  know  what  there  was  to  rant  for   including  senile   dements,  not 

warrant   Lord   Eldon   in   this  extraordi-  under  Coke's  definition  of  lunatics,  but 


490  INSANITY— FORAIS  AND  MEDICO  LEGAL  ASPECTS.  l§  418 

cessitj  of  granting  legal  protection  to  persons  M'hose  minds  were 
broken  dowTi  with  old  age.^^  Thus  the  idea  enlarged  until  it  ap- 
proached more  nearly  to  the  present  scientific  conception.  The  word 
"lunatic,"  in  the  sense  of  Coke  and  Hale,  being  too  narrow,  the 
term  non  compos  mentis  was  gradually  expanded  until  it  included, 
first,  weak-minded  and  senile  persons,  and,  finally,  all  types  of  men- 
tal disease.     And  so  it  liad  been  originally  understood  by  Coke. 

419.  How  confusion  arose. — It  is  thus  evident  that  the  early  law- 
makers in  the  time  of  Edward  II.  recognized  a  proper  distinction  be- 
tween the  two  conditions, — idiocy  and  insanity, — but  that  confusion 
arose  about  terms.  The  three  terms  most  used  in  English  law  have  been 
no7i  compos  mentis,  "idiot,"  and  "lunatic."  Non  compos  mentis  is  very 
old,  and  was  first  applied  (1342)  to  the  insane  as  distinct  from  id- 
iots,-^ and  carried  with  it  the  idea  of  lucid  intervals.  I  dicta  was 
used  in  the  oldest  writs  for  all  fonns  of  mental  disease,^*  but  later, 
at  an  uncertain  date,  it  became  restricted  to  its  present  use, — for 
those  born  so.  "Lunatic"  was  adopted  (largely  from  the  definitions 
of  Coke  and  Hale)  as  a  term  for  a  mental  aifection  which  really  has 
no  existence, — the  moon-struck  patient,  with  his  lucid  intervals. 
When  difficulties  arose  in  the  attempt  to  make  this  artificial  term 
cover  all  kinds  of  insanity  (especially  senile  dementia)  the  term 
non  compos  mentis  was  turned  to  as  a  very  old  one,  and  it  was  grad- 

under  his  second  heading  of  "Hee  that  was  not  insanity,  but  was  entitled  to  as 

by   sickness,   grief,    or    other    accident,  much  legal  protection  as  though  it  were, 

losetli  his  raemorie  and  understanding."  Such  cases  were  proper  subjects  of  the 

This  practically  includes  every  form  of  commission   in   the  nature   of  the  writ 

insanity.  de  lunatico  inquirendo. 

'^Ex  parte  Cranmer,  12  Ves.  Jur.  449  He  was  confident  Lord  HardAvicke 
(July,  180G).  In  this  case  it  is  clearly  would  not  have  gone  so  far,  but  a  course 
brought  out  that  a  prejudice  had  long  of  cases  had  arisen  since  his  time  which 
existed  against  calling  persons  broken  established  the  authority,  and  he.  El- 
down  with  old  age  by  the  term  "luna-  don,  would  not  alter  it. 
tics."  The  Lord  Chancellor,  Erskine.  Before  this  time,  in  Gibson  v.  Jeyes, 
said:  "A  man  may  have  passed  a  great  0  Ves.  Jr.  273,  5  Revised  Rep.  295,  Lord 
and  illustrious  life ;  and  by  the  course  Eldon  drew  the  distinction  between  a 
of  nature  his  faculties  may  decay,  so  "commission  in  lunacy,"  and  one  "in 
that  he  may  not  be  fit  either  to  govern  the  nature  of  a  writ  de  lunatico  inquir- 
him.sclf  or  his  affairs.  It  is  unseemly  endo."  This  Avas  a  legal  quibble  meant 
that  he  should  be  put  upon  the  footing  to  cover  the  cases  of  weak-minded  and 
of  a  lunatic,  etc."  The  inquisition  was  senile  patients,  who  were  not  considered 
quashed,  however,  because  Cranmer  was  to  be  "lunatics."  By  a  commission  in 
not  distinctly  found  to  be,  not  a  luna-  the  nature  of  a  writ  de  lunatico  a  weak- 
tic,  indeed,  but  something  in  "equipol-  minded  person  could  be  found  non  com- 
lent  words;"  and  these  equipollent  pos  mentis,  and  yet  not  be  stigmatized 
words  were  found  by  a  subsequent  com-  as  a  "lunatic."  (Tliis  wliole  subject  is 
mission  in  non  compos  mentis.  clearly  explained  by  Collinson,  op.  cit. ) 

In  Ridqeway  v.  Darwin,  8  Ves.  Jr.  65,        "Statute    De    Prerogativa    Regis,   17 

r,   Revised    Rep.     227,    Lord   Eldon   de-  Edw.  II.  Stat.  1,  A.  d.   1342. 
clarwl    that    imbecility    (from    old    age,        **  1  Collinson,  Lunacy,  p.  117. 
epilepsy,     habitual     intoxication,     etc.) 


§  419]  NON  COMPOS  ME^'Tlfc;.  491 

ually  made  broad  enough  to  comprehend  all  forms  of  mental  dis- 
order,— a  function  it  is  well  fitted  to  discharge  by  reason  both  of  its 
venerable  age  and  of  its  etymology ;  for  it  simply  means  "of  unsound 
mind,"  and  therefore  includes  all  the  insane.  But  the  battle  has 
waged  largely  about  71071  compos  ?nen/i5/ because  of  the  restricted  use 
put  upon  it  in  the  English  court  of  chancery. 

420.  The  various  uses  of  the  term.— This  term  has  been  used  about 
as  follows: — 

First:  As  a  specific  term  for  insanity,  as  distinct  from  idiocy. 
(Statute  De  Prerogativa  Regis,  1342.) 

Second:  As  a  generic  term  for  all  kinds  of  mental  disease,  in- 
cluding idiocy,  (Coke.) 

Third:  As  a  nondescript  term,  which  included  neither  idiocy  nor 
lunacy.      (Eldon.) 

Fourth :  As  a  distinct  term  for  persons  who  are  not  capable  of 
taking  care  of  themselves  or  their  property.  (English  chancery  prac- 
tice. ) 

Fifth :  As  a  generic  term,  once  more,  for  all  kinds  of  mental  dis- 
ease.     (Present  and  correct  usage.)  '  ' 

Surely  this  is  a  rich  and  variegated  experience  for  three  simple  Lat- 
in words ! 

421.  The  American  usage. — American  courts  have  closely  followed 
the  English  courts  in  their  use  of  this  ambiguous  term.  It  was  de- 
cided by  the  supreme  court  of  Pennsylvania,  in  1835,  in  the  case 
of  John  Beaumont,^**  that  a  return  of  an  inquisition  held  by  a 
commission  in  the  nature  of  a  writ  de  lunatico  inquirendo,  to  the  ef- 
fect that  the  party,  "by  reason  of  old  age  and  long-continued  sick- 
ness had  become  so  far  deprived  of  reason  and  understanding  as  to  bo 
wholly  imfit  and  unable  to  manage  his  estate,"  was  not  a  sufficient 
finding  that  the  party  was  n07i  compos  mentis,  within  the  Constitu- 
tion and  laws  of  Pennsylvania. 

The  grounds  for  this  opinion  were  stated  at  length  by  Mr.  Justice 
Kennedy.  The  term  Tion  compos  mentis^  he  said,  was  the  only  legal 
term  in  Pennsylvania,  and  was  iised  in  the  Constitution  in  force  at 
that  date  (1835)  to  describe  such  persons  who  were  expressly  under 
the  care  of  the  several  courts  of  the  state,  acting  as  courts  of  chancery. 
He  traced  the  term  back,  but  only  as  far  as  Littleton,  and  relied  large- 
ly on  Lord  Hardwicke  and  other  Engiish  Chancellors  whose  opinions 
T  have  quoted  above.  He  also  found  that  the  term  had  been  used 
in  acts  of  legislation  w^hile  the  state  was  still  a  province  (1719). 

"•Re  Beaumont,  1  Wliart.  52,  29  Am. 
Dec.  33. 


492  INSANITY— FORMS   AND  MEDICO-LEGAL  ASPECTS.  [§   422 

'  422.  Common-law  definitions  binding  in  America. — To  tlie  lay  read- 
er it  may  seem  strange  that  any  of  these  opinions  should  necessarily 
be  binding  on  a  justice  of  the  supreme  court  of  Pennsylvania.  The 
opinions  of  Littleton,  Coke,  Hardwicke,  and  Erskine  are  not  neces- 
sarily law  in  Pennsylvania ;  but  of  course  the  Constitution  of  the  state 
would  be  binding.  To  such  an  extent,  indeed,  was  it  binding,  that  the 
court  quashed  the  inquisition  because  the  term  did  not  say  expressly 
that  John  Beaumont  was  non  compos  mentis.  Therefore,  the  whole 
case  rested  on  a  mere  matter  of  words.  It  was  not  denied  that  Mr. 
Beaumont  was  incapable  of  managing  his  affairs  by  reason  of  an  im- 
paired mind,  or,  in  other  words,  by  reason  of  insanity,  for  it  was 
plainly  said  in  the  finding  that  he  was  "deprived  of  his  reason  and 
understanding."  The  court  decided,  in  effect,  that  this  was  not 
the  same  thing  as  non  compos  mentis. 

423.  Some  hair-splitting  distinctions. — In  the  opinion  just  cited 
Justice  Kennedy  indulged  in  some  hair-splitting  distinctions  that  baf- 
fle the  quidnuncs  of  science.  Thus,  "the  most  abject  and  imbecile" 
mind  is  not  necessarily  the  same  thing  as  no7i  compos  mentis.  This 
legal  term,  he  considered,  "imports  a  total  deprivation  of  sense ;"  and 
he  quotes  with  approval  Lord  Hardwicke's  opinion,  that  the  term  "is 
legitimated."  "Hence,"  he  continues,  "it  would  appear  that  non 
compos  mentis  has  become  a  technical  term  in  the  English  law,  of 
fixed  and  determinate  import,  denoting  a  person  entirely  destitute  or 
bereft  of  his  memory  and  understanding;"  and  yet  the  court  declined 
to  consider  Mr.  Beaumont  in  this  category,  although  he  was  express- 
ly stated  to  be  "deprived  of  reason  and  understanding."  Surely,  con- 
fusion of  ideas  and  language  cannot  extend  much  farther  than  this. 
As  for  a  "total  deprivation"  of  sense,  of  memory,  and  of  understand- 
ing, as  these  words  are  used  in  law,  there  is  not  one  insane  person  in 
a  thousand  who  can  truthfully  be  so  described. 

Amusing  instances  are  given  of  attempts  to  draw  a  distinction  be- 
tween a  "lunatic"  or  "insane"  person,  and  a  person  non  compos  men- 
tis.    Chitty,'"^^^  for  instance,  says: 

"The  malicious,  untrue,  written  assertion  that  the  King  or  any  per- 
son is  affected  with  insanity  is  considered  a  criminal  and  indictable 
act;  since  it  imputes  to  the  party  a  malady  generally  inducing  man- 
kind to  shun  his  society ;  though,  as  no  one  is  of  perfectly  sound  mind 
but  the  Deity,  it  is  not  libellous  merely  to  say  that  a  man  is  not  of 
sound  mind." 

Taylor  refers  to  the  instance  of  a  medical  man  (in  1837)  who  de- 

"Med.  Jur.  Vol.  I.  p.  353. 


g  423]  NON  COMPOS  MENTIS.  493 

clined  to  sign  a  certificate  of  insanity,  because  the  words  "unsound 
mind"  were  used ;  he  would  not  have  objected,  he  said,  if  the  word 
"insane"  had  been  employed  instead.  Such  a  distinction  is,  of  course, 
entirely  arbitrary,  and  is  not  warranted  to-day  by  medical  science,  by 
law,  by  etymology,  or  by  common  sense. 

424.'  Later  and  better  usage.— By  13  &'  14  Vict,  chap.  GO,  "the  ex- 
pression 'Person  of  Unsound  Mind'  shall  mean  any  person  not  an  In- 
fant, who,  not  having  been  found  to  be  a  Lunatic,  shall  be  incapable, 
from  Infirmity  of  Mind,  to  manage  his  own  affairs.""^  This  would 
practically  include  any  and  all  forms  of  mental  disease,  provided,  al- 
ways, that  they  caused  incapacity.  This  illustrates  the  fact  that  the 
term,  in  its  legal  sense,  is  often  used  merely  to  designate  persons 
who  are  incapable  of  managing  themselves  and  their  estates.  This 
is  the  chancery  idea.  The  real  object  of  inquiry  is  the  person's  ca- 
pacity, not  the  precise  scientific  form  of  his  mental  affection.  What- 
soever his  mental  affection,  if  it  causes  incapacity,  he  is  non  compos 
mentis. 

425.  Distinctions  ignored. — In  recent  times  the  tendency,  both  in 
England  and  in  America,  has  been  to  ignore  any  distinction  between 
the  term  non  compos  mentis  and  other  general  terms,  such  as  "luna- 
cy" and  "insanity." 

Collinson  says^"  that  the  words  7ion  compos  mentis  comprehend  not 
only  idiots  and  lunatics,  but  all  other  persons  who,  from  natural  im- 
becility, old  age,  disease,  or  any  such  causes,  are  incapable  of  man- 
aging their  own  affairs.  In  the  act  25  &  2G  Vict.,  chap.  54  (18G2), 
the  term  "lunatic"  "shall  mean  and  include  every  person  certified 
by  two  medical  persons  to  be  a  lunatic,  an  insane  person,  an  idiot,  or 
a  person  of  unsound  mind." 

In  America  all  forms  of  insanity  are  now  embraced  under  the  same 
legal  terms.  Becker^  ^  says  that  in  INTew  York,  Massachusetts,  and 
several  other  American  states,  statutes  have  been  passed  defining  the 
terms  "lunatic,"  non  compos  mentis,  and  "insane,"  so  as  to  embrace 
all  forms  of  insanity  except  idiocy,  making  these  terms  synonymous. 
"There  is  no  distinction  between  the  terms  'insanity'  and  'unsound- 
ness of  mind.'  "  But  in  some  states,  as  Texas,  the  term  non  compos 
mentis  includes  also  idiots.     (Same  vol.,  p.  G48.) 

A  distinction  is  still  observed  in  other  states  (as  Tennessee)  by  the 
use  of  the  phrase  (not  uncommon  in  legal  writings)  "idiots,  luna- 
tics, and  other  persons  of  unsound  mind."     (P.  645.) 

■•"Stroud's   Jud.   Diet.  R.   A.   Witthans,   M.   D.,   and   Tracy  C. 

==0p.  cit.  Becker,  L.  L.  B.,   Vol.  III.  p.  371. 

»^Med.   Jur.   For.   Med.   and   Tox.,  by 


494  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  425 

In  Ohio,  "insane"  and  "lunatic"  include  every  kind  of  insanity  or 
mental  derangement;  the  term  "idiot"  is  restricted  to  one  foolish 
from  birth ;  so,  also,  in  N^orth  and  South  Dakota. 

In  'New  York  the  jurisdiction  extends  to  all  persons  incompetent 
to  manage  themselves  or  their  affairs  in  consequence  of  lunacy,  idiocy, 
habitual  drunkenness,^Or  imbecility  arising  from  old  age  or  loss  of 
memory  and  understanding  or  other  causes. 

In  jSTew  Hampshire  the  word  "insane"  includes  every  idiot,  non 
compos  mentis,  lunatic,  or  distracted  person;  a  formula  used  also  in 
Michigan  and  ]\Iaine. 

In  Iowa,  "insane  person"  includes  idiots,  lunatics,  distracted  per- 
sons, and  persons  of  unsound  mind.  This  is  practically  so  also  in 
Indiana,  Florida,  and  Colorado. 

In  Georgia,  "lunatic,"  "insane,"  non  compos  mentis, — each  in- 
cludes all  persons  of  unsound  mind. 

426.  A  brief  review  of  the  subject. — The  review,  above  given,  of  the 
history  of  the  term  non  compos  mentis,  reveals  clearly  that  the  real 
stumbling-block  in  the  way  of  courts  and  legal  Mnriters  was  their  ig- 
norance of  the  subject  of  insanity ;  and  that  their  trouble  lay  in  their 
attempts  to  define  subjects  of  which  they  had  no  exact  knowledge. 
The  only  remedy  for  this  is  a  resort  to  science.  The  science  of  psy- 
chiatry knows  no  such  form  of  mental  disease  as  the  "lunacy"  of 
Coke  and  Hale,  while  the  state  of  mind  called  vaguely  non  compos 
mentis  (in  the  chancery  sense)  may  be  caused  by  various  and  widely 
differing  mental  diseases. .  These  diseases  are  principally  senile  de- 
mentia, epileptic  dementia,  chronic  alcoholic  insanity,  and  various 
grades  of  imbecility.  They  are  not  confined  to  these,  however,  for 
any  form  of  insanity  which  causes  an  incapacity  in  the  patient  to 
take  care  of  himself  or  his  estate  would  constitute  a  state  of  no7i  com- 
pos mentis  in  the  legal  sense^ ,  The  term  is  thus  seen  to  be  a  most 
generalized  one,  and,  like  the  word  "insanity"  itself,  it  can  and  does 
include  all  forms  of  mental  disease. 

Lord  Hardwicke  and  Lord  Eldon  tried  to  give  the  term  a  definite 
and  restricted  meaning,  and  after  their  time,  as  Mr.  Amos  has  point- 
ed out,  it  was  used  in  chancery  simply  to  designate  persons  who  were 
incomjjetent  to  manage  their  affairs.  According  to  this  view,  the 
term  was  of  legal  rather  than  of  medical  significance:  it  was  not  in- 
tended to  denote  any  particular  kind  of  mental  disease,  but  simply 
to  designate  certain  consequences  of  mental  disease  in  general, — con- 
sequences with  which  alone  the  court  of  chancery  was  concerned. 
Mr.  Balfour  Brown,"^  himself  a  lawyer,  said:     "It  seems  to  be  a 

•*  Med.  Jur.  Insanity. 


§  426]  NON  COMPOS  MENTIS.  495 

strife  about  words ;"  and  so  it  was,  from  a  purely  scientific  standpoint. 
And  yet  the  difficulty  that  presented  itself  to  those  old  judges,  in  the 
face  of  the  ugly  and  artificial  term  "lunatic,"  was  not  altogether 
imaginary  or  verbal,  and  should  be  borne  in  mind  by  the  medical  crit- 
ics.    Dr.  Ray,  among  others,  ignores  this  fact. 

427.  Conclusion. — The  attempts  of  some  legal  writers  to  make  some- 
thing special  and  distinct  out  of  this  term  iwn  compos  rnentis  have 
only  led  to  confusion.  There  is  nothing  special  or  distinct  in  it;  and 
any  effort  to  make  it  mean  something  definite  in  science  will  prove 
as  abortive  as  to  try  to  clothe  with  flesh  and  blood  the  moon-struck 
"lunatic"  of  Sir  Matthew  Hale.^^ 

•^  The  old  Anglo-Saxon  Leech-Book  of  indicate  that  distinctions  in  mental  dis- 
Bald,  quoted  by  Payne  (English  Medi-  eases  were  made  very  early. 
cine  in  Anglo-Saxon  Times — The  Fitz-  A  comparatively  early  use  of  the  word 
Patrick  Lectures  for  1903.  Oxford,  "lunacy"  occurs  in  the  statute  33  Hen. 
1904),  contains  remedies  for  the  "fiend-  VIIL,  Cap.  20  (1541).  This  is  the 
sick"  man,  or  demoniac;  and  for  the  statute  which  provides  that  persons  who 
"wode-heart,"  or  frenzy;  wna  for  have  "fallen  to  madness  or  lunacy"  aft- 
"mindlessness,"  or  idiocy.     These  terms  er  the  factum,  may  be  tried  for  treason. 


CHAPTER  XXV. 

LUCID  INTEKVALSw 

428.  Tlie  early  origin  of  this  term. 

429.  Associated  with  tlie  term  "hmatic." 

430.  Its  fanciful  meaning. 

431.  Hale's  doctrine  was  unscientific. 

432.  Lord  Eldon's  opinion. 

433.  The  legal  idea  is  artificial. 

434.  Defining  in  a  circle. 

435.  Importance  of  this  subject. 

436.  Lord  Brougham's  opinion. 

437.  The  consequences  flowing  from  this  doctrm*, 

438.  In  criminal  cases. 

439.  Violent   presumptions  of  the  law. 

440.  The  practice  has  varied. 

441.  The  onus  probandi. 

442.  Remissions  not  the  same  as  lucid  intervals. 

443.  The  prejudice  against  lucid  intervals. 

444.  The  danger  of  the  doctrine. 

445.  Not  a  complete  restoration. 

428.  The  early  origin  of  this  term. — This  term  was  of  very  early  or- 
igin in  English  hiw,  and  has  played  a  conspicuous  part  in  the  courts. 
Bracton/  who  wrote  about  1265,  uses  the  term  in  describing  a  mad- 
man (furiosus).  It  occurs  also  in  the  statute  De  Prerogativa  Regis 
(17  Edw.  II.,  A.  D.  1342),  where  it  is  iised  in  connection  with  insane 
persons  (non  compotes  mentis)  as  distinct  from  idiots  (fatui  natu- 
ral.es).  In  an  early  common-law  writ,  which  was  issued  to  the  es- 
cheator  to  inquire  into  the  mental  state  of  a  party  (whence  came 
the  modern  commission  in  the  nature  of  a  writ  de  lunatico  inquiren- 
do),  the  term  ''lucid  interval"  was  used  in  connection  also  Avith 
idiocy.^ 

429.  Associated  with  the  term  '-lunatic." — The  term  very  early  be- 
came associated  with  the  technical  term  "lunatic,"  and  was  thus  used 
by  Coke,^  who  described  a  lunatic  as  "one  that  hath  sometimes  his 
understanding,  and  sometimes  not,  aliquando  guadet  lucidis  inter- 

'  De  Legibus  et  Consuetudinibus  An-    quidam  dilueidis  gaudent  intervallis. 
gliae,    f.    420.     Edited    by    Sir    Travers        *  See   page   485   of   the   present   work. 
Twiss,     London,     1878.     Possunt    enim        '  Co.  Litt. 

496 


5  429]  LUCID   INTERVALS.  497 

rallis/'  but  it  was  more  fully  defined,  and  in  unmistakable  language, 
by  Sir  Matthew  Hale.  According  to  Hale^  "lunacy"  is  marked  by 
''lucid  intervals;"  and  these  "ordinarily  happen  between  the  full 
and  change  of  the  moon." 

430.  Its  fanciful  meaning. — From  this  dclinition  it  seems  clear  that 
the  cognate  ideas  of  "lunacy"  and  "lucid  intervals"  arose  from  the  old 
superstition  that  the  moon  (luim)  was  the  cause  of  mental  disease, 
and  that  the  changes  of  that  luminary  caused  changes  in  the  patient's 
mind,,  among  wdiich  were  "lucid  intervals."  Sir  Matthew  distinctly 
avowed  this  belief,  and  based  both  his  science  and  his  law  upon  it. 
The  term  thus  became  a  purely  artificial  one,  standing  for  something 
v/hich  has  no  existence  in  real  insanity ;  but  which  has  been  elaborated 
by  many  courts  and  legal  writers  in  language  which  is  not  always 
consistent,  or  even  intelligible  to  a  scientist. 

For  instance.  Hale  tells  us  that  in  such  intervals  insane  persons 
have  a  competent  use  of  reason,  and  that  crimes  connnittcd  in  these 
intervals  should  be  subject  to  punishment;  and  that  contracts  and 
sales  made  then  are  obliging  to  the  heirs  and  executors.  In  other 
words,  the  moon  is  the  supreme  factor  in  determining  the  responsi- 
bility and  liability  of  lunatics. 

431.  Hale's  doctrine  was  unscientific. — The  query  arises,  why  serious- 
ly criticize  such  a  fanciful  doctrine,  written  two  hundred  and  fifty 
years  ago,  by  a  man  who  could  see  his  way  clear  to  condemn  to  death 
two  poor  women  for  witchcraft?  Hale's  doctrine  of  "lucid  intervals" 
is  based  upon  the  crudest  superstition  about  insanity.  It  is,  more- 
over, a  dangerous  doctrine,  aiid  absolutely  without  scientific  w\arrant. 
Of  course,  in  some  forms  of  insanity  the  patients  have  their  better 
and  worse  spells,  and  in  convalescents  the  mind  may  clear  by  re- 
missions ;  but  never  in  the  arbitrary  way  suggested  by  Hale.  As  for 
"lucid  intervals"  occurring  in  the  very  midst  of  attacks  of  insanity, 
leaving  the  mind  absolutely  unclouded  and  normal  for  a  brief  period, 
the  best  authorities  know  that  this  must  be  one  of  the  rarest  phenom- 
ena, if,  indeed,  it  is  ever,  seen. 

432.  Lord  Eldon's  opinion. — The  opinions  of  legal  writers  as  to 
Avhat  really  constitutes  a  "lucid  interval"  are  often  contradictory. 
By  comparing  these  opinions  the  whole  subject  may  be  brought  to  a 
focus.^     In  one     of  his  oft-quoted  opinions,  Lord  Eldon  said  that 

*  P.  C.  Chap.  IV.  See  tlie  subjeet  else  in  the  early  common  law,  to  be  de- 
discussed  at  length  under  the  hpa(iinn:  rived  from  the  Roman  law.  Thus, 
of  Non  Compos  Mentis,  in  tlie  present  in  tlie  Institutes  of  Justinian  (Lib.  II. 
work.  Title  XII.   §   1 ) ,  treating  of  those  per- 

^  It  is  worth  noting  that  the  doctrine  sons  who  are  not  competent  to  make  a 

of  "lucid  intervals"  seems,  like  so  much  will,  it  is  said:  Furiosi  autem,  si  per  id 
Vol.  I.  Mkd.  Jur.— 32. 


498  INSANITY— FOEJVIS  AND  MEDICO-LEGAL  ASPECTS.  [§  432 

the  question  whether  a  man  was  a  hmatic  was  a  question,  "admitting, 
in  the  sohition  of  it,  of  a  decision  that  imputed  to  him  at  one  time 
an  extremely  sound  mind,  but  at  other  times  an  occurrence  of  insan- 
ity." This  seems  to  be  a  statement  to  the  effect  that  "lunacy"  con- 
sists in  alternations  of  madness  and  reason. 

In  the  case  of  TowaH  v.  Sellars,^  Lord  Eldon  gave  a  decision  in  the 
House  of  Lords  in  which  he  said :  "The  question  is  not  whether  a 
man  has  been  insane,  but  whether  he  has  recovered  that  quantum  of 
disposing  mind  at  the  time  he  executes  the  deed  which  ought  to  give 
it  effect."  For  the  scientist  these  two  questions  are  not  so  easily  sep- 
arated. In  reality  they  constitute  one  problem.  To  understand  wheth- 
er a  man  is  partially  restored  from  a  disease  it  is  necessary  to  know 
how  and  to  what  extent  he  was  diseased,  and  how  much  of  his  disease 
remains. 

433.  The  legal  idea  is  artificial. — Collinson^  says  that  a  lunatic  is 
one  who  has  lucid  intervals ;  and  yet,  in  the  next  sentence,  he  says 
that  lunatics  are  of  two  kinds, — those  who  have,  and  those  who  have 
not,  lucid  intervals.  This  shows  the  confusion  of  ideas  on  the  subject 
on  the  part  of  legal  writers.  Collinson's  chapter  reveals  very  clearly 
how  artificial  the  legal  idea  of  lucid  intervals  is.  He  defines  a  "lu- 
cid interval"  as  "that  in  which  the  mind,  having  thrown  off  the  dis- 
ease, has  recovered  its  general  habit."  ^  But  this  is  a  recovery;  why 
call  it  an  interval  ?  In  another  sentence  he  says  that  "to  constitute 
a  lucid  interval  the  mind  need  not  have  recovered  its  pristine  strength 
and  vigor."    But  this  contradicts  the  former  statement 

D'Aguesseau^  says:  "There  must  be,  not  a  mere  ray  of  reason, 
which  only  makes  its  absence  more  apparent  when  it  is  gone, — not 
a  flash  of  lightning,  which  pierces  through  the  darkness,  only  to  ren- 
der it  more  gloomy  and  dismal, — not  a  glimmering  which  unites 
the  night  to  the  day, — but  a  perfect  light,  a  lively  and  continued  lus- 
tre, a  full  and  entire  day,  interposed  between  two  separate  nights 
of  the  fury  which  precedes  and  follows  it."  This  extraordinary 
rhetoric  has  little  moaning  for  anything  ever  seen  in  real  insanity. 

434.  Defining  in  a  circle. — Some  of  the  courts^"  define  a  "lucid  in- 
terval" as  "not  a  perfect  restoration  to  reason,  but  a  restoration  so 

iempus  fecerint  tcslamentum,  quo  furor  'Lunacy,  Chap.  IV.  p.  37. 

eorum  intermissum  est,  jure  tesfaii  esse  "This  soems  to  have  been  Lord  Thur- 

videntur, — but  madmen,  if  they  make  a  low's  opinion.     Atty.  Gen.  v.  Parnther, 

will  in  that  period  in  which  their  mad-  3  Bro.  C.  C.  443. 

iiess  intermits,   seem   to   be   legal   testa-  "  Quoted  by  Collinson,  op.  cit.  p.  39. 

tors.  ^"Ante,     §     9.     Also     consult     Casper 

^5  Dow,  P.  C.  231.     In  several  places  (Forensic  :\Ied.  Vol.  IV.  p.  229)   for  ref- 

this  case  reveals  Lord  Eldon's  forte  In  erenccs  to  continental  law  and  practice, 
ronipositic  lonj;  and  involved  sentences. 


§  434]  LUCID    INTERVALS.  '499 

far  as  to  be  able,  beyond  doubt,  to  comprehend  and  to  do  the  act  with 
.such  perception,  memory,  and  judgment  as  to  make  it  a  legal  act/' 
This  is  defining  in  a  circle.  It  states,  moreover,  that  a  perfect  res- 
toration to  reason  is  not  requisite.  This  practically  means  that  the 
patient  is  still  insane;  for  if  his  reason  is  not  perfectly  restored  he 
is  still  a  lunatic.  Hence,  this  definition  recognizes  a  partial  respon- 
sibility in  law, — a  thing  which  its  authors  evidently  did  not  intend. 
If  a  patient  can  have  a  partial  responsibility  in  the  meaning  of  a 
lucid  interval,  as  here  given,  he  should  not  be  held  entirely  account- 
able for  his  acts ;  but  who  is  to  decide  the  nice  question  as  to  whether 
a  lunatic  has  just  enough  restoration  of  reason  to  constitute  him  a 
proper  person  for  discharging  his  legal  obligations,  whether  civil 
or  criminal,  at  a  particular  moment? 

435.  Importance  of  this  subject. — So  important  is  this  subject  in 
the  eyes  of  the  law  that,  in  the  commission  de  lunatico  inquirendo,  it 
is  expressly  inquired  whether  or  not  the  lunatic  has  lucid  intervals;" 
Init  the  return  by  such  a  commission  is  only  prima  facie  evidence  in 
f'ase  of  subsequent  legal  proceedings  involving  a  question  of  the  par- 
ty's mental  soundness ;  as,  for  instance,  in  case  of  a  disputed  will  or 
contract.-^ ^  In  other  words,  in  spite  of  his  having  been  legally  found 
a  lunatic  without  lucid  intervals,  it  would  be  permissible  to  prove 
that  he  had  subsequently  had  a  lucid  interval  when  he  signed  a  legal 
paper.  Thus  a  very  wide  door  is  left  open  for  abuse  of  this  doctrine. 
An  insane  man,  after  having  been  found  to  be  so  by  a  commission  is- 
suing out  of  court,  may  be  induced,  by  parties  who  know  his  condi- 
tion, to  enter  into  a  contract;  and  when  a  defense  of  insanity  is  set 
up  by  the  lunatic's  custodian,  the  plaintiff  may  attempt  to  prove  that 
the  contract  was  signed  during  a  lucid  interval.  In  such  a  case  Sir 
William  Grant,  Master  of  the  Rolls,^^  decided  that  the  question  was 
a  question  of  fact,  to  be  determined  by  a  jury;  and  himself  declined 
to  decide  it,  and  did  not  even  attempt  to  give  a  dogmatic  definition 
of  a  "lucid  interval."  This  is  a  more  scientific  method  than  for 
courts  to  entrench  themselves  behind  arbitrary  definitions. 

436.  Lord  Brougham's  opinion. — Lord  Brougham^  ^  recognized  that 

"  Shelford,  op.  cit.  p.  845.  agreement  to  sell  an  estate.     In  the  case 

"/2c   Gangwere,    14   Pa.   417,    53   Am.  of  Warren,  however,  the  commission  did 

Dec.  554.  not  issue  until   after  the  contract  was 

"Hall  V.   Warren,   9  Ves.   Jr.   605,   7  signed ;  but  in  the  return  the  man  was 

Revised  Rep.  306.     In  this  case  the  sub-  found   to   have   been   a   lunatic   for   the 

ject    is    discussed    very    clearly    in    its  ton  years  last  past,  with  lucid  intervals. 

legal   bearings,   but   the   Master   of  the  Thus    the    commission    overreached    the 

Rolls  was  evidently  very  dubious  about  contract. 

Warren's  having  had  a  "lucid  interval"        '^Waring  v.  Waring,  6  Moore,  P.  C.  C. 

at  the  very  moment  when  he  signed  an  341,  12  Jur.  947. 


500  INSANITY— FORJVIS  AND  ^MEDICOLEGAL  ASPECTS.  [§  436 

men  often  mistake  for  a  lucid  interval  the  mere  temporary  absence 
of  the  subject  of  the  delusion  from  the  mind ;  and  that  no  madman 
can  be  said  to  have  recovered  his  reason  unless  he  truly  and  volun- 
larily  confesses  his  delusions.  This  is  not  a  bad  principle.  He  also 
held  that  the  burden  of  proving  a  lucid  interval  is  on  those  who  as- 
sert it ;  and  that  much  clearer  proof  is  necessary  than  would  Jiave  been 
required  had  no  mental  disease  been  admitted.  In  other  words,  it 
would  seem,  from  Lord  Brougham  that,  in  these  cases,  the  presumption 
is  against  sanity;  not,  as  is  usually  the  case  in  law,  in  favor  of  it. 
The  very  attempt  to  prove  a  ''lucid  interval"  involves  an  acknowl- 
edgment that  the  party  has  been  insane,  and  therefore  shifts  the  pre- 
sumption as  well  as  the  burden  of  proof. 

437.  The  consequences  flowing  from  this  doctrine.  —  The  conse- 
quences flowing  from  the  doctrine  of  "lucid  intervals"  are  most  im- 
portant. Hale  says  that  in  the  case  of  a  lunatic  who  has  his  "lucid 
intervals,"  the  presumption  of  law  is  that  his  acts  or  offenses  are  com- 
mitted in  such  lucid  intervals,  unless  the  contrary  be  proved.  This 
principle  has  been  generally  assumed  in  law.^^  Pepper  and  Lewis^*"' 
refer  to  cases,  occurring  in  Pennsylvania,  in  which  insane  persons 
have  signed  legal  papers,  such  as  notes  and  mortgages,  and  the  law 
has  presumed  such  to  have  been  signed  in  lucid  intervals.  This  is 
a  double  presumption;  for,  in  the  first  place^  the  belief  that  there 
are  such  things  as  "lucid  intervals"  in  the  legal  sense  is  a  pure  pre- 
sumption ;  and,  in  the  second  place,  it  is  a  presumption  to  believe  that 
a  partir-nlar  insane  person  did  a  particular  act  in  such  an  interval. 

438.  In  criminal  cases. — In  criminal,  even  more  than  in  civil,  cases, 
it  might  be  most  unjust  to  presume  that  an  act  had  been  committed 
during  a  "lucid  interval."  And  if  this  doctrine  be  insisted  upon,  win- 
is  the  converse  not  equally  true, — that  a  criminal  act  might  be  com- 
mitted during  a  sudden  "insane  interval"  in  a  person  otherwise  of 
sound  mind  ?  ^^  We  know  that  such  a  claim  is  always  received,  and 
properly,  with  great  suspicion  in  courts  of  law.  The  human  mind, 
in  fact,  seldom  acts  in  al)i'upt  transitions  either  from  health  to  disease 
or  conversely.  Natura  nori  opcvatur  per  saltiun, — nature  does  not 
act  by  fits  and  starts.-*** 

"  Rlackstono  says,  "If  a  lunatic  hatli         "An    exception    to    this    rule    is    seen 

lucid     intervals     of     understanding,     he  in  epilepsy,  in  whicli  abrupt  paroxysms 

shall  answer  for  what  he  does  in  those  of   insanity    may   occur.      Also   in    some 

intervals,   as   if   he   had    no   deficiency."  of   the    periodical    insanities,    in    which, 

4  Com.  2:5.  while    not    nearly    so    explosive    as    in 

'"  Di^^est.  epilepsy,   the   onset  and   termination  of 

"This     opens     up     the     question     of  the  attacks  may  be  very  abrupt, 
"transitory  mania.' — an  alleged  clinical 
form    about    whicli    probably    tlie    less 
said    the  better. 


5  439]  LUCID  INTERVALS.  5Ul 

439.  Violent  presumptions  of  the  law. — It  is  against  coiiunon  expe- 
rience as  well  as  all  scientiiic  method  to  adopt  such  violent  presinnp- 
tions  in  eases  of  .insanity.  The  question  whether  an  acknowledged 
lunatic  has  had  a  "lucid  interval"  at  any  particular  moment  is  a 
question  of  fact,  as  was  recognized  by  Sir  William  Grant;  and  can 
only  be  determined  by  the  evidence  in  his  particular  case.  It  must 
id  ways  be  a  questioti  of  extreme  delicacy  and  difficulty.^  ®^ 

440.  The  practice  has  varied. — It  is  not  probable  tliat  there  are 
many  courts  at  present  in  which  Hale's  dictum  would  be  sustained  in 
its  entirety.  In  fact,  some  of  the  prevailing  opinions,  if  analyzed, 
are  directly  contrary  to  the  Lord  Chief  Justice,  for  it  does  not  seem 
to  be  held  universally  that  the  presumption  is  in  favor  of  a  lucid 
interval  in  the  case  of  an  insane  man  who  signs  a  legal  paper.  Or- 
<linarily  the  proof  of  insanity  rests  on  the  party  alleging  it;  but, 
as  Chancellor  Harrington^  ^  decided  in  the  case  of  a  man  who  had 
been  insane  for  more  than  twenty  years,  the  onus  prohandi  changes 
when  the  party  is  proved  to  have  been  insane.  In  such  a  case  the 
person  who  alleges  that  the  act  of  such  a  party  is  binding  must  show 
that  it  was  done  in  a  lucid  interval.  Hence,  the  presumption  is  not 
in  favor  of  a  lucid  interval,  but  against  it, — an  opinion  directly  op- 
posed to  Hale,  and  in  accord  with  Lord  Brougham.^ *^i 

441.  The  onus  probandi. — The  cases  in  Pennsylvania  practice  re- 
ferred to  by  Pepper  and  Lewis  were  cases  in  which  the  parties  had 
been  found  by  commissions  de  lunatico  to  have  been  insane,  with  lu- 
eAd  intervals.  It  is,  therefore,  to  be  assumed  that  it  is  only  in  such 
<>ases  that  the  law  now-a-days  presumes  such  an  interval  to  have  oc- 
<nirred  at  the  time  the  contract  or  will  was  signed.  In  other  words, 
in  cases  of  insanity  in  which  there  was  no  evidence  of  lucid  intervals 
ever  having  occurred,  the  law  would  not  presume  one.  The  onus 
prohandi  in  these  latter  cases  would  be  on  the  parties  asserting  the 

i8i  Charles    Lamb    was    once    insane,  Charles    Lamb,    by    Carew    Ha^^litt,    p. 

and  wrote  as  follows  to  Coleridge,  after  214.) 

his  recovery:     "The  six  weeks  that  fin-  This  letter  may  be  seized  on  by  the 

ished    last   year    and    began    this,   your  lawyers  as  evidence  for  luciu  intervals; 

very  humble  servant  spent  very  agree-  but  it  will  be  hard  to  convince  alienists 

ably  in  a   madhouse  at  Hoxton.     I   am  that   writing  poetry  by  an   insane  man 

got   somewhat   rational    now,   and   don't  is  an  evidence  of  Iiis  restoration  to  rea- 

bito  anyone.  But  mad  I  was,  an'.'  many  son.     In    the    asylums    it    is    generally 

a   vagary   my   imagination    played    witli  looked  upon  as  a  bad  sign. 

me.     ...     It    may    convince    you    of  "Frazer  v.  Frazer,  2  Del.  Ch.  260. 

my  regards  for  you  when  I  tell  you  my  ^^^Semel    furiosus,    semper    fnriosus 

head     ran     on     you     in    my     madness,  presumitur,    cl    contrarium    tenenti    in- 

.     .     The     sonnet     I     send     you    lias  rinnbit    onus    probandi    sanein    mcntem. 

small  merit  as  poetry;   but  you  will  be  This   maxim   of  the   civilians   is   quoted 

curious  to  read   it,  when  I   tell  you   it  by   Morel.    Traite   de   Medecine   Legale, 

was  written  in  my  prison-house,  in  one  ]).  70. 
of    my    lucid     intervals."      (Mary     and 


002  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  441 

lucid  interval.  This  was  Lord  Brougham's  opinion,  already  cited. 
The  distinction  is  a  most  important  one,  and  is  apparently  not  in- 
dicated by  Hale,  because,  according  to  Hale,  the  very  fact  that  a 
man  was  a  lunatic  would  raise  the  presumption  that  he  had  ''lucid 
intervals,"  whether  these  were  specifically  proved  or  not.  Such  a  doc- 
trine is  monstrous.-" 

442.  Remissions  not  the  same  as  lucid  intervals. — It  is  true  that 
there  are  forms  of  insanity  in  which  remissions  occur,  and  others 
which  show  a  tendency  to  periodicity ;  and  in  reference  to  these 
forms  a  plausible  argument  could  be  maintained  in  favor  of  their 
])resenting  "lucid  intervals."  In  any  particular  form  of  insanity  the 
disease  is  not  always  of  uniform  course.  In  one  disease,  for  instance, 
the  so-called  circular  insanity,  the  symptoms  evolve  in  a  cycle,  in- 
cluding a  period,  often  prolonged,  of  good  health.  In  others  there  are 
periods  of  access,  followed  by  remissions,  as  in  cases  of  recurrent  ma- 
nia. During  convalescence  in  various  kinds  of  insanity  the  patients 
may  have  shorter  or  longer  periods  of  comparatively  clear  intelligence 
before  full  recovery  takes  place;  but  these  are  not  exactly  the  same 
things  as  seem  to  be  meant  in  legal  writings  by  "lucid  intervals,'" 
for  the  latter  are  something  more  abrupt,  more  evanescent,  and  more 
sharply  in  contrast  with  the  preceding  and  succeeding  paroxysm. 
Moreover,  there  is  no  rule  about  these  remissions ;  they  may  or  may 
not  occur ;  but  "lucid  intervals,"  according  to  Hale,  are  an  essential 
feature  of  "lunacy."  Besides,  in  mere  remissions  the  patients  are 
not  recovered,  as  it  is  claimed  they  are  in  "lucid  intervals."  Kraift- 
Ebing^^  cautions  us  that  the  intervals  between  paroxysms,  which  we 
have  the  habit  of  calling  lucid,  are  not  always  so  in  fact.  On  the 
other  hand,  a  prolonged  period  of  return  to  health  is  properly  a 
recovery,  not  a  mere  "lucid  interval."  The  nearest  approach  we  have 
to  "lucid  intervals"  in  the  legal  sense  occurs  in  the  various  forms  of 
periodical  insanity,  described  elsewhere  in  these  pages.-" 

443.  The  prejudice  against  lucid  intervals. — The  prejudice  against 
the  legal  idea  of  a  "lucid  interval"  has  been  wide-spread  among  alien- 
ists. Haslam''^  said  that  in  an  experience  of  twenty-five  years,  he 
had  never  observed  these  "alternations  of  insanity  and  reason,"  such 

"Again,   to   discuss   tlic   lojiic  of  the  after  all,  Justice  liokls  the  scales — even 

subject  still  a  little  more  in  detail    (for  if  a  little  unevenly. 

it    seems   to   be    largely   a    question    of  ^'  TraitC      Clinique      de      Psychiatrie. 

logic),    it    is    always    allowable    to   dis-  Paris,   18!)7,   p.   2.51.     Traduit  par  Lau- 

prove,  by  appropriate  evidence,  the  oc-  rent. 

currence  of  a  lucid  interval,  even  if  the  -Chapter    on    "Periodical    Insanity." 

aforesaid  interval  has  been  "prcsunied"'  -"Med.  .Inrisprudence  as  it  Relates  to 

by    the    law    to    have    occurred.      Thus,  Insanity. 


§  443]  LUCID   INTERVALS.  r^03 

as  the  law  presumes  in  "lunatics."  Dr.  Benjamin  Rusb,^^  who  had 
some  leaning  to  the  lunar  theory,  says,  nevertheless,  that  the  effect 
is  slight.  Dr.  PowelP^  testified,  in  a  noted  English  case,  that  there 
was  no  such  thing  as  a  "lucid  interval."  Spitzka,^^  speaking  of  the 
remissions  in  general  paresis,  calls  them  "para-lucid  intervals ;"  thus 
indicating  that  they  are  not  complete.  This  is  a  proper  modification 
of  the  term,  and  would  apply  to  most  remissions  in  insanity. 

444.  The  danger  of  the  doctrine. — But,  even  granting  that  this  dis- 
cussion might  degenerate  into  a  quibble  about  words,  the  fact  remains 
that  the  legal  doctrine  of  "lucid  intervals"  is  fraught  with  some 
grave  risks  in  medical  jurisprudence.  The  tendency  has  been  to 
seize  upon  slight  symptoms  of  a  return  to  reason,  and  to  claim  them 
as  evidence  of  "lucid  intervals."  This  has  been  especially  so  in  cases 
of  disputed  wills.  Lord  Eldon^'^  was  of  opinion  that  the  evidence  of 
a  lucid  interval  need  not  be  as  clear  as  the  evidence  of  the  insanity 
itself;  in  other  words,  in  the  case  of  a  disputed  will,  he  apparently 
held  that  a  very  slight  degree  of  evidence  of  intelligence  should  be 
enough  to  establish  a  lucid  interval  sufiicient  for  making  a  will,  in 
the  case  of  a  man  evidently  insane.  This  seems,  from  a  scientific 
standpoint,  a  dangerous  doctrine ;  but  it  illustrates  very  well  how  ar- 
bitrary, and  yet  how  fluctuating,  is  the  legal  definition.  It  is  almost 
flatly  contradicted  by  the  opinion  of  Lord  Brougham,  quoted  above. 
*  445.  Not  a  complete  restoration. — A  slight  return  of  reason,  a  mere 
glimmer  of  intelligence,  even  the  temporary  power  of  sustained  at- 
tention,— none  of  these,  or  similar  evanescent  signs  of  a  remission,  are 
sufiicient,  in  a  medical  sense,  to  establish  a  complete  restoration  of  the 
mind.  And  if  a  "lucid  interval"  does  not  indicate  a  complete  restora- 
tion of  the  mind,  it  is  a  misnomer,  and  should  be  abandoned.^^ 

^' Dr.  Rush  was  fond  of  novel   ideas,  cit. )   in  which  a  note  had  been  given  by 

He   tells   us    (Diseases   of  the  Mind,   p.  a    party    who    was    subsequently    found 

170)   that  "during  the  eclipse  of  the  sun  by    a    commission    de    lunatico    to    have 

on  the  16th  of  June,   180G,  there  was  a  been  insane  during  the  period  in  which 

sudden  and  total  silence  in  all  the  cells"  the    note    had    been    given,    "with    lucid 

in  the  Pennsylvania  Hospital.  intervals   of   such   short  duration  as  to 

"/?e  Parkinson,  Beck's  Med.  Jur.  Vol.  render  him  incapable  of  taking  care  of 

1.  p.  3G8,  note.  his      property;"      and      the      testimony 

^  Insanity,  p.  193.  showed  that  the  lunatic  was  insane  "on 

^'Re  Parkinson,  quoted  by   Beck,   op.  every  other  day,"  and  had  executed  the 

cit.  note  on  a  "sane  day;"  yet,  in  this  case, 

^  The     subject     was     brought     to     a  the  court  refused  to   open   a  judgment 

rcductlo    ad    absurdum    in    the    case    of  entered   on    the   note.      What   would    be 

Weaver  v.  Weaver,  28  Pitts.  L.  J.  N.  S.  thought  of  every-other-day   insanity   as 

367    (quoted  by  Pepper  and  Lewis,  op.  a  defense  to  the  charge  of  murder? 


CHAPTER   XXVI. 

INSANITY   AND  THE   LAW. 

446.  Tlio  first  definition  of  insanity  in  tlie  law. 

447.  Crude  ideas. 

448.  In.sanity  in   the  middle  ages. 

449.  Tradition  and  common  law. 

450.  Old  and  fanciful  opinions. 

451.  Very  few  old  authorities. 

452.  The  writings  of  Bracton. 

453.  His  influence  has  been  long-continued. 

454.  His  dependence  on  the  civil  law. 

455.  Justinian. 

456.  Britton. 

457.  The  statute  De  Prerogativa  Regis. 

458.  Littleton,  and  the  doctrine  of  non-stultification. 

459.  Why  a  man  was  not  allowed  to  stultify  himself. 

460.  Coke  and  the  Beverley  Case. 

461.  Insanity  and  high  treason. 

462.  The  early  prejudice  against  the  Insane  regicide. 

463.  Coke's  attempts  at  a  classification  of  insanity.  * 

464.  His  scheme  of  classification. 

465.  Coke's  distinction  between  civil  and  criminal  insanity. 

466.  Coke's  sclieme  is  noteworthy. 

467.  His  ideas  of  lunacy. 

468.  The  writings  of  Hale. 

469.  His  definitions. 

470.  Hale  on  tests  for  insanity. 

471.  His  own  test. 

472.  Hale's  "partial"  insanity  and  "total"  insanity. 

473.  What  is  "partial"  insanity? 

474.  And  "total"  insanity? 

475.  The  terms  criticized. 

476.  Hale's  erroneous  definition  of  a  lunatic. 

477.  Hawkins  and  the  right-and-wrong  test. 

478.  The  laws  of   insanity  as  made  by  the   judges. 

479.  The  Arnold  Case. 

480.  The  wild  beast  theory. 

481.  Tlie  case  of  Earl  Ferrers;  an  insane  man  forced  to  conduct  his  own  defense. 

482.  The  right-and-wrong  test  fully  started. 

483.  This  test  not  satisfactory  to  all   legal  minds. 

484.  Erskine  and  the  case  of  Hadfield. 

485.  The   test   of   dehision. 

504 


§    I4C.]  INSANITY    AND   THE   LAW.  505 

ISC).   Erskine's    dislinetioii    between   civil    and    criminal    cases. 
■187.  Tlie  ri<Tht-and-wrong  test  without  authority. 

488.  No  sucli  thing  as  "total"  madness. 

489.  The  importance  of  Erskine's  speech. 
190.  The  written  law. 

491.  The   statute   law   requires   no   tests. 

492.  The  small  number  of  cases  up  to  one  hundred  years  ago. 

493.  Bellingham's  Case. 

494.  The  test  of  delusion  rejected. 

495.  The    right-and-wrong    rule   not    piopcrly    applied. 

496.  The  distinction  again  between  civil  and  criminal  insanity. 

497.  The  cases  of  Parker  and  Eowler. 

498.  The  case  of  Otlord. 

499.  The  cases  of  Bellingham  and  Otlord  compared. 

500.  The  case  of  Oxford ;  a  stop  in  advance. 

501.  The  formative  period. 

502.  Madness  not  to  be  reduced  to  fixed  rules. 

446.  The  first  definition  of  insanity  in  the  law. — Where  and  when 

was  the  first  authoritative  definition  of  insanity  given  in  tlie  English 
hiw  ?  Neither  Littleton,  Coke,  nor  Hale  gives  anything  but  tradi- 
tion, to  which  each  author  has  added  his  own  individual  opinions. 
There  is  nothing  in  what  they  give  that  has  the  sanction  of  an  act 
of  Parliament  or  even  of  a  decree  of  a  court.  Hence,  it  may  be  asked, 
why  are  their  opinions  so  authoritative  ?  Are  Littleton,  Coke,  and 
I  [ale  to  be  considered  as  giving  exact  voice  to  the  common  law  in  what 
rhey  say  on  this  subject,  or  only  to  their  own  opinions  ?  It  must  be 
confessed  that  much  of  what  they  wrote  looks  suspiciously  like  their 
individual  opinions.  The  common  law  is  only  traditional.  There- 
fore, what  evidence  is  there  that  Littleton,  Coke,  and  Hale  represent 
accurately  traditional  views  on  such  an  obscure  subject  as  insanity, — 
a  subject  that  was  particularly  obscure  in  the  15th,  IGth,  and  17th 
centuries,  when  those  eminent  lawyers  wrote  ? 

447.  Crude  ideas. — So  far  as  we  can  know  from  historical  sources, 
the  prevalent  views  of  insanity  in  those  centuries  were  exceedingly 
crude.  Insanity  was  believed  to  be  due  to  a  "visitation  of  God,"^  or 
to  witchcraft,^  or  to  possession  by  a  demon, ''^  or  to  changes  of  the  moon. 
This  last  opinion  is  expressly  avowed  by  Hale  in  his  discussion  of 
'^lucid  intervals,"  and  his  belief  in  witchcraft  was  so  firm  that  he  is 
known  to  liave  condemned  two  women  to  death  for  it.     Even  phy- 

^Bevcrlej/'s  Case,  4  Coke,  124.  Ment.   Sci.   there   is   described   tlie   case 

'See  instance  in  the  Gospel  of  Mark,  of  a  madman  in  Jerusalem,  chained  to 

ix.  14-29,  of  a  clear  case  of  epilepsy,  re-  the  altar  of  a  Christian  church,  in  tlie 

ported  as  a  case  of  demon-possession.  belief  that  he  was  possessed  by  a  demon, 

'In  the  East  such  ideas  still  prevail,  which  would  thus  be  cast  out  of  him. 
In    a    recent   number    of    the   Journ.    of 


506 


INSANITY— FORMS  AND  IVIEDICO-LEGAL  ASPECTS. 


[§  44^ 


sicians  believed  in  witchcraft,  for  Sir  Thomas  Browne,  the  author  of 
the  Religio  Medici,  testified  in  open  court  to  his  belief.^^ 

448.  Insanity  in  the  Middle  Ages. — According  to  Regis  ^  the  study 
of  insanity  during  the  Middle  Ages  was  lost  in  the  general  chaos.  It 
lost  even  the  scientific  aspect  which  it  had  presented  in  the  time  of 
Hippocrates,  in  ancient  Greece.  The  belief  in  demons  dominated 
all  imaginations;  superstition  spread  everywhere;  it  was  the  reign 
of  sorcery;  of  the  witches'  Sabbath;  of  demonopathy ;  and  of  de- 
moniacal possession.  Terrible  epidemics  of  religious  insanity  oc- 
curred, wliich  led  to  priestly  exorcisms  and  mystical  ceremonies,  and 
ended  in  the  condemnation  of  the  ill-fated  insane,  and  their  punish- 
ment by  torture  and  death.^i  Thousands  of  these  unhappy  wretches 
atoned  with  their  lives  for  their  loss  of  reason,  and  perished  at  the 
stake.  Not  a  voice  was  raised  in  their  behalf ;  the  parliaments  and 
courts  were  as  bloodthirsty  as  the  church;  and  it  was  not  until  the 
<hiwn  of  the  renaissance  that  the  human  race  seemed  to  regain  its  rea- 


3*  The  recent  proposal  in  England  to 
raise  a  memorial  to  the  author  of  the 
"Reli,crio  Medici"  has  roused  the  wrath 
of  Dr.  Conolly  Norman,  a  well-known 
Irish  alienist.  Whatever  claims  Sir 
Thomas  Browne  has  to  the  admiration 
of  tlie  literati  as  a  great  master  of 
Englisli  prose,  he  has  nO  claim  what- 
ever, says  Dr.  Norman,  in  effect,  to  the 
respect  of  the  medical  profession.  He 
was  not  a  great  physician,  since  he  was 
neitiier  scientific  nor  humane.  For 
proof  of  the  first  charge  Dr.  Norman 
refers  to  Browne's  works ;  and  for 
proof  of  the  second,  to  Browne's  action 
in  the  trial  of  the  women  Demy  and 
Cullender,  at  Bury,  in  1664,  on  the 
charge  of  causing  fits  in  children  by 
witchcraft.  "Sir  Tliomas  Browne,  of 
Norwich,  the  famous  physician  of  his 
time,  was  in  court,  and  was  desired  by 
my  lord,  the  chief  baron,  to  give  his 
judgment  in  the  case,  and  he  declared 
that  he  was  clearly  of  opinion  that  the 
fits  were  natural,  but  heightened  by  the 
Devil,  co-operating  with  the  malice  of 
the  witches,  at  whose  instance  he  did 
the  villainies."  Browne's  great  inllu- 
ence  turned  the  jury,  and  the  women 
were  condemned.  Belief  of  this  sort  in 
an  educated  man — a  contemporary  of 
Hobbes,  Butler,  and  Locke — deprives 
him  of  the  respect  of  men  of  science. 
Sir  Thomas  Browne  is  probably  one  of 
the  most  over-rated  men  in  the  history 
of  medicine.  See  Journal  of  the  Am. 
Med.  Asso.  Sept.  24.  1004.  p.  903. 

*  Manuel  Pratique  de  Medecine  Men- 
tale,  Paris,  1885. 


4^  Lea  (Superstition  and  Force,  M 
ed.  p.  496)  shows  that  the  panic  about 
v'itclicraft  had  much  to  do  with  mould- 
ing the  system  of  torture,  which  was 
so  piously  fostered  by  the  Catholic 
Church.  Augustin  Nicolas,  a  judge  in 
the  time  of  Louis  XIV..  wrote  condemn- 
ing torture,  and  referred  to  "our  iron 
stools,  heated  to  redness,  on  which  we 
place  poor  half-witted  women  accused 
of  witcluraft.  exhausted  by  frightful 
iniyjrisonment,  rotting  from  the  dark 
and  filthy  dungeons,  loaded  with  chains, 
fleshless  and  half-dead;  and  we  pretend 
that  the  human  frame  can  resist  these 
devilish  practices,  and  that  the  confes- 
sions whicli  our  wretclied  victims  make 
of  everytliing  that  may  be  charged 
against  them  are  true."  (Dissert.. 
Mor.  et  Jurid.  sur  la  Torture,  pp.  36. 
37.)  Note  that  the  author  of  this 
broadside  was  a  contemporary  of  Lord 
Chief  Justice  Hale. 

Lea  (op.  cit.  pp.  484,  485)  refers  to 
a  case  of  "lycanthropy"  occurring  in 
Westphalia,  in  which  the  victim  was 
tortured  twenty  times.  Tliis  refers  to 
the  superstition  that  certain  persons 
could  change  themselves  into  wolves, — a 
medieval  belief  hound  up  with  witch 
craft,  and  probably  responsible  for  the 
conviction  and  execution  of  certain 
kinds  of  lunatics. 

See  also  Leckj',  Rationalism  in  Eu- 
rope, chapter  on  "Magic  and  Witch- 
craft." 


§  448] 


INSANITY  AND  THE  LAW. 


507 


son  on  the  subject  of  insanity.  But  religious  delusions  continued  un- 
til long  after;  and  physicians  and  lawyers  alike  were  slow  to  free 
their  minds  of  this  frightfid  demonomania,  Calmeil^  has  preserved 
the  history  of  this  deplorable  distemper  of  the  human  mind,  which 
perverted  the  Christian  churcli  and  poisoned  the  law  with  its  baleful 
superstitions.^ 

If  such  were  the  personal  beliefs  of  educated  men,  and  even  of 
judges,  whose  place  it  was  to  expound  the  law,  what  reason  have  we 
to  maintain  that  the  written  legal  opinions  of  such  men  as  Hale  were 
anything  but  their  o^vn  personal  superstitions,  reflecting  the  gross  er- 
rors of  their  times  ?  And,  in  the  absence  of  acts  of  the  legislature, 
why  must  these  personal  opinions  be  taken  to-day  as  authoritative, 
and  as  expressions  of  the  common  law?*'z 


»De  la  Folic,  etc.,  Paris,  1845.  See, 
also,  Esquirol's  chapter  on  "Demono- 
mania," in  his  translated  works.  Phila. 
1845. 

"  See  James  Russell  LowelTs  essay 
on  "Witchcraft,"  in  Among  My  Books, 
for  an  account  of  the  damnable  epi- 
demic which  began  at  Salem,  INIassachu- 
setts,  and  prevailed  among  the  New 
England  Puritans. 

Lord  Chief  Justice  Holt  (who  suc- 
ceeded Hale  in  1G89)  was  a  most  en- 
lightened judge,  and  evidently  not  in 
favor  of  trials  for  witchcraft.  "Tn  none 
of  the  trials  before  him  for  this  sup- 
posed crime  was  a  conviction  obtained, 
and  prosecutions  for  it  from  his  time 
fell  into  discredit,  Avhich  was  increased 
by  his  putting  into  the  pillory  one 
Hathaway,  convicted  of  pretending  to 
be  bewitched  by  a  poor  woman  whom 
he  had  recently  indicted  for  the  crime." 
Biographical  Dictionary  of  the  Judges 
of  England,  Foss. 

Holt  must  have  believed  in  the  ninth 
commandment, — thou  shalt  not  bear 
false  witness  against  thy  neighbor.  In 
the  Code  of  Hammurabi,  King  of  Baby- 
lon (discovered  in  1901,  on  a  tablet,  at 
Susa,  and  supposed  to  date  l)ack  more 
than  2000  b.  c.)  it  is  prescribed:  "If, 
in  a  lawsuit,  anyone  on  the  witness 
stand  utters  falsehoods  and  cannot  sup- 
port his  testimony,  he  shall  himself  be 
punished  with  death  if  the  life  of  an- 
other is  involved."  (Delitzsch,  Babel 
and  Bible,  p.  101.) 

Esquirol,  in  his  essay  on  "Demono- 
mania" (a  very  learned  and  entertain- 
ing work),  tells  us  that  the  insane  were 
used  as  oracles  by  so-called  sorcerers; 
but  l.is  statement  that  Gliristianitv  in- 


troduced a  reformation  in  the  matter 
of  witchcraft  is  not  supported  by  the 
facts  of  history.  Demonopathy  is  in 
evidence  in  almost  every  book  of  the 
New  Testament,  and  the  Gospel  of  St. 
Mark  is  particularly  disfigured  by 
it.  It  continued  to  be  a  part  of  Chris- 
tian belief  all  through  the  middle  ages, 
and  even  to  this  day  it  is  not  eradi- 
cated from  the  minds  of  some  true  be- 
lievers. As  late  as  1894  a  book  on 
Demon  Possession  and  Allied  Themes 
was  written  by  a  missionary  to  China, 
Rev.  John  L.  Nevius,  who  proclaimed 
his  belief  in  the  crudest  kind  of  witch- 
craft. 

6*  Medical,  as  well  as  other,  writers 
of  the  time  of  Coke  and  Hale,  were 
completely  deluded  with  the  belief  in 
witciicraft.  Sir  Thomas  Browne  has 
left  an  indelible  stain  upon  his  fame  by 
a  passage  in  his  Religio  Medici,  and  by 
his  testifying  against  two  old  women. 
Burton,  in  his  Anatomy  of  Melan- 
choly, says  of  witches:  "They  can 
cause  tempests  .  .  .  and,  last  of 
all,  cure  and  cause  most  diseases  to 
such  as  they  hate,  as  this  of  melancholy 
among  the  rest."  King  James  I.  wrote 
a  work  on  Demonologie  ( 1597 )  in  which 
he  urged  that  the  plea  of  insanity 
should  be  rejected  in  the  courts  for  the 
reason  that  the  witches  are  not  to  be 
regarded  as  mad ;  but  most  of  the  writ- 
ings of  this  monarch  are  "studded  with 
absurdities."  But  there  was  not  the 
excuse  for  these  writers  that  wiser 
lieads  had  not  yet  been  heard  from. 
Reginald  Scot,  in  1584,  had  published  a 
work  (The  Discovery  of  Witchcraft, 
etc.)  in  which  he  exposed  the  folly  and 
imposition    of   witchcraft;    and   Johann 


50S  IXSAXITY— FOItMS   AND  MEDICO-LEGAL   ASPECTS.  [§  44» 

449.  Tradition  and  common  law. — The  expression  "common  law"" 
is  made  to  cover  many  a  hiatus  by  British  jurists,  just  as  the  word 
''tradition"  is  made  to  stand  for  much  that  is  more  than  doubtful 
in  the  church.  It  often  means  merely  the  personal  opinion  of  the 
man  who  happens  to  be  writing,  or  happens  to  occupy  a  conspicuous 
judicial  position.^  This  is  particularly  true  of  the  definitions  of  in- 
sanity, given  by  Coke  and  Hale.  Their  non  compos  mentis,  "luna- 
tic," '"lucid  intervals,"  and  "partial  insanity,"  even  if  not  of  their 
own  coinage  (for  most  of  these  terms  were  in  general  use  in  the 
"common  law"  before  the  times  of  these  writers),  were,  nevertheless, 
defined  by  them  in  a  strictly  arbitrary  wa_y,  and  were  not  necessarily 
authoritative.  Even  if  these  writers  did  not  coin  them,  some  un- 
known writers  before  them  did  so.  Up  to  their  times,  and  even  to  our 
times,  their  origin  was,  and  remains,  unlcnown.  They,  and  the  idea? 
they  convey,  are  like  the  "Torah"  of  Moses,  as  to  which,  nobody 
knows  who  wrote  it,  or  'just  when. 

450.  Old  and  fanciful  opinions. — In  view  of  these  facts,  it  is  un- 
reasonable to  ask  modern  scientific  writers  to  square  their  ideas 
with  these  old  and  fanciful  opinions  of  Littleton,  Coke,  and  Hale. 
It  would  be  as  consistent  for  a  lawyer  to  try  to  conform  modern  life 
to  the  laws  of  Deuteronomy.^ 

Coke  contends  ^  that  the  English  laws  can  be  traced  back  to  tin- 
year  1103  B.  c. ;  and  that  they  were  copied  from  the  laws  of  the  Tro- 

Wierus,  on  tlie  Continent,  had  issued  to  cite  in  arsrunient,  are  still  short  of 
his  work  against  witchcraft  in  1579  having  authority  in  tlie  professional 
(Histoires.  Disputes,  et  Descourees  sense;  Bhickstone  is  tlie  leading  ex 
des  Illusions  et  Impostures  des  Diables,  ample.  Sir  Michael  Foster's  treatise  on 
des  jVIagiciens  Infames.  Soreiers.  etc.)  Crown  Law,  first  published  in  17G2.  only 
It  was  indeed  to  combat  the  works  of  three  years  before  Blackstone's  Corn- 
Scot  and  Wierus  that  James  I.  had  is-  mentaries,  is  said  to  be  the  latest  book 
sued  his  foolish  diitribe,  in  which,  with  to  which  authority  in  the  exact  sense 
insensate  cruelty,  he  says  that  the  pun-  can  be  ascril)ed." — Pollock,  First  Book 
ishment  of  death  "is  commonly  used  by  of  .Jurisprudence,  p.  2'?>Q. 
fire,  but  that  it  is  an  indifl'erent  thing.  It  cm  hardly  be  a  matter  of  surprise 
to  be  used  in  ever\'  country,  according  tliat  laymen,  and  especially  scientists. 
to  the  law  or  custom  thereof."  It  is  should  decline  to  accept  as  valuable  the 
thus  that  a  King  of  England  recom-  ancient  opinions  on  insanity  that  rest 
mended  the  slaugliter  of  the  insane!  on  no  better  foundations  than  are  in- 
See  Tuke.  History  of  the  Insane  in  the  dicated  by  Sir  Frederick  Pollock  in  the 
British    Isles.   1SS2,   Cliap.  I.,   for  not  a  above  passage. 

little  light  on  this  dark  subject.     Also        'For    an    interesting    account    of    the 

Lowell,  Essay  on  Witchcraft,  op.  cit.  origin     of     Deuteronomy     (one     of     the 

'  "No  general  description  can  be  given  oldest   codes    extant),    see    Wellhausen's 

of  what  constitutes  a  "book  of  author-  article  on  "The  Pentateuch"  in  the  Brit- 

ity.'     It  is  a  matter  of  judicial  custom  ish  Encyclopedia;   also  Kenan's  History 

and    professional    tradition.      We    have  of  the  People  of  Israel.     Kenan  thinks 

already   seen   that   being   written    by   a  Deuteronomy    was    a    Utopian    scheme, 

judge  does  not  make  a  book  authorita-  devised  by  the  priests,  and  never  used 

tive.      Some    books    which    are    highly  as  a   practical   rule  of  life, 
esteemed,  .and  which  it  is  not  improper        "  .*?  Kep.  Preface.  ''Td  the  Header." 


g  450]  INSANITY  AND  THE  LAW.  50!l 

jans  about  the  time  that  Samuel  was  judge  in  Israel.  They  were, 
moreover,  written  in  Greek  by  the  Druids;  but  Coke  says  he  will 
not  examine  tliese  things  in  a  quo  warranto.  The  passage,  however, 
reflects  his  historic  sense,  and  what  manner  of  critic  he  was  in  mat- 
ters scientific. •*"  It  also  shows  what  a  tremendous  task  it  might  be,  if 
Coke  M'ere  correct,  to  search  these  scriptures  for  new  light  on  the 
sul)joet  of  insanity. 

451.  Very  few  old  authorities. — The  mass  of  legal  literature  in 
Britain  and  America  is  already  great  enough  without  going  back  to 
tlie  times  of  Samuel  or  even  to  the  Greek-speaking  Druids.  And  yet 
the  multitude  of  authorities,  in  the  medical  jurisprudence  of  insan- 
ity, is  more  apparent  than  real.  The  student  cannot  follow  this  sub- 
ject far  ere  he  discovers  that  all  the  courts  and  all  the  critics  hark 
back  to  a  very  few  old  authorities.  The  standard  ones  run  about  as 
follows:  Bracton,  Littleton,  Coke,  Hale,  Erskine,  and  the  judges 
in'the  M'Naghien  Case.  In  addition  to  these  there  are,  of  course,  a 
large  number  of  opinions  by  individual  judges,  but  it  is  surprising  to 
a  scientific  mind  to  note  how  little  of  originality  the  various  courts 
have  allowed  themselves.  Tlie  decisions  of  one  court  after  another 
are  much  in  the  same  line  of  thought,  and  even  in  the  same  or  very 
similar  language.  Where  variety  of  opinions  occurs,  there  are  too 
apt  to  be  contradiction  and  confusion, — a  disadvantage  which  has 
occurred  not  seldom  on  the  subject  of  insanity  in  its  legal  aspects.      ' 

452.  The  writings  of  Bracton. — The  name  of  Bracton  stands  near 
the  head  of  the  list  of  authorities  in  English  law  whom  we  can  quote 
on  insanity.  And  yet  Bracton  was  not  so  much  a  "common-law" 
writer  as  he  was  a  "civilian,"  or  follower  of  the  Roman  law. 
He  was  Chief  Justiciary  in  the  Aula  Eegis,  or  highest  court  in  the 
Kingdom,  about  1265 ;  and,  as  was  usual  in  those  times,  he  was  a 
priest.  There  was  every  reason,  therefore,  as  he  was  a  Roman  ec- 
clesiastic, why  he  should  have  a  partiality  for  the  civil  law,  or  law  of 
the  Roman  Empire,  and  it  is  certain  that  he  copied  it.  "When  I  rely 
on  the  authority  of  Bracton,"  says  Sir  William  Jones,^^  "I  am  per- 
fectly aware  that  lie  copied  Justinian  almost  word  for  word."  He 
probably  belonged  to  that  class  of  ecclesiastics  to  which  Blackstone^- 
refers;  who,  being  the  only  educated  persons  in  the  realm,  acquired 
almost  exclusively  the  administration  of  the  laws,  and,  despising  the 

"Sir   Fitzjames   Stephen    (2   History        "  Quoted  by  Bridgman,  Legal  Bibliog- 
Crim.  Law,   Chap.  XXI.  p.  206)    says':     raphy,  p.  27. 
"A  more   disorderly   mind   than   Coke's        "  Introduction,  Com.  18,  19,  and  20. 

it  would  be  impossible  to 
find;"  and,  "The  speculative  parts  of 
his  writings  are  mostly  puerile." 


510  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  452 

native  laws,  desired  to  introduce  those  of  the  Romans.  These  facts 
suggest  that,  after  all,  much  of  the  boasted  "common  law"  of  England 
was  really  derived  at  an  early  age  from  the  Roman,  or  civil,  law. 
Certainly  Bracton's  definition  of  insanity,  as  quoted  by  legal  writers, 
has  a  terseness  and  crispness  that  is  strongly  suggestive  of  the  old 
Latin  way :  Furiosus  non  intelligit  quod  agit,  et  animo  et  ratione 
carets  et  non  muUiim  distat  a  hrutis^'^ — an  insane  person  is  one  Avho 
does  not  know  what  he  is  doing,  and  is  lacking  in  mind  and  reason, 
and  is  not  far  removed  from  the  brutes. 

453.  His  influence  has  been  long-continued. — This  definition,  com- 
pounded from  Bracton,  continues  to  this  day  to  have  influence  in  the 
courts,  and  the  dictum  that  an  insane  man  is  one  who  does  not  know 
Avhat  he  is  doing  has  been  pronounced  in  the  United  States  in  very 
recent  years. -^^  The  statement,  of  course,  is  not  correct.  The  in- 
sane, especially  the  criminal  insane,  know  well  enough  what  they  are 
doing,  unless  they  are  dements  or  stuporous  or  maniacal  lunatics. 
But  such  lunatics  and  dements  do  not  commit  crime.  As  for  the 
"wild  beast"'  theory  of  insanity,  i.  e.,  that  the  insane  are  similar  to 
brutes,  it  had  a  long  course  in  the  English  law,  and  was  exploited 
especially  by  Justice  Tracy  in  the  Arnold  Case}'"  But  the  insane 
are  not  like  brutes,  except  superficially ;  because  underneath  the 
deepest  degradation  of  their  insanity  they  have  what  no  brute  has, — 
a  human  mind.  Bracton's  idea  of  an  insane  patient  was  evidently 
limited  to  a  furious  or  raving  maniac.  In  this  respect,  too,  he  still 
has  his  followers.  The  idea  that  a  man  ijaay  have  some  intelligence 
and  still  be  insane  has  evidently  not  dawned  for  all. 

454.  His  dependence  on  the  civil  law. — As  showing  Bracton's  lean- 
ing to  the  civil  law,  and  the  wisdom  of  the  latter.  Coke  may  be  quoted. 
Coke^*^  saj'S  that,  according  to  the  civil  law,  all  acts  which  "ideots"  or 
non  compotes  mentis  do  without  their  tutor  are  utterly  void ;  and  that 
some  persons  criticize  the  common  law  for  not  agreeing  in  this  matter 
with  the  civil  law.  But  others  say  that  anciently  the  common  law  did 
agTce  with  the  civil  law,  as  shown  by  Bracton,^ ^  who  says:  Furiosus 
autem  stipulari  non  potest,  nee  alicjiuod  negotium  agere,  quia  non  in- 

"  De  Legibus  et  Consuetudinibus  An-  law.     Tlie    definition    as    given    in    the 

pVire,  edited  by  Sir  Travers  Twiss,  Lon-  text  is  in  the  form  quoted  by  some  le- 

don,  1S7S,  Lib.  III.  fol.  100,  and  Lib.  V.  gal  writers,  but  it  is  really  eorapounded 

fol.  420b.  See  the  very  learned  introduc-  of  two  separate  statements  Ly  Bracton. 

tion    to   this   work    for   a   statement   of  "State   v.   Duestrow.    137   Mo.   G9,   .38 

liracton's  obligations  to  the  Roman,  or  S.  W.  554,  39  S.  W.  266. 

civil,  law,  and  the  use  of  the  civil   law  "/?ca;  v.  Arnold,  16  How.  St.  Tr.  695. 

in   England  in  the   13th  century.     This  ^'''Beverley's  Case,  4  Coke,  124. 

use  was  very  extensive,  and  must  great-  "  De  Legibus,  Lib.  III.  fol.  100. 
ly    have    alTected    the    English    common 


§  454]  INSANITY  AND  THE  LAW.  511 

telliglt  quid  agit, — an  insane  person  cannot  trade,  nor  transact  anv 
business,  because  he  does  not  know  what  he  is  doing.  But  it  is  certain 
that  Bracton  got  this  from  the  Roman  law ;  and  it  even  reminds  us  of 
the  very  ancient  law  of  the  Twelve  Tables, — "If  any  one  becomes 
mad,  or  prodigal,  and  has  nobody  to  take  care  of  him,  let  a  relation,  or 
if  he  has  none,  a  man  of  his  own  name,  have  the  care  of  his  person  and 
estate. "^^ 

455.  Justinian. — This  is  also  prescribed  in  the  Institutes  of  Justin- 
ian,^'' wherein  it  is  said  that  curators,  or  g-uardians,  of  the  insane  are 
to  be  appointed  ex  inquisitione, — after  due  inquiry.  Herein  is  indi- 
cated an  ancient  rule  de  lunatico  inquirendo.  But  to  show  still  more 
clearly  how  closely  Bracton  followed  the  civil  law,  it  is  only  necessary 
to  quote  Justinian  in  one  other  placc,^''  as  follow^s :  Furiosus  nuUnm 
negotium  gerere  potest,  quia  non  intelligit  quod  agit, — a  madman  can 
transact  no  business,  because  he  does  not  know  what  he  is  doing. 
These  are  almost  Bracton's  exact  Avords.  Evidently  the  early  "com- 
mon law"  on  insanity,  as  written  by  Bracton,  was  only  a  transcript 
of  the  civil  law. 

456.  Britton. — But  the  "wild  beast"  theory  had  other  exemplars  in 
those  early  days.  Thus,  Britton,^^  who  dates  back  to  the  reign  of 
Edward  I.,  says  that  any  child  born  a  monster,  "as  one  that  has  more 
than  the  proper  number  of  members,  as  three  hands  or  three  feet,  or  a 
deficiency  in  the  same,  as  no  hands  or  no  feet,"  cannot  inherit;  and 
such  children  are  not  to  be  "accounted  as  children,  but  as  beasts  and 
monsters."  But  Bracton,  quoted  by  Nichols,  modifies  this  harsh 
doctrine  a  little,  for  he  says  that  an  increase  or  decrease  in  the  number 
of  members,  "not  affecting  the  human  form,"  as  six  or  four  fingers  on 
one  hand,  does  not  affect  a  child's  rights.  At  a  still  later  age  an  idiot 
was  not  estimated  by  the  number  of  his  hands  and  feet,  for  Fitzher- 
bert,^^  about  1535,  defined  an  idiot  as  "such  a  person  who  cannot  ac- 
count or  number  twenty  pence,  nor  can  tell  who  was  his  father^  ^  or 
mother,  nor  how  old  he  is,  etc."  But  "if  he  know  and  understand  his 
letters,  and  do  read  by  teaching  or  information  of  another  man, 
then  it  seemeth  he  is  not  a  sot  nor  a  natural  idiot."  But  modern 
experience  in  the  training  of  feeble-minded  children  proves  conclu- 
sively that  many  of  these  patients  can  do  all  the  things  that  Fitzher- 
bert  said  they  could  not  do,  and  many  more  besides. 

^»Tab.  V.  Law  VI.  ^  Nat.  Brev.  233. 

^'Lib.  I.  title  XXIIT.  §  3.  ^^Shakespeare   reversed   this   test,   for 

=°Lib.  III.  title  XX.  §  8.  he  said,  "It  is  a  wise  father  that  knows 

^  1676.  En.fflisli  translation  by  Nichols,  his  own  child."     Merchant  of  Venice,  IL 

I  am  aware  that,  accordins^  to  some  nii-  2,  81. 

f.liorities,     Britton     is     identified    with 

Bracton. 


512  INSANITV— FOI»IS  AND  MEDICO-LEGAL  ASPECTS.  fj  457 

457.  The  statute  De  Prerogativa  Regis. — Long  before  Fitzherbert, 
however,  an  accurate  view  of  idiocy  liad  been  taken  in  English  law, 
and  this  condition  had  been  clearly  distinguished  from  insanity. 
This  was  first  done  in  the  written  law  in  the  statute  De  Prerogativa 
Regis  (17  Edw.  II.,  a.  d.  1342),  although  even  before  that  time  Brit- 
ton-*  showed  that  the  distinction  was  recognized.  In  this  old  statute 
the  term  iwn  compos  mentis  was  used  to  designate  the  insane  as  dis- 
tinct from  the  idiot,  and  this  term  was  evidently  introduced  from  Jus- 
tinan,-^ — another  instance  of  the  influence  of  the  civil  law.  As  this 
whole  subject  is  explained  elscAvhere  in  this  work,-*'  it  is  enough  here 
merely  to  say  that  the  early  law-makers  saw  clearly  that  an  idiot,  or, 
as  they  called  him,  a  natural  fool  (fatuus  naturalis),  was  one  who 
was  born  so,  being  thus  distinct  from  an  insane  person,  or  non  compos 
mentis,  who,  having  originally  been  endowed  with  intelligence,  had 
lost  this  "by  the  visitation  of  God." 

The  next  glimpse  that  we  get  of  the  state  of  the  legal  conscience  on 
the  subject  of  insanity  is  more  than  a  century  later ;  but  this  glimpse 
shows  us  that  sundry  ideas  must  have  been  evolving  all  the  while, 
which  it  is  now  quite  impossible,  or,  at  least,  unnecessary,  to  trace  in 
detail. 

458.  Littleton,  and  the  doctrine  of  non-stultification. — Littleton,-' 
writing  of  Descents,  refers  to  "a  man  which  is  of  non  sane  memory, 
that  is  to  say  in  Latine,  qui  non  est  compos  mentis;"  and  then  pro- 
ceeds to  explain  the  law  relative  to  certain  rights  and  liabilities  of 
such  a  person  in  civil  matters.  For  instance,  he  refers  to  the  fact 
that  a  man  was  not  allowed  to  plead  he  was  insane,  in  civil  matters, 
when  property  was  in  question,  ''for  that  no  man  of  full  age  shall  be 
received  in  any  plea  by  the  law  to  disable  his  owne  person."^^  And 
then  Littleton  continues :  "But  the  heir  may  well  disable  the  person 
of  his  ancestor  for  his  owne  advantage  in  such  case,  .  .  .  for 
that  no  laches  may  be  adjudged  by  the  law  in  him  which  hath  no  dis- 
cretion in  such  case."  This  was  an  old  principle  (long  since  aban- 
doned) in  English  law,  that  a  man  was  not  allowed  to  stultify  himself, 
and  therefore  he  could  not  plead  his  own  insanity  to  annul  his  obliga- 
tions ;  but  his  heir  could  do  this,  and  thus  maintain  his  own  rights. 
For  the  heir  had  had  "no  discretion"  in  the  matter,  but  the  lunatic 
himself  should  have  had  more  discretion  than  to  become  crazy. 
Such  was  the  reasoning  of  the  early  English  law  on  the  subject  of 
insanity. 

"167&.  "Co.  Litt.  Lib.  IIL  Chap.  VI.  §  405. 

'^  Institutes,  Lib.  II.  title  XII.  §  1.  =*  "Pur   ceo   que   nul    home   de   pleine 

"  Under  the  definition  of  non  compon  n^e  serra  resceive  en  ascun    plee  per  la 

mentu,  p.  482,  ante.  ley  a  disabler  le  person  demesne." 


§  459]  INSANIi-Y  AND  THE  LAW.  513 

459.  Why  a  man  was  not  allowed  to  stultify  himself.— -It  is  easy 
enough  to  declaim  against  such  fatuity  as  the  above ;  but  we  can  well 
afford  to  be  content  with  the  assurance  of  good  authorities  that  such  is 
no  longer  the  law.^*^  To  a  lay  mind  the  principle  involved  seems  to 
indicate  the  extreme  suspicion  that  was  held,  even  in  those  early  days, 
of  the  plea  of  insanity,  and  the  ease  with  which  this  plea  could  be 
abused.  In  an  uncritical  age,  when  the  knowledge  of  insanity  was  of 
the  crudest  kind, — when,  in  fact,  there  could  not  be  said  to  be  a  sci- 
ence of  psychiatry, — such  suspicion  was  not  unnatural  or  unwar- 
ranted. There  were  no  scientific  criteria  by  which  to  go ;  and,  on  the 
other  hand,  there  were  the  rights  of  property  to  be  guarded.  What 
was  more  natural  than  for  the  law  to  resent  the  idea  that  a  man  waa 
to  be  allowed  to  come  into  court  and  plead,  in  avoidance  of  his  obliga- 
tions, that  he  had  been  suffering  with  a  malady  which  no  one  in  those 
days  knew  much  about?  If  a  more  enlightened  age  cannot  tolerate 
such  a  law,  this  is  largely  for  the  reason  that  the  knowledge  of  insan- 
ity has  immensely  advanced,  and  it  is  now  possible  to  secure  for  this 
disease  more  reasonable  consideration  in  our  courts.  But  the  attitude 
of  the  law  in  this  matter  in  former  days  was  no  more  irrational  than 
the  attitude  of  the  church,  or  even  of  the  medical  profession ;  for  the 
church  believed  that  insanity  was  due  to  possession  by  demons,  and 
the  medical  profession  that  it  was  a  fault  that  could  be  scourged  out 
of  a  man,  or  for  which  he  should  be  kept  in  chains."^- 

460.  Coke  and  the  Beverley  Case. — Coke  says  of  Littleton's  book: 
''This  book  is  the  ornament  of  the  common  law,  and  the  most  perfect 
and  absolute  work  that  ever  was  written  in  any  human  scienice."  This 
is  high  praise,  and  imports  that,  in  Coke's  judgment,  such  a  book  con- 
tained the  acme  of  wisdom ;  therefore,  Coke  must  have  approved  of 
the  doctrine  of  non-stultification.  That  he  did  so,  and  that  this  doc- 
trine was  good  law  in  those  days,  is  set  forth  in  his  report  of  BeveV' 
ley's  Case}^  This  case  is  a  landmark  in  the  medical  jurisprudence 
of  insanity,  for  in  it  Coke  has  condensed  much  law  which  he  had 
gathered  from  old  law-reports  on  this  subject.  It  ha?  to  do  in  detail 
with  questions  of  the  legal  rights  and  liabilities  of  non  compotes  men- 
tis (a  term  for  the  insane  which  is  used  all  through  it)  ;  more  espe- 
cially with  reference  to  their  civil  rights  in  matters  of  property.  It 
is  quaint,  technical,  and,  to  a  lay  reader,  obscure;  and,  I  imagine, 
6ome  of  it  is  rather  antiquated  law  now-a-days;  but  it  doubtless  re- 

"2  Bl.  Com.  292.  tinction  of  having  liis  works  quoted  in 

29^  Tuke,    History   of   the    Insane    in  legal    writings    without    his    name, — a 

the   British   Isles,    1882,   Chaps.   I.   and  dubious    honor,   and   one   which    i3   not 

II.  ventured  on  in  these  pages. 
"4  Coke,   124.     Coke  enjoys  tne  dia 
Vol.  I.  Med.  Juk. — 33. 


514  INSANITY— FOIUIS  AND  IMEDICO-LEGAL  ASPECTS.  [§  4G0 

fleets  the  law  and  the  ideas  of  those  times:  hence,  its  interest  and 
vahie. 

461.  Insanity  and  high  treason. — In  addition  to  the  doctrine  of  non- 
stultification,  Coke  expounds  another  legal  notion  in  Beverley's  Case, 
which  is  equally  extraordinary.  He  observes  that  ''non  compos  men- 
tis may  commit  high  treason;  as,  if  he  kills  or  offers  to  kill  the 
King;"^^  for  the  King  est  caput  et  salus  reipuhlicce,  et  a  capite  bona 
vahtuclo  transit  in  omnes  [for  the  King  is  the  head  and  safety  of  the 
state,  and  from  the  head  good  health  is  transmitted  to  all]  ;  and  for 
this  reason  their  persons  are  so  sacred  that  none  can  offer  them  any 
violence ;  but  he  is  reus  criminis  loesoe  majestatis,  et  pereat  unus  ne 
pereant  omnes  [guilty  of  the  crime  of  laese  majestic,  and  let  one  die 
lest  all  perish]." 

This  practically  means  that,  although  an  insane  man  is  not  to  bo 
held  giiilty  of  criminal  offenses,  yet  an  exception  arises  in  the  case  of 
his  killing  or  attempting  to  kill  the  King,  for  the  reasons  given.  And 
those  reasons  have  nothing  whatever  to  do  with  the  question  of  insan- 
ity, but  are  based  entirely  on  the  sacredness  of  the  persons  of  kings. 
This  doctrine,  even  more  than  the  doctrine  of  non-stultiiication,  shows 
clearly  how  incapable  our  legal  ancestors  often  were  of  grasping 
accurate  ideas  of  insanity.  A  man  could  be  insane  on  every  other  sub- 
ject, but  let  him  beware  how  he  lost  his  reason  on  the  subject 
of  the  personal  comfort  of  kings.^^  This  was  considered  such 
sound  doctrine  that  even  after  Coke's  time  it  was  approved  by  LGa-d 
Chief  Justice  Hale,^^  who  said:  "This  is  a  safe  exception,  and  1 
shall  not  question  it,  because  it  tends  so  much  to  the  safety  of  the 
King's  person."""* 

462.  The  early  prejudice  against  the  insane  regicide. — There  is  seen 
in  this  doctrine  a  tendency,  still  very  common,  to  regard  regicide  as  a 
crime  that  puts  a  man  almost  or  quite  outside  the  pale  of  law,  and  one 
for  which  even  insanity  is  no  excuse.  In  fact,  even  to  this  day,  there 
is  no  crime  for  which  the  plea  of  insanity  is  so  unpopular,  and  so  dif- 

"  "Mes    in    ascun    cases    non    compos  6)   tliat  7Wn  compos  mentis  cannot  eom- 

mcntis    poit    comniitte    liault    treason,  niit  high  treason,  but  it  must  be  "abso- 

come  si  il  tua,  ou  offer  a  tuer  le  roy."  lute  madness"  and  a  "total  deprivation 

**  Coke  gives  a  later,  fuller,  and  more  of  memory." 
rational  statement  (3  Inst.  4)  about  the  =^  1  P.  C.  Chap.  IV.  p.  37. 
law   of  treason   in   reference  to  the  in-  '^  This   was  a  safe  conclusion   on  the 
sane,  and  says  that  non  compos  mentis  part  of  a  chief  justice  who,  having  orig- 
is     not     within     the     statute     against,  inally  taken  his  seat  under  Cromwell's 
treason,   for   the   principal    end  of  pun-  governmont   (which  had  cut  off  a  king's 
ishment  is  that  others,  by  example,  may  head),   was   probably   desirous   of  keep- 
fear    to    offend     {ut    poena    ad    paucos,  ing    his    place    upon    the    accession    of 
rnetus  ad  omnes  perveniat)  ;    but   such  Charles  II.,  even  by  sentencing,  if  nec- 
punishment  can  be  no  example  to  mad-  essary,  every  madman  in  the  realm, 
men.     He  also  says  distinctly    (3  Inst. 


§  402]  INSANITY  AND  THE  LAW.  515 

ficiilt  to  obtain  a  dispassionate  hearing-  for,  as  the  assassination  of  a 
president  or  a  king.  Therefore,  this  enunciation  by  Coke  of  the 
doctrine  that  insanity  is  no  defense  for  the  crime  of  "hiese  ma- 
gestie"  is  of  interest  as  showing  how  deep-rooted  snch  ideas  arc  in 
Anglo-American  law.  A  criticism  of  snch  a  doctrine  is  scarcely  nec- 
essary. The  mere  bald  statement  of  it,  as  made  by  Coke,  carries  its 
ow^l  condemnation;  for,  as  seen -in  its  naked  nglincss,  it  is  wlioliy  re- 
pugnant to  reason  and  to  justice.  The  heat  of  popular  passion  and 
the  desire  of  official  vengeance,  as  shown,  for  instance,  in  the  cases  of 
Uamiens,^^  Ecllingham,^^2  and  Guiteau,  merely  reflect  that  disposi- 
tion to  ignore  evidence,  or  to  railroad  a  man  to  his  doom,  which  finds 
expression  in  the  doctrine  set  forth  by  Coke."*^ 

463.  Coke's  atteir^pts  at  a  classification  of  insanity. — It  is  the  chief 
merit  of  Sir  Edward  Coke  that  he  was  the  first  writer  on  English  law 
wiio  attempted  anything  like  a  scientific  treatment  of  the  subject  of 
insanity.  He  essayed  both  to  define  and  to  classify  insanity,  and  his 
influence  in  this  way  has  been  very  great.  In  commenting  on  the 
passage  in  Littleton,  quoted  above,  he  says :  "Here  Littleton  explain- 
eth  a  man  of  no  sound  memorie  to  be  non  compos  mentis.  Many  times 
(as  here  it  appeareth)  the  Latin  word  explaineth  the' true  sense,  and 
calleth  him  not  amcns,  demens,  furiosus,  lunaticus,  fatuus,  stultus,  or 
the  like,  for  non  compos  mentis  is  mofet  sure  and  legal. "^^ 

Coke  thus  adopted  the  old  Latin  term  for  insanity,  which  had  orig- 
inally been  taken  by  the  early  English  civilians  from  the  Institutes 
of  Justinian  f^  and  he  showed  that  he  had  a  more  just  appreciation  of 
its  meaning  than  some  subsequent  writers,  for  he  attempted  to  make 
nothing  special  or  distinct  out  of  it,  but  merely  used  it  as  a  generic 
term  for  all  forms  of  insanity.  This  is  shown  conclusively  in  tlie  way 
he  used  it  in  his  scheme  of  classification. 

464.  His   scheme   of  classification.— This  was  as  follows:     "Non 

"  Dainiens  did  not  succeed  in  his  at-  Hen.    VIII.    chap.    20,    which    provided 

tempt  to  assassinate  Louis  XV.,  whom  tliat  if  a  person  being  "of  good,  perfect, 

ho    "wounded    slightly    under    the    fifth  and  whole  memory"  should  commit  hi"-li 

rib"    (Carlyle)  ;    but   he   was   executed,  treason,  and  afterwards   fall   into  ma(l- 

aceording  to  some  accounts,  with  great  ness,  he  might  be  tried  in  his  absence, 

barbarity.      For  a  reference  to  his  case,  and  executed  as  if  he  were  sane.     This 

see  the  American  Journal   of  Insanity,  law  was  repealed  by  1  and  2  Phil,  ana 

III.,  p.  185.  Mary,    chap.    10.     See    Coke,    3    Inst.    4 

3  5^  Bellmgham,  to  be  sure,  was  not  a  and  6;  1  Hale,  P.  C.  .34;  and  Blackstone, 

regicide,  but  he  assassinated  a  high  of-  4  Com.  25.    Coke  well  says  that  such  an 

ficer  of  state,— an  offense  which  is  near-  execution    of    a    madman    would    be    "a 

ly  identified  in  the  popular  mind  with  miserable    spectacle;"    and    Blackstone 

the   crime    of   killing   the   head   of   the  calls   it  a   "savage  and   inhuman   law." 

state  himself.  The  statute  is  given  in  full  by  Collin- 

^°This  spirit  of  undiscriminating  ven-  son,  2  Lunacy,   105. 

geance  in  the  old  English   law  against  ''  2  Litt.  246. 

treason    was   sho\vn    in   the    statute   33  **  Lib.  II.  title  XII.  §  L 


S16  INSANITY— FORAIS  AND  MEDICO-LEGAL  ASrECTS.  [§  464 

compos  mentis  is  of  four  sorts:  1.  Ideota,  which  from  his  nativitie, 
by  a  perpetuall  iufirmitie,  is  non  compos  mentis.  2.  Ilee  that  by 
sicknesse,  griefe,  or  other  accident,  wholly  loseth  his  memorie  and 
understanding.  3.  A  lunatique  that  hath  sometime  his  understand- 
ing and  sometime  not,  aliquando  gaudct  lucidis  intcvvallis  and  there- 
fore he  is  called  non  compos  mentis  so  long  as  he  hath  not  understand- 
ing. Lastly,  hee  that  by  his  owne  vitious  act  for  a  time  depriveth 
himself  of  his  memorie  and  understanding,  as  he  that  is  drunken. 
But  that  kinde  of  non  compos  mentis  shall  give  no  privilege  or  benefit 
to  him  or  to  his  hcires."^^  The  rest  of  the  passage  in  Coke  refers  to 
the  rights  of  property,  and  is  expressed  in  a  very  technical  way. 

465.  Coke's  distinction  between  civil  and  criminal  insanity. — After 
expounding  why  and  how  a  non  compos  mentis  shall  not  be  allowed  to 
'^disable  himself"  (or  stultify  himself  by  proving  himself  insane)  in 
civil  matters,  Coke  goes  on  to  say : 

''But  this  holdeth  only  in  civil  causes ;  for  in  criminal  causes,  as 
felonie,  &c.,  the  act  and  wrong  of  a  madman  shall  not  bee  imputed  to 
him,  for  that  in  those  causes  actus  non  fecit  reum,  nisi  mens  sit  rea 
{the  act  does  not  make  the  criminal  unless  the  mind,  or  intention,  is 
criminal]  ;  and  he  is  aniens  {id  est)  sine  mente, — without  his  minde 
or  discretion ;  and  furiosus  solo  furore  punitur, — a  madman  is  only 
punished  by  his  madnesse." 

This  passage  is  most  significant,  for  it  is  not  only  a  noble  statement 
of  the  irresponsibility  of  the  insane,  but  it  is  also  a  very  early,  if  not 
the  earliest,  attempt  in  English  law  to  make  a  distinction  between  the 
civil  and  criminal  liabilities  of  the  insane.  Such  attempts,  as  will  be 
shown  later  in  these  pages,  were  not  uncommon  in  after  years;  but 
the  attempt  of  Coke  differed  from  those  that  appeared  later,  for  Coke 
.showed  a  greater  leniency  towards  the  insane  in  criminal  than  in  civil 
matters ;  whereas  with  later  writers  it  was  just  the  reverse.  This  fact 
seems  to  have  escaped  the  critics.  It  is  not  only  to  the  credit  of  Coke, 
but  it  shows  that  the  later  dogma  was  not  inherent  in  the  common  law, 
i)ut  was  an  afterthought 

466.  Coke's  scheme  is  noteworthy. — Coke's  classification  is  note- 
worthy on  several  accounts.  As  already  said,  it  was  the  first  attempt  by 
any  English  jurist.  It  showed  a  comprehensive  view  of  the  subject, 
and  was  scientific  in  the  sense  that  it  included  idiocy ;  for,  in  a  strictly 
scientific  sense,  idiocy  is  a  form  of  insanity.  It  was  exceedingly  sim- 
ple, and  although  it  is  not  of  much  present  value,  it  was  sufficient  for 
all  legal  purposes.  It  included  alcoholism,  but  with  a  saving  clause 
which  long  stood  in  law,  but  which  has  gradually  yielded  to  some  ira- 

•2  Litt.  247a. 


§  466]  INSANITY  AND  THE  LAW.  517 

portant  exceptions,  for  alcoholic  insanity  is  now  recoj^nized  in  the 
courts.  It  did  not  attempt  any  super-refinements  in  defining  terms, 
such  as  non  compos  mentis,  but  took  this  latter  term  (which  was  aft- 
erwards much  abused)  at  its  simple  and  obvious  meaning;  namely,  as 
a  generic  term  to  include  all  forms  of  mental  disease.  It  showed 
some  rational  insight  into  the  causation  of  insanity,  as  in  the  second 
gToup,  wherein  "sickness,  grief,  and  accident"  are  named  as  etiologi- 
cal factors.  Finally,  it  presented  one  great  fault;  namely,  the  recog- 
nition of  lunacy  as  a  distinct  form  of  insanity,  and  the  description  of 
it  as  being  characterized  by  "lucid  intervals." 

467.  His  ideas  of  lunacy. — This  subject  of  "lunacy"  and  "lucid  in- 
tervals" is  criticized  at  length  elsewhere  in  these  pages.^^  It  is  suffi- 
cient here  to  point  out  that  Coke  seems  to  have  been  the  first  writer  to 
erect  this  purely  artificial  conception  as  a  legal  entity,  and  to  attempt 
to  give  it  an. objective  existence.  There  is  no  such  thing  in  actual  in- 
sanity as  the  "lunatic"  of  Coke,  if  by  that  term  is  meant  a  distinct 
clinical  form,  and  if  that  clinical  form  is  always  characterized  by 

."lucid  intervals."  Science  knows  no  such  clinical  form.  Therefore, 
the  separation  of  "lunatics"  from  patients  who  become  insane  from 
"sickness,  grief,  or  other  accident,"  is  entirely  arbitrary  and  unscien- 
tific. Moreover,  the  subject  is  of  more  than  academic  interest,  be- 
cause, as  shown  elsewhere,  the  creation  of  this  artificial  "lunatic," 
with  his  "lucid  intervals,"  led  to  great  confusion  among  English  and 
American  jurists. 

468.  The  writings  of  Hale. — Sir  Matthew  Hale,  Lord  Chief  Justice 
of  the  King's  bench  (1671-1676),  was  the  next  writer  of  English 
law  who  left  an  indelible  stamp  on  the  medical  jurisprudence  of  in- 
sanity. His  influence  has  been  even  greater  than  that  of  Coke, 
whom,  however,  he  followed  in  many  of  his  ideas.  Like  Coke,  he 
treated  the  subject  of  insanity  with  some  attempt  at  system,  and  gave 
the  topic  a  form  which  it  retains  in  law  even  to  this  day. 

469.  His  definitions. — Hale"*^  divided  the  subject  as  follows : 

"1.  Idiocy,  or  fatuity  a  nativitate  vel  dementia  naturalis;  such  a 
one  is  described  by  Fitzherbert,  who  knows  not  to  tell  20  shillings, 
nor  knows  who  is  his  father  or  mother,  nor  knows  his  owti  age ;  but  if 
he  knows  letters,  or  can  read  by  the  instruction  of  another,  then  he  is 
no  idiot.  Fitzherbert,  Nat.  Brev.  2336.  These,  though  they  may  be 
evidences,  yet  they  are  too  narrow,  and  conclude  not  always,  for  idiocy 
or  not  is  a  question  of  fact,  triable  by  jury,  and  sometimes  by  inspec- 
tion. 

'-"See  articles  on  ISIon  Compos  Men-  "I  P.  C.  1st  Am.  ed.  Phila.  1847, 
tis,  "Lucid  Intervals,"  and  "Lunatic."      Chap.  IV. 


518  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  4GU 

"2.  Dementia  accidentalis  vel  adventilia,  which  proceeds  from  sev- 
eral causes ;  sometimes  from  the  distemper  of  the  humours  of  the 
body,  as  deep  melancholy,  or  adust  choler;  sometimes  from  the  vio- 
lence of  a  disease,  as  a  fever  or  palsy ;  sometimes  from  a  concussion  or 
hurt  of  the  brain,  or  its  membranes  or  organs ;  and  as  it  comes  from 
several  causes,  so  it  is  of  several  kinds  or  degTees;  which,  as  to  the 
purpose  in  hand,  may  be  thus  distributed :  1.  There  is  a  partial  in- 
sanity of  mind ;  and  2,  a  total  insanity." 

The  former  is  of  those  persons  who  "have  a  competent  use  of  rea- 
son in  respect  of  some  subjects,"  but  yet  are  "under  a  particular  de- 
mentia in  respect  of  some  particular  discourses,  subjects,  or  applica- 
tions ;  or  else  it  is  partial  in  respect  of  degi'ees ;  and  this  is  the  condi- 
tion of  very  many,  especially  melancholy  persons,  who,  for  the  most 
part,  discover  their  defect  in  excessive  fears  and  griefs,  and  yet  are 
not  wholly  destitute  of  the  use  of  reason;  and  this  partial  insanity 
seems  not  to  excuse  them  in  the  committing  of  any  offense  for  its  mat- 
ter caj^ital."  He  acknowledges  that  it  is  very  difficult  to  define  the 
invisible  line  that  divides  perfect  and  partial  insanity,  and  it  must 
be  decided  by  judge  and  jury.  He  proposes  as  a  test,  "such  a  person 
as,  laboring  under  melancholy  distempers,  hath  yet  ordinarily  as  great 
understanding  as  ordinarily  a  child  of  fourteen  years  hath,  is  such  a 
person  as  may  be  guilty  oftreason  or  felony." 

He  recognizes  Coke's  absolute  madness,  or  "total  deprivation  of 
sense"  as  the  same  thing  that  is  indicated  by  his  o^^^l  term  "total" 
madness.  Hale  then  makes  his  distinction  between  permanent  mad- 
ness and  "that  which  is  intei'polated,  and  by  certain  periods  and  vi- 
cissitudes." This  latter  affection  is  lunacy, — so  called  from  the 
moon. 

"For  the  moon  hath  a  great  influence  in  all  diseases  of  the  brain, 
especially  in  this  kind  of  dementia:  such  persons  commonly  in  the 
full  and  change  of  the  moon,  especially  about  the  equinoxes  and  sum- 
mer solstice,  are  usually  in  the  height  of  their  distemper ;  and  there- 
fore crimes  committed  by  them  in  such  their  distempers  are  under  the 
same  judgment  as  those  whereof  we  have  before  spoken,  namely,  ac- 
cording to  the  measure  or  degree  of  their  distemper;  the  person  that 
is  absolutely  mad  for  a  day,  killing  a  man  in  that  distemper,  is 
equally  not  guilty  as  if  he  were  mad  without  intermission.  But  such 
persons  as  have  their  lucid  intervals  (which  ordinarily  happens  be- 
tween the  full  and  change  of  the  moon)  in  such  intervals  have  usually 
at  least  a  competent  use  of  reason,  and  crimes  committed  by  them  in 
these  intervals  are  of  the  same  nature,  and  subject  to  the  same  pun- 
ishment, as  if  they  had  no  such  doticiency  .      ." 

Finally,  Hale  recognizes: 


§  4G9]  INSANITY  AND  THE  LAW.  519 

"3.  Demeniia  affedaia,  or  drunkenness;"  of  which  he  says  that 
''hj  the  laws  of  England  such  a  person  shall  have  no  privilege  by  this 
voluntary  contracted  madness,  but  shall  have  the  same  judgment  as 
if  he  were  in  his  right  senses." 

470.  Hale  on  tests  for  insanity. — Tn  criticizing  Sir  Matthew  Ilale's 
psychiatry,  the  first  thing  that  strikes  us  is  the  fact  that  he  discusses 
the  subject  of  tests  for  insanity.  In  fact,  if  we  except  Fitzherbert 
and  his  test  for  idiocy,  Hale  was  the  first  legal  writer  to  give  this 
subject  of  tests  any  prominence,  and  he  is  therefore  the  pioneer  in 
this  department  of  medical  jurisprudence.  And  it  is  noteworthy,  in 
the  first  place,  that  he  demolishes  Fitzherbert's  test  with  a  criticism 
that  goes  to  the  root  of  the  whole  matter ;  and  one,  moreover,  that  has 
been  applied  by  a  few  later  judges  to  demolish  all  such  tests  whatso- 
ever. Fitzherbert  had  said  that  an  idiot  was  one  who  could  not  tell 
20  pence,'*^  or  who  was  his  father  and  mother,  and  other  such  com- 
monplace matters ;  but  Hale  says :  "These,  though  they  may  be  ev- 
idences, yet  they  are  too  narrow,  and  conclude  not  always,  for  idiocy 
or  not  is  a  fact  triable  by  jury,  and  sometimes  by  inspection."  This  is 
a  most  important  statement  by  Lord  Chief  Justice  Hale,  and  has  not 
been  duly  apprehended  by  most  later  writers.  It  is  practically  a 
condemnation  of  all  juridical  tests  for  insanity,  and  clearly  means 
that  such  questions  are  matters  of  fact,  to  be  determined  by  a  jury 
on  the  evidence,  and  not  according  to  the  dictum  of  the  court.  This 
is  identically  the  position  taken  by  some  of  the  more  advanced  Ameri- 
can judges,'*"  and  it  is  extraordinary  to  a  medical  reader  that  so  many 
judges,  both  in  England  and  America,  who  have  relied  so  largely  on 
Hale,  have  entirely  ignored  this  fundamental  statement.  If  idiocy  is 
a  fact  triable  by  jury,  so  is  insanity ;  and  juries  are  sworn  to  try  ques- 
tions of  fact  according  to  the  sworn  evidence,  and  not  according  to 
tests  promulgated  by  the  judges,  who  are  not  on  their  oaths  to  give 
testimony  as  experts. 

471.  His  own  test.— But  Hale  himself  did  not  see  the  full  import  of 
his  own  criticism,  for  he  proceeds  shortly  to  give  a  test  of  his  own; 
and  this  was  the  first  test  for  insanity,  so  far  as  appears,  ever  given 
in  English  law,  just  as  Fitzherbert's  was  the  first  test  for  idiocy.  Ac- 
cording to  Hale  the  proper  test  would  be :  "Such  a  person  as,  labor- 
ing under  melancholy  distempers,  hath  yet  ordinarily  as  gi-eat  under- 
standing as  ordinarily  a  child  of  fourteen  years  hath,  is  such  a  pesaen 

"  Hale  quotes  20   shillings,  according  Hampshire,  in  the  case  of  Boardman  v. 

to   the  American   edition    of   his   work;  Wood?na«,  47  N.  H.  120.     The  subject  is 

but     the     original     of     Fitzherbert     is  discussed  in  the  present  work  under  the 

"pence."  head  of  "The  Rules   in  the  M'Naghten 

**  Especially   by   Judge   Doe,    of   New  Case." 


520  INSANITY— FORMS  AND   .MEDICO-LEGAL  ASPECTS.  [§  471 

as  may  be  guilty  of  treason  or  felony."  That  is  to  say,  having  just 
condemned  Fitzherbert's  20-pennies  test,  he  proposes  the  fourteen- 
year-old-child  test.  It  is  needless  to  insist  that  the  one  is  no  better 
than  the  other,  for  both  are  of  the  same  caliber  and  equally  trivial. 
The  fact  that  a  learned  writer,  accustomed  to  close  and  accurate  think- 
ing on  legal  subjects,  such  as  Lord  Chief  Justice  Hale  unquestionably 
was,  could  reject  one  of  these  tests  and  then  propose  the  other,  is  a 
curious  evidence  of  the  loose  thinking  that  prevailed  in  those  days  on 
the  subject  of  mental  disease. 

That  the  understanding  of  a  healthy  child,  fourteen  years  old,  has 
no  resemblance  whatever  to  the  various  forms  of  insanity  in  adults, 
is  a  fact  in  mental  pathology  so  obvious  that  it  hardly  needs  to  be  in- 
culcated to-day,  even  for  the  benefit  of  non-medical  readers. 

472.  Hale's  "partial"  insanity  and  "total"  insanity. — Hale's  cele- 
brated division — "partial  insanity"  and  "total  insanity" — has  been 
much  followed  in  courts  of  law,  but  both  terms  are  misleading. 
When  he  wrote  of  partial  insanity.  Hale  evidently  had  in  mind  those 
persons  who  labor  under  depressive  or  delusional  ideas ;  for  he  says 
of  them  that  "they  are  under  a  particular  dementia  in  respect  of  some 
particular  discourses,  subjects,  or  applications ;"  and  again,  that  they 
"are  not  wholly  destitute  of  the  use  of  reason."  This  description  ap- 
plies only  to  patients  with  delusions,  more  or  less  sj'stematized  and 
fixed :  hence,  to  melancholiacs,  and  especially  to  paranoiacs.  l^ow 
these  are  the  very  patients  who  are  the  most  apt  to  furnish  examples 
of  the  criminal  insane ;  and  yet,  so  oblivious  of  this  fact  was  Hale, 
that  he  expressly  says  that  this  "partial. insanity  seems  not  to  excuse 
them  in  the  committing  of  any  offense  in  its  matter  capital."  Here, 
with  one  sweeping  sentence,  whose  true  import  it  may  be  doubted 
whether  he  understood.  Hale  excludes  from  all  leniency  the  vast  ma- 
jority of  the  criminal  insane.  IvTothing  that  Sir  Mathew  Hale  wrote 
on  the  subject  of  insanity  has  had  such  an  injurious  influence  as  these 
words.  They  have  constantly  supported  the  contention  that  the  de- 
lusional lunatic,  inasmuch  as  he  can  reason  correctly  on  most  topics, 
is  to  be  held  responsible ;  and  they  found  their  ultimate  interpretation 
in  the  rules  in  the  M'Nagliten  Case,  nearly  two  hundred  years  later ; 
namely,  that  a  knowledge  of  right  and  wrong  (which  is  among  the 
most  elementary  of  human  concepts)  is  sufficient  to  establish  a  man's 
responsibility;  and  that  a  delusion  only  excuses  in  case  a  man  acts  in 
direct  response  to  it,  and  then  acts  consistently  with  the  law.  All 
the  later  controversies  about  "delusions"  and  "monomania"  (that  im- 
possible insanity  of  "one  idea")  can  be  traced  more  or  less  directly 
to  Hale's  definition. 


§  473]  INSANITY  AND  THE  LAW.  52l 

473.  What  is  "partial"  insanity? — Few  legal  writers  seem  to  care 
to  analyze  what  is  meant,  or  can  be  meant,  by  a  partial  insanity.  If 
the  words  are  taken  strictly,  they  must  include  almost  all  the  insane ; 
for  there  are  few,  if  any,  insane  persons  who  have  not  some  use  of 
their  minds.  Only  the  most  advanced  dements  or  the  most  furious 
maniacs  can  be  placed  in  a  class  of  patients  who  have  no  glimmer  of 
reason,  no  use  of  their  senses,  no  power  of  memory,  no  play  of  emo- 
tion, however  slight;  and  even  of  these  extreme  cases  such  absolute 
negation  of  all  normal  mentality  can  hardly  be  affirmed.  On  the 
other  hand,  it  is  not  more  reasonable  to  say  that  a  paranoiac  or  a  mel- 
ancholiac  is  only  partially  insane  than  to  say  that  a  patient  with  ty- 
phoid fever  is  only  partially  ill  because,  perchance,  his  heart  or  his 
kidneys  may  be  sound ;  or  to  say  that  a  patient  with  cirrhosis  of  the 
liver  is  only  partially  sick  because  his  brain  or  his  knee-joints  are 
not  affected  by  the  disease. 

474.  And  "total"  insanity? — This  same  argument  applies,  of  course, 
per  contra,  to  the  idea  of  a  total  insanity.  Is  there  ever  such  a  thing 
as  a  total  insanity  ?  Does  the  term  not  mean  the  absolute  extinction 
of  every  mental  function,  every  perception,  every  sensation,  every  im- 
pulse, every  mental  reflex  whatsoever  ?  Is  such  a  form,  such  a  com- 
plete blank  or  night  of  the  mind,  ever  conceivable  ?  The  answer  must 
be  that  such  a  total  extinction  of  mentality  occurs  only  in  the  most 
advanced  dements ;  and  such  dements  are  never  the  objects  of  medico- 
legal inquiry,  because  they  have  not  sufficient  mental  power  to  commit 
an  act  in  its  nature  purposive. 

475.  The  terms  criticized. — The  truth  is  that  the  terms  "partial" 
and  "total"  are  not  applicable  as  descriptive  terms  of  insanity,  and 
are  not  used  as  such  by  many  scientific  alienists.  The  attempt  to  an- 
alyze these  terms  involves  us  at  once  in  mere  verbal  refinements  or 
quibbles.  All  diseases  exist  in  various  degrees,  but  this  is  not  the 
same  thing  practically  as  total  or  partial.  This  is  seen  if  we  take  the 
case  of  any  other  disease  than  insanity, — a  fever,  for  instance.  One 
l^atient  may  have  a  mild,  another  a  severe,  grade  of  typhoid  fever; 
but  surely  no  pathologist  would  say  of  the  one  that  he  had  a  partial, 
and  of  the  other  that  he  had  a  total,  attack.  The  same  is  true  of  in- 
sanity. Is  a  patient  with  a  mild  mania  only  partially  insane  ?  and,  if 
so,  who  will  assume  to  say  at  what  stage  he  passes  the  boundar^^  line 
into  a  total  mania  ?     Lord  Lyndhurst*^  said,  in  Dew  v.  Clarhe,  that 

"5   Russ.   Ch.    166-168.     Lord  Lynd-  tlie  mind  must  be  perfectly  sound;  oth- 

hurst's    exact    words    were:      A   person  erwise  it  is  unsound, 

could  not  be  partially  insane  and  sane  It   may   be  worth   while  to  state,   in 

at  the  same  moment  of  time;  to  be  sano  passing,    that    Lord    Ljnidhurst   was   of 


522  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  475 

if  a  man  be  partially  impaired  in  his  mind  he  is  non  compos  mentis; 
for  certainly  a  man  who  is  partially  insane  is  not  of  sound  mind, — 
a  criticism  which  is  invincible,  and  which  strikes  the  very  foundations 
out  from  under  Sir  Matthew  Hale's  mental  pathology. 

\Mieu  Hale  leads  us  to  infer  that  only  those  patients  who  are  totally 
insane  are  exempt  from  punishment,  he  ignores  his  own  cautious  rule, 
wherein  he  lays  it  down  that  ''it  is  very  difficult  to  define  the  invisible 
line  that  divides  perfect  and  partial  insanity."  It  is  indeed  difficult, 
and  more  than  difficult,  for  it  is  impossible. 

476.  Hale's  erroneous  definition  of  a  lunatic. — Of  Sir  Matthew  Hale, 
it  merely  remains  to  say  that  his  definition  of  a  "lunatic,"  in  which 
he  follows  and  elaborates  the  ideas  of  Coke,  did  more  than  aught  else 
to  fix  that  erroneous  conception  in  English  law ;  but  as  the  subject  is 
of  special  importance,  it  is  discussed  in  detail  elsewhere  in  these 
pages.^^ 

477.  Hawkins  and  the  rig'ht-and-wrong  test. — The  next  writer  of 
importance  was  Mr.  Hawkins;"**^  and  he  is  noteworthy  for  a  single 
contribution  to  this  subject.  He  uses  the  expression  "those  who  are 
under  a  natural  disability  of  disting-uishing  between  good  and  evil" 
as  descriptive  of  infants,  idiots,  and  lunatics.  This  seems  to  be  the 
first  occurrence  in  English  law  of  the  celebrated  test  of  "a  knowledge 
of  right  and  wrong."  Whether  it  was  original  with  Mr.  Hawkins 
does  not  appear  from  anything  he  says,  but  he  announces  it  as  such  a 
matter  of  fact  that  it  seems  highly  probable  that  the  idea  had  already 
taken  root.  At  any  rate,  there  is  no  explanation  of  the  term  given  by 
him.  It  springs  ready-made  from  his  pen,  assumes  its  place  without 
comment,  and  begins  in  his  pages  its  long  career  in  English  and  Amer- 
ican law.  There  is  no  hint  of  this  doctrine  in  either  Coke  or  Hale, 
both  of  whom  evidently  regarded  insanity  as  an  affection  of  the  under- 
standing, the  memorj',  and  the  emotions.  The  idea  of  a  test  based 
upon  the  state  of  the  moral  faculty  alone  was  entirely  foreign  to  those 
two  eminent  jurists.  If  Hawkins  borrowed  it,  its  source  is  not  ap- 
parent; but  it  may  have  crept  into  the  usage  of  some  of  the  courts 
about  or  a  little  before  his  time.  He  wrote  early  in  the  18th  century. 
As  a  "common-law"  doctrine,  therefore,  this  has  no  great  antiquity.^' 

American    birth,    having    been    born    in  tis,   page  482.   ante,   and   '"Lucid   Inter- 
Boston,  and  was  the   son  of  the   artist  \a]s,"  page  496,  ante. 
Copley.     "His  life  has  been  written  by  *"  1  P.  C.  edited  by  Curwiwd,  Lomlon, 
Lord  "^  Campbell,     and     fnlly     justified  1S24.  Chap.  I. 

what    he    himself    said    wlien    he    heard  "  The  expression — knowledge  of  good 

that     it     was     contemplated,     that    the  and  evil — is  used  by  Hale   (1  P.  C.  26) 

prospect  added  another  pang  to  death."  in    reference   to   "infants;"   but   I    have 

— Ballantine,   Experiences   of   a   Barris-  found  no  instance  in  which  he  uses  this 

t«?r.  p.  123.  test    for    insanity.     Some   of   the    ideas 

*•  See  the  article  on  Non  Compos  Men-  originally  held  in  law  about  "infants'! 


§  477]  INSANITY  AND  THE  LAW.  S'i.T 

All  erroneous  opinion  about  insanity  does  not  gain  truth  Ly  being 
repeated  from  many  different  benches,  but  from  this  time  onwards  the 
doctrine  of  a  knowledge  of  right  and  wrong  assumes  an  importance 
in  all  courts  which  the  students  of  medical  jurisprudence  cannot  ig- 
nore. For  jurists  it  becomes  an  "open  sesame"  to  unlock  the  myster- 
ies of  the  insane  mind ;  but  for  medical  experts  it  is  only  the  casus 
hdli  of  many  a  hard-fought  field.  With  the  dehut  of  this  doctrine, 
we  unfortunately  enter  into  the  broad  domain  of  controversy.^^ 

478.  The  laws  of  insanity  as  made  by  the  judges. — We  enter,  also, 
the  era  of  case  reports ;  or,  as  some  persons  have  called  it,  the  period 
of  "judge-made  law."  From  now  on  the  doctrines  of  insanity  are  the 
doctrines  of  the  judges.  They  are  not  formulated  in  conventions  nor 
enacted  in  legislatures;  they  are  not  even  elaborated  by  special  stu- 
dents or  by  plodding  text-book  writers ;  but  they  are  pronounced  by  the 
judges  from  the  bench ;  and  this  not  in  any  concert,  but  individually, 
each  judge  stating  his  own  concept  of  the  law  and  his  own  definition 
of  insanity.  There  has  thus  arisen  confusion,  even  contradiction ; 
but  this  could  not  be  otherwise,  because,  as  must  be  evident  from  what 
goes  before,  the  common  law  was  practically  mute  with  reference  to 
any  scientific  and  unanimous  definition  of  insanity.  Hence,  all  was 
left  to  the  judges;  and  we  have  yet  to  see  any  authoritative  writer 
who  will  claim  for  their  pronouncements  on  the  nature  of  insanity 
the  sanction  of  either  the  common  or  the  statute  law.'*^ 

But  the  early  cases  were  not  numerous,  and  we  can  pass  from  one  to 
another  as  on  stepping-stones  over  a  somewhat  troubled  stream. 

479.  The  Arnold  Case. — In  1724  occurred  the  trial  of  Edward  Ar- 
nokP'^  for  shooting  at  Lord  Onslow, — an  act  which  had  evidently  been 
inspired  by  an  insane  delusion.  In  charging  the  jury  Justice  Tracy 
said  that  the  point  was  whether  the  man  had  the  use  of  his  reason, — 
whether  he  was  under  the  visitation  of  God,  and  could  not  distinguish 

seem  gradually  to  have  been  applied  to  Crini.  Law.     This   idea  is  discussed  by 

the  insane.     This  is  probably  so  of  the  him  at  length  in  hjs  Chap.  XIX.     I  am 

"knowledge  of  good  and  evil;"  and  it  is  content    to    fall    back    on    such    an    au- 

evidently  so  of  Hale's  fourteen-year-old-  tliority. 

child  test;    for  this  was  doubtless   sug-  Lord  Denman,   in   Rcff.   v.   Oxford    (9 

gested  to  Hale  by  the  fact  that  the  civil  Car.  &  P.   525),  said  that  a  precedent 

law  fixed  the  age  of  responsibility  for  for  a  rule  (or  test)   could  not  be  found, 

crimes  at  fourteen  years,  and  it  is  the  His  language  clearly  implied  the  opin- 

"age    of    discretion"    in    English    law,  ion  that  there  was  no  fixed  rule  of  law 

which    here,    as    so    often^    follows    the  as  a  test  for  insanity. 

Roman    law.     See     Hale,     1     P.     C.    17  =^16  How.   St.  Tr.' G95.      Arnold  was 

and  18.  convicted,  but  his  sentence  was  commu- 

■**  For  an  instance  of  the  working  of  ted  at  the  request  of  Lord  Onslow  him- 

this  test  against  an  insane  man,  see  Reg.  self.     He  died  in  an  asylum  many  years 

V.  Higginson,  1  Car.  &  K.  129.  later. 

*"  See  Sir  Fitzjames  Stephens'  History 


524  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  479 

between  good  and  evil  and  did  not  know  what  he  did.  "If  the  man 
be  deprived  of  his  reason,  and  consequently  of  his  intention,  he  can- 
not be  guilty.  .  .  .  The  punishment  of  a  madman,  a  person  that 
hath  no  design,  can  hav-e  no  example.  .  .  .  It  is  not  every  kind 
of  a  frantic  humor  or  something  unaccountable  in  a  man's  actions  that 
points  him  out  to  be  such  a  madman  as  is  to  be  exempted  from  pun- 
ishment; it  must  be  a  man  that  is  totally  deprived  of  his  understand- 
ing and  memory  and  doth  not  know  what  he  is  doing,  no  more  than  an 
infant,  than  a  brute,  or  a  wild  beast;  such  a  one  is  never  the  object 
of  punishment." 

480.  The  wild-beast  theory. — This  definition  shows  the  influence  of 
the  civil,  or  Roman,  law  all  through  it:  a  madman  is  one  who  does  not 
know  what  he  is  doing  (non  intelligit  quod  agit,  as  Justinian  has 
it)  f^  but  it  specializes  in  a  way  that  the  Roman  law  did  not,  for  it 
narrows  the  test  down  to  a  knowledge  of  right  and  wrong.  As  for  the 
rest  of  the  charge,  there  are  no  insane  persons  who  are  "totally  de- 
prived of  understanding  and  memory"  (if  those  terms  are  to  be  taken 
literally),  unless  it  be  in  the  lowest  forms  of  dementia  or  the  worst 
types  of  raving  mania ;  and  such  madmen  are  practically  never  the 
objects  of  medico-legal  inquiry.  They  do  not  commit  crime,  for  they 
have  Kot  the  capacity  to  intend  or  to  accomplish  anything;  but  de- 
lusional lunatics  (paranoiacs),  who  form  the  great  bulk  of  the  crim- 
inal insane,  are  in  a  very  different  class,  and  they  can  never  be  in- 
cluded in  such  a  definition  as  given  by  Justice  Tracy.  These  "luna- 
tics" are  never  "totally  deprived  of  understanding  and  memory ;"  they 
are  never  at  the  intellectual  level  of  "an  infant,  a  brute,  or  a  wild 
ijeast."  Nevertheless  they  may  be  very  insane,  just  as  Arnold  was, 
and  properly  exempt  from  punishment.  ]\Ioreover,  the  mind  of  an 
infant  is  not  like  the  mind  of  a  wild  beast,  nor  is  either  of  these  like 
the  mind  of  a  madman.  Such  psychology  is  primitive  and  crude,  but 
it  reflects  Hale's  fourteen-year-old-child  test^^  and  the  "wild  beast" 
theory  of  the  Roman  law  and  of  Bracton.^^  The  trouble  with  Justice 
Tracy's  definition  is,  that  it  does  not  define  anything  that  is  recogniz- 
able in  mental  pathology.  It  is  as  though  a  judge,  in  a  case  involving 
the  tests  for  arsenic,  should  lay  down  rules  drawn  from  his  own  imag- 
ination as  to  what  arsenic  should  and  should  not  do.  But  if  Justice 
Tracy  is  open  to  criticism,  he  is  also  entitled  to  the  credit  of  having 
expressed  one  of  the  noblest  sentimcmts  ever  given  from  the  bench, 

"Lib.  III.  Title  XX.  §  8.  "' De   Logibus.   Lib.   IL   fol.    100,   and 

"  1  P.  C.  Chap.  IV.  Lib.  V.  fol.  4206. 


j  480]  INSANITY  AND  THE  LAW.  (325 

for  he  said  that  "the  punishment  of  a  niadnian  can  have  no  ex- 
ample."^'* 

481.  The  case  of  Earl  Ferrers;  an  insane  man  forced  to  conduct  his 
own  defense. — The  trial  of  Earl  Ferrers/"  in  17 GO,  for  the  murder  of 
his  steward,  Mr.  Johnson,  is  noteworthy  for  the  fact  that  the  accused, 
according  to  the  former  usage  of  the  English  common  law,^'"  was  not 
allowed  counsel.  The  Earl  was  tried  by  his  peers  in  the  House  of 
Lords;  and  the  trial  exhibited  the  extraordinary  spectacle  of  a  man  in 
ieopardy  of  his  life,  trying  to  prove  himself  insane  by  the  acumen 
with  wh:oh  he  examined  and  cross-examined  the  witnesses!  Surely, 
the  inconsistencies  of  the  English  law  on  the  subject  of  criminal  lu- 
nacy were  never  shown  in  such  an  unfavorable  light  as  in  this  case. 
The  prisoner,  in  order  to  prove  that  he  was  insane,  was  obliged  to  re- 
\eal  the  fact  that  he  had  sufficient  reason  to  conduct  his  own  defense. 
This  he  did — for  it  was  his  only  chance — with  some  show  of  coherence 
and  insight;  and  this  very  fact  was  then  seized  upon  by  the  Solicitoi*- 
General  to  prove  that  the  man  was  sane.  In  other  words,  his  predica- 
ment was  such  that  the  more  he  tried  to  prove  by  witnesses  that  he  was 
insane,  the  more  he  proved,  by  his  own  display  of  logic,  that  he  was  not 
insane.  Never  was  a  man  placed  between  the  two  horns  of  such  a 
dilemma.  It  would  be  hard  to  say  whether  the  trial  had  more  the 
elements  of  a  tragedy  or  of  a  farce;  but  the  Earl  Avas  hanged^^  in 
spite  of  the  fact  that  insanity  had  prevailed  in  his  family  and  that  he 
himself  was  probably  suffering  with  chronic  alcoholism  when  he  shot 
his  man.  It  is  sufficient  to  say  that  the  English  law  has  since  been 
changed,  and  prisoners  on  trial  for  their  lives  are  now  allowed  coun- 
sel ;  and  that  such  a  trial  of  an  insane  person  has  never  taken  place  in 
America  since  the  adoption  of  our  Constitution. ^"^ 

482.  The  right-and-wrong  test  fully  started. — In  Earl  Ferrers  Case 
the  test  of  the  knowledge  of  right  and  wrong  was  insisted  on  by  the 
Solicitor-General  in  his  speech  for  the  Crown ;  it  may  therefore  be 
assumed  that  by  this  time  this  test,  which  had  first  been  formulated 

"  Tills   may   have   been    suggested   by  swung  off  a  violent  squabble  took  place 

Coke,   who   said    (3   Inst.   4)  :    "Punish-  between  the  executioner  and  his  assist- 

ment   can   be   no   example   to   madmen."  ant,    on    the    scaffold,    over    5    guineas 

The  ideas  are  not  the  same,  but  one  may  ^^hioh    the    condemned    man    had    just 

have  suggested  the  other.  given  them. 

"»  19  How.  St.  Tr.  880.  5  7*  Earl  Ferrers'  Case  made  Henley, 
""  4  Bl.  Com.  355.  who  presided  as  Lord  High  Steward  at 
"  Earl  Ferrers  went  to  his  execution  the  trial,  a  peer.  He  had  been  simplj 
in  a  coach-and-six,  followed  by  a  hearse-  Lord  Keeper,  not  Lord  Chancellor,  and 
nnd-six,  and  attended  with  more  state  it  was  thought  necessary  to  increase  his 
than  an  American  president,  going  to  rank  for  the  occasion.  He  was  charged 
his  inauguration.  A  highly  diverting  by  Walpole  with  lack  of  dignity  during 
account  of  it  is  given  by  Howell  in  his  the  trial.  See  details  in  Eden's  Chan- 
State  Trials.     Just  before  the  Earl  was  eery  Reports,  Vol.  I.  pp.  21,  22. 


526  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  482 

in  Hawkins'  text-book,  as  above  stated,  had  come  to  be  generally  recog- 
nized as  legal ;  and,  in  fact,  from  this  time  on  this  test  seldom  fails 
to  appear  in  criminal  cases  involving  the  question  of  insanity.  And 
this  it  is,  more  than  any  other  one  thing,  that  has  enabled  a  legal 
writer''^  to  say:  ^'The  memorials  of  our  jurisprudence  are  written 
all  over  with  cases  in  which  those  who  are  now  understood  to  have 
been  insane  have  been  executed  as  criminals."  This  is  a  heavy  re- 
sponsibility for  one  doctrine  to  bear,  and  Mr.  Bishop's  indictment  of 
the  law  is  a  severe  one, — too  severe  to  have  been  quoted  here  if  it  had 
not  been  the  expression  of  a  legal  writer.  It  is  not  too  much  to  say 
tliat  the  doctrine  of  the  knowledge  of  right  and  wrong,  the  origin  of 
which  has  just  been  traced,  is  the  cardinal  doctrine  of  Anglo- Ameri- 
can jurisprudence  of  insanity :  it  is  the  one  contribution  to  the  science 
of  psychiatry  which  legal  pundits  have  made  with  anything  like  una- 
nimity. This  is  true  also  of  Scotland;  for  AUison,^^  writing  of 
Scotch  law,  says:     "To  amount  to  a  complete  bar  of  punishment 

.  .  the  insanity  must  have  been  of  such  a  kind  as  entirely  to 
deprive  the  prisoner  of  the  use  of  reason,  as  applied  to  the  act  in  ques- 
tion, and  the  knowledge  that  he  was  doing  "s^Tong  in  committing  it. 
If,  though  somewhat  deranged,  he  is  able  to  distinguish  right  from 
wrong,  in  his  own  case,  and  to  know  that  he  was  doing  wrong  in  the 
act  which  he  committed,  he  is  liable  to  the  full  punishments  of  his 
criminal  acts.". 

So  M^ell  has  this  doctrine  been  established  since  the  trials  of  Arnold 
and  Earl  Ferrers,  that  the  subsequent  history  of  criminal  lunacy  re- 
solves itself  largely  into  a  repetition  of  it,  or  into  the  attempts  of 
courts  to  give  varied  expression  to  it.*^^  To  repeat  all  the  cases  would 
be  superfluous  and  wearisome. 

483.  This  test  not  satisfactory  to  all  legal  minds. — But  while  this  is 
so,  all  the  best  legal  minds  have  not  given  unqualified  assent  to  this 
doctrine;  and  this  has  been  especially  so  in  the  cases  of  advocates  at 
the  bar,  who  have  felt  how  unjustly  the  test  bore  against  their  clients. 
While  there  .has  been  practical  agreement  on  the  bench,  there  has  not 
been  agreement  at  the  bar.  It  remained  for  the  subtle  mind  of  Ers- 
kine  to  voice  this  dissent,  and  to  give  expression  to  a  new  test  of  in- 
sanity,— the  test  of  delusion. 

"  Bishop,  Crim.  Law.  §  300.  courts  still  adhere  to  it.     He  also  says 

■"  Principles  of  the   Criminal   Law  of  it  is  a  good  rule,  and  avoids  "confusion 

Scotland,   p.   G54.  and     metaphysics."'      As     to     "avoidinfr 

""'Itius  a  recent  legal  writer — Becker  metaphysics,"  no  rule  can  avoid  meta- 

(Med.   .Jurisp.    For.   Med.   and   Tox. ) —  physics   if  judges   and  doctors   want  In 

claims  that  this  test  is  still  the  one  by  indulge  in  Tuetaphysies.     The  "right  and 

which   criminal   cases   must  be   decided,  wrong"  rule  is  essentially  metaphysical. 

and    that    the    English    and    American  and  prolific  of  metaphysical  refinements.' 


§  484]  INSANITY  AND  THE  LAW.  527 

484.  Erskine  and  the  case  of  Hadfield. — The  celebrated  case  in  ^v^^icll 
Erskiue  succeciled  in  establishing  a  new  test  for  insanity  was  that  of 
James  Hadfield,  who  was  tried  in  the  conrt  of  King's  bench,  in  April, 
1800,  for  shooting  at  George  III.,  in  Drnry  Lane  theater. "^^  Had- 
field had  been  a  soldier,  and  had  received  manj^  wonnds  in  battle,  as 
a  result  of  which  he  had  become  a  victim  of  delusional  insanity.  He 
seems  to  have  conceived  the  delusion  that  he  was  commanded  by 
heaven  to  sacrifice  himself,  and  to  shoot  at  the  King  in  order  to  attain 
to  a  sort  of  martyrdom.^^  From  the  standpoint  of  modern. psychia- 
try the  case  is  simple  enough,  and  need  not  be  repeated  in  detail  here, 
for  it  is  given  in  full  in  Erskine's  speech.  The  man  was  unquestion- 
ably insane.  The  problem  that  confronted  Erskine  was  to  establish 
the  fact  of  insanity  in  the  face  of  the  definitions  of  Coke  and  Hale, 
and  of  the  right  and  wrong  test;  and  this  he  did  by  placing  his  argu- 
ment squarely  on  the  ground  of  delusional  insanity.  Nothing  like 
this  had  ever  before  been  attempted  in  an  English  court,  and  the 
champions  of  the  common  law  will  search  in  vain  for  any  warrant 
for  it  in  that  ancient  system.  The  whole  scheme  was  Erskine's,  and 
remains  Erskine's  to  this  day. 

485.  The  test  of  delusion. — Erskine's  thesis,  in  brief,  was  that  delu- 
sion was  the  proper  and  only  test  of  criminal  insanity.  "Delusion," 
he  says,  "where  there  is  no  frenzy  or  raving  madness,  is  the  true  char- 
acter of  insanity ;  and  where  it  cannot  be  predicated  of  a  man  standing 
for  life  or  death,  for  a  crime,  he  ought  not  to  be  acqhitted."  This 
was  his  whole  proposition,  and  in  order  to  establish  it  he  maintained 
Reveral  minor  points.  In  the  first  place,  he  held  that  the  act  must  be 
the  direct  outcome  of  the  delusion, — a  contention  which  has  since 
been  much  insisted  on  in  the  courts.  He  must  convince  the  jury,  he 
said,  "that  the  act  in  question  was  the  immediate,  unqualified  off- 
spring of  the  disease." 

486.  Erskine's  distinction  between  civil  and  criminal  cases. — In  the 
second  place,  Erskine  drew  the  distinction  between  civil  and  criminal 
insanity, — a  distinction  which  was  not  original  with  him,  for  it  was 
clearly  stated,  as  above  shown,  by  Coke.*'^  The  defender  of  Hadfield 
held  that  in  civil  cases  the  law  avoids  the  act  of  a  man  noii  compos 
mentis,  even  though  that  act  cannot  be  connected  with  the  delusion ; 
but  he  was  by  no  means  prepared  to  apply  this  rule  to  criminal  cases. 
Thus  Erskine  differed  with  Coke,  for  the  latter  extended  more  le- 

«  27  How.  St.  Tr.  1281.  law  he  would  be  hanged  for  the  attempt 

**  It  is  doubtful  whether  Hadfield  in-  the  same  as  for  the  assassination  itself, 

tended  to  kill  the  King.     He  wished  to  This  was  a  fine  instance  of  exact  knewl- 

make  sure  of  his  own  execution,  and  he  edge  and  logic  in  an  insane  man. 

knew  perfectly  that  under  the  English  "^  2  Litt.  247a. 


528  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  48fi 

niency  to  the  insane  in  criminal  than  in  civil  matters.  This  dis- 
crepancy has  not  been  sufficiently  noted  by  the  courts,  most  of  which 
have  followed  Erskine.^^  In  the  third  place,  Erskine's  claim  for 
delusion  as  the  only  safe  test  was  directly  against  Hale's  statements 
about  partial  insanity.  By  this  term  Hale^^  had  clearly  indicated 
delusional  insanity,  and  he  had  stated  explicitly  that  such  partial 
insanity  is  no  excuse  for  capital  crimes.  The  two  positions  are 
diametrically  opposed  to  each  other. 

487.  The  right-and-wrong  test  without  authority. — In  the  fourth 
place  Erskine  rejected  the  right-and-wrong  test  "as  too  general  a  de- 
scription." He  did  this  without  any  apparent  consciousness  that  this 
test  had  the  sanction  of  law.  His  common  sense  would  simply  have 
none  of  it ;  and  he  cast  it  aside  as  he  would  scarcely  have  done  in  the 
case  of  an  accepted  principle  of  law.  He  even  claimed,  and  claimed 
correctly,  that  there  was  no  warrant  for  this  doctrine  in  the  authori- 
ties cited  by  the  Attorney  General,  which  authorities  were  Coke  and 
Hale.  This  is  one  of  the  most  significant  features  of  Erskine's 
speech ;  and  his  rejection,  unchallenged,  of  this  test,  is  one  of  the 
strongest  arguments  that  can  be  brought  against  its  validity  at  that 
date.     It  played  no  part  in  Iladfield's  acquittal. 

488.  No  such  thing  as  "total"  madness. — Finally,  Erskine  demol- 
ished the  claim  that  an  insane  criminal  must  be  "totally  deprived  of 
memory  and  understanding,"  as  Coke  and  Hale  had  described  him. 
"jSTo  such  madness  ever  existed  in  the  w'orld,"  he  said,  with  sweeping 
emphasis.  "In  all  the  cases  which  have  filled  Westminster  Hall,"  he 
declared,  "they  have  not  only  had  the  most  perfect  knowledge  and 
recollection  of  all  the  relations  they  stood  in  towards  others,  and  of 
the  acts  and  circumstances  of  their  lives,  but  have,  in  general,  been 
remarkable  for  subtlety  and  acuteness."  This  remarkable  sentence, 
so  profoundly  accurate,  marks  Erskine  as  no  mean  psychiatrist  in  an 
age  when  that  science  had  not  yet  penetrated  into  the  courts. 

489.  The  importance  of  Erskine's  speech. — The  most  noteworthy 
thing  abo»t  Erskine's  speech  is  the  place  Avhich  it  immediately  took, 
and  has  ever  since  held,  in  English  jurisprudence.  At  the  present  day 
it  would  not  be  considered  an  extraordinary  speech,  for  it  deals 
largely  in  what  are  now  regarded  as  truisms ;  but  in  its  own  day  it  was 
epochal.  It  established  firmly  in  the  legal  conscience  of  England  and 
America  the  idea  that  delusion  is  a  safe  test  for  insanity,  and  it  thus 

•*  For  some  American  cases  see  State  ment  of  this  do^ma  was  made  in  Rex  v. 

V.  Spencer,  21  N.  J.  L.  196;  McTaggart  Bellingham   (1  Collinson,  Lunacy,  636). 

V.  Thompson,  14  Pa.  149;  Com.  v.  Mos-  «  1  P.  C.  Chap.  IV. 
Ici;  4  Pa.  2G4>.     The  most  extreme  state- 


§  489]  INSANITY  AND  THE   LAW.  529 

marked  progress.  Its  greatest  value,  indeed,  is  the  fact  that  it  did 
mark  progress;  that  it  demonstrated  that  the  subject  of  insanity  is 
not  irrevocably  fixed  in  old  tests  and  old  definitions.  But,  at  the  same 
time,  it  hedged  the  subject  in  with  a  series  of  qualifications,  such  as 
the  distinction  between  civil  and  criminal  insanity,  and  the  relation 
of  the  act  to  the  delusion,  which  have  led  to  endless  disputes  and  con- 
fusion. These  subjects  are  discussed  elsewhere;  it  is  sufficient  here 
to  say  that  Erskine's  doctrine  of  delusions,  wise  as  it  was,  and  suc- 
cessful in  its  day,  cannot  be  accepted  as  the  final  word  for  science  on 
flie  subject  of  the  responsibility  of  the  insane.*'^' 

But  Erskine's  speech  has  a  still  wider  significance  for  the  medical 
expert.  Although  it  was  nothing  more  than  the  ingenious  argument 
of  an  advocate  at  the  bar,  and  therefore  witliout  any  legal  authority 
whatever,  and,  moreover,  running  counter  to  the  so-called  connnon- 
law  definitions,  it  was,  nevertheless,  immediately  accepted  by  the 
courts  as  good  law,  and  continues  to  be  quoted  as  such  to  this  day. 
This  fact  tlu'ows  a  curious  light  on  the  origins  of  common  law.  At 
that  time  there  was  neither  statute  nor  juridical  decision  in  support 
of  Erskine's  thesis,  and  yet  his  opinions  passed  at  once  into  the  body 
of  the  common  law  by  reason  merely  of  his  having  urged  them  success- 
fully for  the  acquittal  of  Hadfield.*^^  If  this  supplies  a  legal  argu- 
ment in  favor  of  the  flexibility  of  the  connnon  law,  it  also  supplies  a 
medical  argiiraent  in  favor  of  the  common  law  being  still  open  to 
further  improvement  on  the  subject  of  insanity.  It  is  fatal  to  any 
argument  that  the  English  common  laAv  is  a  safe  and  sure  guide,  much 
less  a  fixed  guide,  on  the  subject  of  criminal  lunacy.*"^ 

•"Napoleon,  who  always  had  a  fear  of  was    the    originator    of    this    test,    and 

assassination,  once  said:  "I  have  always  that,   when   he   promulgated   it   in    Had- 

Iiad  a   dread   of  madmen.     One  night   I  field's  Case,  it  had  no  authority  in  law. 

hired  a  hox  in  the  theater,  aiwl  went  in-  It  was  simply  accepted  by  the  court  in 

cognito  with  Duroc.     A  man  came  up  to  Hadfield's  Case  as  a  loop-hole  of  escape 

me.     I  thought  he  wanted  to  hand  me  a  from  an  ugly  dilemma,  although  it  had 

petition,  but  he  cried,  'I  am  in  love  with  nothing  to  do  with  the  test  of  right  and 

the   Empress.'     I   answered.    'You    seem  wrong.      But  why  should  Erskiiie's  per- 

to    have    chosen    an    extraordinary    con-  sonal  opinion  on  a  subject  in  psychiatry 

fidant.*     Duroc  then   recognized  him  as  (a    subject  of  which   he   had   no   expert 

a   madman   who   had   escaped    from    the  knowledge)    be  accepted    ever   since   his 

Bicetre,  and  he  was  arrested.     Madmen  time    as    a    part    of    the    common    law? 

always  talk  of  God  or  kings."    (Talks  of  Krskine  was  merely  an  advocate,  plead- 

Napoleon    at    St.    Helena    with    Baron  ing  at  the  bar ;  his  opinion?  did  not  have 

Courgaud,    p.    84.)       It    is    noteworthy  the   weight   of   law.     And    even   if   they 

that  this  madman  was  not  acting  inider  had  had  the  weight  of  law  in  England 

the  influence   of   delusion,   but   of  eroti-  in  April,   1800.  how  does  that  fact  give 

cism.  them  legal  authority  in  America? 

*^  Chitty  (3  Crim.  Law,  724)  accepts  '^'^  Lord  Kenyon.  who  presided  at  the 
Erskine's  statement  that  an  insane  de-  (rial  of  Hadfield,  had  lieen  much  against 
lusion  \\ill  excuse  a  man,  biit  gives  no  tlie  prisoner  at  fust,  but  he  was  so  car- 
higher  authority  for  this  test  than  ICrs-  ried  away  In'  Erskine's  speech,  that  he  . 
kine  himself;  thus  proving  that  Erskine  gave  his  opinion  to  the  Attorney  Gen- 
Vol.  I.  Mf.d.  Juk.— 34. 


530  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  490 

490.  The  written  law. — The  statute  law  of  England  lias  been  re- 
markably silent  on  the  subject  of  tests  for  insanity.  These  artificial 
rules  seem  to  have  been  confined  entirely  to  the  courts  and  to  text-book 
writers.  This  was  strikingly  sho^vn  about  the  very  time  of  Hadfield's 
trial.  In  the  39th  and  4:0th  years  of  the  reign  of  George  III.  (the 
very  king  whose  life  had  been  attempted  by  Hadfield),  therefore 
about  the  year  1800,  was  enacted  the  statute  kno^^^l  as  39  &  40  George 
III.,  chap.  94,  in  which  the  law  on  criminal  lunacy  was  clearly 
stated.^^    This  law  was  as  follows : 

"In  all  cases  where  it  shall  be  given  in  evidence  upon  the  trial  of 
any  person  charged  with  treason,  murder,  or  felony,  that  such  person 
was  insane  at  the  time  of  the  commission  of  such  offense,  and  such 
person  shall  be  acquitted,  the  jury  shall  be  required  to  find  specially 
whether  such  person  was  insane  at  the  time  of  the  commission  of  such 
offense,  and  to  declare  whether  such  person  was  acquitted  by  them  on 
account  of  such  insanity ;  and  if  thej^  shall  find  that  such  person  was 
insane  at  the  time  of  the  committing  such  offense,  the  court,  before 
whom  such  trial  shall  be  had,  shall  order  such  person  to  be  kept  in 
strict  custody,  in  such  place  and  in  such  manner  as  to  the  court  shall 
seem  fit,  until  his  Majesty's  pleasure  shall  be  kno^vn;  and  it  shall 
thereupon  be  lawful  for  his  Majesty  to  give  su^h  order  for  the  safe 
custody  of  such  person  during  his  pleasure  in  such  place  and  in  such 
manner  as  to  his  Majesty  shall  seem  fit.''^'^^ 

491.  The  statute  law  requires  no  tests. — It  is  to  be  noted  that  this 
act  requires  nothing  more  than  that  the  accused  be  found  to  be  "in- 
sane."    It  does  not  require  that  it  be  shown  whether  he  had  the 

oral  that  tlie  trial  should  not  he  further  In  New  York  the  law  makes  some  at- 

proceeded   with,   and   the   prisoner   was  tempt  at  defining  insanity,  for,  by  the 

acquitted.       (Cooper's    Tracts    on    Med-  Penal  Code,  §  21,  it  is  provided  that,  to 

ical  Jurisprudence.)      It  is  safe  to  say  excuse    from    criminal    liability,    there 

that  if  Hadfield  had  killed  the  King,  no  must  be  such  defect  of  reason  as  that 

logic  or  eloquence  could  have  saved  him.  the  accused  either  did  not  know  the  na- 

He   would    have    perished   like   Belling-  ture  and  quality  of  the  act,  or  did  not 

ham.  knov/  it    was    wrong;    and,    by    §    23,    a 

""  Some  authorities  say  that  this  stat-  morbid    propensity    to    commit    prohib- 

ute  was  passed  as  a  result  of  tne  Had-  ited  acts  in  a  person  not  shown  to  be 

field  Case.     See  27  How.   St.  Tr.   1355.  incapable   of  knowing  the  wrongfulness 

If  so,  the  omission  to  define  "insanity"  of  such  acts  is  no  defense. 

is  all  the  more  noteworthy.  Those  provisions  are  both  unscientific 

69i  By  a  later  English  act,  known  as  nnd  unjust,  and  they  exhibit  the  defects 

the  trial  of  lunatics  act,  1883   (Law  Re-  which    inevitably    must    arise    from    at- 

ports.  Vol.  XJX.  p.  128),  tlie  jury  is  di-  tempting  to  define  insanity  by  statute, 

rectcd   to   find   a   special    verdict,   i.    c.  See  the  New  York  Penal   Code    (edited 

that  the  accused  is  guilty,  but  was  in-  by  Parker.  1900)  for  many  references  to 

sane  at  the  time  of  the  act.     The  effect  cases  in  New  York  courts.     Tiie  Minne 

of  this  verdict  is  to  confine  the  prisoner  sota   Code   copies   the   New   York   Code 

as   a   criminal    lunatic.     It    is   notewor-  verbatim,  and   the   language  in  both  13 

.thy  that,  by  the  chanue  of  wording,  the  suggested  by  the  M'Naghten  rules, 
accused  is  found  "guilty." 


§  491]  INSANITY  AND  THE  LAW.  531 

'"kiiowledg-e  of  right  and  wrong,"  or  whether  he  was  "totally  deprived 
of  his  understanding  and  memory."  It  is  as  direct  and  unqualified 
as  need  be,  and  is  a  model  statement  of  the  only  proper  question  at 
issue  in  such  cases.  In  this  respect  it  compares  favorably  with  the 
French  law,  which  says:  "There  is  no  crime  nor  offense  when  the 
accused  was  in  a  state  of  madness  at  the  time  of  the  act."'®  But,  un- 
fortunately, this  act,  although  having  all  the  force  of  Parliamentary 
law,  has  had  no  influence  on  the  courts  in  their  trials  of  this  question. 
Such  is  the  force  of  common-law  tradition  that  judges  have  persisted 
in  the  use  of  definitions  which  are  not  necessary  or  called  for  in  the 
contemplation  of  that  statute.  According  to  the  letter  and  spirit  of 
that  law  the  jury  is  simply  to  determine  whether  the  accused  is  "in- 
sane." ISTo  tests  are  prescribed.  The  question  is  left  as  a  naked 
question  of  fact,  to  be  determined  by  the  jury.  The  imposition  of 
tests,  not  founded  on  scientific  knowledge,  and  not  given  as  evidence, 
is  not  included  in  anything  said  or  implied  in  that  act."^ 

492.  The  small  number  of  cases  up  to  one  hundred  years  ago. — Up  to 
the  year  1800  the  number  of  cases  of  criminal  insanity  that  were  tried 
in  English  courts  was  remarkably  small.  We  come  now  to  a  some- 
what larger  group  of  cases,  for  the  records  of  which  we  are  indebted 
to  Mr.  Collinson.'^-  These  are  the  cases  of  Bellingham,  Parker,  and 
Bowler,  and  to  these  may  be  added  the  cases  of  Oflford  and  Oxford. 
To  the  fact  that  for  so  many  years  so  few  of  such  cases  came  to  trial 
may,  in  part,  be  attributed  the  little  advance  that  was  made.  These 
cases  were  tried  according  to  a  stereotyped  formula,  and  that  formula 
was  largely  composed  of  the  doctrine  of  right  and  wrong. 

493.  Bellingham's  Case. — The  case  of  Bellingham  is  the  most  noto- 
rious in  the  medico-legal  annals  of  England.     Bellingham  was  a  de- 

»o  "II  n'y  a  ni  crime  ni  delit  lorsque  when    the    deed    was    done."     See    also 

1p  prevenu  etait  en  etat  de  demence  au  State    v.    Prescott.       (Quoted    by    Ray, 

temps  de  I'action." —  French  Penal  Code,  Medical    Jurisprudence   of    Insanity,   p. 

r»4:th  art.    This  is  admirably  brief  and  to  58.)      Ray  does  not  give  the  references 

the  point,  and  is  what  ought  to  be  the  to   these   important  cases.     The   former 

legal  test  in  America.     For  further  de-  was  tried  in   1830,   the  latter  in    1834, 

tails  on   this   point, — especially   the   at-  and  the  reports  were  in  pamphlet  form, 

tempt  of  the   French   Advocate  General  according    to    Judge    Doe,    in    State    v 

Peyronnet    to    substitute    Hale's  defini-  PiAe,  49  N.  H.  421,  6  Am.  Rep.  533.   For 

tions,     and     the     remonstrance    of     the  another  reference  to  Chief  Justice  Rich- 

French  alienist  Georget, — see  Winslow's  ardson's  opinion,  see  State  v.  Jones,  50 

Plea  of  Insanity,  p.  9.  N.  H.  369,  9  Am.  Rep.  242,  where  he  is 

"  Chief    Justice    Richardson,    of   New  quoted. 
Hampshire,  is  one  of  the  few  judges  who        "Lunatics.      All    subsequent    writers 

have  treated  the  subject  in  the  way  in-  quote  from  the  meagre  records  preserved 

dieated  by  the  English  act.     In  State  v.  by  Collinson  for  most  of  these  cases.   In 

Cory   he   told    the    jury   that   the   only  this  way  these  cases  have  become  claa- 

question    for    them    to    determine    was  sical  and  somewhat  time-worn, 
^'whether  the  accused  was  of  sane  mind 


532  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  493 

Insional  lunatic  of  nuicli  the  same  kind  as  Hadfield,  except  that  his 
delusions  were  of  the  persecutory  type, — by  far  the  most  dangerous 
of  all.  He  believed  that  the  government  owed  him  a  large  sum  of 
money, — about  $500,000, — and  he  endeavored  to  recover  this  by 
appealing  to  cabinet  ministers ;  and  he  even  tried  to  bring  the  matter 
before  Parliament.  He  had  not  the  shadow  of  a  rational  claim  upon 
the  government :  the  whole  thing  was  an  insane  delusion,  and  had  been 
recognized  as  such  by  his  friends  for  some  years.  He  had  tried  to 
enlist  the  interest  of  Mr.  Spencer  Perceval,  First  Lord  of  the  Treas- 
ury; and,  failing  in  this,  he  had  shot  and  killed  Mr.  Perceval  in  the 
lobby  of  the  House  of  Commons."^  The  act  was  committed  on  the 
11th  of  May,  1812,  and  tlie  prisoner  was  arraigned  four  days  later, 
on  the  1.5th  instant.^'' 

The  doctrine  of  delusion,  so  skillfully  elaborated  by  Erskine  in 
Iladfield's  Case,  was  entirely  discarded  in  the  Case  of  Bellingham. 
Sir  James  Mansfield,'^  in  charging  the  jury,  said: 

"If  a  man  were  deprived  of  all  power  of  reasoning,  so  as  not  to  be 
able  to  distinguish  whether  it  was  right  or  wrong  to  commit  the  most 
wicked  transaction,  he  could  not  certainly  do  an  act  against  the  law. 
Such  a  man,  so  destitute  of  all  power  of  judgment,  could  have  no  in- 
tention at  all." 

By  this  ingenious  reasoning  there  can  be  no  such  thing  as  criminal 
insanity ;  the  only  irresponsible  man  is  he  M'ho  has  so  completely  lost 
his  power  of  reasoning  that  he  is  not  able  to  entertain  an  intention  to 
do  anything.  In  other  words,  an  insane  man  becomes  exempt  from 
punishment  only  when  he  becomes  so  insane  as  not  to  be  able  to  com- 
mit an  intentional  act !  This  was  a  fair  samjile  of  the  psychiatry  that 
found  voice  in  BeTliufjJiam's  Case. 

494,  The  test  of  delusion  rejected. — Again,  the  Chief  Justice  delib- 
erately denied  that  an  insane  delusion  is  an  excuse  for  crime;  thus: 

"  1   Collinson.  Lunacy,  fi.'?0.  doubts  as  to  the  correctness  of  tlie  mo^le 

'*  Tlie  indecent  liastc  witli  wliicli  Bel-  in   wliioh   tliat  case  was  conducted." 

linfjliam   was  "railroaded"  to  his  doom  According   to   Erskine.    in    his    speech 

has  often  been  condemned.     ITis  counsel  for  Hadfield    {'T~  How.  St.  Tr.  12S1),  a 

vainly    befrjred     for     postponement.      "1  period  of  fifteen  days  was  allowed  before 

never  saw  the  prisoner  before,"  pleaded  trial.     Jn  a   footnote  in   Howell's  State 

one  of  them,  "and  it  has  not  been  in  our  Trials   it   is   explained   that  there  must 

power  to  brinf^  forth  all  the  evidence  to  be  fifteen  days  between  arraif^nment  an<I 

prove   whether   he   be   sane   or   insane."  trial.     This    ^vas    twelve    years    before 

Tlie   plea   was   in   vain.     It    was   after-  Bellingham's  Case.     It  is  difficult  to  un- 

wards   boasted    tbnt    Bellin^diam's   body  derstand  the  difTerenee  in  the  two  cases, 

was  on   the  dissectinff  table  eight  days  unless   it  was   that   Hadfield   was   tried 

after    he    shot    his    victim.     No    wonder  for  treason  and  Bellinpham  for  murder, 

that  Sir  .1.  Campljell,  Attorney  General,  "This  was  not  the  fijreat  Lord  Mans- 

oaid,  in  a  sub.sequent  case   {Reg.  v.  Ox-  field,     of     the     King's    bench,    but    Sir 

font,  n  Car.  &  P.  .5.33),  "I  will  not  refer  James  Mansfield,  of  the  comraon  pleas, 
to  IU'\Unf)ham's  Case,  as  there  are  some 


§  494J  INSANITY  AND  THE  LAW.  533 

There  is  a  species  of  insanity  in  which  the  patient  fancies  the  exist- 
ence of  injniy,  and  seeks  an  opportnnitv  of  gratifying  revenge  by 
some  hostile  act.  If  such  a  person  is  capable,  in  other  respects,  of 
<listingnisliing  right  fi'om  wrong,  there  is  no  excuse  for  any  act  of 
atrocity  which  he  may  commit  under  this  description  of  derangement. 

This  was  a  complete  reversal  of  the  doctrine  of  insane  delusion, 
according  to  which  Hadfield  had  been  acquitted  twelve  years  before.''' 
It  substituted  for  that  test  the  older  test  of  knowledge  of  right  and 
wrong.  !Now  Bellingham  had  himself  resented,  in  open  court,  the 
imputation  of  insanity.  He  wished  it  known  that  he  relied  entirely 
upon  the  justice  of  his  cause;  that  his  killing  of  Mr.  Perceval  was 
right,  and  was  justified  by  the  fact  that  the  government  had  rejected 
his  claim,  and  thus  justified  him  in  taking  the  law  into  his  own  hands ; 
and  this  was  a  refutation  of  the  charge  of  malice  prepense.  This  char- 
acteristic insane  logic  showed  a  complete  lack  of  the  knowledge  of 
-'ght  and  wrong,  in  reference  to  the  act  itself;  but,  according  to  the 
logic  of  Sir  James  Mansfield,  the  right-and-wrong  rule  would  not 
apply  so  long  as  the  accused  had  the  capacity  to  distinguish  right  and 
wrong  in  other  respects. 

495.  The  right-and-wrong  rule  not  properly  applied. — From  this 
standpoint  Bellingliamfs  Case  marks  an  era.  It  was  one  of  the  very 
first  cases  in  which  the  right-and-wrong  rule  was  announced  as  law, 
and  then  was  not  applied  properly  by  the  court.  Many  delusional 
lunatics  who  commit  crime  in  response  to  their  delusions  have  inabil- 
ity to  distinguish  right  and  ^vTong  in  reference  to  that  act.  Their 
moral  sense  is  obtunded  to  that  extent,  at  least.  In  Bellinghams 
(lase  it  was  conspicuously  so ;  and,  like  Guiteau,  he  attempted  tx> 
argue  it  himself  in  open  court.  This  leads  to  the  obvious  conclusion 
that  if  courts  will  insist  upon  the  right-and-wrong  rule,  they  should 
apply  it  properly,  and  stand  by  it.  The  only  question  at  issue  is  the 
crime  charged;  and  the  test  of  right  and  wrong  should  be  applied  to 
that  act,  and  limited  to  it.  The  moral  sense  of  no  delusional  lunatic 
is  impaired  equally  on  all  subjects,  any  more  than  his  intellect  is  de- 
ranged equally  on  all  topics.  He  is  to  be  tried  on  the  question  of  his 
delusion,  and  how  that  impairs  both  his  reason  and  his  conscience. 
Any  other  method  is  irrelevant  to  the  issue.  BeUingham's  Case  de- 
rives a  large  part  of  its  ill  repute,  and  deservedly,  from  the  obtuseness 
of  Sir  James  Mansfield  on  this  very  point.     His  ruling  has  always 

"He    only    can    be    excused     "whose  tiling   which    lias   no    foundation   or   ex- 
whole  reasoning  and  corresponding  con-  istence."     Erskine's     Speech     for     Had- 
duet,  though  governed  by  the   ordinary  field, 
dictates  of  reason,  proceed  upon  some- 


534  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  l§  495 

been  an  example  for  evil;  but,  fortunately,  it  has  been  reversed  by 
later  and  better  opinions. 

In  Bellingliains  Case  it  was  also  announced  that  the  accused,  in 
order  to  be  exempt,  must  not  be  able  to  know  "that  murder  was  a  crime 
against  the  laws  of  God  and  nature."  But  there  is  no  delusional  luna- 
tic who  is  ignorant  of  such  an  elementary  principle  of  ethics.  It 
would  be  as  fair  to  insist  that  he  must  not  know  that  two  and  two  are 
four.  Such  tests  do  not  touch  the  real  question  of  his  responsibility 
under  the  domination  of  an  insane  delusion. 

496.  The  distinction  again  between  civil  and  criminal  insanity. — 
Finally,  the  Attorney  General,  Sir  Vicary  Gibbs,  made  the  following 
declaration  of  the  distinction  between  civil  and  criminal  insanity : 

"A  man  may  be  deranged  in  his  mind ;  his  intellect  may  be  insuffi- 
cient for  enabling  him  to  conduct  the  common  affairs  of  life,  such  as 
disposing  of  his  property,  or  judging  of  the  claims  which  his  respect- 
ive relations  have  upon  him ;  and  if  he  be  so,  the  administration  of 
the  country  will  take  his  affairs  into  their  management,  and  appoint- 
to  him  trustees ;  but,  at  the  same  time,  such  a  man  is  not  discharged 
from  his  responsibility  for  criminal  acts.  I  say  this  upon  the  author- 
ity of  the  first  sages  in  this  country,  and  upon  the  authority  of  thc 
cstablished  law  in  all  times." 

'  This  is  diametrically  opposite  to  the  opinion  given  by  Coke,'^'^  whc 
was  certainly  one  of  the  "first  sages"  of  the  English  law,  and  it  is  a 
monstrous  interpretation  of  this  peculiar  doctrine.  The  Attorney 
General  did  not  give  his  authorities.^^  It  is  the  most  extreme  state 
ment  of  this  dogma  ever  given  in  an  English  court.  That  a  man  so 
deranged  in  his  mind  as  is  indicated  in  that  passage  should  be  held 
accountable  for  his  acts  is  repugnant  to  every  dictate  of  humanity, 
and  to  all  the  teachings  of  science.  Moreover,  it  is  more  than  doubt- 
ful whether  any  court  at  the  present  day  would  subscribe  to  the  state- 
ment as  it  stands. '^^ 

497.  The  cases  of  Parker  and  Bowler. — The  right-and-wrong  test  was 

"  2  Litt.  247a.  lie  is  mn.d ;  but  it  is  a  species  of  mad- 
"He  pr.ol)abiy  relied  entirely  on  Ers-  ness  which  probably,  for  the  security  of 
kine,  in  his  speech  for  Hadfield  (27  mankind,  ought  not  to  exempt  a  man 
How.  St.  Tr.  1281).  from  being  answerable  for  his  actions." 
7 Si  It  is  interesting  to  i-ead  the  opin-  (Life  of  Roniilly,  Vol.  II.  p.  36.) 
ion  of  Sir  Samuel  Romilly,  the  reform-  Romilly  himself  went  insane  and  com- 
er of  Enghmd's  criminal  law.  He  niitted  suicide;  and  it  is  said  that  the 
wrote  of  1^'llingliam:  "No  person  can  son  of  Mr.  Perceval,  killed  by  Belling- 
have  lieard  what  the  conduct  and  de-  ham,  also  went  insane,  and  published 
meaner  of  this  man  has  been  since  he  an  account  of  his  own  case, 
committed  the  crime,  or  can  have  read  See  Bevsell  v.  CltfiiweUor,  5  Whart. 
his  defense,  without  being  satisfied  that  371,  377,  34  Am.  Dec.  3G1. 


§  497]  INSANITY   AND   THE   LAW.  535 

still  further  confirmed  in  the  cases  of  Parker'"  and  Bowler.'^'^  In  the 
latter  case  Sir  Simon  Le  Blanc  charged  the  jury  that  it  was  for  them 
to  determine  whether  the  prisoner  'Svas  nnder  the  influence  of  any 
illusion  .  .  .  which  rendered  his  mind  at  the  moment  insensible 
of  the  nature  of  the  act."  This  short  sentence  embodied  still  another 
test  which  has  since  figured  largely  in  the  courts.  Knowledge  of  the 
nature  of  the  act  may  be  criticized  as  a  somewhat  metaphysical  state- 
ment: it  is  doubtless  intended  to  refer  to  the  act  as  a  crime,  or  as  a 
violation  of  "the  laws  of  God  and  nature."  It  is  therefore  merely  a 
restatement,  in  different  language,  of  one  of  the  tests  formulated  by 
Sir  James  Mansfield  in  Belli ngliam's  Case ;  and  is  open  to  the  same 
criticism. 

498.  The  case  of  Offord.— In  the  case  of  Bex  v.  Offord^^  in  1831, 
Lord  Lyndhurst  charged  the  jury  that  they  must  be  satisfied  that  the 
accused  "did  not  know,  when  he  committed  the  act,  what  the  effect  of 
it,'  if  fatal,  would  be,  with  reference  to  the  crime  of  murder.  The 
q^uestion  was,  did  he  know  that  he  was  committing  an  oft'ense  against 
the  laws  of  God  and  nature  ?"  He  then  referred  to  BeUingltam's  Case, 
and  agreed  with  Mansfield's  opinion. 

Thus  the  definitions  of  responsibility  in  the  insane  are  seen  to  have 
been  becoming  more  stereotyped. 

499.  The  cases  of  Bellingham  and  Offord  compared. — The  two  cases 
of  Bellingham  and  Ofi^ord  present  a  striking  example  of  the  incon- 
sistency of  the  law.  Both  these  men  were  delusional  lunatics  of 
exactly  the  same  type ;  for  they  both  suffered  with  delusions  of  perse- 
cution, which  render  such  lunatics  the  most  dangerous  of  all  the  in- 
sane. The  jury  in  each  case  was  charged  in  practically  the  same  lan- 
guage, and  yet  Bellingham  was  hanged  and  Offord  was  acquitted.  It 
is  difficult  to  understand  why,  if  the  former  was  convicted,  the  latter 

''^Parker's  Case,  1  Collinson,  Lunacy,  Some  years  afterwards  Baron  Alderson, 
477.  Parker  was  a  weak-minded  fellow  in  Reg.  v.  Oxford  (9  Car.  &  P.  5.33), 
who  had  been  taken  prisoner  by  the  said:  "Bowler  was  executed,  I  believe; 
French,  in  battle.  He  joined  the  French  and  very  barbarous  it  was."  Thus  re- 
ranks  and  donned  a  French  uniform,  be-  pentance  sometimes  comes  to  the  judg- 
cause  it  was  better  to  have  "liberty  and  ment  seat,  even  though  a  little  late, 
money"  than  to  linger  in  prison.  "5  Car.  &  P.  168.  OlTord  had  delu- 
Brougham  defended  him  in  vain  on  the  sional  insanity  of  a  most  confirmed 
ground  that  he  had  not  the  possession  type,  believing  that  the  inhabitants  of 
of  his  mental  faculties  in  such  strength  Hadleigh  were  in  league  against  his  life, 
and  vigor  as  to  warrant  his  conviction.  Under  the  influence  of  tliese  delusions 
He  was  hanged  for  treason.  he  would  abuse  strangers  in  the  streets; 

^"Bowlers  Case,   1   Collinson.  Limacy,  and   he  carried    a    list    of    about   fifty 

673,  note.     Bowler  was  an  epileptic  im-  names,   entitled   "list   of  Hadleigh   con- 

becile  who  had  even  been  found  insane  spirators    against    my    life."     He  shot 

by    a    commission     in     lunacy,    and     of  and  killed  a  man  named  Chisnall,  whose 

whose    insanity   the    strongest    evidence  name  was  on  this  list.     He  was  acquit- 

was  produced.     He  had  committed  mur-  ted  "on  the  ground  of  insanity." 
der,   and  was  condemned  and  executed. 


636  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  499 

"was  found  not  guilty.  The  crime  of  each  was  precisely  the  same, — 
the  murder  of  an  unoffending  man ;  and  the  motive  was  the  same, — 
the  impulse  of  an  insane  delusion.  Legal  writers  who  attempt  to  de- 
fend the  courts  cannot  escape  the  dilemma  presented  by  these  two 
cases;  and  these  cases  are  mentioned  in  detail  here  because  of  their 
historic  importance  in  a  highly  formative  period  of  the  medical  juris- 
prudence of  insanity. 

500.  The  case  of  Oxford;  a  step  in  advance. — In  the  next  case  of  im- 
portance, however, — that  of  Reg.  v.  Oxford,^^  in  1840, — a  distinct 
advance  came  near  to  being  made  towards  a  scientific  statement  of 
criminal  insanity.     Lord  Chief  Justice  Denman  charged  the  jury: 

"If  some  controlling  disease  was,  in  truth,  the  acting  power  within 
him,  which  he  could  not  resist,  then  he  will  not  be  responsible." 

This  was  an  unexceptionable  statement  from  a  scientific  stand- 
point, and  it  is  unfortunate  that  it  was  not  allowed  to  stand  without 
further  elucidation.  It  would  have  constituted  an  exemplary  defi- 
nition for  all  future  ages,  and  would  have  been  to  the  everlasting  credit 
of  the  distinguished  judge  who  uttered  it.  But  Lord  Denman,  with 
that  tendency  to  refine  and  elaborate  which  is  so  characteristic  of  the 
legal  mind,  did  not  seem  satisfied  that  it  exhausted  the  law  of  the 
.subject;  for  he  continued: 

"The  question  is  whether  the  prisoner  was  laboring  under  that 
species  of  insanity  which  satisfies  you  that  he  was  quite  unaware  of 
the  nature,  character,  and  consequences  of  the  act  he  was  committing: 
or,  in  other  words,  whether  he  was  under  the  influence  of  a  diseased 
mind,  and  was  really  unconscious,  at  the  time  he  was  committing  the 
act,  that  it  was  a  crime." 

He  also  used  the  expression,  whether  "he  was  insane  at  the  time 
when  the  act  was  done, — whether  the  evidence  given  proves  a  disease 
of  the  mind,  as  of  a  person  quite  incapable  of  distinguishing  right 
from  wrong." 

It  is  evident  all  through  this  charge  that  Lord  Denman's  mind 
grasped  the  central  idea, — the  essential  issue  in  all  such  cases, — and 
grasped  it  much  more  clearly  than  any  of  his  predecessors  had  done. 
He  reverts  again  and  again  to  the  simple  question  whether  the  pris- 
oner was  "insane."  It  was  only  when  he  attempted  to  qualify  that 
question  with  the  consideration  of  the"knowledgeof  right  and  wrong" 

**9   Car.   &   P.   52,5.     Oxford   was   the  lier.   or   even    whether    the    pistol   was 

victim     of     hereditary     insanity.       His  loaded  with  a  bullet.     He  was   acquit- 

grandfather  had  died  in  an  asylum,  and  ted;    but,   as   was   said   of   Hadfield,   he 

his  father  also  was  insane.     lie  fired  a  probably  would  not  have  escaped   if  he 

pistol    at    Queen    Victoria,  but  it  was  had   killed,   or  even   only   wounded,   his 

doubtful  whether  he  intended  to  injure  sovereign. 


§  500]  INSANITY   AND   THE   LAW.  537 

and  of  the  "knowledge  of  the  nature  of  the  act"  that  he  spoiled  a  good 
definition,  and  lost  a  great  opportunity.  That  the  jury  saw  the  point, 
however,  is  evident  from  the  fact  that  they  found  Oxford  "not  guilty, 
on  the  ground  of  insanity."  They  did  not  find  that  the  prisoner  did 
not  know  the  difference  between  right  arid  wrong,  or  that  he  did  not 
know  that  it  was  a  crime  to  shoot  at  the  Queen,  for  their  common 
sense  must  ha^'e  told  them  that  he  probably  knew  both  these  things. 
But  they  took  Lord  Denman  at  his  word,  and  found  merely  that 
Oxford  had  a  "disease  of  the  mind." 

501.  The  formative  period. — The  long  period  which  we  have  just 
traversed  may  be  called  the  formative  period  in  the  medical  juris- 
prudence of  insanity  in  the  English  law.  It  was  the  period  during 
which  definitions  were  gradually  becoming  fixed.  It  shows  conclu- 
sively that,  contrary  to  what  so  many  jurists  have  maintained,  there 
v/as  little,  if  any,  authority  in  the  old  common  law  for  the  arbitrary 
definitions  which  finally  became  current.  Sir  Edward  Coke  had  fixed 
the  tenn  "total  deprivation  of  memory  and  understanding."  Sir  Mat- 
thew Hale  had  described  his  "partial  insanity."  Mr.  Hawkins  had 
formulated  the  doctrine  of  "the  knowledge  of  right  and  wrong." 
Erskine  had  announced  the  test  of  "delusion,"  and  had  draAvn  the 
distinction  between  civil  and  criminal  insanity  as  it  has  since  re- 
mained. Sir  James  Mansfield  had  declared  for  the  knowledge  that 
the  crime  was  "against  the  laws  of  God  and  nature,"  and  Lord  Den- 
man had  emphasized  the  test  that  an  insane  man  must  not  be  able  to 
know  "the  nature  and  consequences  of  his  act."  In  all  this  we  see  no 
authority  of  the  ancient  "common  law,"  and  but  little  exact  knowl- 
edge of  the  science  of  psychiatry.  These  definitions  were  merely  the 
pronouncements  of  judges  or  advocates,  striving  in  a  vain  attempt  to 
include,  in  a  convenient  formula,  that  which  is  not  susceptible  of 
being  so  conveniently  formnlated.  During  all  this  time  the  statute 
law  was  silent  as  to  definitions,  and  the  judges  were  left  to  their  own 
devices  to  evolve  tests.  These  rules  were  no  sooner  pronounced  from 
the  bench  than  they  were  claimed  to  have  acquired  the  authority  and 
sanctity  of  "common  law." 

502.  Madness  not  to  be  reduced  to  fixed  rules. — "I  shall  not  pretend," 
said  Mr.  Hope,  afterwards  Lord  President  of  the  Court  of  Session, 
in  Scotland,^'^  "to  enter  the  lists  of  definition  .  .  .  with  McKen^ie 
or  with  Hale ;  they  are  all  great  and  able  men ;  but  I  suspect  much 
that  they  are  better  lawyers  than  physicians,  and  that  they  have  given 

'^Rex  V.  Kinloch,  25  How.  St.  Tr.  891.    found   insane    in   the   same   verdict,    in 
Sir  A.  Gordon  Kinloch  shot  and  killed    spite  of  the  right-and-wrong  rule, 
his     brother.     He     was     acquitted    and 


538  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  502 

way  too  much  to  a  professional  propensity  to  subdivide  and  methodize. 
For  my  part  I  shall  not  attempt  to  reduce  madness  to  fixed  rules,  nor 
to  define  the  different  kinds  and  degrees  of  it,  which  I  have  always 
found  to  be  as  numerous  and  diversified  as  the  unhappy  persons  who 
were  the  subjects  of  the  disorder," 

To  this  trenchant  criticism  nothing  need  be  added,  except  to  say 
that  some  of  the  best,  if  most  severe,  critics  of  the  law  have  been 
lawyers  themselves ;  and  their  criticisms  have  been  wrung  from  them 
when  they  appeared  at  the  bar  of  justice  as  advocates,  and  were 
forced  to  protest  against  the  definitions  of  the  judges.^^ 

The  uncertainty  of  the  English  law  had  become  so  apparent  in 
1843  that  an  attempt  was  made  to  give  permanent  authority  to  this 
subject;  and  the  occasion  for  this  attempt  was  the  celebrated  case  of 
Daniel  M'Xaghl^n. 

"Justice  IMiller,  of  the  United  States  are  not  preeminently  fitted   over   other 

Supreme   Court,   said  that,   in  the   con-  rneu   of  good  judgment  in  business  af- 

fererice  room  of  that  court,  the  judges  fairs  to  decide  upon  mere  questions  of 

readily  agreed  on  questions  of  law,  but  disputed  fact."     49  Alb.  L.  J.  196. 
disagreed  on  questions  of  fact.     "Judge* 


CHAPTEE  XXVII. 

THE  RULES  IN  THE  ?iI\VAGHTEN  CASE.Jf 

-WS.  No   binding   aiitliority   on    criminal    lunacy. 

;")04.  Recent  opinions  largely  based  on  the  M'N lighten  Case. 

,505.  The  ease  of  M'Nagliten. 

.506.  Delusional   insanity. 

-")07.  Lord  Tindal's  charge. 

r)0<S.  Two  distinct  tests. 

nOO.  The  questions  propounded  to  the  judges. 

oIO.  The   questions   analyzed. 

;)11;  The  answers  of  the  judges. 

.512.  The  three  points  involved. 

r)13.  Sir  Fitzjames  Stephen's  opinion. 

.514.  Inconsistencies  in  Stephen's  opioioD, 

515.  The  right-and-wrong  test  criticized. 

516.  In   reference   to  the   act   itself. 

517.  The  distinction  between  "moral"  and  "legal"  wrong. 

518.  The  test  of  delusion. 

519.  The  criminal  act  must  be  traced  to  the  delusion. 

520.  The  insane  man  must  act  as  though  he  were  sane. 

521.  The  test  of  delusion  not  applicable  to  all  cases  of  insanity. 

522.  Loss  of  self-control. 

523.  Bishop's  idea  that  a  test  is  like  a  yardstick. 

524.  Not  a  question  of  law,  but  a  question  of  fact. 

525.  The  M'Naghten  rules  not  always   followed. 

526.  The  law  takes  no  heed  of  insanity  in  the  abstract. 

527.  A  contrary  opinion. 

528.  Insanity  a  fact  to  be  determined  by  jury. 

529.  Insanity,  being  a  fact,  is  not  definable  by  statute. 

503.  No  binding  authority  on  criminal  lunacy. —  Sir  Fitzjames 
Stephen^  is  authority  for  the  statemeut  that,  from  the  time  of  Lon] 
Hale  up  to  the  time  he  himself  wrote,  in  1883,  there  practically  was 
no  binding  authority  in  the  English  law  on  the  subject  of  criminal 
lunacy.  All  that  existed  was  a  series  of  opinions  given  by  the  several 
judges   who   had   presided    at  the   various   trials   from   the   time  of 

-J  "Sir,    these    subjects    may    be    dull,  on     your     time     and     patience." — •  Lord 

and  want  the  light  and  shade  of  more  Ashley,   speech   in   Parliament  on  a   lu- 

exciting  topics,   but  the  expense   which  iiacy  bill,  23d  July,  1844. 
is    incurred,    the    nurnbers    that    suffer.         '  History   Crim.    Law,   Vol.    II.    Chap, 

and  the  nature  of  their  sufferings,  will  XIX. 
perhaps  justifv  the  present  demand  up- 

539 


540  INSANITY— FORMS  AND  MEDICO-LEGAL   ASPECTS.  [§  505 

Arnold's  Case,  in  1724.^  In  other  words,  there  was  only  some  ''judge- 
made  law,"  but  nothing  that  had  the  binding  force  of  an  act  of  Parlia- 
ment, or  even  the  sanction  of  the  old  "common  law."  Even  this 
"judge-made  law"  does  not  escape  the  animadversions  of  Sir  Fitz- 
janies  Stephen,  who  was  himself  a  judge;  for  he  refers  to  it  in  no 
uncertain  terms  as  of  very  uncertain  value.  In  most  cases,  he  tells 
us,  the  judges  have  only  repeated  each  other,  with  variations,  and 
these  variations  have  been  the  mere  suggestions  of  the  moment,  aris- 
ing from  particular  facts  of  the  case.^  There  had  been  no  single  in- 
stance in  which  an  English  court,  sitting  in  banc,  had  delivered  a  wTit- 
ten  judgment  on  criminal  lunacy,  though  there  had  been  such  judg- 
ments in  civil  cases.  He  considered  the  reports  of  what  single  judges 
had  really  said  often  untrustworthy,  especially  in  view  of  the  number 
of  cases  in  which  even  the  best  judges  are  held  to  have  misdirected 
juries  in  trials  at  nisi  prius.  The  answers  of  the  judges  in  the 
M'Naghten  Case  he  evidently  considers,  as  we  shall  see  presently,  of 
uncertain  value  in  science,  and  of  dubious  authority  in  law. 

504.  Recent  opinions  largely  based  on  the  M'Naghten  Case. — Bm 
since  these  ansAvers  of  the  judges  were  given  in  the  M'Naghten  Case, 
practically  every  English  opinion,  and  the  majority  of  American 
opinions  in  courts  of  law,  have  been  founded  upon  them.  There  were 
at  the  time  grave  doubts  about  the  propriety  of  these  questions  and 
answers  in  the  M'Naghten  Case,  and  there  have  been  still  graver 
doubts  since.  Lords  Lyndhurst,  Brougham,  and  Campbell  felt  callcif 
upon  to  act  the  part  of  apologists  on  the  floor  of  the  House  for  the  ex- 
traordinary procedure,  and  Mr.  Justice  Maule  declined  to  join  in  the 
answers,  because,  as  Sir  Fitzjames  Stephen  hints,  ^  he  doubted  either 
the  propriety  or  legality  of  them.  Yet  these  answers,  thus  dubiously 
born,  and  almost  smothered  from  their  birth  in  a  cumbrous  phrase- 
ology, have  been  the  oracles  of  Anglo-American  jurisprudence  in  in- 
sanity for  sixty  years. 

505.  The  case 'of  M'Naghten.— M'^^agh  ten,  like  Hadfield  and  Bel- 
lingham,  was  a  delusiomil  lunatic.^  His  delusions  were  of  the  perse- 
cutory type:  he  believed  that  he  was  harassed  by  enemies;  and,  in- 

'ArnoM's  Trial,  IG  How.  St.  Tr.  605.  *  Op.  cit.  p.  154,  footnote. 

"  In  another  place  (Chap.  XX.  p.  188).  °  AfNaj^h ten's     case     was     a     perfect 

Steplien,  speaking  of  the  distinction  be-  cxaniple    of    Hale's    "partial"   insanity, 

tween    the   common   and   statutory   law.  The  man  was  able  to  transact  business, 

says:     "No    act    of    Parliament  throws  and   conducted   liimself  in   the  ordinary 

any   light   on    the   questions   as   to   the  relations  of  life  in  a  way  that  did  not 

extent   to  which   insanity   is  an   excuse  suggest  that  he  was  "totally"  insane,  or 

for   crime."     These   questions   still   con-  totally  "deprived  of  memory  and  under- 

tinue  undecided.  standin"."' 


§  505]  THE  RULES   IN  THE   M'NAGHTKN   CASE.  541 

cliuliiig  Mr.  DriuninoiKl,  the  ])rivate  secretary  of  Sir  Robert  Peel, 
among  these  enemies,  lie  had  shot  and  killed  him  on  the  street.  Ac- 
cording to  some  accounts  he  mistook  the  secretary  for  the  statesman ; 
and  it  was  really  Sir  Robert  iPeel  whom  he  had  intended  to  assas- 
sinate. He  was  successfnlly  defended,  and  was  acquitted  on  the 
ground  of  insanity  ;^^  but  the  verdict  was  unpopular,  and  the  House 
of  Lords,  resi)onsive  to  popidar  criticism,  addressed  a  reo^uest  to  the 
judges  for  an  authoritative  statement  of  the  law  on  the  subject  of 
insanity  as  a  defense  for  crime. 

The  prisoner  was  tried  in  1843.^  The  evidence  was  that 
M'Naghten  was  suffering  with  "morbid  delusions"  and  that  persons 
so  suffering  "might  ha-e  a  moral  perception  of  right  and  wrong,  but 
that,  in  the  case  of  the  prisoner,  it  was  a  delusion  which  carried  him 
away  beyond  the  poAver  of  his  own  control,  and  left  him  no  such  per- 
ception ;  and  that  he  was  not  capable  of  exercising  any  control  over 
acts  which  had  connection  with  his  delusion ;  that  it  was  of  the  nature 
of  the  disease  with  which  the  prisoner  was  affected  to  go  on  gradually 
until  it  had  reached  a  climax,  when  it  burst  forth  with  irresistible 
intensity, — that  a  man  might  go  on  for  years  quietly,  though  at  the 
same  time  under  its  influence,  but  would  all  at  once  break  out  into 
the  most  extravagant  and  violent  paroxysms." 

506.  Delusional  insanity. — The  above  is  the  statement  of  M'Nagli- 
len's  Case,  as  submitted  to  the  House  of  Lords.  It  is  to  be  noted  that' 
it  is  a  clear  statement  of  a  case  of  delusional  insanity;  only  in 
skeleton  outlines,  to  be  sure,  but  still  giving  the  essential  points  in 
such  a  case.  It  meets  the  question  of  right  and  wrong,  and  disposes 
of  it  properly;  that  is,  it  disposes  of  it  as  properly  as  such  an  irrele- 
vant question  can  be  disposed  of.  It  also  claims  that  such  lunatics 
have  no  control  over  their  delusions.  This  is  practically  true,  but  it 
is  not  equally  true  in  all  cases.  Lunatics  vary  in  this  respect,  but  in 
a  criminal  act  by  a  delusional  lunatic  the  inference  is  that  he  was 
controlled  by  his  delusion.  In  M'Naghten's  Case  this  was  the  vital 
scientific  point ;  i.  e.,  the  fact  that  he  was  controlled  by  his  delusions ; 
not  the  question  whether  he  had  the  ability  to  distinguish  between 
right  and  wrong  in  the  abstract  or  even  in  the  concrete.  With  refer- 
ence to  his  particular  act,  however,  his  moral  perceptions  were  doubt- 
less obscured  by  his  delusion. 

507.  lord  Tindal's  charge. — Lord  C.  J.  Tindal,  in  his  charge  to  tlie 

H  M'Naghten  was  defended  by  Cock-  rnastorly   arejuments   ever  heard  at  the 

burn,    afterwards    Lord    Chief    Justice,  English  bur"  in  this  case, 

who,     according   to   Ballantine     (Expe-  ^M'Naontcn's  Case,  10  Clark  &  F.  200, 

riences,  p.  206),  made  "one  of  the  most  1  Car.  &  K.  130,  note,  8  Scott  N.  R.  sn-l 


542  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  507 

jury,  had  said :  "The  question  to  be  determined  is  whetlier,  at  the 
time  the  act  in  question  was  committed,  the  prisoner  had  or  had  not 
the  use  of  his  understanding  so  as  to  know  that  he  was  doing  a  wrong 
or  wicked  act  If  the  jurors  should  be  of  the  opinion  that  the  prisoner 
was  not  sensible,  at  the  time  he  committed  it,  that  he  was  violating  the 
laws  both  of  God  and  man,  then  he  would  be  entitled  to  a  verdict  in 
his  favor;  but  if,  on  the  contrary',  they  were  of  opinion  that  when  he 
conunitted  the  act  he  was  in  a  sound  state  of  mind,  then  their  verdict 
must  be  against  him.'' 

508.  Two  distinct  tests. — This  is  one  of  the  most  curious  charges 
ever  given  to  a  jury  in  a  case^  of  criminal  lunacy;  and  its 
oddity  consists  in  the  fact  that  the  learned  judge,  in  a  very 
few  sentences,  managed  to  promulgate  two  distinct  tests  wdiich 
have  practically  nothing  to  do  Avith  each  other.  First,  he 
\&js  down  the  test  of  right  and  wrong  in  all  its  naked  boldness; 
then,  in  the  second  place,  he  proclaims  that  a  sound  state  of  mind 
is  to  be  the  governing  test  of  the  prisoner's  responsibility.  Why,  may 
we  not  ask,  is  not  the  latter  test  as  good  for  the  prisoner's  insanity 
as  it  is  for  his  sanity?  If  he  is  to  be  held  responsible  if  he  is  found 
to  be  in  a  sound  state  of  mind,  why  is  not  the  converse  true,  and  he 
is  to  be  held  irresponsible  if  he  is  found  to  be  in  an  unsound  state  of 
mind?  Framed  thus,  the^test  of  Lord  Tindal  would  be  above  criti- 
cism; but  when  he  drags  in  a  reference  to  "the  laws  of  God  and  man," 
and  a  knowledge  of  "a  wrong  and  wicked  act,"  he  frames  an  hypothe- 
sis Avhich  does  not  cover  the  question  of  irresponsibility  in  the  case  of 
any  delusional  lunatic;  and  this  for  the  simple  reason  that  lunatics 
do  not  act  with  reason  and  according  to  law.  M']^aghten  doubtless 
knew,  as  ever}'  man  knows,  that  the  "laws  of  God  and  man"  forbid 
murder;  and  if  he  had  been  sane  he  doubtless  would  have  observed 
those  laws ;  but,  being  insane,  he  simply  disregarded  them  in  response 
to  his  delusion.  The  only  "test"  of  insanity  is  the  evidence  of  the  dis- 
ease as  it  exists  in  every  individual  case.  There  can  be  no  other  test. 
Plence,  Lord  Tindal's  second  "test"  was  the  true  and  only  one  in  a 
scientific  sense,  i.  c.  Was  the  patient  of  sound  or  of  unsound  mind? 

509.  The  questions  propounded  to  the  judges. — INI'lSTaghten  had  been 
found  "not  guilty,  on  the  ground' of  insanity," — a  righteous  verdict, 
legally  and  scientifically  worded.  But  the  case  was  brought  up  for 
discussion  in  the  Llouse  of  Lords,  and  on  June  19th,  1813,  a  series 
of  questions  were  propounded  to  the  judges,  as  follows : 

"1st.  What  is  the  law  respecting  alleged  crimes  committed  by  per- 
sons afflicted  with  insane  delusion  in  respect  of  one  or  more  particular 
subjects  or  persons ;  as,  for  instance,  where,  at  the  time  of  the  cona- 


§  r>on]  THE  RULES   IN  THE  jM'XAGHTEN   CASE.  643 

mission  of  the  alleged  crime,  the  accused  knew  he  was  acting  contrary 
to  law,  but  did  the  act  complained  of  with  a  view,  under  the  influence 
of  insane  delusion,  of  redressing  or  revenging  some  supposed  griev- 
ance or  injur}',  or  of  producing  some  supposed  public  benefit  ? 

''2d.  What  are  the  proper  questions  to  be  submitted  to  the  jury 
when  a  person  alleged  to  be  afflicted  with  insane  delusion  respecting 
one  or  more  particular  subjects  or  persons  is  charged  with  the  com- 
mission of  a  crime  (murder,  for  example)  and  insanity  is  set  up  as  a 
defense  ? 

"3d.  In  what  terms  ought  the  question  to  be  left  to  the  jury,  as  to 
the  prisoner's  state  of  mind  when  the  act  was  committed  ? 

"4th.  If  a  person  under  an  insane  delusion  as  to  existing  facts 
commits  an  offense  in  consecpience  thereof,  is  he  thereby  excused  ? 

"5th.  Can  a  medical  man,  conversant  with  the  disease  of  insanity, 
who  never  saw  the  prisoner  previously  to  the  trial,  but  who  was  pres- 
ent during  the  whole  trial  and  the  examination  of  all  the  witnesses,  be 
asked  his  opinion  as  to  the  state  of  the  prisoner's  mind  at  the  time  of 
the  commission  of  the  alleged  crime,  or  his  opinion  whether  the 
prisoner  was  conscious,  at  the  time  of  doing  the  act,  that  he  was  acting 
contrary  to  law,  or  whether  he  was  laboring  under  any  and  what  de- 
lusion at  tlic  time  ?" 

510.  The  questions  analyzed. — Stripped  of  redundancy  these  ques- 
tions mean  simply  this:  1st.  What  is  the  laAV  respecting  the  alleged 
crimes  of  delusional  lunatics  ?  2d.  What  is  the  question  at  issue 
when  a  delusional  lunatic  commits  an  alleged  crime  ?  The  third  ques- 
tion practically  repeats  the  second.  The  fourth  question  practically 
repeats  the  first.  The  second  question  also  very  nearly  repeats  the 
first.  There  probably  never  was  a  series  of  questions  embodying  one 
simple  point  of  inquiry  clothed  in  such  redundancy  and  reiteration. 
The  point  at  issue  simply  was — What  w^as  the  English  law,  in  1843, 
concerning  delusional  lunatics  who  committed  crimes  under  the  in- 
fluence of  their  delusions  ?  This  was  the  point  of  inquiry,  and  this 
point  of  inquiry,  one  would  suppose,  was  the  proper  and  only  one  to 
be  submitted  to  the  jury  with  reference  to  the  case  on  trial.  But,  in 
striving  after  refinements  of  definition,  this  simple  inquiry  was  ob- 
scured in  a  lot  of  involved  interrogations,  which,  when  analyzed  and 
boiled  down,  can  mean  only  one  thing;  viz..  What  is  the  English  law 
respecting  delusional  lunatics  who  commit  crimes  ?' 

^  The   most     obvious     answer    to    this  wlio  says    (History  Crini.  Law.  VoL  IT. 

question  is,  that  there  was  no  English  Chap.  XIX.  p.  L5i)  :  "From  the  time  of 

law  on  the  subject.     The  authority  for  Lord   Hale  to  our  own,  no  legal  writer 

this    is    Sir    James  Fitzjames   SLeplieu,  of  autiiority   has  discussed  this   matter 


644  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  L§  '''10 

The  fifth  question  was  entirely  apart  from  tlie  main  inquiry,  and 
referred  merely  to  the  privilege  of  an  expert  giving  his  opinion  on  the 
evidence^  at  the  trial. 

511.  The  answers  of  the  judges. — The  answers  given  by  the  judges 
to  these  questions  suggest  the  suspicion  that  both  the  questions  and 
the  answers  were  devised  by  the  same  mind,  or  minds.  They  are 
Avritten  in  the  same  redundant  and  involved  style,  and  the  same  pre- 
conceived opinions  are  apparent  in  them.^  Too  voluminous  to  quote, 
the  answers  of  the  judges,  delivered  by  Lord  C.  T.  Tindal,  who  had 
presided  at  the  trial  of  M'l^aghten,  embodied  the  following  opinion : 
A  delusional  lunatic  is  responsible  if  he  knew  "that  he  was  acting 
contrary  to  law.  .  .  .  That  to  establish  a  defense  on  the  ground 
of  insanity,  it  must  be  clearly  proved  that,  at  the  time  of  the  commit- 
ting of  the  act,  the  party  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  was  wrong."  And  this  knowledge  was  fur- 
ther qualified  as  pertaining,  not  to  the  abstract,  but  to  "the  very  act 
with  which  he  is  charged;"  and  then  certain  refinements  were  made 
as  to  the  prisoner's  knowledge  of  the  "law  of  the  land,"  which  the  law 
presumes  all  men  to  have.  But  the  answer  to  the  fourth  question 
must  be  quoted  more  in  full,  for  it  has  led  to  great  abuse,  both  of  jus- 
tice and  common  sense:  A  delusional  lunatic  "must  be  considered 
in  the  same  situation  as  to  responsibility  as  if  the  facts  with  respect 
to  which  the  delusion  exists  were  real."  That  is,  if  the  lunatic  kills 
another  man  in  supposed  self-defense,  even  though  acting  under  a 
delusion,  he  is  exempt;  but  if  his  delusion  is  that  the  other  man  has 
simply  done  injury  to  his  character  and  fortune,  he  is  liable  to  punish- 
ment. Nothing  can  exceed  the  gravity  of  this  error,  or  show  more 
clearly  the  utter  misconception,  on  the  part  of  the  judges,  of  the 
true  nature  of  delusional  insanity.  It  is  equivalent  to  saying,  as  Dr. 
Ray  has  caustically  remarked,^  that  a  lunatic  is  not  to  be  held  liable 
for  his  acts  so  long  as  he  acts  with  reason  and  propriety! 

512.  The  three  points  involved. — Such  is  the  gist  of  the  famous  ques- 
tions and  answers  in  the  M'Naghten  Case.  They  evolved  nothing 
new  that  was  important,  and  they  confirmed  nothing  old  that  was  not 

upon  its  merits,  and  tliovigh  there  have  theory,  and,  in  fact,  such  a  prearranged 

})een   numerous   trials     .     .     .     the   cir-  plan  would  be  quite  in  keeping  with  the 

cumstances  have  never  been  such  as  to  practices  both  of  legislative  bodies  and 

iifTord  an  opfmrtunity  for  a  solemn  ar-  of    courts.       An     authoritative   opinion 

gument  and  judgment  laying  down  the  was  wanted,  and  it  was  prepared  in  the 

principle*  of  law  by  wliich  the  relation  form    of    a    series  of  questions  and  an* 

of    insanity    to    crime    may    be    deter-  swers. 

mined."  'Med.  .Jur.  Insanity,  5th  ed.  p.  49. 
•Tliere  is  nothing  improbable  in  this 


i  512]  THE  RULES  IN  THE  M'NAGHTEN  CASE.  545 

erroneous.  The  effect  of  them  has  simply  been  to  emphasize  three 
points  on  which  a  lunatic's  faculties  are  to  be  tested :  (1)  His  knowl- 
edge of  the  nature  and  quality  of  the  act;  (2)  his  knowledge  that  the 
act  was  against  the  law;  (3)  his  ability  to  distinguish  between  righi 
and  wrong.  The  first  expression  is  too  vague  to  be  applied  ;  the  second 
has  no  applicability  in  an  insane  man's  conscience;  and  the  third, 
even  when  restricted  and  applied  to  the  act  in  question,  is  no  test  for 
lunacy.  For,  first,  a  "knowledge  of  the  nature  and  quality  of  an 
act"  necessarily  includes,  second,  a  "knowledge  that  the  act  is  against 
the  law;"  and,  third,  both  of  these  items  of  knowledge  include  the 
"ability  to  distinguish  between  right  and  wrong."  These  various 
phrases,  in  other  words,  j^ractically  all  say  the  same  thing,  and  they 
describe  elements  of  knowledge  wdiich  a  delusional  lunatic  may  share 
in  common  with  sane  men,  and  yet  be  radically  insane  and  irrespon- 
sible. In  brief,  the  celebrated  opinion  in  the  M'Naghten  Case  simply 
reaffirmed,  in  obscure  la:nguage,  the  test  of  "right  and  wrong," — a 
test  w^hich  had  already  stood  for  a  century  and  more  in  English  law, 
and  one  which  can  never  be  subscribed  to  by  alienists.  It  advanced 
the  subject  not  a  whit. 

513.  Sir  Fitzjames  Stephen's  opinion. — Sir  Fitzjamcs  Stephen,  liim- 
self  a  judge,  speaks  most  slightingly  of  the  replies  of  the  judges  in 
the  M'Naghten  Case/^  and  yet  he  distinctly  implies  that  these  opin- 
ions of  the  judges  are  the  most  binding  authority  in  English  law. 
"It  has  been  the  general  practice  ever  since  [1843]  for  judges  charg- 
ing juries  in  cases  in  which  the  question  of  insanity  arises  to  use 
the  words  of  the  answers  given  by  the  judges  [in  the  McNaghten 
Case'].  .  .  .  It  is  a  practice  which  I  have  followed  myself  on 
several  occasions,  nor  until  some  more  binding  authority  is  pro- 
vided can  a  judge  be  expected  to  do  otherwise,  especially  as  the  prac- 
tice has  now  obtained  since  1843.  I  cannot  help  feeling,  however, 
and  I  know  that  some  of  the  most  distinguished  judges  on  the  bench 
have  been  of  the  same  opinion,  that  the  authority  of  the  answers  is 
questionable;  and  it  appears  to  me  that,  when  carefully  considered, 
they  leave  untouched  the  most  difficult  questions  connected  with  the 
subject,    and   lay   down   propositions     liable   to   be   misunderstood ; 

M  "iTiey  do  not  form  a  jiidjirmcnt  upon  of  Lords  had  probably  no  right  to  re- 

definite  facts  proved  by  evidence.     They  quire  an  answer,  as  they  did  not  arise 

are  mere  answers  to  questions  which  the  out  of  any  matter  judicially  before  the 

judges  were  probably  under  no  obliga-  House."     History   Crim.    Law,    Vol.    11. 

tion  to  answer,  and  to  which  the  House  p.  154. 
Vol.  I.  Med.  Jub. — 35. 


64G  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  513 

tliouiih  they  might,  and  I  think  onght  to,  be  construed  in  a  way  which 
would  dispose  satisfactorily  of  all  cases  whatever.''^^^ 

514.  Inconsistencies  in  Stephen's  opinion. — I  have  great  respect  for 
Sir  Fitzjanies  Stephen,  but  I  cannot  help  thinking  that  the  incon- 
gruities of  this  passage  are  amazing.  According  to  it,  it  is  incumbent 
on  judges  to  follow  an  authority  which  they  believe  to  be  questionable, 
.simply  because  ''the  practice  has  obtained  since  1843 ;"  and  although 
these  answers  or  rules  "leave  untouched  the  most  difficult  questions 
connected  with  the  subject,"  nevertheless  they  can  be  construed  to 
"dispose  satisfactorily  of  all  cases  whatever."  How  a  set  of  rules 
or  principles  which  leave  the  main  parts  of  a  scientific  subject  un- 
touched can  be  used  to'  dispose  satisfactorily  of  all  cases  that  arise 
on  that  subject  is  more  than  the  average  scientist  will  be  able  to  grasp. 

515.  The  right-and-wrong  test  criticized. — The  rules  in  the  M'Nagli- 
ten  Case  suggest  the  following  comments : 

The  right-and-wrong  test,  as  pointed  out  elsewhere,  is  based  upon 
the  same  kind  of  psychology  that  has  given  rise  to  the  doctrine  of 
"moral  insanity."  Both  conceptions  are  of  the  same  piece.  They 
presuppose  the  existence  of  a  moral  faculty  which  can  be  conceived 
of  as  a  distinct  organ  of  the  brain,  and  which  can  be  .separately  dis- 
eased or  separately  healthy.  If  this  organ  is  diseased,  the  patient  is 
a  moral  lunatic,  say  the  doctors ;  if  it  is  not  diseased,  then,  regardless 
of  how  much  deranged  the  rest  of  the  brain  may  be,  he  is  responsible, 
say  the  lawyers.  Both  conceptions  are  unscientific.  The  human 
brain  is  not  divided  into  distinct  mental  territories,  each  having  its 
own  proper  diseases.  Therefore,  so  long  as  courts  insist  upon  the 
right-and-wrong  test,  they  are  not  in  a  position  to  criticize  the  doctrine 
of  a  moral  insanity. 

516.  In  reference  to  the  act  itself. — The  answers  in  the  M'Naglden 
Case  narrow  the  test  do\\Ti  to  the  act  itself.^ ^  In  other  words,  they 
make  it  a  concrete  test,  and  no  longer  an  abstract  one.  The  question 
no  longer  is,  Can  the  accu.sed  distinguish  right  and  wrong  in  general  ? 
but  only,  Can  he  distinguish  the  right  and  wrong  of  the  act  of  which 
he  is  accused  ?  This  is  an  advance,  and  should  be  recognized  as  such 
by  alienists;  for  it  is  unquestionably  true  that  many  insane  persons 
who  have  a  perfect  appreciation  of  right  and  wrong  in  general  have 
not  such  an  appreciation  in  respect  of  the  act  of  which  they  are 

1"?  Sergeant  Ballantine    (Experiences  refers    also    to  the   popular   "denunoia- 

of  a  Barrister,  p.  20.51   is  in  accord  with  tion    of    mad    doctors"    which    followed 

Stephen  in  his  criticism  of  the  M'Nafrh-  the  verdict  in  that  case, 

ten    rules.     Such    a    procedure    "fortu-  "Com.  v.  Freth,  3  Phila.  105;  Smith's 

natelj'^    has   never    been    repeated."     He  Case,  15  L.  I.  33. 


§  51.0]  THE   RULES  IN   THE  M'NAOITTEN  CASE.  547 

accused.  This  was  conspicuously  so  of  Bellingliam  and  of  Gniteau. 
But,  while  this  is  true  of  some,  it  would  be  an  error  to  say  that  it  is 
true  of  all,  and,  therefore,  that  it  is  necessarily  true.  The  springs 
of  action  in  an  insane  brain  cannot  be  so  unerringly  detected  and  an- 
alyzed. An  insane  man,  acting  under  a  delusion,  may  deliberately  do 
an  act  which  he  acknowledges  to  be  wrong.  In  other  words,  he  does 
not  act  with  reason  and  with  conscience;  his  motives  arc  all  per- 
verted,— in  sliort,  he  is  insane. 

617.  Tlie  distinction  between  "moral"  and  "legal"  wrong. — There- 
fore, the  distinction  between  moral  and  legal  wrong — so  much  dwelt 
on  by  Sir  Fitzjames  Stephen — is  not  of  groat  importance.  Certain- 
ly insane  persons  may  be  confused  by  such  a  nice  distinction;  for 
instance,  a  man  who  believed  that  he  had  a  command  from  God  to 
kill  would  believe  he  w^as  morally  right  in  killing,  even  though  he 
knew  he  was  legally  wrong.  But,  on  the  other  hand,  insane  persons 
may  do  acts  which  they  know  are  both  morally  and  legally  wrong, — 
as,  for  instance,  an  insane  mother  who  kills  her  child  in  an  access 
of  melancholia.  Such  a  case  destroys  the  value  of  this  distinction 
as  a  test  of  insanity.  There  are  few  melancholiacs  who  would  try 
to  justify  on  moral  gTounds  their  attempts  at  suicide.  Many  of  them 
act  on  an  impulse  that  leads  them  deliberately  to  ignore  their  moral 
principles  on  the  subject.  After  abortive  attempts  they  sometimes 
display  keen  remorse.  All  alienists  must  have  seen  such  cases.  More- 
over, the  impulse  to  suicide  is  sometimes  resisted  for  a  long  while  for 
moral  reasons.  When  the  impulse  at  last  gains  sway,  it  over- 
whelms the  moral  feeling,  but  does  not  obliterate  it.^^  This  may  not 
be  true  of  all,  but  it  is  true  of  some. 

518.  The  test  of  delusion. — Erskine's  test  of  delusion  has  been  wide- 
ly accepted  by  legal  authorities,  following  the  answers  of  the  judges 
in  M'Naghten's  Case.  There  has  even  been  a  tendency  to  consider 
it  the  final  statement  on  the  subject  of  responsibility  in  the  insane.^^ 
That  an  insane  delusion  is  a  good  defense  in  criminal  cases  is,  and 
ought  to  be,  a  good  rule ;  but  the  subject  is  not  so  simple  as  it  looks. 

519.  The  criminal  act  must  be  traced  to  the  delusion. — lu  the  first 
|)lace,  according  to  the  M'lSraghten  rules,  the  criminal  act  nuist  be 
traced  to  the  delusion.     When  it  is  thus  traced,  the  subject  is  clear 

'-  Suicide  is  aj^fainst  the  law  in  some  wliicli  one  of  the  parties  survives,  a  nice 

countries  and  some  states.     In  New  Jer-  question  arises  wliether  tlie  survivor  can 

sey  an  attempt  at  suicide  is  a  misde-  be   held    for   the   liomicide   of   liis   com- 

meanor.     In  May.    1904,  a  case  of  this  panion.     See     Oarnier,     La     Suicide     d 

kind  was  brought  before  Judtre  Joline  of  Deux,  Ann.  d'llyor.   iS91,  XXV.  202. 

Camden.     The     man    was   adjudged    in-  ^^Com.  v.  Meredith,  17  Phila.  90. 
sane.     In   cases    of    double    suicide,   in 


548  INSANITY— FORMS  AND  MEDICO-LEGx\L   ASPECTS.  [§  519 

enoiigli,  although  it  was  not  allowed  in  the  case  of  Bellingham. 
But  to  trace  this  connection  is  not  always  possible  with  the  certainty 
contemplated  by  the  law.  ^  ^  And  this  is  so  because  it  is  not  always 
possible  to  trace  all  the  motives  in  an  insane  man's  mind.  This  truth 
is  clearly  recognized  by  Erskine  in  civil  cases,  for  he  says  that  "the 
law  avoids  the  act,  though  it  cannot  be  traced  or  connected  with  the 
morbid  imagination."  Why,  then,  docs  not  this  rule  hold  good 
in  criminal  cases?  Does  the  insane  mind  act  differently  in  civil 
and  criminal  affairs  ?  Is  there  one  kind  of  disease  for  a  will,  and  an- 
other kind  for  a  murder?  When  a  man's  mind  is  completely  pos- 
sessed by  a  delusion  (or  series  of  delusions,  as  is  usually  the  case) 
will  it  be  possible  for  any  psychologist  to  say  precisely  just  how 
much  this  delusional  state  obscures  his  judgment,  clouds  his  moral 
sense,  enthrals  his  will,  and  determines  his  acts?  Lord  Lyndhurst^^ 
said  that  if  a  man's  mind  is  impaired  in  part,  he  is  of  unsound 
mind.  Lord  Brougham^^  maintained  that  the  mind  is  one  and 
indivisible.  If  it  is  controlled  by  a  delusion,  no  man  and  no  court 
can  assume  to  say  with  certainty  that  the  acts  are  not  logically  the 
result  of  that  delusion.  Sir  Fitzjames  Stephen^  ^  with  great  acumen 
says  that  delusion  is  an  evidence  of  disease  of  the  brain  far  more 
widespread  than  the  mere  delusion  itself,  and  therefore  is  an  evidence 
that  a  man  cannot  control  his  conduct,  and  cannot  distinguish  the; 
moral  aspects  of  his  acts.  The  opinions  of  these  eminent  judges  are 
in  accord  on  this  subject  with  the  teachings  of  science.  They  are  not 
in  accord  with  the  M'JsTaghten  rules. 

520.  The  insane  man  must  act  as  though  he  were  sane. — In  the  sec- 
ond place,  the  rule  in  M'Naghtens  Case,  that  an  insane  man's  act  is 
to  be  judged  by  the  same  law  as  though  he  were  sane,  is  unspeakably 
unjust.  Thus,  if  an  insane  man  has  a  delusion  that  another  man  in- 
tends to  kill  him,  and  kills  that  man  in  supposed  self-defense,  he  is 
exempt,  because  the  law  acknowledges  the  right  of  self-defense ;  but 
if  the  delusion  is  merely  that  the  other  man  intends  to  do  some  in- 
jury short  of  taking  life,  the  insane  man  is  not  exempt,  because  the 
law  does  not  recognize  the  right  to  take  vengeance  in  such  a  case. 
This  rule  is  based  on  the  theory  that  an  insane  man  must  act  with 
reason  and  moderation;  he  must  measure  his  acts  strictly  by  a  ra- 

^*\Vebber  v.  Com.  119  Pa.  223,  4  Am.  half-froe   can   no   more   exist    than    tlie 

St.  Rep.  634,  13  Atl.  427.  half-entire."     So    of    insanity:    a   man 

"Umo  V.   Clarice,   5   Russ.   Ch.    166,   6  rannot    he    both    partially    insane    and 

L,  J.   Ch.    186.     Lord  Lyndhurst  would  sane  at  the  same  time. 
have    ap^reed    with    I^andor    (Imajr^inary        ^"Waring  v.  Waring,  6  Moore,  P.  C.  C. 

Conversations,     p.      13.*J),     who     said":  341,  12  Jur.  947. 
"Freedom,  to  be,  must  be  perfect ;   the        "  History  Crim.  Law,  Chap.  XIX.    . 


§  520]  THE   RULES  IN   THE  M'NAGHTEN  CASE.  549 

tional  standard;  but  insane  men  do  not  do  this;  and  for  the  reason 
that  they  are  not  sanc.^^ 

521.  The  test  of  delusion  not  applicable  to  all  cases  of  insanity. — Fi- 
nally, the  test  of  delusion  is  not  applical)le  in  all  cases  of  insanity. 
To  attempt  to  limit  the  criminal  responsibility  of  the  insane  by  this 
rule  is  to  ignore  many  cases  in  which  the  criminal  act  may  arise  from 
other  impulses  than  systematized  delusions.  Maniacal,  delirious,  and 
emotional  disturbances,  quite  as  pronounced  as  delusions,  and  quite 
as  well  within  the  boundaries  of  disease,  are  ignored  by  such  a  rule. 
Erskine  himself  referred  to  the  case  of  a  woman  who,  in  an  access 
of  despair,  shot  her  seducer,  and  was  acquitted  by  a  jury  on  the 
ground  of  insanity,  as  a  case  which  furnished  an  exception  to  his  own 
rule.  An  insane  man  may  act  in  a  frenzy ;  or  in  an  access  of  melan- 
cholia ;  or  from  uncontrollable  impulse ;  or  from  obsessions.  None 
of  these  cases  is  an  instance  of  delusion  such  as  is  contemplated  in 
the  M'Naghten  rules ;  but  to  ignore  such  cases  is  to  ignore  some  of  the 
commonest  facts  in  insanity. 

522.  Loss  of  self-control. — This  is  not  clearly  indicated  in  the 
M'lSTaghten  rules  as  a  test  for  irresponsibility ;  but  it  has  been  "read 
into"  these  rules  by  some  judicial  interpreters.  Sir  Fitzjames  Ste- 
phen,^^  whose  dissatisfaction  with  the  law  on  insanity  was  so  great, 
says  that  "no  act  is  a  crime  if  the  person  who  does  it  is,  at  the  time 
when  it  is  done,  prevented  [either  by  defective  mental  power  or] 
by  any  disease  affecting  his  mind,  from  knowing  the  nature  and 
quality  of  his  act,  or  from  knowing  that  the  act  is  wrong  [or  from 
controlling  his  own  conduct,  unless  the  absence  of  the  power  of  con- 
trol has  been  produced  by  his  own  default.]"  But  the  parts  brack- 
eted are  denoted  by  Stephen  as  doubtful  law.  This  author  was  al- 
ways striving  after  a  more  scientific  statement  than  the  M'Naghten 
rules,  and  is  candid  enough  to  admit  that  some  of  his  own  ideas  are 
not  the  ideas  of  the  law.^^2    It  was  the  idea  of  Marc,  the  Frencli  alien- 

^Taylor  v.  Com.  109  Pa.  262;  Com.  (lis«vse  affectin?  the  mind,  and  it  is 
V.  Wirehacl:,  190  Pa.  138,  70  Am.  St.  ;uiid  t)iat  Sir  Fitzjamos  Slephcn  had 
Rep.  02r),  42  Atl.  542;  People  v.  Taylor,  something  to  do  with  this  bill,  and  that 
138  N.  Y.  398,  34  N.  E.  275.  For  an  ad-  it  was  rocommendod  by  Lord  Chief 
verse  criticism,  see  Parsons  v.  State,  81  Justice  Coekburn.  But  Justice  Som- 
Ala.  577,  (iO  Am.  Rep.  193,  2  So.  854.  mervillc  does  not  state  that  this  bill 
"  Digest  of  Crim.  Law,  p.  17.  ever  became  law.  The  provision,  how- 
i9i  According  to  Justice  Sommerville  ever,  is  in  accord  with  Stephen's  ideas, 
{Parsons  v.  State,  81  Ala.  577,  60  Am.  and  also  with  the  ideas  clearly  ex- 
Rep.  103,  2  So.  854),  a  bill  was  intro-  pressed  by  Sergeant  Ballantine  in  his 
duced  into  the  British  House  of  Com-  Experiences  of  a  Barrister,  Chap.  XX. 
mons  in  1874,  which  incorporated  in  the  See  also  Balfour  Brown,  Med.  Jurisp. 
old  rule  the  new  element  of  an  absence  of  Insanity  (quoted  in  Parsons  r. 
of  the  power  of  self-control,  caused  by  State,  81  AJa.  577,  p.  589,  60  Am.  Rep. 


5.50  INSANITY— FORMS  AND   MEDICO-LEGAL  ASPECTS.  [§  .■322 

ist,  that  insanity  is  an  affection  of  "the  will;"  but  he  developed  this 
idea  with  too  much  metaphysical  refinement.  Justice  Stephen's  opin- 
ion has  had  influence,  and  is  in  line  with  a  liberal  interpretation,  for 
it  is  true  that  insane  persons  are  impelled  by  the  power  of  a  dis- 
eased mind.^*  This  is  much  nearer  the  point  than  the  knowledge 
of  right  and  Avrong.  This  idea  of  a  loss  of  self-control  as  a  test  for 
insanity  has  been  elaborated  by  a  few  courts."^ 

523.  Bishop's  idea  that  a  test  is  like  a  yardstick. — Mr.  Bishop-^  de- 
scribes a  test  of  insanity  as  "a  sort  of  legal  yardstick,"  which  the 
judge  puts  into  the  hands  of  the  jury  in  order  that  they  may  "meas- 
ure the  evidence,  and  determine  whether  or  not  the  prisoner  had  a 
sufliGient  length  of  mental  alienation  to  escape  responsibility  for  his 
act."  But  this  figurative  language  has  no  scientific  value,  and  is  only 
quoted  here  as  an  illustration  of  the  loose  terminology  in  which  legal 
writers  sometimes  indulge  when  they  write  about  insanity.  A  test  is 
not  a  yardstick.  It  is  simply  a  form  of  evidence.  The  juridical 
test  for  insanity  is  a  .statement  from  the  bench  as  to  matters  of  fact, 
— a  statement,  moreover,  which  is  not  given  from  expert  knowledge, 
and  is  not  sworn  to.  From  the  legal  standpoint,  this  is  the  radical 
defect  of  it.  Such  a  test  would  not  be  tolerated  for  a  moment  in  a 
case  of  poisoning;  the  tests  for  arsenic  or  strychnin  are  matters 
entirely  of  expert  testimony.^^  Why  the  rule  should  be  different  in 
insanity  has  never  been  shown.  To  state  dogmatically  from  the 
bench  that  ignorance  of  right  and  wrong  is  a  symptom  of  insanity 
is  the  same  thing  as  to  say  that  strychnin  kills  by  narcosis.  To  say 
that  a  delusion  must  be  present  to  establish  irresponsibility  is  the 
same  as  to  say  that  arsenic  must  necessarily  be  found  in  the  kidneys. 
These  statements  may  or  may  not  be  true ;  some  of  them,  in  fact,  are 
not  true;  but,  whether  true  or  false,  they  are  matters  of  fact,  to  be 

in.3,  2  So.  8.54)  ;  1  Wliarton,  Crim.  Lavv,  the  best  of  a   bad   statement;    for  that 

9tli   cd.   §   4,5,  note   1 ;    Bishop,   1   Crim.  the  answers  in  the  M'Nafihten  Caste  are 

Law.  7th  ed.   §  ;58;5h.     Tlie  loss  of  self-  a   bad    statement     was     clearly    Justice 

control,  or  the  impelling;  power  of  men-  Stephen's  opinion.     History  Grim.  Law, 

tal   disease,   is   the   most   rational   legal  Vol.   IJ.  Chap.   XiX. 

test  ever  })roposed.     See  also  the  state-  "^Orltoein  v.  Com.  76  Pa.  414.  18  Am. 

mont  by  Lord   Denman    in   Rcfj.   v.    Ox-  Rep.   420;    Com.  v.   Moslrr,   4   Pa.   264; 

forfJ,  9  Car.  &  P.  52.5:      "If  some  con-  Com.  v.  Roc/ers,  7  j\Iet.  500,  41  Am.  Dec. 

trollinf:  disease  was,  in  truth,  the  act-  45S;   Dunn  v.  People,   109  111.  635. 

ing  power   within  him,   which  he  could  "Crim.  Law.  §§  381-.3S.3. 

not   resist,  then  he  will  not  be  respon-  -'Reg.  v.  Palmer.     An  account  of  this 

sible."      (See  §  500.  ante.)  case  is  {^iven  in  Stephen,  History  Crim. 

^  Sir  Fitzjames  Stephen's  interpreta-  Law,   )).   408.'    The   subject  of  tests   for 

tion    of    the    M'Naghtcn    rules    is    the  strychnin  is  illustrated  there,  and  how 

ablest   and   most   liberal    of   any    inter-  ii,   is  aijsolutely  a  question   for  the  ev- 

pretations  of  those  rules  by  le^fal  writ-  perts. 
"•rs.     It  is  a  brilliant  attempt  to  make 


§  523]  THE  RUL]-]S   IN  THE  M'NAGHTEN  CASE.  551 

(leterinined  by  evidence.  Marsh's  test  for  arsenic  did  not  have  its 
origin  in  a  court  of  law,  but  in  a  laboratory.  It  has  never  been  ac- 
cepted in  a  court  of  law  except  on  sworn  expert  testimony.  No  judge 
would  ever  assume  to  be  competent  to  announce  in  court  what  is  the 
value  of  the  process  by  which  Sertiirner  discovered  morphin ;  or  what 
are  the  symptoms  of  a  fractured  bone. 

524.  Not  a  question  of  law,  but  a  question  of  fact. — Sir  Matthew 
Hale,^'*  as  we  have  seen,  discarded  Fitzherbert's  test  for  idiocy  as  in- 
applicable; and  said  that  "idiocy  or  not  is  a  question  of  fact,  tri- 
able by  jury."  Judge  Doe,  of  New  Hampshire,^ ^  declared  that  the 
tests  and  symptoms  of  insanity  are  no  more  matters  of  law  than 
are  the  symptoms  of  consumption  or  cholera.  The  contrary  claim, 
that  insanity  is  not  a  medical  question  at  all,  but  a  purely  legal 
one  (a  claim  once  made  by  a  British  jurist),  is  never  referred  to  now 
except  as  a  curiosity.  Such  a  sweeping  denial  of  mental  disease  is 
only  equaled  by  Mrs.  Eddy's  denial  of  jDhysical  disease.  It  is  cer- 
tainly not  to  the  credit  of  public  intelligence  and  conscience,  either 
in  this  country  or  in  Europe,  that  this  important  subject  has  been 
thus  left  to  shift  for  itself  in  our  courts  of  law,  and  to  take  its 
chances  with  the  various  judges  who  have  had  to  wrestle  with  it.  It 
would  not  be  easy  or  admissible  to  attempt  to  define  a  scientific  sub- 
ject too  narrowly  by  statute,  but  the  importance  and  gravity  of  this 
topic  seem,  to  some  persons,  to  demand  that  some  settled,  authori- 
tative, and  not  too  narrow,  definition  should  be  given  to  the  subject 
of  criminal  lunacy.  Upon  this  point,  how^ever,  good  opinions  differ ; 
and,  as  said  already,  the  question  of  insanity  is  regarded  by  the  best 
thought  as  a  question  of  fact,  just  as  arsenical  poisoning  is  a  question 
of  fact;  and  the  definitions  of  it  and  tests  for  it  are  not  properly 
to  be  laid  down  in  the  law,  either  by  statute  or  by  the  courts:  they 
are  questions  for  scientific  determination.  What  is  wanted,  there- 
fore, is  not  more  definitions,  however  authoritative,  but  a  more  set- 
tled conviction  on  the  part  of  courts  that  the  question  of  insanity 
is  to  be  settled  in  every  individual  case,  not  by  a  priori  definitions, 
but  by  a  study  of  the  symptoms.-® 

**  1  P.  C.  Chap.  IV.  it  affects  to  fix  the  age  of  discretion  at 

^Boardman  v.   Woodman,    47    N.    H.  fourteen,  it  nevertheless  weighs  the  cir- 

120.  cumstances    in   each    case.     "The   power 

-"  In  the  matter  of  the  "age  of  discre-  of  contracting  guilt  is  measured  rather 

tion,"  the  law  does  not  bind  itself  even  by  the  strength  of  the  delinquent's  un- 

with   its  own  tests.     Under  the  age   of  derstanding   than   by   days   and   years." 

seven,    indeed,    nothing    is    admitted    to  The  maxim   is  malitia  supplet   a'tatem. 

overthrow    the    presumption    of    inno-  Children    of    eight,    ten,     and     thirteen 

cence;   but  between  seven  and  fourteen  years  have  been  executed  for  crimes,  be- 

the  law  is  not  so  dogmatic;   for  while  cause    they    manifested    discretion.      (1 


5o2  IXSAXITY— FOK.MS   AND  MEDICO-LEGAL   ASPECTS.  [§  525 

525.  The  M'Naghten  rules  not  always  followed. — The  English  courts 
have  not  always  adhered  to  the  rules  in  the  M'Naghten  Case.  At 
the  trial  of  a  woman  wh'-»  had  killed  her  child,  and  was  stopped  from 
killing  a  second  one  by  this  one  giving  her  a  caress,  Lord  Blackburn^" 
told  the  jnry  that,  although  the  prisoner  knew  right  from  wrong, 
and  also  the  character  of  the  act,  yet  there  were  exceptional  cases ; 
and,  on  the  strength  of  this  charge,  a  verdict  of  not  guilty,  "on  the 
ground  of  insanity,"  was  returned.  It  is  precisely  these  "exception- 
al cases"  that  destroy  the  validity  of  the  M'Naghten  rules. 

In  line  with  the  foregoing  is  an  enlightened  opinion  by  Justice 
Mellor,^^  in  which  the  rules  in  the  M'Naghten  Case  are  criticized. 
Very  important  and  very  enlightened  and  critical  adverse  views  of 
the  legal  test  of  right  and  wrong  were  expressed  by  Justice  Hawkins 
in  the  case  of  Ware.  Lord  Chief  Justice  Cockburn  is  also  on  rec- 
ord as  criticizing  the  legal  tests.^^  But  Lord  Denman,^"  in  the  case 
of  Cole,  charged  that,  although  the  prisoner  had  a  delusion,  still  he 
knew  he  was  doing  wrong,  and  knew  that  he  acted  contrary  to  the  law 
of  the  country,  and  therefore  was  not  exempt.  Such  an  opinion  is 
the  logical  outcome  of  the  M'lS^aghten  rules,  and  needs  only  to  bo 
quoted  to  be  condemned. 

526.  The  law  takes  no  heed  of  insanity  in  the  abstract. — Even  worse 
was  the  charge  of  Justice  Brett,  in  the  case  of  Blampied.^^  He  told 
the  jury  that  the  law^  took  no  heed  of  insanity  abstractly  considered, 
or  of  the  presence  or  absence  of  delusions.  To  exempt  from  respon- 
sibility a  man  must  be  so  mad  as  not  to  know  the  nature  of  the  act 
he  committed.  If  he  knew  what  he  was  doing,  and  if  he  knew  that  it 
was  Avrong,  then,  however  mad  he  might  be,  he  was  still  responsible. 
This  prisoner  had  been  insane  and  confined  in  an  asylum  for  four 
-years,  and  had  killed  a  fellow  laborer  with  whom  he  had  quarreled. 
He  was  acquitted  by  the  jury  in  spite  of  the  judge's  charge.  Jus- 
tice Brett  deliberately  ignored  the  M'jSTaghten  rules  in  what  he  said 
about  delusions,  but  he  did  not  err  on  the  side  of  mercy. 

627.  A  contrary  opinion. — In  the  Scotch  case  of  Alexander  ]\Iilne, 
tried  at  Edinburg,  in  1863,  for  the  murder  of  James  Paterson/"'^ 

Halo   p.   C.   26,    27;     4    Bl.    Com.   23;  1865.     See  Taylor,   Mod.   Jur.    12th  ed. 

Cliitty,  Crim.  Law,  724,  725.)      In  other  p.  761. 

words,  the  responsibility  of  a  child  is  a  ^Quoted  by  Dixon  Mann,  op.  cit.  pp. 

matter  of  fact  in  each  individual  case.  367,  368. 

and  not  a  matter  of  "days  and  years."  ^Reg.  v.  Cole,  C.  C.  C.  1883. 

Such  should  be  the  case  also  in  insan-  "licq.  v.  Blampied,  quoted  by  Taylor, 

ity.  Med.  .Jur.  12th  ed.  p.  762. 

"Quoted    by    Dixon    Mann,    Forensic  ^=' Quoted   bv   Rorie,   Ed.   Med.   Jourru 

Med.  and  Tox.  2d  ed.  p.  361.  1865,  Vol.  XI.  p.  18. 

"Keg.  V.  Cockroft,  Leeds  Aut.  Assizes, 


§  527]  THE   RULES   IN   'HIE  M'NAGHTEN  CASE.  553 

the  Lord  Justice  Clerk  charged ;  "If  you  are  quite  satisfied  that  the 
prisoner  was  under  insane  delusion  at  the  time  of  the  act,  you  need 
not  inquire  whether  he  knew  right  and  wrong.  If  the  delusion  be 
once  established,  the  law  will  presume  from  that  that  he  did  not 
know  right  from  wrong."  This  contradicts  Lord  Dennian  and  Jus- 
tice Brett  as  flatly  as  one  judge  can  contradict  another.  And  again; 
"If  the  mind  is  diseased,  the  man  is  insane ;  and  if  the  mind  is 
diseased,  it  is  no  matter  what  has  caused  it,  so  be  that  the  insanity  is 
actually  produced  and  present  at  the  time."  This  is  a  flouting  of  all 
"tests,"  and  is  a  scientific  statement. 

528.  Insanity  a  fact  to  be  determined  by  jury. — Shelford^^  tells  us 
that  the  existence  of  insanity  is  a  fact  which,  by  the  law  of  England, 
is,  in  general,  decided  by  a  jury,  according  to  the  evidence.  Insan- 
ity is  nowhere  defined  in  the  English  statute  law,  but  is  only  deter- 
mined in  each  particular  case.  One  would  suppose,  in  view  of  this 
principle,  that  the  existence  of  insanity  would  be  determined  entirely, 
as  Shelf ord  says  it  ought  to  be,  by  the  evidence,  just  as  in  a  case  of 
poisoning;  and  that  no  tests  should  be  admitted  that  are  not  sworn 
to  by  experts  as  being  reliable. 

529.  Insanity,  being  a  fact,  is  not  definable  by  statute. — It  is  in- 
deed significant  that  there  is  no  authoritative  statement  in  English 
statutory  law  of  what  insanity  really  is.  Being  a  fact,  to  be  deter- 
mined by  jury,  insanity  could  not  well  be  defined  by  statute.  This 
could  be  done  no  better  than  to  define  by  statute  what  are  the  symp- 
toms of  arsenical  poisoning,  or  what  is  the  force  of  a  blow  necessary 
to  kill  a  man.  But,  as  statutory  law  is  the  highest  of  all  English  law, 
since  it  supersedes  both  common  law  and  the  decisions  of  the  judges, 
it  is  evident  that  there  is  no  highly  authoritative  statement  in  Eng- 
lish law  of  what  insanity  really  is.  The  highest,  as  Ave  have  seen,  in 
reviewing  the  whole  subject,  is  based  upon  the  opinions  of  the  judges, 
who  differ  widely  from  each  other,  and  whose  opinions,  as  Sir  Fitz- 
james  Stephen  has  said,  are  not  so  authoritative  as  one  could  wish. 
Therefore,  insanity,  not  being  defined  at  all  by  statute,  and  not  being 
defined  consistently  by  the  judges,  should  remain,  as  Shelf  ord  says  it 
ought  to  be,  a  question  of  fact,  triable  by  jury ;  and  not  of  tests,  pre- 
scribed by  the  courts. 

^l«aws  of  Lunacy. 


CHAPTER  XXVIII. 

THE    M'NAGHTEN   RULES    IN    AMERICA. 

530.  Their   authority   in   American   courts. 

531.  Not  necessarily  binding  in  America. 

532.  The  riglit-and-wrong  rule  long  used  in  America. 

533.  The  M'Naghten  rules  not  accepted  in  all  American  courts. 

534.  The  M'Naghten  rules  rejected  in  one  case  as  demanding  too  much  proof. 

535.  Tlie  law  in  Pennsylvania. 

535a.  The  knowledge  of  right  and  wrong. 

535b.  The  knowledge  of  right  and  wrong  in  respect  to  the  particular  act. 

535c.  Hale's    "partial"    insanity   recognized. 

535d.  Loss  of  self-control. 

535e.  No  unanimity  among  the  judges. 

536.  The  M'Naghten  rules  not  satisfactory. 

537.  Inability  to  control  the  conduct. 

538.  A  test  that  inculpates  every  delusional  lunatic. 

539.  The  will  overmastered. 

540.  Guilty  even  though  insane. 

541.  Nearly  a  model  test. 

542.  The  element  of  self-control. 

543.  Consciousness  of  the  act  done. 

544.  Irresistible  impulse  is  no  excuse. 

545.  Knowledge  and  power  always  coexist  in   law. 

546.  Free   agency   an   element. 

547.  A  will  sufficient  to   restrain   an   insane   impulse. 

548.  Insanity  is  a  question  of  fact,  and  not  of  legal  definition. 

549.  The  ]\rNaghtcn  rule  too  exacting. 

550.  The   right-and-wrong   rule   not   a   safe    test. 

551.  An  involuntary  act  of  the  body,  not  of  the  mind. 

552.  The  New  Hainpshire  cases. 

553.  Errors  of  former  days  have  gained  the  sanction  of  the  law. 

554.  All  symptoms  and  all  tests  are  matters  of  fact. 

555.  The  legal  definition  of  insanity  is  an  anachronism. 

556.  The   so-called   legal   tests   criticized  from  the  bench. 

557.  Striving  after  an  impossible  t«st. 

530.  Their  authority  in  American  courts. — It  is  hard  for  a  lajTiian 
to  imder.stand  how  the  answers  of  the  English  judges  in  the  M'Nagh- 
ten Case  have  legal  anthority  in  America.  It  is,  of  course,  well 
known  to  every  one  that  the  English  common  law,  as  it  stood  at  tlie 
time  of  the  .separation  of  the  two  countries,  is  also  the  common  law 

554 


§  530]  THE   M'NAGHTEN   RULES    IN    AMERICA.  555 

of  the  American  states.  That  law  had  been  inherited,  and  was  a  per- 
fectly legal  possession;  but  this  rule  does  not  apply  to  any  English 
law,  M^hether  common  or  statute,  that  has  arisen  since  tlie  independ- 
ence of  this  country..  Neither  an  act  of  Parliament  nor  the  decision 
of  an  English  court  is  binding  in  America.  Chancellor  Kent^  says 
that  the  English  common  law,  "so  far  as  it  is  applicable  to  our  situ- 
ation and  government,"  has  been  assumed  by  the  courts  or  declared  by 
statute  in  every  American  state.  This  applies,  he  says,  also  to  Eng- 
lish statutes  passed  before  the  emigration  of  our  ancestors;  but  he 
does  not  say  that  it  applies  to  English  laws  and  decisions  since 
the  adoption  of  our  Constitution.  Perhaps  it  may  be  claimed  that 
we  are  in  the  position  towards  recent  English  law  that  the  old  common 
law  was  in  towards  the  civil  law.  Blackstone  is  careful  to  tell  us 
that  the  civil  law,  as  such,  was  never  binding  in  an  English  court. ^ 
It  was  only  when  that  code,  or  any  portion  of  it,  was  voluntarily 
adopted  into  the  common  la^^,  that  it  became  of  force.  This  is  the 
fiction  of  the  law;  and  yet  the  fact  is  that  not  a  little  of  the  civil 
law  found  its  way  insensibly  into  the  common  law,  being  simply  ap- 
propriated by  the  courts  and  by  legal  writers.^  Bracton,  one  of  the 
earliest  codifiers  of  English  law,  copied  verbatim  from  Justinian.* 
From  this  it  is  evident  that  the  early  courts  in  England  must  have 
conformed  to  the  Roman  law  simply  as  a  matter  of  custom  and  con- 
venience. The  manufacture  of  law  in  that  rude  age  was  not  so  much 
a  matter  of  Parliament.  The  civil  law  was  found  ready-made,  and 
was  simply  adopted  in  many  cases  without  formal  assent;  but  this 
certainly  does  not  supply  a  precedent  for  our  American  courts  in  ref- 
erence to  contemporaneous  English  law. 

531.  Not  necessarily  binding  in  America. — The  answers  in  the 
M'Naghten  Case  were  not  given  until  1843.  According  to  Sir  Fitz- 
james  Stephen  they  are  of  doubtful  authority,  even  in  England. 
They  were  not  given  by  the  court  in  banc,  sitting  to  try  an  issue  actu- 
ally joined  before  it.  They  were  simply  given  extra  curiam,  or  out 
of  court.  It  is  doubtful  even  whether  the  House  of  Lords  had  au- 
thority to  command  tliese  answers.^  In  view  of  this  fact,  the 
M'Naghten  rules  can  only  be  used  in  our  American  courts  as  rules 

'  Com.    on   American    Law,    472.     See  *  This  is  on  the  authority  of  Sir  Wil- 

an  interesting  footnote  in  the  13t1i  odi-  Ham   Jones.     See   Bracton  and  His  Re- 

tion,  by  Barnes.  hation  to  tlie  Roman  Law,  by  Gutcrbook, 

=  1  Cora.  79.  translated  by  Coxe,  PliiUi.  186(;. 

'  See  Pollock,  First  Book  of  Jurispru-  °  2  Stephen,  History  Crim.  Law,  Cliap. 

dence,  pp.  240,  241,  for  a  statement  of  XIX. 
the  part  taken  by  the  judges   in  mold- 
ing the  early  "common  law." 


6J6  INSANITY— FOILAIS  AND  MEDICO-LEGAL  ASPECTS.  [§  53) 

for  the  interpretation  of  American  law,  and  not  as  a  part  of  the  law 
itself.  This  is  an  important  distinction,  and  one  which  is  not  com- 
monly made.  If  they  are  fonnd  to  be  in  accord  with  established  law, 
they  may  supply  a  formula  for  the  expression  of  opinion ;  but  they 
are  not  the  law  itself.  But  it  would  be  difficult,  indeed,  to  demon- 
strate that  the  rules  governing  delusions'^  and  the  knowledge  of  right 
and  wrong,  as  expressed  in  the  M'Naghten  Case,  had  any  pre-exist- 
ence  in  American  law.  They  had  no  pre-existence  even  in  English 
law,  for  they  contain  entirely  new  matter.  They  do  not  strictly  fol- 
low Bracton,  or  Littleton,  or  Coke,  or  Hale,  or  Erskine.  They  do  not 
confirm  the  ruling  of  any  former  court.  They  are  not  based  on  any 
act  of  Parliament.  They  are  a  brand-new  formula,  announced  by 
English  judges,  for  England,  in  1843.  How,  then,  do  they  become  a 
part  of  American  law  ?  The  only  answer  is  that  they  become  a  part 
of  American  law  by  being  adopted  arbitrarily  by  the  courts.  There 
is  no  statutory  warrant  for  them. 

532.  The  right-and-wrong  rule  long  used  in  America. — The  right- 
and-wrong  rule  had  undoubtedly  been  used  in  England,  and  also  in 
America,  long  before  the  M'Naghten  Case.  It  dates  back  at  least  as 
far  as  Hawkins,^  and  was  used  in  the  case  of  Arnold,*^  in  1724;  bul 
an  entirely  new  interpretation  was  put  upon  it  in  the  M'Naghten 
Case,  for,  as  already  shown,  it  was  restricted  in  that  case  to  the  act 
itself.  This  practically  made  a  new  law  of  it;  and  this  was  not  a 
•slight  matter  in  cases  of  life  and  death.  So  also  of  the  doctrine  of  de- 
lusion :  the  answers  of  the  English  judges  put  an  entirely  new  con- 
struction on  that  subject.  All  this  is  of  English  origin,  dating  only 
from  1843,  and  has  no  other  authority  in  America  than  what  it  de- 
rives from  being  recognized  as  law  in  England. 

533.  The  McNaghten  rules  not  accepted  in  all  American  courts. — The 
fact  is  that  the  M'Xaghten  rules  have  not  been  received  by  all  Ameri- 
can courts  as  good  American  law.  There  has  been  great  diversity  of 
opinion  and  of  practice.  The  student  is  often  reminded  of  Cicero's 
criticism:  Alia  lex  Roma',  alia  Athenis,  alia  nunc,  alia  yosthac^ — 
one  law  of  Rome,  another  of  Athens;  one  law  now,  another  law  later. 

'The  doctrine  of  "delusion"  in   Eiij,'-  ^iroat  Britain,  and  were  not  obliged  to 

lish   law   extends   back,   as   shown   else-  take  their  law  from  an  English  barris- 

where  in  these  pages,  only  to  Erskinc's  ter,  striving,  however  brilliantly,  to  win 

speech  for  Hadlield.      (27  How.  St.  Tr.  his  case. 

1281.)      This  occurred  in  the  year  1800,  •  1  P.  C.  Chap.  I. 

and  was  tlie  e\'j)rcssion   merely  of  Ers-  ^ArnoUVs  Trial,  10  How.   St.  Tr.  69.5. 

kine's   own    opinions,    delivered   by    liim  "Quoted  by  Horace  Binncy    (Life,  by 

as  an  advocate  at  the  bar;  but  in  1800  C.  C.  Binne}',  p.  207)  in  reference  to  the 

the  American  states  were  not  a  part  of  changing  opinions  of  the  U.  S.  Supreme 


§  533]  THE   M'NAGHTEN    RULES    IN    AMERICA.  557 

It  is  said  that  Justinian  forbade  any  comnientaries  on  his  laws: 
tlie  Pandects  and  the  Institutes  were  to  be  kept  as  he  gave  tliem. 
Commentators  change  the  l^ws  by  their  comments:  they  introduce 
new  matter  and  alter  the  old  matter,  so  that  in  time  immense  accre- 
tions gather  about  a  written  code.  King  James  said  that  in  Coke's 
Reports  there  were  many  dangerous  conceits  which  were  the  author's 
own,  uttered  for  law.^**  In  America  we  have  numerous  supreme 
courts,  and  their  various  connnents  and  opinions  tend  to  confusion. 
This  is  true,  at  least,  in  respect  to  the  M'Naghten  rules. 

Dr.  Maudsley^^  has  pointed  with  satisfaction  to  the  fact  that  the 
rules  in  the  M' N agliten  Case  have  been  changed  and  even  rejected  by 
some  of  our  American  courts.  That  eminent  English  alienist  seemed 
almost  to  despair  of  ever  seeing  these  famous  rules  relax  their  iron 
grip  upon  English  jurisprudence,  and  he  took  some  comfort  in  cast- 
ing his  eye  across  the  Atlantic  to  what  he  evidently  deemed  was  a  ray 
of  light  on  this  dark  subject.  It  would  be  satisfactory,  indeed,  if  we 
(!ould  chronicle  as  a  fact  that  American  courts  have  always  shown  an 
independence  of  English  precedent  in  the  matter  of  the  M'Naghten 
rules,  but  the  truth  is  that  too  many  of  our  judges  have  too  blindly 
followed  them.  Yet,  on  the  other  hand,  not  a  few  American  courts 
have  modified  these  rules,  while  some  have  rejected  them  entirely; 
and  a  few  have  criticized  them  with  as  much  vigor  as  the  most  ad- 
vanced alienists.  Xo  fewer  than  seventy  cases  are  on  record,^"  from 
Maine  to  California,  in  which  it  is  claimed  that  these  celebrated  rules 
have  been  violated  by  the  judges.  The  result  has  not  been  altogether 
a  happy  one,  for  confusion  now  reigns  where  formerly  there  was  a 
measure  of  uniformity.  Yet  the  very  fact  that  there  is  confusion  is 
a  hopeful  sign,  for  imrest  is  better  than  inertia,  and  always  precedes 
an  intellectual  advance. 

534.  The  M'Naghten  rules  rejected  in  one  case  as  demanding  too 
much  proof. — In  a  very  recent  case^^  one  of  the  rules  in  the  M'Nagh- 
ten Case  was  pronoimced  by  Justice  Bartlett,  for  the  court  of  appeals, 
not  to  be  law  in  the  state  of  New  York.  A  poor  and  illiterate  Italian 
barber  had  killed  his  wife  under  the  insane  delusion  that  she  exerted 
an  evil  spell  over  him,  put  bugs  in  his  ear,  poison  in  his  food,  sucked 
blood  from  his  ear,  put  water  and  blood  in  his  body,  and  contemplated 
eloping  with    a  man  worth   ten  thousand   dollars.      The   trial    judge 

Court  in  the  Dred  i^cott  Case,  19  How.  'M6  Am.  &  Ens,'.  Ene.  Law,  2d  cd.  p. 

.3!13.  15  L.  ed.  691.  620. 

'"Kent,  Com.  on  Municipal  Law.  "People,  v.    islino,    149   N.    Y.   317,  43 

"  Responsibility    in    Mental    Disease,  N.   E.  853. 
Chap.  IV. 


558  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  534 

charged  the  jury  in  the  exact  phraseology  of  the  M'Kaghteu  rules; 
but  the  court  of  appeals  ordered  a  new  trial,  on  the  ground  that  the 
statement  of  the  rule  in  that  case  was  likely  to  mislead  the  jury  as  to 
the  amount  of  proof  necessary  to  rebut  the  legal  presumption  of  san- 
ity, and  to  establish  a  reasonable  doubt  in  favor  of  insanity.  Al- 
though the  point  is  rather  an  abstruse  one,  such  as  lawyers  are  apt  to 
make  on  the  subject  of  "reasonable  doubt,"  yet  the  fact  remains  that 
the  rules  in  the  M'Nagltten  Case  have  been  declared  by  the  court  of 
appeals  not  to  be  the  law  in  the  state  of  New  York.  Judge  Bartlett 
said  that  the  law  does  not  require  that  insanity  must  be  "clearly 
proven"  (as  the  words  are  in  the  M'iSTaghten  rule),  as  a  preponder- 
ance of  evidence  meets  the  legal  requirement;  moreover,  if  the  pris- 
oner's evidence  "creates  in  the  minds  of  the  jury  a  reasonable  doubt 
as  to  his  sanity  at  the  time  of  the  killing,  the  prosecution  must  remove 
that  doubt  by  a  preponderance  of  evidence."  It  is  to  be  observed  that 
these  objections  to  the  M'jSTaghten  rules  rest,  not  upon  the  definition 
of  responsibility,  but  upon  the  amount  of  proof. ^'* 

535.  The  law  in  Pennsylvania. — Pennsylvania  law  offers  little  va- 
riation from  the  English  procedure.^^  Chief  Justice  Gibson,  in  1846, 
decided  as  follows  '}^  "A  man  may  be  mad  on  all  subjects ;  and  then, 
though  he  may  have  glimmerings  of  reason,  he  is  not  a  responsible 
agent.  This  is  general  insanity ;  but  if  it  be  not  so  great  in  its  extent 
or  degree  as  to  blind  him  to  the  nature  or  consequences  of  his  moral 
duty,  it  is  ho  defense.  ...  It  must  be  so  great  as  entirely  to 
destroy  his  pei'ception  of  right  and  wrong;  and  it  is  not  until  that 
perception  is  thus  destroyed  that  he  ceases  to  be  responsible.  It  must 
amount  to  delusion  or  hallucination  controlling  his  will,  and  making 
the  commission  of  the  act,  in  his  apprehension,  a  duty  of  overruling 
necessity." 

This  definition  by  Gibson  has  had  great  weight  in  Pennsylvania 
practice,  and  to  it  may  be  traced  the  language  of  many  subsequent 
decisions' by  the  various  judges.^^  It  is  to  Pennsylvania  law  what 
Hale  is  to  English  law.  The  influence  of  the  M'Nagliten  Case  is 
also  very  evident  in  this  state.  The  language  of  the  eminent  jurist 
shows  not  a  little  confusion  of  ideas,  from  the  alienist's  standpoint, 

'*  Judf,'c     Bartlett's     opinion     in     the  "  See,  as  examples,  Sayres  v.  Com.  88 

'Sino  Case  is  a  model  of  clear  and  con-  Pa.  201;    Com.  v.  Farkin,  2   Pars.   Sel, 

cise  statement.     Intelligence,  humanity,  Kq.  Cas.  439;   Com.  v.  Heidler,  191   Pa. 

justice,  and  a  regard  for  scientific  evi-  375.  43  Atl.  211. 

dence,  are  its  prevailing  qualities.  Pepper     &     Lewis's     Digest    contains 

"Pepper  &  Lewis,  Digest  of  Opin-  references  to,  and  compendious  state- 
ions,  etc.  ments  of,  all  Pennsylvania  cases. 

"Com.  V.  Hosier,  4  Pa.  264. 


§  535]  THE    M'NAGHTEN    RULES    IN    AMERICA.  559 

altboiigli  highly  esteemed  by  the  lawyers.  It  is  not  clear,  for  in- 
stance, how  "a  man  may  be  mad  on  all  subjects"  and  yet  have  "glim- 
merings of  reason;"  nor  how  a  "general"  or  total  insanity  may  be 
not  so  great  as  to  blind  a  man  to  the  nature  of  his  moral  duty.  As 
explained  elsewhere,  a  total  insanity,  in  the  sense  used  by  Gibson, 
following  Hale,  is  never  seen  in  a  criminal  lunatic,  and  hardly  in  any 
other  lunatic.  Neither  is  insanity,  except  in  advanced  dements  or 
raving  maniacs,  ever  so  great  as  "entirely  to  destroy"  the  perception 
of  right  and  wrong.  The  latter  part  of  the  definition,  however, 
which  refers  to  a  delusion  controlling  a  lunatic's  will,  and  rendering 
him  irresponsible,  is  psychologically  sound,  but  it  does  not  necessarily 
include  all  cases  of  criminal  lunacy. 

A  digest  of  the  Pennsylvania  law-  reveals  the  truth  of  Sir  Fitz- 
james  Stephen's  statement,  that  the  judges  merely  repeat  each  other 
on  the  subject  of  insanity.  There  is  hardly  a  novel  or  original  idea 
to  be  found  in  it  from  the  time  of  Chief  Justice  Gibson.  There  has, 
however,  been  a  gradual  tendency  to  modify  that  statement  on  a  few 
points.     The  chief  ideas  for  sixty  years  have  been  as  follows : 

535a.  The  knowledge  of  right  and  wrong. — This  test  has  been  so 
vmiversally  applied  that  it  is  needless  to  recapitulate  the  cases.  In 
some  few  instances  the  distinction  is  made  between  moral  and  legal 
wrong;  but  this  distinction  is  seldom  given  its  full  significance,  for 
a  lunatic  may  know  that  his  act  is  against  the  law,  but  at  the  same 
time  believe  it  is  morally  right.  Thus  Judge  Brewster^  ^  made  it  a 
point  of  inquiry  whether  the  accused  knew  that  "his  act  was  forbid- 
den by  the  laws  of  God  and  man."  Here  no  distinction  is  made  be- 
tween culpability  in  these  two  respects.  Such  a  decision  could  have 
no  significance  in  the  case  of  a  lunatic  who  believed  he  was  com- 
manded by  God  to  break  the  human  law  against  murder. 

535b.  The  knowledge  of  right  and  wrong  in  respect  to  the  particu- 
lar act. — This  is  a  distinction  that  has  been  emphasized  in  a  very  few 
cases  in  the  Pennsylvania  courts.  Thus,  Judge  Ludlow^  ^  charged 
that  the  test  "is  the  power  .  .  .  of  a  prisoner  to  distinguish  be- 
tween right  and  wrong  in  reference  to  the  particular  act  in  question ;" 
and  Judge  Allison-*^  also  charged  that  the  accused  must  have  such 
power  "with  reference  to  the  act  charged  against  him  as  a  crime." 
This  limiting  the  test  of  right  and  wrong  to  the  particular  act  in  ques- 
tion robs  it  of  some  of  its  injustice  and  makes  it  more  applicable ;  but 

^Com.  V.  Winnemore,  1  Brewst.  (Pa.)         ^"Com.  v.  Freth,  3  Phila.  105. 
356.  ^Smith's  Case,  15  L.  I.  33   (1858). 


5fiO  iXSANITY— F0R:MS  AND  MEDICO-LEGAL  ASPECTS.  [§  535b 

it  would  not  be  difficult  to  prove  that  such  a  limitation  is  by  no  means 
universally  recog-nized  or  insisted  on  in  courts  of  law. 

535c.  Hale's  "partial"  insanity  recognized. — In  Pennsylvania  courts 
Sir  Matthew  Ilale's  ''partial'"  insanity  has  had  full  sway,  and  by  it  is 
evidently  understood  "monomania"  or  delusional  insanity.  In  fact, 
few  judges  seem  to  have  any  idea  of  any  other  kind  of  insanity,  and 
this  is  probably  because  delusional  insanity  is  the  most  common  crim- 
inal type.  Exactly  contrary  to  Hale,  however,  who  expressly 
said  that  "partial  insanity  seems  not  to  excuse  them  [lunatics]  in 
the  committing  of  any  offense  for  its  matter  capital,"^^  the  modern 
courts  have  practically  decided  that  this  is  the  only  kind  of  insanity 
that  does  thus  excuse ;  but  in  Pennsylvania  they  have,  in  most  in- 
stances, followed  the  rules  in  the  M'Naghten  Case:  First,  that  the  act 
must  be  related  to  the  delusion;  and,  second  (that  most  unjust  rule), 
that  the  delusion  only  excuses  in  case  the  facts  believed  by  the  lu- 
natic to  be  true  would  justify  the  act  if  they  really  were  true.  Thus. 
Judge. Fell--  said  that  "insanity  is  always  marked  by  delusions." 
lie  had  evidently  never  seen  or  heard  of  acute  mania,  or  acute  delir- 
ium, or  stuporous  insanity,  in  which  systematized  delusions,  to  which 
he  evidently  referred,  do  not  exist.  In  the  case  of  a  convict  who 
killed  his  keeper  under  the  alleged  delusion  that  the  latter  was  poi- 
soning his  food,  the  court  charged^^  that  if  the  prisoner  had  acted  un- 
der a  delusion  that  the  keeper  simply  "inflicted  a  serious  injury  on 
his  character  or  fortune,"  he  would  not  be  excusable, — the  idea  being 
apparently  that  such  injury,  if  really  inflicted,  Avould  not  justify  a 
homicide.  Again,  Judge  Dean-^  held  that  a  delusion,  to  render  a 
person  irresponsible  for  an  act  otherwise  criminal,  must  be  a  delusion 
that  a  state  of  facts  exists  which,  if  really  existing,  would  wholly  ex- 
cuse the  act.  In  other  words  (but  not  in  Judge  Dean's  words),  a 
lunatic  must  act  with  reason, — there  must  be  method  in  his  madness. 
This  principle  has  been  criticized  elsewhere.  Judge  Arnold^'' 
charged  that  "insane  delusions  in  respect  to  one  tiling  or  person  will 
not  relieve  the  person  affected  from  responsibility  for  his  acts  towards 
other  persons  or  things,  unless  his  insanity  or  delusion  is  such  as  de- 
thrones his  reason,  and  renders  him  incapable  of  forming  or  carry- 
ing out  a  purpose,  or  to  resist  the  impulse  to  commit  the  act,  if  he 
would."     This  remarkable  sentence  might  be  construed  either  for  or 

"  1  P.  C.  Chap.  IV.  p.  .30.  "^Hall  v.  Com.  22  \V.  N.  C.  25,  12  Atl. 

^■Vom.  V.  Meredith,  17  Pliila.  90.  1C3. 

^Taylor  v.  Com.   109  Pa.  202. 
"Cow,.   V.    Wirehack,    190   Pa.    -.38,   70 
Am.  St.  Rep.  625,  42  Atl.  542. 


§  535cJ  THE  M'NAGHTEN  RULES  IN  AMERICA.  «J1 

against  any  delusional  lunatic.  It  first  implies  that  the  criminal  act 
must  be  directly  connected  with  the  delusion,  and  then  it  allows  that 
delusions  may  so  dethrone  reason  that  a  lunatic  is  not  responsible  for 
any  of  his  acts ;  but  who  will  read  the  mind  of  a  lunatic  so  unerringly 
as  to  be  able  to  follow  all  its  illogical  processes  or  the  influence  of  de- 
lusions upon  conduct?  or  who  will  deny  that  if  "insanity  dethrones 
reason/'  a  lunatic  is  not  fairly  responsible  ?  The  charge  was  based 
on  the  unscientific  idea  that  a  lunatic's  delusions  can  and  must  always 
be  traced  step  by  step  in  his  conduct.  Practically  this  is  often  impos- 
siblo.2« 

535d.  Loss  of  self-control. — This  has  been  allowed  as  a  test  of  in- 
sanity. Thus,  Justice  Agnew,  for  the  supreme  court,-'  lu'ld  it  was 
no  error  for  the  lower  court  to  have  charged,  among  other  things,  that 
"it  is  the  absence  of  that  self-determiiiing  power  which,  in  the  sane 
mind,  renders  it  conscious  of  the  real  nature  of  its  ovvn  purposes,  and 
capable  of  resisting  wrong  impulses"  that  determines  true  irrespon- 
sibility. By  a  liberal  interpretation  this  might  be  made  to  cover  the 
case  of  many  a  criminal  lunatic,  for  the  insane  arc  \isually,  by  the 
very  nature  of  their  malady,  incapable  of  resisting  their  impulses. 
[t  comes  nearer  to  the  point  than  the  test  of  right  and  wrong.  Chief 
Justice  Gibson,  in  the  case  before  cited,"**  said :  "There  may  be  an 
unseen  ligament  pressing  on  the  mind,  drawing  it  to  consequences 
which  it  sees,  but  cannot  avoid,  and  placing  it  under  a  coercion  which, 
while  its  results  are  clearly  perceived,  is  incapable  of  resistance." 
If  this  figurative  langiiage  means  anything  in  actual  psychiatry,  it 
must  refer  to  irresistible  impulses,  or  the  promptings  of  insane  delu- 
sions. These  undoubtedly  impose  a  loss  of  self-control  so  far  as  ra- 
tional conduct  is  concerned.  Judge  Allison-®  charged  that  if  an  al- 
leged imcontrollable  impulse  "amounted  to  anything  short  of  an  ab- 
solute dispossession  of  the  free  and  natural  agency  of  the  mind,  it 
furnished  no  defense."  This  is  practically  saying  the  same  thing  in 
two  different  ways,  for  an  "uncontrollable  impiilse"  could  hardly  fall 
short  of  a  "dispossession  of  the  free  and  natural  agency  of  the  mind," 
if  by  this  latter  phrase  is  meant  the  freedom  of  choice.  But,  liber- 
ally interpreted,  this  ])hraseologv  would  exempt  most  lunatics. 

535e.  No  unanimity  among  the  judges. — These  various  definitions 

'"Judge    Arnold's    qualifyinjr    phrase,  "unloss   sickness   is   such   as   upsets  the 

"unless    insanity    is    sucli    as    dethrones  healtli." 

reason,"  will  strike  the  average  alienist  -'Ori'cc'ni  v.  Com.  7G  Pa.  414,  18  Am. 

33   at   least   odd.     If   insanity   does   not  Rep.  420. 

dethrone  reason,  what  does  it  do?     The  '^Cotn.  v.   M osier.  4   Pa.  2(54. 

phrase   is   about  an   sensible   as   to   say,  '^Siiiith's   Case,    1.3   L.    I.   33. 
Vol.  I.  Mko.  .Tttr. — 3f». 


56a  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  535e 

aud  tests,  as  quoted  above  from  the  Pennsylvania  courts,  show  that 
there  is  considerable  confusion,  and  no  real  unanimity,  among  the 
judges,  although,  in  very  many  cases,  there  is  a  tendency  to  adhere  to 
a  few  cut-and-dried  formulae,  such  as  the  knowledge  of  right  and 
wrong,  "Where  any  progress  has  been  made,  it  has  been  in  the  direc- 
tion of  limiting  the  knowledge  of  right  and  wrong  to  the  particular 
act,  and  of  defining  more  clearly  the  loss  of  power  of  control.  This 
latter  is  unquestionably  a  more  pertinent  subject  of  inquiry  than  the 
knowledge  of  right  and  wrong. 

536.  The  M'Naghten  rules  not  satisfactory. — Judge  Cox  charged  the 
jury  in  Guiteaus  Case^^  that  "the  answ^er  of  the  English  judges 
[in  the  M'Naghten  Case]  .  .  .  has  not  been  deemed  entirely 
satisfactory,  and  the  courts  have  settled  down  upon  the  question  of 
Icnowledge  of  right  and  wrong  as  to  the  particular  act,  or  rather  the 
capacity  to  know  it,  as  the  test  of  responsibility ;  and  the  question  of 
insane  delusion  is  only  important  as  it  throws  light  uj^on  the  question 
of  knowledge  of,  or  capacity  to  know,  the  right  and  ^\Tong."  In  this 
short  statement  Judge  Cox,  after  seeming  to  discard  the  M'jSTaghten 
rules,  does,  in  effect,  adopt  exactly  what  they  say;  i.  e.,  that  the  test 
of  a  knowledge  of  right  and  wrong  as  to  the  particular  act  is  the 
proper  test.  The  passage  is  self -contradictory ;  for  his  whole  treat- 
ment of  the  subject  of  insane  delusion  is  based  upon  the  answers  of 
the  English  judges. 

537.  Inability  to  control  the  conduct. — Judge  Battle,  of  Arkansas,^^ 
was  of  opinion  that  the  accused  must  have  been  "so  affected  by  insan- 
ity as  to  render  him  incapable  of  distinguishing  between  right  and 
wrong,  in  respect  to  the  act  of  killing ;  of ,  if  he  was  conscious  of  the 
act  he  was  committing,  and  knew  its  consequences,  that  he  was,  in 
consequence  of  his  insanity,  wrought  up  to  a  frenzy  which  rendered 
him  unable  to  control  his  actions."  Here  there  are  two  tests,  not 
clearly  reconcilable  with  each  other.  It  is  difficult  to  see  how  a  man 
in  an  insane  frenzy  can  be  fully  conscious  of  his  acts  and  their  conse- 
quences. 

538.  A  test  that  inculpates  every  delusional  lunatic. — Chief  Justice 
Park,  of  Connecticut,''-  held  that  it  is  enough  to  constitute  responsi- 
bility if  the  accused  has  "mental  capacity  sufficient  to  form  a  specific 
intent  to  commit  the  homicide,  and  apprehend  the  nature  and  charac- 
ter of  the  act,  and  committed  it  wilfully,  deliberately,  and  premedi- 

"  10  Fed.   182.  "^Htaie  v.  &'u■^/^  57  Conn.  49G,  18  Atl 

"TVi//iams  v.  Hlnic,  50  Ark.  511,  9  S.    664. 
W.  5 


§  538]  THE    M'NAGHTEN    RULES    IN    AMERICA.  50:5 

tatedlj."  This  would  inculpate  practically  every  delusional  lunatic 
who  ever  did  a  murder,  unless  a  loop-hole  for  him  were  found  in  the 
phrase  "apprehend  the  nature  and  character  of  the  act."  The  insane 
do  not  always  apprehend  the  true  nature  and  character  of  their  acts ; 
otherwise  they  would  not  he  insane.  The  test  says  nothing  ahout 
"delusion"  or  "right  and  wrong." 

539.  The  will  overmastered. — Mr.  Justice  Lumpkin,  of  Georgia/'** 
quotes  with  apparent  approval  the  opinion  of  another  judge,  that  an 
exception  to  the  general  rule  exists  "where  a  man  has  sufficient  reason 
to  distinguish  between  right  and  wrong  as  to  a  particular  act     . 

yet,  in  consequence  of  some  delusion,  the  will  is  overmastered,  and 
there  is  no  criminal  intent."  This  is  superseding  the  right-and-wrong 
rule  with  the  tests  of  delusion  and  of  self-control. 

540.  Guilty  even  though  insane. — Mr.  Justice  Craig,  of  Illinois,"'''* 
found  that  "if,  at  the  time  a  deadly  assault  is  made,  the  person  mak- 
ing the  assault  knew  that  it  was  wrong  to  commit  such  an  act,  and  had 
the  power  of  mind  to  choose  either  to  do  or  not  to  do,  and  of  control- 
ling his  conduct  in  accordance  with  such  choice,  he  will  be  held  amen- 
able to  the  law,  although  he  was  not  entirely  and  perfectly  sane." 
Here  the  element  of  self-control  is  added  to  the  right-and-wrong  test. 
But  the  question  of  self-control  is  absolutely  a  question  of  fact,  that 
can  be  decided  only  in  each  individual  case  according  to  the  evidence, 
— if  it  can,  indeed,  always  be  decided  thus.  It  is  a  nicer  question  to 
determine  the  amount  of  a  man's  self-control  at  a  particular  moment 
in  the  past,  than  to  determine  whether  he  was  insane. 

541.  Nearly  a  model  test. — Judge  Breese,^^  also  of  Illinois,  held 
that  "a  safe  and  reasonable  test  .  .  .  would  be  .  .  .  that 
at  the  time  of  doing  the  act  charged  the  prisoner  was  not  of  sound 
mind,  but  affected  with  insanity ;  and  such  affection  was  the  efficient 
cause  of  the  act,  and  that  he  would  not  have  done  the  act  but  for  that 
affection." 

This  is  as  nearly  a  model  statement  from  the  scientific  viewpoint 
as  could  be  conceived.  It  is  a  pity  that  the  learned  judge  felt  called 
upon  to  spoil  it  as  follows:  "But  this  unsoundness  of  mind,  or  af- 
fection of  insanity,  must  be  of  such  a  degree  as  to  create  an  uncontrol- 
lable impulse  to  do  the  act  charged,  by  overriding  the  reason  and 
judgment,  and  obliterating  the  sense  of  right  and  wrong  as  to  the  par- 
ticular act  done,  and  depriving  the  accused  of  the  power  of  choosing 
between  them."     This  is  somewhat  too  metaphysical. 

"^Carr  v.  State,  96  Ga.  284,  22  S.  E.  ^^Hopps  v.  People,  31  111.  385.  85  Am. 
<70.  Dec.  231. 

'*Dunn  V.  People.  109  111.  635. 


oG4  INSANITY— FORMS   AND  MEDICO-LEGAL  ASPECTS.  l§  542 

542.  The  element  of  self-control. — Judge  Pryor,^*'  of  Kentucky,  re- 
versed the  judgment  of  the  lower  court,  and  remanded  for  a  new  trial 
the  case  of  an  imbecile  boy,  convicted  of  burglary.  The  grounds  stat- 
ed were  that  the  accused  was  an  imbecile,  or  of  such  weak  mind  that 
he  did  not  know  right  from  wrong,  and  without  mind  to  resist  per- 
suasion, or  the  will  power  to  resist  the  importunities  and  persuasions 
of  others.  Here  the  element  of  self-control  is  added  to  the  right-and- 
wrong  test. 

543.  Consciousness  of  the  act  done. — Judge  Morrow,^"  of  Pennsyl- 
vania, after  an  elaborate  charge,  in  which  he  followed  closely,  and 
used  the  exact  language  of,  the  M'JS^aghten  rules,  concluded  with  these 
words :  '^If  he  had  power  of  mind  enough  to  be  conscious  of  what  he 
Avas  doing  at  the  time,  then  he  is  responsible  to  the  law  for  that  act." 
Exceptions  were  taken  to  this  extraordinary  statement,  but  the  su- 
l)reme  court,  by  Chief  Justice  Agnew,  approved  it,  the  Chief  Justice 
explaining  that  the  word  'Svhat"  was  intended  to  refer  to  the  "real 
nature  and  true  character  of  the  act  as  a  crime,  and  not  to  the  act 
itself;"  and  that  it  was  idiomatic,  and  used  in  the  same  way  by  Jesus, 
on  the  cross,  when  he  said,  "Fatlier,  forgive  them,  for  they  know  not 
what  they  do.""^ 

Judge  Hirzel,^^  of  Missouri,  after  following  closely  the  M'Xaghten 
rules,  also  used  the  expression,  "was  not  conscious  of  what  he  was 
doing/'  as  indicating  an  element  of  irresponsibility.  It  is  almost 
needless  to  say  that  the  expression  is  not  applicable  to  the  vast  major- 
ity of  criminal  lunatics  for  most  of  them  know  well  enough  what  they 
are  doing.  In  fact,  a  lunatic  who  was  so  deranged  as  not  to  know 
wliat  he  was  doing  would  not  have  mind  enough  to  commit  a  homi- 
cide: he  could  only  kill  by  accident,  as  in  a  maniacal  frenzy.  This 
definition  is  very  old,  and  is  from  Justinian  :^^  Fw'iosus  non  in- 
icUigit  quod  acjit, — an  insane  man  does  not  know  what  he  is  doing. 

544.  Irresistible  impulse  is  no  excuse. — Judge  Gummere,^^  of  TsTew 
Jersey,  was  of  the  opinion  that  where  insanity  is  set  up  as  a  defense, 
unless  the  prisoner  was  not  conscious  at  the  time  of  the  killing  that 
the  act  was  morally  wrong,  he  is  responsible,  even  if  he  was  impelled 

="=//aj/.s  V.   Com.   17  Kv.  L.  Rep.    1147.        ^'.SVa^fi   v.    Diicslrow,    137    Mo.    60,    38 

33  s.  w.  1104.  ■  s.  ^^•.  ,554, 39  s.  w.  tm. 

"«row;n  V.  Com.  78  Pa.  122.  ^"Institutes,    Lib.    III.    Title    XX.    § 

**  .\n(l    yet.  Judge    Agnew,   from    his  VIII. 

language,   did   not   hold   the   Jews   who  *^Genz  v.   State,  59  N.  .J.  L.   488,  59 

<r\i(iflcd      Jesus      irresponsible.      even  Am.    St.    Rep.    619,    37    Atl.    69.      (See 

though    they   did    not   know    what   they  also  Htate  v.  Spencer,  21   N.  J.  L.   190. 

liid,   in   the   sense   of  apprehending   the  for  a  leading  New  Jersey  case.) 
moral   quality  of  the  act.     So  his   rule 
docs  not  work. 


§  544]  THE    M'NAGHTEN    RULES    IN    AMERICA.  6G5 

by  an  impulse  which  lie  was  unable  to  resist.  This  is  expounded  as 
good  New  Jersey  law.  According  to  it,  loss  of  power  of  self-control 
lias  nothing  to  do  with  the  question,  and  an  insane  man  is  responsible 
even  though  impelled  irresistibly  by  his  disease  to  do  an  illegal  act. 
This  is  directly  contrary  to  the  opinions  of  other  courts,  cited  here- 
with, that  loss  of  self-control  is  an  important  element  of  criminal 
lunacy.^^  The  unreason  of  holding  an  insane  man  responsible  for 
im  impulse  which  he  was  unable  to  resist  must  be  patent  to  all  persons 
of  reason.'*^ 

545.  Knowledge  and  power  always  coexist  in  law. — The  New  York 
court  of  appeals,  ■*■*  in  affirming  a  decision  in  which  the  charge  was 
in  tlie  language  used  by  Tindal,  C.  J.,  in  the  M'Naghten  Case,  said 
that  the  law  does  not  recogiiize  a  form  of  insanity  in  which  the 
<-apacity  of  distingiiishing  right  from  wrong  exists  without  the  power 
')f  choosing  between  them.  This  was  evidently  intended  as  a  blow 
at  so-called  "moral  insanity."  It  relegates  the  power  of  choice,  or  of 
self-control,  to  the  rear,  or  assumes  that  it  follows  necessarily  upon 
the  capacity  to  know.  But  experience  disproves  such  an  assumption : 
the  capacity  to  know,  and  the  capacity  to  do,  are  not  identical  or 
iilways  associated,  even  in  the  sane  mind,  and  therefore  much  less  in 

^1  •  4  4  1 

ilie  insane.     2 

546.  Free  agency  an  element. — Judge  Weleh,''^  of  Ohio,  gave  the 
■'i[)inion  for  the  supreme  court  that  the  true  inquiries  are:  "Was  the 
accused  a  free  agent  in  forming  the  purpose  to  kill  ?  Was  he,  at  the 
time,  capable  of  judging  whether  that  act  was  right  or  wrong  ?  And 
<lid  he  know  at  the  time  that  it  was  an  offense  against  the  laws  of 
<Tod  and  man  ?"  Here  the  self-control  is  put  in  the  foreground. 
The  M'Naghten  rule,  on  the  right-and-wrong  test,  is  given  second 
|)]ace. 

547.  A  will  sufficient  to  restrain  an  insane  impulse. — Judge  Sta- 
ples,^^  of  Virginia,  held,  for  the  supreme  court  of  appeals,  that  "men- 
tal power  sufficient  to  apply  knowledge,"  and  "a  will  sufficient  to  re- 
strain the  impulse  that  may  arise  from  a  diseased  mind,"  are  ele- 
ments that  make  for  responsibility,  even  though  the  prisoner  have  a 

""There  cannot  be,  and  there  is  not,  "Flaiiagan  v.   People,   52   N.   Y.   467, 

in  any  locality  or  age,  a  law  punishing  11   Am.  Rep.  731. 

men     for     what     they     cannot     avoid.''  •*4j"0ur  principles  of  action  contain 

Bishop.  1  Crim.  Law,  7th  ed.  §  3836.  an  clement  which  is  not  involved  in  the 

■"  Judge  Gummere    also    said    that  a  exercise    of   our   powers    of   knowledge." 

rule    which,    like    the    right-and-wrong  — Flemings,  Moral  Philosophy.   1870,  p. 

rule,    had   been    in    operation    for    fifty  12. 

years,  "ought  not  to  be  changed  by  jii-  ^''Blackburn  v.  Stale,  23  Ohio  St.  140. 

dicial    decision."     This    was     also     the  *''Dejarnette  v.  Com.   75  Va.  8(57. 
opinion  of  the  Medes  and  Persians. 


oGG  INSAMTV— luK.MS   AND  MEDICOLEGAL  ASPECTS.  [§  547 

"jKirtlal  insanity."  It  would  indeed  be  a  hard  question  to  determine 
■>vlietlu'V  a  man  who  had  "a  will"  sufficient  to  restrain  the  impulse  of 
his  own  diseased  mind  was  crazy  or  not.  If  he  could  restrain  his  in- 
sane impulses,  the  man  himself  would  be  sane,  while  his  mind  would 
be  insane.      Tliis  would  l^e  somethinfi;  of  a  paradox, 

548.  Insanity  is  a  question  of  fact,  and  not  of  legal  definition. — Mr. 
Justice  Somerville,^^  of  Alabama,  subjected  the  whole  question  of  the 
tests  for  criminal  lunacy  to  a  rigorous  criticism,  in  which  he  practi- 
cally discarded  the  M'j^aghten  rules.  Next  to  the  learned  opinion  of 
Justice  Doe,  of  jSi^ew  Hampshire,  this  is  probably  the  best  and  most 
rational  statement  on  the  subject  ever  given  from  an  American  bench. 
Justice  Somerville  maintained  that  the  question  of  insanity  is  a  ques- 
tion of  fact,  to  be  determined  by  the  jury  according  to  the  evidence, 
and  not  a  question  of  mere  legal  definitions.  He  held  that  a  person 
is  '^not  legally  responsible  if,  by  reason  of  the  duress  of  mental  dis- 
ease, he  has  so  far  lost  the  power  to  choose  between  right  and  wrong 
as  not  to  avoid  doing  the  act  in  question,  so  that  his  free  agency  was 
at  the  time  destroyed ;  and,  at  the  same  time,  the  alleged  crime  was 
so  connected  with  such  mental  disease,  in  the  relation  of  cause  anc? 
effect,  as  to  have  been  the  product  or  offspring  of  it  solely."  The 
latter  part  of  this  definition  is  the  only  safe  rule  for  any  court  to  fol 
low.  It  is  the  only  possible  test,  if  any  test  is  possible  in  a  domain 
where,  as  Mr.  Bishop  says,^^  a  test  "has  never  been  found,  not  bo- 
cause  those  who  have  searched  for  it  have  not  been  able  and  diligent. 
but  because  it  does  not  exist." 

549.  The  M'Naghten  rule  too  exacting. — ^,h'.  Justice  Stone,^^  in  a 
dissenting  opinion  in  the  above  case,  said:  "I  am  willing  to  dis- 
claim, as  untenable,  one  of  the  tests  of  legal  accountability  declared 
by  the  judges  in  the  M'Naghten  Case.  ...  In  that  case  it  was 
said  that  the  delusion  would  be  a  defense  only  when  the  supposed 
facts,  if  real,  would  have  justified  the  act  done.  This  rule  is  too  ex- 
acting." 

550.  The  rig-ht-and-wrong  rule  not  a  safe  test. — Judge  Dillon,^''  of 
Iowa,  ruled  that  the  capacity  to  distinguish  between  right  and  wrong 
is  not,  in  all  cases,  a  safe  test  of  criminal  responsibility.  "The  jury, 
in  substance,  should  be  t/)ld  that  if  the  defendant's  act  .  .  .  was 
caused  by  mental  disease  .  .  .  which  dethroned  his  reason  and 
judgment  with  respect  to  that  act,  which  destroyed  his  power  ration- 

"Parsons  v.  folate,  81  Ala.  577.  00  *''Porftnvs  v.  Sinte.  81  Ala.  610,  60 
Am.  Rep.  193,  2  So.  854.  Am.  Rop.  103,  2  So.  854. 

*"  1  Crim.  Law,  7th  ed.  §  381.  ""Stafe  v.  Feller,  25  Iowa,  67. 


S  550]  THE    M'NAGHTEN    RULES    IN    AMERICA.  567 

ally  to  comprehend  the  nature  and  consequences  of  that  act,  and 
which,  overpowering  his  will,  irresistibly  forced  him  to  its  commis- 
sion, then  he  is  not  amenable  to  legal  punishment."  This  is  a  much 
quoted  opinion,  and  is  more  in  line  with  scientific  thought  than  the 
old  tests.  Still,  it  is  not  a  little  involved  in  its  discussion  of  the 
"judgment,"  the  "reason,"  and  the  "will."  If  only  the  first  and  Inst 
clauses  of  the  sentence  were  used,  it  would  be  unexceptionable. 

551.  An  involuntary  act  of  the  body,  not  of  the  mind. — Chief  Justice; 
Shaw,^^  of  Massachusetts,  was  one  of  the  meta])hysical  judges;  one 
who  indulged  in  all  sorts  of  psychological  refinements  as  to  what  did 
and  what  did  not  constitute  criminal  lunacy.  It  is  bewildering  to 
follow  him  in  the  case  of  Com.  v.  Rogers,  in  which  he  describes  in- 
sanity in  a  way  that  makes  it  resemble  nothing  that  lias  over  been  seoii 
on  earth.  The  Chief  Justice,  in  effect,  proposed  four  or  five  difl'erent 
tests  in  one  sentence ;  as,  for  instance :  1st,  a  knowledge  of  right  and 
wrong;  2d,  a  knowledge  that  the  act  subjects  one  to  punishment;  3d, 
has  no  will,  no  conscience,  or  controlling  mental  power;  4th,  has  no 
power  of  memory ;  5th,  has  his  reason,  conscience,  and  judgment  over- 
whelmed (a  partial  repetition  of  3d).  It  remained  for  this  highly 
respected  jurist  to  invent  a  phrase  which  ought  not  to  be  allowed  to 
die,  for  he  described  the  act  of  a  lunatic  as  not  the  act  of  a  voluntary 
agent,  but  "the  involuntary  act  of  the  body,  without  the  concurrence 
of  a  mind  directing  it."  Such  an  automaton,  such  a  monster,  as  is 
described  in  that  short  sentence,  exists  nowhere  in  nature.^" 

552.  The  New  Hampshire  cases. — To  the  state  of  New  Hampsliirc 
belongs  the  credit  of  taking  the  initiative  in  presenting  a  rational  and 
scientific  discussion  of  criminal  lunacy  from  the  bench ;  and  to  such 
ITew  Hampshire  jurists  as  Chief  Justice  Bell,  Chief  Justice  Perley, 
Mr.  Justice  Doe,  and  Mr.  Justice  Ladd,  is  due  the  honor  of  being 
among  the  very  first  judges  (either  in  America  or  England)  wlio 
threw  aside  the  traditions  and  antiquated  definitions  of  the  common 
law,  and  endeavored  to  place  the  subject  of  insanity  in  its  proper  sci- 
entific light  before  the  courts.     In  a  series  of  charges  and  opinions,''"^ 

'^Com.  V.  Rogers,  7  Jlet.  500,  41  Am.  and  appropriate  words,  "Not  guilty,  by 

Dec.  458.  reason   of  insanity." 

°^  The   curious   part   of   Rofjers's   Case  ^^Boardman    v.    Woodman,  47    X.    H. 

was  that  the  accused,  who  had  been  a  120;  ^titie  v.  Pike,  49  N.  H.  399.  (5  Am. 

convict   in   the   state   prison,   and   while  Rep.  533;  and  State  v.  Jones,  TA)  N.  11. 

there  had  killed  the  warden  by  stabbing  3()9.  9  Am.  Rep.  242. 

him  in  the  neck,  was  acijuitted  on  none  Chief    Justice    Bell     (Slate    v.    ^yUr, 

of  the  grounds  given  by   Judge   Shaw,  quoted  in  State  v.  Jones,  50  N.  H.  37(5. 

but  because  he  had  acted  under  a  delu-  377,    9   Am.   Rep.    242)    said:      "I   havi; 

sion;  and  the  verdict  did  not  even  state  been   accustomed   to   regard   as   (he  dis- 

that  fact,  but  was  given  in  the  simple  tinguishing  test  of  insanity  the  inability 


5CS 


INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS. 


[§  552 


of  extraordinary  scope  and  brilliancy,  they  subjected  the  whole  mat- 
ter to  careful  revision  and  to  searching  criticism ;  and  they  gave  the 
correct  interpretation  of  this  subject  in  courts  of  law,  just  as  it  is 
recognized  by  the  medical  profession.  They  properly  indicated,  in  the 
main,  its  scientific  outlines.  The  underlying  principle  of  these  ]^ew 
Hampshire  jurists  is  that  the  question  of  insanity  is  a  question  of 
fact,  to  be  decided  upon  by  the  jury ;  not  a  question  of  law,  to  be  de- 
fined by  the  judge.  Insanity  is  a  disease, — a  pathological  process, — 
and  as  such  it  is  a  fact,  to  be  determined  by  the  jury;  and  all  signs, 
s\nnptoms,  and  tests  of  it  are  matters  of  evidence,  and  are  not  to  be 
laid  down  as  definitions  of  law.  In  Judge  Doe's  opinion,^^  the  tests 
and  symptoms  of  insanity  are  no  more  matters  of  law  than  are  the 
tests  and  symptoms  of  consumption,  of  cholera,  or  of  poisoning;  and 
the  conclusion  from  his  remarks  is  legitimate,  though  not  given  by 
him  in  these  identical  words,  that,  no  more  than  he  could  have  toler- 
ated the  tests  for  arsenic,  if  they  had  been  laid  down  two  hundred  and 


to  control  tlic  actions  of  a  man's  mind. 

.  .  (lie  subject,  or  perhaps  a  few 
subjects,  cnjiross  the  whole  thoughts, — 
force  themselves  on  the  attention ;  if 
driven  away  by  business,  they  recur 
wiien  the  mind  is  not  occupied.  If  pain- 
ful, tlie  party  may  try  to  resist  them, — 
to  fly  from  them  to  business,  to  amuse- 
ment, to  drinking,  even ;  but  they  stead- 
ily pursue,  and  may  override  his  judg- 
ment, his  will,  and  also  his  natural  af- 
fection ;  may  change  love  to  hate,  and 
confidence  to  suspicion;  and  this  equally 
when  the  prevailing  idea  is  false, — a 
mere  delusion, — or  is  true  in  fact,  but 
magnified  beyond  all  just  proportion  by 
the  mental  disease.  The  power  of  the 
control  of  the  thoughts  being  lost,  the 
power  of  the  will  over  the  conduct  may 
be  equally  lost;  and  the  party  under  the 
influence  of  disease  acts  not  as  a  ra- 
tional l)oing,  but  under  the  blind  influ- 
ence of  evil  thoughts  which  he  can  nei- 
ther regulate  nor  control.'  Chief  Jus- 
tice Bell  was  a  brother  of  Dr.  Luther 
Bell,  the  eminent  alienist;  and  in  the 
above  characterization  of  insanity  he 
showed  the  influence  of  his  relationship. 
The  sketch  applies,  of  course,  largely  to 
delusional  insanity;  but,  so  far  as  it 
goes,  and  barring  a  little  metapiiysical 
lingo  about  the  '"power  of  the  will,"  it 
is  fairly  accurate,  and  a  great  advance 
on  the  "knowledge  of  right  and  wrong." 

^Boardman  v.  Woodman,  47  N.  H. 
120. 

Justice     Doe     said:     "The     question 


whether  Miss  Blydenburgh  had  a  men- 
tal disease  was  a  question  of  fact,  for 
the  jury,  and  not  a  question  of  law,  for 
the  court.  Whether  delusion  Is  a  symp- 
tom, or  a  test,  of  any  mental  disease, 
was  also  a  question  of  fact,  and  the  in- 
structions given  to  the  jury  were  er- 
roneous in  assuming  it  to  be  a  question 
of  law.  The  jury  should  have  been  in- 
structed that  if  the  writing  propounded 
in  the  probate  court  was  the  offspring 
of  mental  disease,  the  verdict  should  be 
that  ISIiss  Blydenburgh  was  not  of  sound 
mind.  Insanity  ...  is  the  result 
of  a  certain  pathological  condition  of 
the  brain, — a  condition  in  which  the  in- 
tellectual faculties,  or  the  moral  senti- 
ments, or  the  animal  propensities,  have 
their  free  action  destroyed  ])y  disease, 
whether  congenital  or  acquirecl ;  and  the 
tests  and  symptoms  of  this  disease  are 
no  more  matters  of  law  than  are  the 
tests  or  symptoms  of  any  other  disease 
in  animal  or  vegetable  life.  If  a  jury 
were  instructed  that  certain  manifesta- 
tions were  symptoms  or  tests  of  con- 
sumption, cholera,  congestion,  or  poison, 
a  verdict  rendered  in  accoi-dance  with 
such  in.structions  would  be  .set  aside, 
not  because  they  were  not  correct,  but 
because  the  question  of  their  correct- 
ness was  one  of  fact,  to  be  determined 
bj'  the  jury,  upon  evidence.  Experts 
may  testify  to  the  indications  of  mental 
disease,  as  they  could  not  if  such  indi- 
cations were  matters  of  law."' 


§  552]  Tin:    M'NAGHTEN    RULES    IN    AMERICA.  r,(i(> 

more  years  ago  by  Coke  or  Hale,  could  he  take  from  those  writers  the 
tests  for  insanity. 

553.  Errors  of  former  days  have  gained  the  sanction  of  the  law. — 

fFudge  Doe  points  out  very  clearly  that  the  medical  errors  of  former 
days  gained  the  sanction  of  law  merely  by  being  published  in  law 
books  of  high  authority.  He  implies  that  Coke  and  Hale  but  re- 
peated the  crude  medical  opinions  of  their  times;  opinions  which  have 
now  been  abandoned  or  modified  by  the  medical  profession  for  many 
long  years.  It  is  well  known  that  Hale's  lack  of  judicial  criticism 
— his  credulity  and  cruelty — were  shown  in  his  published  avowal  of 
a  belief  in  witchcraft,  and  in  the  fact  that  he  condemned  two  wretched 
women  to  death  for  that  offense, — almost  the  last  instances  of  such  a 
judicial  murder  in  England.  After  the  times  of  Coke  and  Hale^ 
when  their  inadequate  ideas  were  in  part  abandoned,  the  test  of  de- 
lusion was  adopted ;  but,  as  Judge  Doe  says,  it  was  never  heard  of  in 
the  la^v  before  the  year  1800,  and  was  not  a  part  of  the  common  law 
of  England  when  that  common  law  was  adopted  in  oiir  American 
Constitution.  This  test,  as  shown  elsewhere,  was  first  proposed  by 
Erskine,  in  his  defense  of  Hadfield ;  and  this  brilliant  plea  of  a  some- 
what rhetorical  advocate,  which  has  no  authority  in  law  whatever,  is 
now  claimed  in  some  courts  to  be  a  legal  test.  By  what  means  it  has 
acquired  this  sanctity,  since  it  was  first  evolved  by  Erskine,  it  would 
indeed  be  hard  to  say.  It  has  the  sanction  merely  of  a  usage  of  about 
one  hundred  years. 

554.  All  symptoms  and  all  tests  are  matters  of  fact. — In  State  v, 
Pihe;'^  the  court.  Chief  Justice  Perley,  charged  that  "neither  delu- 
sion, nor  knowledge  of  right  and  wrong,  nor  design  and  cunning  in 
planning  and  executing  the  killing,  and  escaping  or  avoiding  detection, 
nor  ability  to  recognize  acquaintance,  or  to  labor  or  to  transact  busi- 
ness or  manage  affairs,  is,  as  a  matter  of  law,  a  test  of  mental  disease ; 
but  that  all  symptoms  and  all  tests  of  mental  disease  are  purely  mat- 
ters of  fact,  to  be  determined  by  the  jury."  Judge  Doe  was  one  of  the 
justices  who  presided  over  this  trial,  and  the  above  language  is  in  ac- 
cord with  all  he  wrote  on  the  subject  of  criminal  lunacy.  It  is  sim- 
ply a  reiteration  of  his  opinion  in  the  case  of  Boardman  v.  Woodman, 
and  is  an  explicit  statement  that  the  tests  or  symptoms  of  disease  are 
not  questions  of  law,  but  questions  of  fact;  just  as  much  so  in  insanity 
as  in  poisoning.^"     He  says  that  the  legal  profession,  in  profound  ig- 

'■'49  N.  H.  402,  6  Am.  Rep.  533.  merit  on  the  subject  of  criminal  lunacy 

'"Judge   Doe's   opinion    in    49    N.    H.  that  has  ever  been  delivered   from   the 

408,  6  Am.  Rep.  533,  is  the  most  learned,  bench,  either  in  this  country  or  in  Eng- 

most  critical,  and  most  scientific  state-  land.     It  is  too  lengthy  for  quotation, 


670  INSANITY— FOIUIS  AND  MEDICO-LEGAL  ASPECTS.  [§  554 

noraiice  of  nieiital  disease,  have  assailed  the  experts,  who  know  all 
that  is  known  on  the  subject  of  insanity,  as  theorists  and  sentimental- 
ists, M-]io  are  attempting  to  override  settled  principles  of  law;  where- 
as, in  fact,  the  legal  profession  are  invading  the  province  of  medicine, 
and  attempting  to  install  old,  exploded  medical  theories  in  place  of 
facts  established  in  the  progi*ess  of  scientific  knowledge.^'^  This  im- 
partial judge  announced  to  his  own  confreres  of  the  bench  and  bar 
that  thev  would  escape  from  a  false  position  when  they  withdrew  into 
their  own  territory.  To  this  trenchant  opinion  he  was  led  by  a  firm 
conviction  that  it  Avas  not  the  business  of  courts  to  decide  scientific 
questions :  such  evidence  they  must  take  from  experts  in  science. 

555.  The  legal  definition  of  insanity  is  an  anachronism. — With  un- 
sparing pains  Judge  Uoe  exposes  case  after  case  in  which  courts  have 
ignored  the  scientific  evidence,  and  charged  the  jury  that  the  legal 
test  was  the  knowledge  of  right  and  wrong.  It  is  a  common  practice, 
says  Judge  Doe,  for  experts,  under  oath,  to  inform  the  jury  that  such 
knowledge  is  not  a  true  test  of  insanity,  and  then  for  the  judge,  who  is 
not  under  oath,  to  tell  them  that  it  is.  Here  the  judge  usurps  the 
place  of  a  witness,  and  announces  as  a  fact  what  is  merely  a  worn-out 
definition  of  the  English  common  law.  It  is  the  same  with  Erskine's 
test  of  delusion:  Judge  Doe  proves  that  it  has  no  legal  sanction  but 
the  usage  of  a  century,  and  cites  expert  opinion  to  show  that  it  is  not 
necessarily  present  in  a  criminal  lunatic.  Thus  he  exposes  the  fal- 
lacy of  the  whole  legal  position, — a  fallacy  due  to  the  persistence  of 
courts  in  confusing  a  question  of  fact  with  a  question  of  law.  "There 
is  no  legal  guilt,''  he  says,  "in  a  homicide  solely  caused  by  a  mental 
disease;"  and  this  dictum  of  the  wise  Xew  Hampshire  judge  is  the 
only  possible  test  in  a  case  of  criminal  lunacy. 

556.  The  so-called  legal  tests  criticized  from  the  bench. — In  the  case 

]»iit  it  sliould  he  carefully  read  by  every  at  all.     He  also  discusses  at  length  tlie 

student    of    this    subject,    especially    by  right  of  nonexperts  to  testify  to  insan- 

tlie   lawyers,    and    more   especially    stiH  ity  from  their  own  knowledge  of  facts, 

by  tlic  judges,  who  are  called   u])on  to  and  lie  dissects,  without  mercy,  that  an- 

preside  at  the  trials  of  the  criminal  in-  titjuatcd    legal    dictum     that    a     person 

.sane.     It    is    an    admirable    compound  cannot  stultify  himself  by  pleading  his 

both  of  a  judicial  charge  and  a  scientific  own    insanity.     In    conclusion   he   sums 

discourse.     The  man  wdio  wrote  it  had  up   the   whole   question   when   he   says: 

an  insight  into  the  subject  of  insanity  "The   whole   difliculty    is,    that    courts 

that  would  do  credit  to  a  trained  alien-  have   undertaken   to  declare  that  to  be 

ist.     The    keynote    of    the    discourse    is  law  which  is  a  matter  of  fact."     We  do 

that  insanity  is  a  question  of  fact,  for  not    doubt   that    Justice   Doe    will    take 

the  jury,  and  not  of  legal  tests,  for  tlic  high  rank  in  the  future  as  one  of  the 

judge ;_     that    the     so-called   legal    tests  very  fust  judges  who  saw  the  subject  of 

were  incorporated   in   the   common   law  criminal  lunacy  in  its  true  light. 

from  medical  opinion  wdien  it  was  in  a  "State  v.  Pike,  49  N.  H.  438,  6  Am. 

crude  state;  and  that  they  are  not  law  Rep.  53.3. 


§  55(5]  THE    M'NAGllTEN    RULES    IN   AJVIERICA.  571 

of  Stale  V.  Jones''^  the  subject  of  criminal  lunacy  was  again  reviewed 
by  Justice  Ladd,  and  again  the  so-called  legal  tests  of  insanity  were 
subjected  to  a  luminous  criticism.  The  conclusions  are  similar  to 
those  given  in  the  former  case  by  Judge  Doe.^''  The  whole  history 
of  the  tests  for  insanity,  from  the  time  of  Hale,  was  reviewed  by 
Judge  Ladd,  in  a  masterly  manner.  The  conclusion  to  be  derived 
from  this  able  paper  is  that,  while  most  of  the  courts  have  professed 
to  adhere  to  the  traditional  tests,  they  have  nevertheless  allowed  them- 
selves much  latitude,  and  the  consequence  is  that  the  legal  tests  and 
definitions  are  deprived  of  both  consistency  and  authority.  Coming 
from  the  pen  of  a  judge,  this  criticism  is  destructive  of  all  claims  for 
these  tests  that  they  are  binding  on  American  courts.  The  rules  in 
the  M'Narjliten  Case  are  declared  "to  utterly  fail ;"  and  an  examina- 
tion of  American  cases  does  not,  in  Judge  Ladd's  opinion,  lead  to 
more  satisfactory  results.^*^  For  Judge  Ladd  the  testimony  of  ex- 
perts must  outweigh  all  the  convenient  formulas  and  arbitrary  dog- 
mas laid  down  by  lawyers  and  judges,  from  the  time  of  Hale  to 
the  present.®^  For  him  insanity  is  a  disease, — a  pathological  process, 
— to  be  proved  by  "all  the  facts  bearing  on  the  question,  to  be  collected 
from  every  asylum  for  the  insane  throughout  the  world ;"  and  he 
would  probably  have  agreed  with  Judge  Doe  '^  ^  in  quoting,  with  dis- 
approval, the  opinion  expressed  by  a  Lord  Chancellor  of  England^  ^ 

^^Siate  V.  Jones,  50  N.  H.  369,  9  Am.  defendant   had  a  mental  disease  which 

Rep.  242.  irresistibly   impelled   him    to    kill     his 

^"The  court  held  in  50  N.  H.   309,   9  wife,— if  the  killing  was  the  product  of 

Am.   Rep.   242,   that   "if   the   defendant  mental     disease     in     him, — he     is     not 

killed  his  wife  in  a  manner  that  would  guilty.     .     .     .     Insanity    is    not    inno- 

be  criminal  and  unlawful  if  the  defend-  cence  unless  it  produced  the  killing  of 

ant  were  sane,  the  verdict  should  be  'not  his  wife. 

guilty,    by    reason    of    insanity,'    if    the  "If  the  defendant  had  an  insane  im- 

killing  was  the  offspring  or  product  of  pulse  to  kill  his  wife,  and   could   have 

mental  disease  in  the  defendant.  successfully  resisted  it,  he  was  respon- 

"Neither   delusion,   nor   knowledge   of  sible.     Whether  every  insane  impulse  is 

right  and  wrong,  nor  design  or  cunning  always  irresistible  is  a  question  of  fact. 

in    planning   and    executing   tne    killing  Whether,  in  this  case,  the  defendant  had 

and  escaping  or  avoiding  detection,  nor  an  insane  impulse  to  kill  his  wife,  and 

ability  to  recognize  acquaintances,  or  to  whether  he  could  resist  it,  are  questions 

labor,  or  transact  business,  or  manage  of  fact. 

afl'airs,  is,  as  a  matter  of  law,  a  test  of  "Whether  an  act  may  be  produced  by 

mental   disease;   but  all   symptoms  and  partial  insanity,  when  no  connection  can 

all   tests   of  mental   disease   are  purely  be  discovered  between  the  act  and  the 

matters  of  fact,  to  be  determined  i)y  the  disease,   is  a  question   of  fact." 

jury.     Whether    the    defendant    had    a  '^Statc  v.  Jones,  50  N.  H.  388,  389,  9 

mental  disease,,  and  whether  the  killing  Am.  Rep.  242. 

of  his  wife  was  the  product  of  such  dis-  »\S7aie  v.  Jones,  50  N.  IT.  395,  9  Am. 

ease,  are  questions  of  fact,  for  the  jury.  Rep.   242. 

"Insanity    is   a   mental    disease, — dis-  ^-State  v.  Pike,  49  N.  II.  437,  G  Am. 

ease  of  the  mind.     An  act  produced  by  Rep.   533. 

mental   disease  is  not  a  crime.     If  the  "^  Hansard,  C.  L.  XV.  1297. 


51Z  IXSAXITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  556" 

in  tbc  House  of  Lords,  on  the  lltb  of  March,  1862,  that  "the  intro- 
duction of  medical  .opinions  and  medical  theorias  into  this  subject 
had  proceeded  upon  the  vicious  principle  of  considering  insanity  as  a 
disease !"  That  insanity  is  indeed  a  disease,  even  if  an  inconvenient 
one,  and  that  its  presence  and  symptoms  are  to  be  determined  on  the 
evidence,  as  questions  of  fact,  and  not  according  to  arbitrary  and 
erroneous  definition  by  the  courts,  are  most  conclusively  shown  in  this 
able  array  of  opinions  by  the  learned  and  wise  New  Hampshire 
judges.^'* 

557.  Striving  after  an  impossible  test. — The  above  review  of  judir 
cial  opinions  in  America  proves,  in  a  striking  manner,  that  there  is 
no  unanimity  among  the  judges,  and  that  most  of  them  are  still  striv- 
ing after  an  impossible  test.  It  is  to  this  futile  search  that  the  con- 
fusion and  the  error  are  due.  Insanity  cannot  be  reduced  to  a 
formula,  to  suit  the  law.  It  is  entirely  too  complex  to  be  included  in 
an  a  priori  definition.  It  can  only  be  studied  by  the  inductive  meth- 
ods of  science, — by  marshaling  all  its  symptoms,  and  deriving,  from 
a  comparison  of  them,  a  conception  of  individual  cases.  Mr.  Bishop 
was  right  when  he  said  that  no  test  has  been  found  because  no  test 
exists.  Judge  Doe  was  wise  when  he  declared  that  mental  disease  is 
not  a  question  of  legal  definition,  but  a  matter  of  fact ;  and  Sir  Mat- 
thew Hale  was  far  in  advance  of  his  age  when  he  wrote  that  the  prob- 
lem is  "a  fact,  triable  by  jury."  ^^ 

•*  Jiul.ire  Doe's  opinion  of  "a  progres-  than    did    Hale   and    Niclioll.     If   it   is 

sive    science''   is    given    as    follows,   in  necessary  that  the  law  should  entertain 

Boardiaan  v.  ^Voodnlan,  47  N.  H.  150:  a   single    medical    opinion    concerning  a 

"If  we  are  to  take  judicial  notice  of  single  disease,  it  is  not  necessary  that 
a  fact  as  settled  by  the  scientific  knowl-  that  opinion  sliould  be  a  cast-off  theory 
edge  of  experts,  we  must  recognize  the  of  physicians  of  a  former  generation. 
fact,  as  established  by  the  unanimous  That  cannot  be  a  fact  in  law  which  is 
medical  authorities  of  our  daj',  that  not  a  fact  in  science;  that  cannot  be 
there  is  a  mental  disease  sometimes  health  in  law  which  is  disease  in  fact, 
called  moral  insanity,  and  that  delusion  And  it  is  imfortiinate  that  courts 
is  not  the  test  of  it.  Hale  and  Coke  should  maintain  a  contest  with  science 
adopted  the  receivea  medical  opinion  of  and  the  laws  of  nature,  upon  a  question 
their  da}%  and  Nicholl  professed  to  of  fact  which  is  within  the  province  of 
adopt  that  of  his  time,  which  was  in  science,  and  outside  llie  domain  of  law." 
conflict  with  the  former.  If  we  go  back  '''"When  he  (Goellie)  is  told  such  a 
to  182G,  or  ISOO,  for  medical  informa-  thing  must  be  so — there  is  immense  au- 
tion,  we  might,  with  equal  reason,  go  thority  and  custom  in  favor  of  its  be- 
back  to  the  physicians  of  Hale's  time,  ing  so — it  has  been  held  to  be  so  lor 
or  to  Galen  or  Hippocrates.  If  we  are  a  thousand  years, — he  answers,  with 
to  follow  a  progressive  science  it  is  not  01ym])ian  politeness,  'But  is  it  so?  Is 
necessary  to  follow  at  a  greater  distance  it  so  to  me?'  " — Matthew  Arnold. 


CHAPTER  XXIX. 

THE  METAPHYSICAL  CONCEPTION  OF   INSANITY. 

-558.  Tlie   spiritual   theory. 

.559.  Among  the  ancients. 

,560.  The  wide  prevalence  of  the  spiritual  conception. 

561.  The  distinction  between   body  and  mind. 

-562.  The  metaphysical  impulse. 

563.  Subtle  questions,  of  more  than  speculative  interest. 

.564.  The  curious  tricks  of  metaphysics. 

505.  Evil  effects  on  jiu'isprudence. 

566.  In  English  law. 

567.  Refinements  and  definitions. 

568.  A  recent  product  of  metaphysics. 

569.  But  artificial  psychiatry  is  not  confined  to  lawyers  and  the  courts. 

570.  Monomania  is  an  invention  of  the  etymologists. 

571.  Moral  insanity  is  a.  product  of  dialectics.  ; 

572.  It  is  also  a  boomerang. 

573.  Insanity  not  an  abstraction,  but  a  disease. 

558.  The  spiritual  theory. — By  the  metaphysical  conception  of  in  ' 
sanity  I  understand  that  view  whicli  regards  insanity  as  a  manifes- 
tation of  disordered  mental  functions  apart  from  any  consideration  ol 
disorder  of  the  organic  brain.  It  is  the  spiritual  theory  of  insanity 
as  against  what  may  be  called  the  materialistic  theory.  It  is  based 
upon  the  conception  that  mind  and  matter  are  two  things  entirely  dis- 
tinct, and,  in  a  sense,  even  antagonistic. 

559.  Among  the  ancients. — This  theory  of  the  distinction  of  mind 
from  matter  has  been  inherited  from  a  remote  ancestry,  and  is  inex- 
tricably interwoven  in  both  metaphysics  and  theology.  It  probably 
took  its  origin  among  very  primitive  men,  and  can  best  be  explained 
by  Herbert  Spencer's  "ghost"  theory.  As  soon  as  the  primitive  man 
began  to  have  bad  dreams,  and  to  believe  that  what  he  dreamed  was 
true,  he  became  a  believer  in  ghosts ;  and  with  a  belief  in  ghosts  he 
laid  the  foundation  for  all  the  spiritual  theories  of  succeeding  ages ; 
and  at  the  very  foundation  of  them  he  placed  the  doctrine  that  mind 
is  an  entirely  different  entity  from  body.  This  belief,  in  a  vague  and 
mystical  way,  must  have  far  antedated  literature.  One  of  the  earli- 
est appearances  of  it  in  primitive  history  anywhere  was  in  that  very 

573 


574  IXSAXITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  55f) 

ancient  Hebrew  record  called  the  book  of  Samnel,  where  the  witch  of 
Endor,  at  the  solicitation  of  King  Sanl,  makes  the  ghost  of  Samuel 
rise  from  the  ground.^  The  Homeric  poems,  which  are  probably 
nearly  contemporaneous  with  the  earliest  Jewish  annals,  also  contain 
references  to  a  belief  in  ghosts,  as  in  the  death  of  Rhesus,^  stabbed, 
as  he  slept,  by  Tydides;  or  in  the  dream  of  Penelope,^  OT  in  that  most 
dramatic  book  in  the  Odyssey,  where  Ulysses  descends  into  hell,  and 
holds  converse  with  the  shades.  Pope,  in  commenting  on  a  passage 
in  that  book,  says  it  "affords  full  evidence  that  the  ancients  believed 
in  a  partition  of  the  human  composition  into  three  parts:  the  body  is 
buried  in  the  earth ;  the  image  descends  into  the  regions  of  the  de- 
parted ;  and  the  soul,  or  the  divine  part  of  man,  is  received  into 
ITeaven.  or  returns  to  the  deity  Avhence  it  emanated." 

569.  The  wide  prevalence  of  the  spiritual  conception. — To  trace  the. 
history  and  development  of  these  spiritual  conceptions  would  be  to 
traverse  the  whole  dom^ain  of  philosophy  and  theology.  It  is  enough 
to  say  that  these  ideas  were  most  fully  developed  by  the  Greeks, — 
that  wonderful  people  who  cast  in  imperishable  forms  so  many  of  our 
fundamental  ideas,  and  expressed  them  in  language  which  is  still  the 
current  terminology  of  our  modern  thought  and  our  modern  science. 
The  Hebrews  themselves  never  advanced  beyond  the  most  primitive 
ghost  theory;  for  in  all  their  ancient  literature  there  is  a  marvelous 
absence  of  the  fully  developed  idea  of  the  immortality  of  the  soul. 
But  the  Greeks  never  ceased  to  elaborate  the  idea  of  the  "psyche ;" 
and  their  speculations,  often  fanciful,  reached  their  highest  flight  in 
the  Pha'do  of  Plato,^  that  treatise  on  immortality  which  Cato  read 
the  night  before  he  killed  himself.^  From  the  Greeks  what  had  been 
a  philosophical  speculation  passed  to  the  Christians  as  a  dogma  of 
faith. 

561.  The  distinction  between  body  and  mind. — The  idea  of  the  dis- 
tinction between  body  and  mind,  or  between  matter  and  spirit,  is  so 
ingrained  in  all  modern  thought  that  it  is  almost  impossible  to  disso- 
ciate it  from  our  way  of  thinking  and  talking  without  doing  violence 
to  our  logical  processes,  and  without  offending  our  most  cherished 
prejndices.  ]\lodern  psychology,  which  is  the  science  that  concerns 
us  here,  and  which  is  the  least  well  established  on  a  purely  scientific 
basis  of  all  our  medical  sciences,  has  received  its  full  share  of  this  in- 

M    Snnmol,  xxviii.  ^Beautifully  illustratod  in  Flaxman's 

'.Iii«t  tlieii  !t  flrfiidfiil  flrfain  >rinprvasent:  Desi<jns.  Odvssey,  Bk.  iv. 

A  wiiriiu..  f„nn  ai.i.f'i.ro.l  b-foro  his  t«nt.  *  Works  of  Plato,  translated  by  Gary. 

Mi<  .«(•  \isirmiir\- sred  Ins  bosom  tore;  t -n^    j.       t      -r  -r        r    r^   ^               ''           •' 

.s   .Inaiiici  I  lif  monarch.  niKlawfiljcd  no  more.  "Plutarch,   i.ife   of   Cato. 
-  Iliad  (Pope),  lik.  10. 


§  5G1]  THE  METAPHYSICAL  CONCEPTION  OF  INSANITY.  575 

heritancc,  and  is  so  permeated  with  metaphysical  distinctions  that 
one  of  the  most  accurate  of  modern  psychologists,  John  Locke,  conld 
say  that  he  conld  conceive  of  mind  acting  without  matter  as  eu.sily 
as  he  conld  conceive  of  matter  acting  without  mind.*'  But  he  evi- 
dently deceived  himself  with  an  antithetical  phrase.  I  venture  to 
say  that  there  are  few  persons  who  have  critically  ■studied  menial  })atli- 
ology,  and  Avhose  minds  are  trained  to  scientific  methods,  who  will 
agree  with  Locke  that  the  mind  can  be  conceived  of  as  acting  without 
a  material  hrain.  It  were  as  easy  to  conceive  of  light  without  a  lu- 
minous object,  or  of  an  electric  current  without  the  cell  or  dynamo 
which  gives  it  origin. ^'i 

562.  The  metaphysical  impulse. — That  Locke's  view,  however,  has 
been  the  prevalent  one  among  modern  psychologists,  is  not  difficult  to 
demonstrate.  Most  of  those  who  have  written  under  the  metaphysi- 
cal impulse  assume  or  imply  on  almost  every  page,  that  matter  and 
mind  are  distinct  substances.  Thus,  Sir  William  Hamilton,  one  of 
the  most  representative  writers  of  this  school,  includes  his  psychologi- 
cal writings  in  a  treatise  which  has  the  general  title  of  ''Metaphysics," 
— thereby  showing  his  conviction  that  mental  phenomena  are  apart 
from  and  above  the  physical  or  physiological  phenomena.  "]\Tind 
and  matter,"  he  says,'^  "are  only  two  different  series  of  phenomena  or 
qualities.  Mind  and  matter,  as  unknown  and  unknowable,  are  the 
two  substances  in  which  these  two  different  series  of  phenomena  or 
qualities  are  supposed  to  inhere.  .  .  .  The  distinction  of  two 
substances  is  only  inferred  from  the  seeming  incompatibility  of  the 
two  series  of  phenomena  to  coincide  in  one."  There  surely  could  not 
be  a  more  unequivocal  statement. 

It  was  the  part  of  Bishop  Berkeley  to  attempt  to  reconcile  these 
seeming  irreconcilables,  and  this  he  did  by  resolving  everything  into 
ideas.  As  we  know  substance  only  by  its  qualities,  so  we  know  mind 
only  by  its  qualities;  but  as  the  qualities  of  matter  are  only  known  to 
us  as  they  become  ideas  in  our  minds,  therefore  there  is  nothing,  after 
all,  in  the  universe  but  ideas.  Thus  he  attempted  to  get  rid  of  that 
inconvenient  thing  which  we  call  "matter."  From  such  eminent  writ- 
ers as  these,  modern  psychology  has  largely  accepted  its  fundamental 
principles. 

•  An    Essay    Concerning   Ilumnn    Un-  liow  absolutely  impossible  it  is  to  make 

(lerstanding.  a     philosophical       distinction      between 

6*  See  Huxley's  Essay  on  "Tlie  Phys-  them, 
ical  Basis  of  Life,"  in  his  Lay  Sermons,         '  The     Metaphysics     of     Sir     William 

p.    120.     Let   anyone   attempt   to   define  Hamilton.    Collected  by  Francis  Bouen. 

"matter"  and  "spirit,"  and  he  must  see  Cambridge,  1866. 


576  INSANITY— FOKMS  AND  MEDICO-LEG.\L  ASPECTS.  [§  5G3 

563.  Subtle  questions,  of  more  than  speculative  interest. — If  these 
subtle  questions  were  merely  of  speculative  interest,  I  should  not  con- 
sider them  appropriate  for  discussion  here ;  but  the  fact  is  undoubted 
that  we  have  imported  some  of  these  refinements  and  distinctions  into 
our  medical  sciences, — especially  such  sciences  as  take  note  of  the 
physiology  of  the  brain,  and  more  particularly  the  science  of  psychi- 
atry. One  cannot  advance  far  in  psychiatry,  and  especially  in  medi- 
cal jurisprudence,  M'ithout  constantly  coming  in  contact  with  terms 
that  are  essentially  metaphysical ;  terms  which  evade  him  like  a  will- 
o'-the-wisp  if  he  attempts  to  apprehend  them  at  any  true  worth,  or  to 
resolve  them  into  anything  like  a  clinical  entity.  This  is  a  weakness 
from  which  medical  science  has  long  been  trying  to  free  itself :  we  arc 
gradually  getting  rid  of  the  ''humours"  and  "vital  principles"  which 
formerly  paraded  through  our  medical  literature,  but  we  have  not  yet 
fully  learned  that  the  so-called  mental  functions  are  not  distinct  in- 
dividualities, each  with  its  own  array  of  ills. 

564.  The  curious  tricks  of  metaphysics. — This  infirmity  plays  cu- 
rious tricks  with  some  medical  writers.  Carpenter,  the  physiologist, 
makes  a  most  fantastic  attempt  to  reconcile  "mind"  and  "matter,"  as 
though  they  needed  any  reconciliation.  He  states^  that  "mind"  is  a 
^'force,"  and  that  "forces"  can  be  conceived  of  as  independent  of  mat- 
ter— instead  of  the  true  statement  (proved  by  all  knowledge  of  phy- 
sics) that  any  and  all  forces  are  but  manifestations  of  matter.  This 
is  but  a  restatement  by  Carpenter  of  the  dual  theory,  that  mind  and 
matter  are  two  distinct  substances ;  and  renders  any  rational  theory 
of  mental  pathology  absolutely  impossible.  It  is  but  a  short  stej) 
from  such  a  theory  to  the  doctrine  of  Mrs.  Eddy,  that  disease  is  only 
a  mistaken  judgment,  and  that  in  fact  physical  disease  is  inconceiv- 
able as  acting  in  the  domain  of  pure  mind.  It  is  impossible  to  con- 
ceive how  it  happens,  if* mind  and  matter  are  distinct  substances,  that 
a  dose  of  morphin  produces  sleep,  or  alcohol  intoxicates,  or  the  poison 
of  typhoid  fever  throws  all  the  mental  functions  into  the  confusion  of 
delirium. 

565.  Evil  effects  on  jurisprudence. — But  it  is  in  the  medical  juris- 
prudence of  insanity  particularly  that  we  can  trace  some  of  the  evil 
effects  that  have  come  from  a  metaphysical  conception  of  mind  and  its 
disorders.  This  is  an  eminently  practical  subject,  and  should  not  be 
obscured  by  a  mere  display  of  dialectics.  The  problems  involved  in 
the  jurisprudence  of  insanity  are  problems  of  fact,  not  of  theory. 

•Principles  of  Human  Phvsiolojrv, 
Philadelphia.  H.  C.  Lea,  1868;  Of  the 
Mind,  and  Its  Operation,  p.  5.37. 


§  565]  THE  METAPHYSICAL  CONCEPTION  OF  INSANITY.  577 

But  the  confusion  which  has  too  often  reigned  in  this  province  is  due, 
in  part,  at  least,  to  the  fact  that  a  metaphysical  conception  of  the  sub- 
ject of  mental  disorders  has  been  held  by  some  medical  and  by  many 
legal  writers.  The  situation  may  be  stated  about  as  follows:  The 
mind,  being  a  distinct  substance,  is  regarded  as  composed  of  certain 
elements  or  organs;  such  as  the  "will,"  the  "memory,"  the  "imag- 
ination," the  "intelligence,"  the  "moral  sense,"  and  the  "emotions;" 
and  these  elements  or  organs  are  then  erected  into  distinct  entities 
themselves,  each  capable  of  being  diseased  separately  and  apart  from 
its  fellows.  This  is,  in  every  sense,  a  very  crude,  even  gross,  concep- 
tion. As  the  body  has  its  several  viscera,  so  the  mind  has  its  viscera; 
and  as  the  liver  can  be  diseased  apart  from  the  heart,  so  the  moral 
sense  can  be  diseased  apart  from  the  intelligence.  This  analogy  is 
hardly  based  on  exaggeration.  Such  an  analysis  of  the  mental  func- 
tions is  entirely  academic,  and  there  is  no  reason  to  suppose,  but  every 
reason  not  to  suppose,  that  it  represents  any  subdivision  of  the  nerve 
cells  in  the  cerebrum.  That  it  has  had  great  sway,  however,  in  for- 
mulating the  legal  tests  for  insanity,  is  unquestionable. 

566.  In  English  law. — It  is  difficult  to  ascertain  when  and  where 
the  first  legal  definition  of  insanity  was  given  in  the  English  law. 
ISTeither  Littleton,^  Coke,^°  Fitzherbert,^ ^  nor  Hale,^^  who  are 
among  the  earliest  authorities,  give  anything  but  their  own  opinions, 
so  far  a^  we  can  judge  from  the  text  of  their  writings ;  but,  as  they 
were  all  great  authorities  on  the  common  law,  and  evidently  well 
saturated  with  legal  tradition  (which  passed  for  common  law),  they 
apparently  gave  what  passed  for  judicial  opinion  on  the  subject  in 
their  day.  They  made  but  little  attempt  at  an  analysis  of  insanity. 
Coke  got  little  farther  than  to  quote  from  Littleton,  and  to  tell  us 
that  the  proper  term  in  law  for  insanity  was  non  compos  mentis.  Fitz- 
herbert,  who  wrote  early  in  the  sixteenth  century,  lays  it  down  that 
an  "ideot"  is  one  who  knows  not  to  tell  20  shillings,  or  who  is  his 
father  or  mother,  nor  knows  his  own  age.  But  if  he  knows  letters, 
or  can  read  by  the  instruction  of  another,  then  he  is  no  "ideot."  This 
was  a  test  of  non  compos  mentis  based  simply  on  the  amount  of  ele- 
mentary knowledge  a  person  might  possess.  Lord  Chief  Justice 
Hale  made  the  astonishing  division  of  the  subject  into  two  parts, — 
his  total  and  partial  insanity, — and  he  is  the  earliest  legal  writer 
who  attempted  a  metaphysical  analysis  of  the  mental  functions. 
Under  partial  insanity  he  includes  those  who  have   "a  particular 

•Co.  Litt.  Lib.  III.  Chap.  VI.   §  405.        "Nat.  Brev.  p.  233. 
"  2  (!o.  Litt.  246,  247a.  "  1  P.  C.  Chap.  IV. 

Vol.  I.  Med.  Jub. — 37. 


578  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  566 

dementia  in  respect  of  some  particular  discourses,  subjects,  or  ap- 
plications." This,  he  says,  "is  the  condition  of  very  many,  espe- 
cially melancholy  persons,  who,  for  the  most  part,  discover  their  de- 
fect in  excessive  fears  and  gi'iefs,  and  yet  are  not  wholly  destitute 
of  the  use  of  reason ;"  and  he  expressly  says  that  "this  partial  in- 
sanity seems  not  to  excuse  them  in  the  committing  of  any  offense 
for  its  matter  capital."  According  to  this  definition,  so  long  as  the 
faculty  of  "reason"  retains  any  power  to  act,  the  disturbance  of 
other  "faculties,"  such  as  the  emotions  of  grief  aud  fear,  does  not 
render  a  man  irresponsible.  The  distinction  is  entirely  a  metaphysi- 
cal one,  and,  if  taken  literally,  would  exclude  all  melancholiacs  and 
all  delusional  lunatics  from  the  category  of  the  criminal  insane. 
There  is  no  paranoiac  or  melancholiac  who  does  not  retain  some  power 
of  reasoning. 

567.  Refinements  and  definitions. — It  was  not  until  somewhat  later, 
when  insanity  began  to  be  more  in  evidence  in  the  English  courts, 
that  the  incentive  was  more  generally  felt  to  attempt  to  analyze  and 
define  mental  phenomena,  in  the  hope  of  determining  precisely 
where  that  subtle  quality  lay  which  we  call  human  responsibility. 
One  of  the  early  cases,  often  quoted,  was  that  of  Edward  Arnold, 
tried  in  1724,  for  shooting  at  Lord  Onslow. ^^  Arnold  was  evidently 
insane ;  and  in  the  charge  to  the  jury  Mr.  Justice  Tracy  used  a  ter- 
minology which  may,  in  a  sense,  be  called  classic,  however  much  we 
may  differ  with  it,  because  it  has  been  repeated  and  used  and  fol- 
lowed in  innumerable  courts,  both  in  England  and  America,  for  al- 
most two  hundred  years.  To  exempt  a  man  from  punishment  he 
must  be  "totally  deprived  of  his  understanding  and  memory,  and 
doth  not  know  what  he  is  doing,  no  more  than  an  infant,  than  a 
brute,  or  a  wild  beast,  such  an  one  is  never  the  object  of  punish- 
ment," He  must  also  not  be  able  "to  distinguish  between  good  and 
evil."  This  was  the  first  statement,  I  believe,  of  the  celebrated  test 
of  the  knowledge  of  right  and  wrong.  This  dictum  of  Justice  Tracy 
implies  that  the  "memory  and  understanding"  are  distinct  parts  of 
a  man's  ftiind,  and  that  it  is  possible  for  these  two  distinct  entities 
to  be  totally  destroyed  or  cut  out,  just  as  a  man's  arm  or  leg  could 
be  taken  away  from  him.  Such  a  conception  is  metaphysical,  and 
could  only  arise  from  a  process  of  personifying  the  mental  func- 
tions, and  speaking  of  them  as  though  they  were  distinct  parts,  sep- 
arable from  the  rest  of  the  mind.  But  we  know  as  a  fact  that  there 
lire   no  lunatics  who   are   "t/)tally   deprived   of   understanding   and 

"'Arnold's  Trial,  lb  liow.  St.  Tt.  695. 


§  567]  THE  METAPHYSICAL  CONCEPTION  OF  INSANITY.  r,79 

memory."  Not  even  the  lowest  types  of  clemciitia  or  the  worst  forma 
of  raving  mania  are  in  such  a  condition.  For  those  who  have  the  slight- 
est acquaintance  with  mental  pathology,  such  a  condition,  in  a  crimi- 
nal lunatic,  is  inconceivable.^^  To  deprive  a  man  totally  of  memory 
and  understanding  he  would  have  to  be  put  into  a  state  of  profound 
unconsciousness.  To  suppose  that  the  memory  or  the  understanding 
could  be  thus  obliterated,  apart  from  the  other  mental  functions,  it 
is  necessary  to  soar  aloft  into  the  region  of  mere  abstractions,  and  to 
contem.plate  the  several  parts  of  the  mind  as  so  many  individualities. 
Such  language  is  not  the  langniage  of  science. 

668.  A  recent  product  of  metaphysics. — One  of  the  latest  products 
of  this  metaphysical  theory  of  mind  is  that  extraordinary  ])sychosis 
known  as  "emotional"  insanity.  Mr.  David  Dudley  Field,  a  very 
able  New  York  law^^er,  was  as  responsible  for  this  as  any  other 
writer  I  know  of.  In  1873  he  attempted  to  clarify  the  subject  of  in- 
sanity for  the  special  benefit  of  the  courts,^  ^  and  decided  that  there 
were  four  kinds  of  insanity, — perceptional,  intellectual,  emotional, 
and  volitional.  This  division  is  entirely  academic,  and  is  founded 
on  the  ordinary  academic  analysis  of  the  mental  functions.  It  di- 
vides the  mind  off  into  a  series  of  distinct  and  separate  territories, 
and  then  fences  in  these  several  artificial  psychoses  each  in  its  own 
paddock.  It  is  as  neat  and  precise  as  can  be, — the  only  trouble  with 
it  is  that  there  is  nothing  corresponding  to  it  in  the  domain  of  actual 
facts.  Mr.  Field  fails  to  tell  us  very  plainly  what  emotional  in- 
sanity is, — he  is  only  positive  about  one  thing,  and  that  is  that  emo- 
tional lunatics  should  all  be  hanged.  So  it  seems  a  pity  that  he  in- 
vented these  poor  cranks  only  to  string  them  up  on  a  gibbet.  From 
his  meagTe  attempts  at  psychological  analysis,  however,  it  is  evident 
that  Mr.  Field  confuses  emotional  disturbances  with  delusions, — in 
other  words,  he  wanders  from  the  emotional  paddock  into  the  intel- 
lectual paddock.  It  is  almost  needless  to  say  that  there  can  be  no 
such  thing  as  a  purely  emotional  insanity,  if  by  that  term  is  meant  an 
insanity  in  which  the  emotions  alone  are  affected.  It  is  impossible 
to  conceive  of  an  emotion  without  an  act  of  the  intelligence, — the 
two  modes  of  cerebral  action  are  not  separable.  The  analysis  is  only 
possible  by  means  of  a  metaphysical  abstraction,  which  separates 
the  emotions  from  all  other  mental  phenomena,  then  endows  them  with 
a  distinct  personality,  and  then  makes  that  personality  the  subject  of 

"This    was    forcibly    pointed    out   by        "''Emotional    Insanity,    7    Alb.    L.    J. 
Erskine    in    his    speech    for    Hadficld.    May  3,  1373,  p.  273. 
Hadfield's  Trial,  27  How.  St.  Tr.  1281. 


jlSO  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  568 

disease.  No  more  mischievous  distinction  was  ever  made  than  this; 
and  it  is  worthy  of  remark  that  this  term  has  been  more  abused 
by  the  lawyers  and  the  courts  than  by  the  doctors.  It  is  a  favorite 
psychosis  to  be  urged  in  behalf  of  a  popular  favorite, — some  in- 
teresting criminal  who  has  enlisted  on  his  side  the  public  sympathy. 
Such  cases  were  those  of  Sickel,  Walworth,  Nutt.  As  has  been  said 
of  another  artificial  psychosis,  by  a  shrewd  writer  in  the  Law  Ency- 
clopedia: ''It  is  a  term  invented  by  ingenious  lawyers,  to  afford  to 
the  jury  a  safe  bridge  upon  which  to  pass  from  a  disagreeable  tech- 
nical duty  to  the  accomplishment  of  their  desire,  when  the  accused 
has  killed  some  one  who,  according  to  the  consensus  of  opinion,  ought 
to  have  been  killed."  It  is  surely  justifiable  to  hammer  such  psychol- 
ogy with  a  maxim  from  Aristotle,  and  to  say  stuUum  est  absurdas 
opiniones  accuratius  repellere, —  it  is  foolish  to  repel  absurd  opin- 
ions too  carefully. 

569.  But  artificial  psychiatry  is  not  confined  to  lawyers  and  the 
courts. — Marc,^^^  who  is  one  of  the  older  French  authorities  in  medi- 
cal jurisprudence,  attempts  to  show  that  insanity  is  a  disease  of 
'"the  will."  "If  the  action  of  a  lunatic,"  he  says,  "is  not  imputed  to 
him  as  a  crime,  it  is  because  he  is  presumed  to  have  acted  involun- 
tarily." This  is  just  as  unscientific  as  to  erect  an  emotional  insan- 
ity. It  depends  on  the  same  kind  of  academic  analysis.  An  "insan- 
ity of  the  will"  does  not  exist  if  by  this  is  meant  the  freedom  of  the 
other  faculties  from  disease.  An  act  of  the  will  always  presupposes 
an  intellectual  concept;  and  this  is  usually  associated  in  the  insane 
with  an  emotion;  the  whole  mechanism  is  disturbed,  not  only  one 
part  of  it.^^3  To  say  otherwise  is  to  indulge  in  scholastic,  not  clinical, 
psychiatry,  and  the  idea  of  Marc,  that  insanity  is  a  loss  of  will, 
would  only  be  true  if  lunatics  were  reduced  to  the  state  of  automata, 
or  mere  machines.  Every  practical  alienist  knows  that  this  is  not  so. 
Le  Grand  du  Saulle,  who  has  subjected  Marc  to  a  very  searching  crit- 
icism on  this  point,  shows  that  the  will  alone  was  not  involved  in 
the  very  cases  which  Marc  brought  forth  as  examples.     For  instance, 

15.^  Do  la   Folic,   Consideree  dans  ses  especially  when  such  loss  is  caused  by 

Rapports,    .avec    les    Questions    Medico-  insanity,  implies  much  more  than  a  de- 

judiciaires,  Paris,  1841.  feet  in  the  action  of  anj'  one  faculty  of 

15^  Sir    Fitzjames    Stephen    (History  the  mind.     For  instance,  when  a  man  is 

Crim.    Law,    Vol.    II.    Chap.    XIX.)    al-  impelled  by  a  delusion,  he  may  not  have 

ways    insisted    that    "loss    of    self-con-  power  to  control   himself  by  the  usual 

trol"  should  be  made  an  element  in  the  standards  of  conduct,  but  it  is  not  his 

test   for   criminal    lunacy.     But   that    is  will   alone  that  is  affected.     With   such 

not  quite  the  same  thinf,'  as  sayin<,'  that  an    interpretation    of   the   term.   Justice 

insanity  consists  in  a  disease  exclusive-  Stephen's  test  is  much  nearer  the  truth 

ly  of  "the   will."     Loss  of  .self-control,  than  moat  lefral  tests. 


§  569]  THE  METAPHYSICAL  CONCEPTION  OF   INSANITY.  581 

a  woman  became  melancholy  and  taciturn,  then  had  spells  of  excite- 
ment, turned  against  her  husband,  and  ended  by  believing  that  she 
was  the  daughter  of  Louis  XVI.  and  Marie  Antoinette.  Yet  Marc 
finds  in  this  typical  case  of  delusional  insanity  a  primary  affection 
of  the  will !  In  fact,  as  Du  Saulle  says,  the  will  was  not  only  not 
alone  diseased,  but  even  more  nearly  sound  than  the  other  faculties. 
This  is  a  striking  instance  of  the  evils  of  trying  to  erect  metaphysical 
types  of  mental  disease  on  any  one  or  other  individual  mental  faculty. 
So  far  from  being  abolished  or  impaired,  the  will,  or  the  firm  inten- 
tion to  act  in  response  to  a  delusion,  is  one  of  the  clearest  characteris- 
tics of  some  lunatics. 

570.  Monomania  is  an  invention  of  the  etymologists. — The  term 
''monomania"  is  one  of  the  best  illustrations  of  the  facility  with 
which  mere  terms  can  be  made  to  do  service  as  actual  things 
in, the  science  of  psychiatry.  Originally  proposed  by  Esquirol,  that 
great  master  in  our  science,  this  term  has  been  made  to  do  duty  by 
standing  for  many  impossible  things.  The  history  of  the  term  it- 
self, and  the  criticisms  which  have  been  evoked  by  it,  are  admirably 
described  by  Dr.  Spitzka^*'  in  his  work  on  insanity.  As  the  ety- 
mology of  the  word  signifies,  monomania  is  a  form  of  insanity  in 
which  a  patient  is  supposed  to  be  insane  only  on  one  subject.  From 
this  conception,  which  is,  in  a  sense,  proper  enough,  it  is  easy  to 
form  the  idea  that  a  man  is  insane  in  only  a  limited  territory  of 
his  mind,  or  only  in  one  little  corner  of  it,  and  to  hold  him  responsible 
for  what  happens  in  the  open  territory.  The  conception  thus  fitted 
in  very  accurately  with  Lord  Hale's  definition  of  "partial"  insanity, 
and  these  two  terms  have  conjointly  been  responsible  for  much  con- 
fusion and  not  a  little  injustice  in  English  and  American  courts. 
The  attempt  has  been  made  many  times  to  lay  down  the  rule  that 
a  monomaniac's  crime  must  be  traced  to  the  "one  idea"  upon  which 
alone  he  is  supposed  to  be  insane.  It  is  as  though  a  lunatic's  mind 
were  ninety-nine  parts  sound  and  one  one-hundredth  part  diseased ; 
and  the  insane  acts  must  all  be  shown  to  issue  from  this  little  patch 
of  infection.  To  perform  such  impossible  feats  of  psychological  an- 
alysis is  the  part  imposed  on  the  expert.  It  were  as  reasonable  to  say 
that  a  patient  with  typhoid  fever,  or  with  Bright's  disease,  or  with 
tuberculosis  of  the  lungs,  was  only  "partially"  ill  because  all  his 
organs  were  not  equally  involved ,  or  to  indorse  the  diagnosis  which 
Hamlet  made  of  his  own  case: 

I  am  but  mad  nortli-northwest; 
When  the  wind  is  soutlierly  I  know  a  liawk  from  a  hand  saw. 

"  Insanity.     New  York.  1883. 


582  INSANITY— FORMS  AND  MEDICOLEGAL  ASPECTS.  [§  571 

571.  Moral  insanity  is  a  product  of  dialectics. — Moral  insanity  is 
the  subject  around  which  have  waged  more  dialectic  battles  than 
about  any  other  term  in  psychiatry.  It  is  only  necessary  to  mention 
the  names  of  Rush  and  Pritchard,  of  Winslow,  Ray,  and  Maudsley, 
as  the  advocates  of  this  psychosis,  to  dignify  the  contest.  The  con- 
ception is  based  upon  a  purely  academic  analysis  of  the  moral  func- 
tions as  distinct  from  all  other  mentaf  functions,  and  upon  the  claim 
that  these  moral  functions  can  be  diseased  separately  and  apart  from 
the  others.  I  suppose  that  the  best  refutation  of  this  thesis  is  based 
upon  a  criticism  of  the  cases  which  these  eminent  writers  bring  for- 
ward to  illustrate  and  support  it.  I  have  been  at  pains  to  go  over 
these  cases,  and  I  am  prepared  to  claim  that  there  is  not  one  of 
them  which,  if  critically  inspected,  supports  the  claim.  Nothing 
can  show  more  clearly  how  inadequate  the  term  is  than  the  array 
of  all  sorts  of  lunatics  who  have  been  marshaled  to  support  it.  Cases 
of  melancholia,  of  maniacal  exaltation,  and  especially  of  paranoia, 
have  been  made  to  do  duty  here,  until  the  result  is  a  complete  con- 
fusion of  any  rational  scheme  of  nosology.  The  fault  lies  in  the  at- 
tempt to  divide  the  human  mind  into  compartments,  and  to  inclose 
in  each  compartment  its  appropriate  diseases.  The  attempt,  being 
an  essentially  metaphysical  one,  will  fail,  and  already  has  failed, 
for  little  now  is  heard  of  moral  insanity;  and  I  do  not  know  oi  an 
instance  for  many  years  in  which  this  defense  has  been  urged  suc- 
cessfully in  a  court  of  law.^^s  It  is,  however,  more  than  a  mere  dia- 
lectical question :  it  does,  or  has  done,  great  harm  by  depriving  some 
paranoiacs  of  a  just  defense.  It  should  be  recognized  that  none  of 
these  patients  are  merely  affected  in  their  moral  sense,  but  that  the 
intelligence,  as  an  integral  part  of  mental  phenomena,  is  always 
and  necessarily  involved. 

572.  It  is  also  a  boomerang.— Moreover,  the  magnifying  the  moral 
sense  as  a  criterion  in  insanity  acts  like  a  boomerang  on  expert  tes- 
timony, and  leads  directly  to  the  test  of  insanity  which  has  been  im- 
posed by  so  many  courts.  This  is  the  test  of  the  knowledge  of  right 
and  wrong.  This  test  is  no  more  illogical,  but  in  fact  it  is  of  the 
same  sort,  as  the  doctrine  of  moral  insanity.  Both  are  based  upon 
the  conception  of  the  moral  sense  as  a  sort  of  separate  organ  in  the 
human  mind.     If  this  organ  is  diseased,  the  patient  is  insane;  if  it 

i6|  Taylor    (Med.   Jur.    lltli   Am.   cd.  Dol-   in   lioardman  v.   Woodman,  47   N. 

V-  C77)  gives  references  to  some  cases  in  IL    1,50,    for    a    judicial    recognition    of 

which    moral    insanity   has   been    reco<f-  tliis  mentaJ  disease. 
Tiized    in   the   courts.     See   also   .Justice 


§  572]  THE  MKrAPlIYSICAL  CONCEPTION  OF   INSANITY.  583 

is  not  diseased,  he  is  legally  responsible.  Since  Mr.  Justice  Tracy, 
in  the  case  of  Arnold,  tirst  promulgated  this  test,  it  has  gone  a  course 
through  every  English  and  American  court  for  nearly  two  hundred 
years.  It  was  sanctified  by  the  opinion  of  the  English  judges  in  the 
celebrated  M'Naghlen  Case,  and  starts  up  to  confront  every  expert 
witness  who  goes  on  the  stand  in  a  case  of  criminal  lunacy.  It  al- 
most evades  analysis ;  for  there  is  probably  no  lunatic,  unless  he  be  a 
hopeless  dement  or  in  a  complete  delirium,  who  has  not  some  per- 
ception of  right  and  wrong.  It  in  no  sense  touches  the  point  at  issue 
in  any  case;  and  the  reflection  is  a  curious  one,  that,  although  sane 
men  have  been  arguing  for  ages  about  what  really  constitutes  the 
distinction  between  right  and  wrong,  the  knowledge  of  this  distinc- 
tion should  be  made  the  test  for  a  poor  lunatic. 

573.  Insanity  not  an  abstraction,  but  a  disease. — In  conclusion,  in- 
sanity is  a  disease,  not  of  abstract  mental  qualities,  but  of  the  or- 
ganic brain  cells ;  and  a  disease  in  a  nerve  cell  is  not  likely  to  respect 
scholastic  distinctions.  As  Le  Grand  du  Saulle^'  has  wisely  said: 
''In  spiritualizing  insanity  too  highly  one  arrives  at  false  medical 
consequences.  It  is  not  as  a  philosopher  that  one  should  study  in- 
sanity, but  as  a  physician.  By  way  of  the  clinic  one  arrives  more 
surely  than  by  all  the  seductive  theories  at  scientific  applications 
which  mark  progress," 

"  Traite   de   Medecine  Legale,   deuxi- 
6me  ed.   Paris,  p.   689. 


CHAPTER  XXX 

THE  SCIENTIFIC  CONCEPTION  OF  INSANITY. 

L  In  genebax. 

574.  Insanity  is  a  disease. 

575.  The  scientific  conception   stated. 
n.  Causes  of  insanity. 

576.  Heredity. 

577.  The  difficulty  of  ascertaining  heredity. 

578.  Statistics  not  always  reliable. 

579.  Two  modes  of  transmission. 

580.  Heredity  is  not  a  fixed  rule. 

681.  Heredity  is  to  be  traced  through  all  the  lines  of  descent. 

582.  Criminality  and  insanity. 

583.  No  distinct  type  of  hereditary  insanity. 

584.  A  matter  of  statistics. 

585.  The  influence  of  race  and  nationality. 

586.  The  influence  of  sex  and  age. 

587.  Occupations,  climate,  and  seasons. 

588.  Religion   often   a   potent   cause. 
689.  The  influence  of  alcohol. 

590.  Alcoholism  and  crime. 

691.  The  influence  of  infectious  diseases. 

592.  Syphilis  as  a  cause  of  insanity. 

593.  The  various  metals. 

594.  Moral  and  emotional  causes  are  sometimes  active  in  insanl^. 
695.  Injury  to  the  brain. 

596.  Miscellaneous   causes. 

597.  Disturbed  nutrition  of  the  brain. 
III.  The  pathology  of  insanity. 

598.  A  purely  technical  subject. 

599.  Functional  and  organic  diseases. 

600.  A   sign   of   the   progress   of   mental   pathology, 

601.  The  morbid  anatomy. 

602.  An  obscure  problem. 

603.  The  organic  changes  in  the  brain. 

604.  The  general  law  of  mental  pathology. 

605.  Bacteriology  and  insanity. 

606.  Conclusion. 

I.   In  geneeal. 
674.  Insamty  i»  a  disease. — For  the  scientist,  insanity  is  a  physi- 

5S4 


§  574]  THE   SCIENTIFIC   CONCEPTION   OF   INSANITY.  585 

cal  disease.  It  is  an  affection  of  the  organic  brain  in  the  same  sense 
that  a  fever  is  an  affection  of  the  body,  No  longer  is  it  permissible 
to  say  that  insanity  consists  merely  in  an  aberration  of  the  under- 
standing, and  that  the  causes  which  produce  it  belong  to  an  order  of 
phenomena  that  have  nothing  to  do  with  the  laws  of  matter,^  We 
no  longer  stop  seriously  to  consider  the  opinions  of  Heinroth  and 
other  extremists  of  the  spiritual  school,  who  said  that  insanity  never 
depends  on  a  physical  cause, — that  it  is  not  a  disease  of  the  body, 
but  a  disease  of  the  mind.  To  such  absurdities  did  those  zealots 
proceed  in  their  aversion  to  materialism  that  they  proclaimed  that 
insanity  is  never  hereditary,  "because  the  thinking  ego,  the  soul,  is 
not  hereditary,  "^2 

575,  The  scientific  conception  stated, — The  scientific  conception  of 
insanity  is  just  the  reverse  of  this.^S  In  not  a  few  cases  the  scientist 
can  demonstrate  infallibly  the  lesion  in  the  brain  which  causes  in- 
sanity ;  and  if,  in  a  large  proportion  of  cases,  he  cannot  reveal  the  ac- 
tual organic  changes,  he  is  quite  convinced  that  merely  his  methods 
are  at  fault,  and  not  his  reasoning.  If  he  cannot  observe  minute 
(changes  in  the  living  structure  of  the  brain,  it  is  not  because  such 
changes  do  not  occur.  The  physiological  processes  in  a  nerve  cell 
cannot  be  exposed  under  a  microscope  any  more  clearly  than  can 
the  chemical  reaction  between  an  acid  and  a  base;  but  there  is  no 
more  reason  to  doubt  the  one  than  the  other.  We  cannot  trace  the 
electric  current  by  any  change  that  it  leaves  in  the  wire  that  trans- 
mits it,  but  we  do  not  doubt  its  material  quality.  So  in  the  physi- 
ology and  pathology  of  the  brain, — we  have  to  do  with  a  physical 
science.  In  the  medical  jurisprudence  of  insanity  we  deal  with  mat- 
ters of  fact  and  with  the  facts  of  matter.  This  is  no  idle  play  upon 
words:     if  the  one  term  is  legal,  the  other  is  scientific. 

From  the  scientific  standpoint  we  study  insanity,  first,  in  its 
causes;  and,  second,  in  its  pathology. 

II,  The  causes  of  insanity. 

576.  Heredity. — The  first  great  cause  of  insanity  is  heredity.     Ri- 

^  This    was    the    definition    of    Lenret  parently  have  never  attempted  the  im- 

(quoted  by  Ribot,  Heredity,  p.  120).  possible  feat  of  defining  "matter."     Let 

li  Huxley  has    written    a    lecture    on  thcni    read    Huxley,    and,    better    still, 

"The  Physical  Basis  of  Life"    (Lay  Ser-  David  Hume. 

mous,  N.  Y.  1871).,  in  which  he  shows  ig  Buckle  (History  of  Civilization, 
how  baseless  and  unphilosophical  is  the  Vol.  I.  p.  G58)  points  to  the  work  of 
objection  to  the  biological  sciences  on  Pinol,  Georget,  and  Esquirol,  as  mark- 
the  score  of  "materialism."  This  term  ing  an  epoch  in  recognizing  that  men- 
is  used  freely  by  many  persons  who  ap-  tal  diseases  are  subject  to  natural  law, 


586  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  576 

bot-  has  defined  heredity  as  "that  biological  law  by  which  all  beings 
endowed  with  life  tend  to  repeat  themselves  in  their  descendants,"' 
It  is  a  universal  law  of  organic  life.  Without  it  there  could  be  no 
perpetuity  of  organic  forms;  everything  would  fall  into  confusion 
and  anarchy;  species  and  genera  not  only  could  not  exist,  but  they 
never  could  have  been  evolved.  Heredity  is  the  starting  point  of 
evolution,  and,  at  the  same  time,  the  preserver  of  the  animate 
kingdom.  It  binds  together,  directs,  and  perpetuates  all  the  forces 
of  life.  Moreover,  while  it  is  the  most  conspicuous  force  in  nature, 
— always  active,  always  present:  now  in  the  generation  of  a  worm, 
and  again  in  the  birth  of  a  human  being,— it  is  by  far  the  most  mys- 
terious, and  the  most  unlikely  to  be  speedily  understood. 

But  if  heredity  is  thus  the  preserving  and  salutary  law  of  or- 
ganic matter,  it  is  also  a  blind  tyrant,  and  one  which  acts  often  with 
the  precision  of  a  relentless  fate.  It  imposes  upon  its  victim  the  de- 
fects as  well  as  the  endo^vments  of  preceding  generations,  so  that  the 
sins  of  the  fathers  are  visited  upon  the  children  to  remote  genera- 
tions.    This  is  the  lesson  of  mental  patholog}'. 

577.  The  difficulty  of  ascertaining  heredity. — It  is  not  easy  to  ar- 
rive at  positive  conclusions  about  the  jDrevalence  of  heredity  in  in- 
sanity. This  is  for  two  reasons :  In  the  first  place,  many  persons 
are  ignorant  of  their  family  histories.  Few  individuals,  even  the 
best  born,  can  tell  of  what  diseases  their  grandparents  died;  and 
when  the  inquiry  is  carried  farther  back,  the  results  are  entirely  neg- 
ative :  the  history  of  hereditary  disease  is  soon  involved  in  an  im- 
penetrable cloud.  And  yet,  by  a  careful  study  of  documents  and 
traditions,  we  can  sometimes  catch  a  glimpse  through  rifts  in  this 
cloud.  We  may  have  the  advantage,  moreover,  of  the  records  of  asy- 
lums and  hospitals,  which  often  reveal  a  hidden  or  lost  history. 

In  the  second  place,  many  insane  persons,  and  more  especially 
their  friends,  conceal  a  family  history  of  insanity,  or  seek  to  gloss 
it  over.  This  is  a  common  trait  of  human  nature.  Physicians  know 
full  well  how  cautiously  they  must  receive  the  statements  of  relatives 
on  this  delicate  subject.  A  gentleman  who  had  always  supposed 
that  he  had  an  exceptionally  good  family  history  was  elected  a  man- 
ager of  the  Pennsylvania  Hospital  for  the  Insane;  having  his  at- 
tention thus  called  to  this  subject,  he  looked  up  the  records,  and  was 
surprised  and  chagrined  to  find  that  within  a  century  he  had  had 
a  number  of  blood-relatives  immured  in  that  institution. 

just  as  are  all   other  phenomena.      See        '  Op.   cit.  p.   1. 
his  footnotes. 


§  578]  THE   SCIENTIFIC   CONCEPTION   OF   INSANITY.  587 

578.  Statistics  not  always  reliable. — For  these  two  reasons  statis- 
tics are  not  always  as  reliable  as  could  be  desired ;  and  it  is  probable 
that  heredity  is  a  much  more  prevalent  cause  of  insanity  than  the 
figures  show.  We  are,  in  other  words,  obliged  to  study  the  subject 
of  heredity  at  comparatively  short  range;  but,  even  with  this  limi- 
tation, the  results  are  significant  in  the  extreme. 

579.  Two  modes  of  transmission. — Insanity  may  be  transmitted  in 
two  ways:  It  may  be  transmitted  directly  from  an  insane  ancestor, 
or  it  may  be  conveyed  by  transformation,  or  from  an  ancestor  who 
had  been  afflicted  with  some  other  grave  nervous  disorder,  such  as 
neurasthenia,  hysteria,  epilepsy,  or  alcoholism.  This  is  an  indica- 
tion that  the  neurotic  taint  is  fundamental,  and  that  from  this  found- 
ation the  insanity  CA^olves.  Thus,  it  may  be  the  product  of  an  evolu- 
tion acting  through  generations.  Georget  observed  many  years  since 
in  the  Saltpetriere  at  Paris  that  hysterical  women  had  among  their 
near  kindred  not  only  hysterics  but  also  epileptics,  hypochondriacs, 
lunatics,  and  the  deaf  and  dumb.  Briquet^  demonstrated  the  truth 
of  this  fact  by  a  statistical  study.  His  first  table  showed  that  351 
hysterical  women  had  1,103  near  relatives  Avhose  histories  could  be 
traced.  Of  these  relatives  there  were  214  hysterics,  13  epileptics,  16 
insane,  14  with  convulsive  diseases,  3  somnambulists,  and  12  with 
other  nervous  affections, — a  result  of  25  per  cent.  His  other  table 
showed  that  healthy,  nonhysterical  women  had  but  2  1/8  per  cent 
of  neurotic  relatives.  His  table  was  composed  of  hysterical  patients, 
but  it  illustrated  a  law  of  heredity  that  applies  as  well  to  insanity. 
I  once  saw  a  young  woman,  an  only  daughter,  with  hysterical  paraly- 
sis, who  afterwards  became  insane.  Her  only  brother  was  an  epilep- 
tic, her  father  was  a  chronic  inebriate,  and  her  mother  had  the 
marked  eccentricities  of  a  mild  grade  of  paranoia.  This  transforma- 
tion by  heredity  of  one  nervous  disease  into  another  is  in  accord  with 
the  constitutional  taint;  this  weakness  or  defect  of  the  nervous  sys- 
tem is  a  complex,  not  a  simple,  phenomenon. 

580.  Heredity  is  not  a  fixed  rule. — But  heredity  does  not  act  Avith 
mathematical  precision.  Given  an  insane  parent,  it  does  not  follow 
that  all  the  children  will  inevitably  be  insane.  Neither  does  it  fol- 
low that  the  heredity  is  necessarily  shown  from  parent  to  child 
through  a  number  of  generations.  It  is  comparatively  rare,  even  in 
cases  in  which  there  is  a  well-marked  family  history  of  insanity,  to 
observe  that  the  transmission  follows  unerringly  the  line  of  lineal 

'  Traits  Clinique  et  Thgrapciitique  de 
I'Hysterie.  Paris,  1859,  p.  79. 


688  INSANITY— FORMS    AND   MEDICO-LEGAL   ASPECTS.  [§  580 

descent.  The  collateral  branches  must  always  be  searched  to  make 
the  investigation  complete.  This  fact  is  usually  recognized  even  in 
the  courts.  The  phenomenon  called  "atavism"  is  sometimes  seen,  in 
which  the  transmission  is  from  grandparent  to  grandchild,  the  inter- 
vening parent  escaping.  Bucknill  has  attempted  to  belittle  the  im- 
portance of  heredity,  and  has  argued  that,  if  insanity  be  so  easily 
transmitted,  so  many  children  would  not  escape.  It  would  be  as  rea- 
sonable to  argue  that  all  the  children  in  a  family  should  have  the 
same  stature  or  the  same  color  of  hair.  The  law  of  variation  goes 
side  by  side  with  the  law  of  heredity ;  this  is  universally  recognized. 
But  a  positive  fact  is  worth  more  than  many  negative  ones,  and  the 
accumulation  of  positive  facts,  proving  heredity  in  insanity,  is  so 
vast  as  not  to  be  shaken  by  such  a  sophistical  argument.  This  truth 
is  sho^vn  in  cases  in  which  mere  physical  defects  are  transmitted. 
The  Colburn  family,  during  four  generations,  presented  many  cases 
of  scxdigitism  (a  supernumerary  finger  and  toe)  ;  but  not  all  mem- 
bers of  the  family  had  this  abnormity,  and,  in  fact,  it  tended  to  de- 
crease in  succeeding  generations.*  Dr.  Bucknill  would  scarcely 
maintain  that  this  freak  of  nature  was  not  hereditary,  so  far  as  it 
went.^ 

As  every  succeeding  generation  has  a  new  admixture  of  blood,  it 
is  evident  that  no  two  generations,  or  no  two  collateral  branches  even 
of  the  same  generation,  have  the  same  hereditary  factors.  Hence, 
variations  occur;  but  the  insane  streak,  like  a  discolored  thread  in 
the  texture  of  a  garment,  can  often  bo  traced  with  certainty." 

581.  Heredity  is  to  be  traced  through  all  the  lines  of  descent. — The 
error  is  often  made  of  attempting  to  trace  heredity  backward  through 
only  one  line  of  descent.  When  discordant  results  are  obtained,  the 
cry  is  raised  that  there  is  nothing  in  this  doctrine.  Eminent  and  vir- 
tuous men  often  have  unworthy  sons.  "By  what  freak  of  nature," 
exclaims  M.  Ribot,  "did  two  fools  like  t*axalos  and  Xantippos,  and 
a  maniac  like  Clinias,  spring  from  Pericles?"  Thucydides  had  one 
son  who  was  silly  and  another  who  was  stupid.  Germanicus,  wise 
and  humane,  had  for  a  son  the  infamous  Caligula;  Vespasian  had 

*  Burdiicli,  I'liysiolofjie,  A'^ol.  IT.  p.  2ol.  in  tlicse  pajres.    Galtoii's  book  on  Hered- 

'  I  liave  seen  an  instance  of  tliis  poly-  itary  Genius  is  an  example  of  tlie  statis- 

dactylism  in  a  cat  transmitted  to  only  tical    method.     He   fonnd.    for    instance. 

one   kitten    in    a    whole    litter.     It    was  that  of  28G  English  judfjes    (from   IfiOO 

evidently  hereditary  in  that  kitten.     For  to   ISIk"))    112  had  one  or  more  illustri- 

an    instunce    in    which    six   fingers   were  ons    kinsmen. — a    ratio    exceeding   1  :.3. 

hereditary,  see  the  London   Lancet,  Oc-  This  was  a  striking  result,  for  such   a 

tober  22,  1004,  p.  llfiS.  ratio   is.    of   course,    much    higher    than 

"The    relation    of    heredity    to   genius  for  the  population  in  general. 
does  not  fall  within  the  scope  of  inquiry 


5  581]  THE   SCIENTIFIC   CONCEPTION  OF  INSANITY.  589 

Domitian ;  and,  greatest  contrast  of  all,  Marcus  Aurclins,  statesman 
and  philosopher,  had  the  degenerate  Commodiis.  Neither  Shake- 
ispeare  nor  Goethe  had  a  descendant  worthy  of  his  name.  But  to 
this  argument  it  is  easy  and  pertinent  to  reply,  that  the  sons  of  the:-;j 
great  men  derived  one  half  of  their  heredity  from  the  maternal  side, 
and  that  in  none  of  these  cases  has  the  result  of  an  exact  study  of  all 
the  contril)uting  factors  come  down  to  us. 

582.  Criminality  and  insanity. — The  relation  of  criminality  to  in- 
sanity is  revealed  by  a  study  of  heredity.  It  is  not  uncommon  to 
iind  these  two  stains  in  the  same  family.  The  same  is  true  of  ine- 
briety and  insanity.  Howe,"^  in  his  study  of  idiocy  in  Massachusetts, 
found  114  idiots  whose  parents  were  known  to  be  habitual  drunk- 
ards; 211  with  near  relatives  either  insane  or  idiotic;  49  with  one 
near  relative  idiotic;  and  50  whose  parents,  one  or  both,  were  either 
insane  or  idiotic.  These  various  departures  from  the  norm  proceed 
often  from  a  common  ground  of  degeneracy.'^ 

583.  No  distinct  type  of  hereditary  insanity. — Although  lioredity  is 
such  an  important  factor  in  the  causation  of  insanity,  it  does  not  de- 
termine any  one  particular  fonn  of  insanity;  a  form,  for  instance, 
which  can  be  called  hereditary,  as  distinct  from  other  forms.  In 
other  words,  there  is  no  special  hereditary  insanity.  Heredity 
shows  itself  in  various  forms,  although  it  is  more  common  in  what 
is  called  the  degenerative  group.  Morel,  who  wrote  so  much  on  de- 
generation in  insanity,  was  inclined  to  contend  for  such  a  special 
heredity  form,  but  he  has  not  been  followed  by  others.  Krafft-Eb- 
ing,^  in  this  connection,  points  out  the  distinction  between  an  hered- 
itary predisposition,  and  an  hereditary  defect.  In  the  case  of  a 
mere  predisposition,  the  attack  of  insanity  does  not  differ  from  an 
attack  of  nonhereditary  insanity,  except  that  it  may  occur  at  an  early 
age,  after  accidental  causes,  with  abrupt  onset,  and  usually  with  a 
favorable  termination;  but  in  the  case  of  an  hereditary  defect,  or  de- 
generacy, the  form  of  insanity  is  more  grave,  more  deep-seal:od,  and 
more  unfavorable. 

The  records  of  the  notorious  Juke  family  for  seven  generations, 
including  540  persons  of  direct  descent  from,  and  169  related  by 
marriage  to,  one  "Margaret"  and  her  drunken  husband,  reveal  280 

'Reports,   1848,  p.  45.  knowledged    fnct." — Kerr,    Inebriety,    p. 

■"'The  heredity  of  alcoholism   is  now  157. 

heyond  dispute.    It  is  no  mere  dream  of  "  Lehrbuch       des       Psychiatrie,      also 

an  abstemious  enthusiast,  but  the  oper-  Traite  Clinique,  traduit  par  Laui'ent,  p. 

ation  of  a  natural  law;  no  fanciful  ere-  198. 
at  ion  of  a  neplialian  brain,  but  an  ac- 


590  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§  583 

paupers,  140  criminals  and  prostitutes,  encompassing  115  different 
kinds  of  crime,  including  highway  robbery  and  seven  murders,  in- 
curring a  cost  estimated  at  $1,308,000.  These  records  do  not  show 
the  proportion  of  insane  persons,  but  it  must  have  been  very  consid- 
orable.i^ 

584.  A  matter  of  statistics. — The  exact  relation  of  heredity  to  in- 
sanity is  a  matter  of  statistics.^ ^  Keports  vary.  Maudsley  says 
that  from  one  fourth  to  one  half  of  the  insane  have  the  hereditary 
taint.  Sankey  says  one  fifth,  but  this  is  far  too  low.  From  a  re- 
port made  to  the  French  government,  in  1861,  it  appeared  that  530 
out  of  1,000  insane  patients  had  a  history  of  heredity. ■'^  Such  re- 
ports have  different  values  in  different  countries,  according  to  the 
accuracy  with  which  cases  are  studied.  Griesinger  claimed  that  in 
the  Orient  many  of  the  wandering  mendicants  and  religious  fakirs 
are  insane  persons. 

585.  The  influence  of  race  and  nationality. — This  is  discernible. 
It  is  well  known  that  the  Jews  are  particularly  subject  to  nervous 
disorders  and  insanity.  The  struggle  for  existence  in  our  modern 
civilization  levies  a  heavy  toll  on  the  human  brain.  Insanity  seems 
to  increase  with  the  progress  of  the  years.  The  insane  in  the  United 
States,  in  1860,  numbered  1  to  every  1,310  of  the  inhabitants;  in 
1870,  1  to  every  1,100;  in  1880,  1  to  every  570.  Between  1850  and 
1880  the  population  doubled,  and  insanity  increased  six  fold.  In 
the  decade  from  1870  to  1880,  the  increase  in  population  was  30  per 
cent  and  the  increase  in  insanity  was  155  per  cent.  In  England 
and  Wales^  in  1859,  there  were  186.7  insane  per  100,000  of  popu- 
lation, as  against  279.4  in  1880;  and  in  Scotland  157  as  against  217 
per  100,000  of  population.  •  Schooling,  of  the  Royal  Statistical  So- 
ciety, declares  that  1  in  every  306  of  the  population  in  Great  Britain 
is  insane.^^  These  figures  are  somewhat  disquieting,  but  it  must  be 
borne  in  mind  that  in  the  last  half -century  the  care  of  the  insane  has 

'"Drjllims,  The  Criminal,  p.  137.     The  "  Hagon,  Statistische  Untersuchungen 

original    study    of    the    Jukes     Family  iiber  Geistes  krankheiten.  1876.     Statis- 

was   by   11.   L.   Dugdalo,   and   was   pub-  tics  of  insanity  are  to  be  gathered  from 

lishod    in    the    20th    annual    report    of  the     reports     of     asylums,    census    and 

the   New  York   Prison   Commission,   re-  health     reports,     etc.     They     are     thus 

printed  by  Putnam's  Sons.     See  also  a  widely     scattered.     They     require     too 

curious   little   book   by   A.   E.    Winship  much  space  to  be  included  at  any  great 

fl!)O0)   on  "Jukes-Edwards,"  in  which  a  length  in  the  text, 

contra.'it   is  made  between   the  descend-  "Pibot,  op.  cit.  p.   131. 

ants  of  the  Jukes,  and  the  descendants  '^  Drilhms,  op.  cit.  p.  181.     This  work 

of   the  great  theologian.   Jonathan   Ed-  contains  many  statistics, 
wards.     The    Edwards    family  has    fur- 
nished many  prominent  persons  in   the 
state  and  in  education. 


§  585]  THE   SCIENTIFIC   CONCEPTION  OF    INSANITY.  591 

greatly  improved,  and  a  much  larger  proportion  of  these  patients 
are  now  iu  asylums,  and  therefore  counted,  than  was  formerly  the 
case. 

586.  The  influence  of  sex  and  age. — This  is  also  described,  but 
these  are  predisposing  rather  than  exciting  causes  of  insanity. 
Women  run  a  special  risk  in  pregnancy,  child-birth,  and  lactation;^* 
while  men  are  more  exposed  to  the  struggle  for  existence  and  to  ex- 
cesses in  the  use  of  alcohol  and  in  venery.  Children  do  not  often  go 
insane,  but  puberty  is  a  critical  period  in  hereditary  cases,  and  old 
age  has  its  special  form  of  dementia.  These  two  factors,  sex  and 
age,  act  in  many  and  various  ways,  but  usually  in  a  subordinate  role 
to  more  active  and  exciting  causes. 

587.  Occupations,  climate,  and  seasons. — Among  the  predisposing 
causes  are  also  occupations,^''  and  the  influence  of  climate  and  sea- 
sons. These  are  worthy  of  full  consideration  in  an  exhaustive  study 
of  causes,  and  are  given  due  place  in  the  schemes  of  those  who  have 
written  fully  on  etiology,  but  for  our  present  purpose  it  is  only  neces- 
sary and  possible  to  allude  to  them  in  passing.^ ^2 

588.  Religion  often  a  potent  cause. — The  influence  of  religion  is  a 
subject  of  importance,  but  care  should  be  observed  to  avoid  a  com- 
mon error  in  this  respect.  Many  insane  persons  are  disturbed  or 
alienated  on  religious  topics,  but  it  does  not  follow  therefore  that  re- 
ligion is  the  sole  cause  of  the  insanity.  The  insane  evolve  their  de- 
lirious ideas  from  their  environment.  The  morbid  disturbance, 
often  induced  by  heredity,  furnishes  the  true  soil  in  which  religious 
delusions  flourish.  A  woman  may  hear  a  particularly  lurid  sermon 
on  hell-fire,  and  immediately  conceive  the  delusion  of  the  unpardon- 
able sin ;  but  a  strict  inquiry  might  show  that  she  had  previously  been 
suffering  with  the  incipient  symptoms  of  melancholia.  In  such  a 
case  the  sermon  is  a  contributing  cause  of  an  outbreak  of  insanity, 
but  not  its  essential  cause.  On  the  other  hand,  abnormal  religious 
excitement,  or  depressive  orthodoxy  taken  too  seriously,  is  doubtless 
responsible  for  much  disorder  of  mind ;  and  whether  we  call  it  an  es- 
sential or  only  a  contributing  cause,  the  fact  remains  that  supernat- 
uralism  in  religion  must  bear  its  share  of  responsibility  for  the  cau- 
sation of  insanity.^ ^     So  intricate,  however,  is  this  subject  that  we 

"  Lloyd,  Am.  Syst.  of  Obstetrics,  Vol.  given  a  most  careful  and  detailed  study 

II.  p.  545.  of   the     causes    of    insanity,   and   those 

"  Lloyd,  The  Diseases  of  Occupations,  readers  who  wish  to  pursue  this  subject 

20th  Cent.  Pract.  of  Med.  Vol.  III.  p.  are  referred  to  that  work,  or  its  French 

309.  translation. 

15J  Krafft-Ebing,  in  his  Lehrbuch,  has  "  Fiske,  Myths  and  Myth-Makers. 


o!)2  IN SAMTY— FORMS   AND    MEDICO-LEGAL    ASPECTS.  [§   588 

should  not  forget  that  many  mystics,  bigots^  and  fanatics  are  by  na- 
ture ill-balanced,  and  that  if  religious  excitement  is  sometimes  the 
cause  of  insanity,  so,  too,  on  the  other  hand,  is  insanity  sometimes  the 
cause  of  religious  excitement.  There  is  historic  ground  for  believing 
that  ]\Iahomet  was  neurotic,  or  even  worse,  to  begin  with.  A  com- 
mon cause  of  hysteria  in  all  ages  has  been  religious  emotion. ^^^2  This 
is  seen  in  this  country,  among  the  devotees  of  the  more  emotional 
sects.  It  is  not  uncommon  to  observe  this  cause  among  negroes  (and 
even  white  people)  in  their  camp-meetings  and  revival  services. 
These  epidemics  of  hysteria,  complicated  sometimes  with  insanit}-, 
assumed  immense  importance  and  great  proportions  during  the  mid- 
dle ages;  their  history  has  been  written  by  Charcot  and  Paul 
Richer.^^5  They  depended  largely  on  one  principle,  which  ought 
never  to  be  forgotten,  and  which  still  has  importance  every  day, — 
the  principle  of  imitation.^ '^ 

589.  The  influence  of  alcohol. — Among  the  exciting  causes  of  in- 
sanity alcohol  takes  front  rank.  Since  Magnus  liuss,  a  Swedish 
physician,  wrote  his  classical  work  on  chronic  alcoholism,^^  this  poi- 
son has  been  widely  recognized  as  of  the  first  importance.  Among 
the  ancients  tlie  use  of  alcoholic  drinks  was  widely  prevalent,  but  the 
ancients  had,  as  a  rule,  only  the  fermented  juice  of  the  grape.  It 
was  not  until  the  eleventh  century  that  the  process  of  distilling  the 
spirit  of  wine  was  discovered  by  the  Arabs,  who  gave  to  this  fluid 
the  name  of  alcohol.^''  The  process  of  distilling  alcohol  from  many 
and  various  substances,  and  putting  it  upon  the  market  at  a  low 
price,  is  largely  a  modern  art;  and  therefore  the  use  and  abuse  of 
strong  alcoholic  drinks  give  a  special  character  in  this  age  to  the  dis- 

i6iA     very    instructive    book    is     by  Deicum,   art.   "Hysteria,"   by   Lloyd,   p. 

Re^jnier    on  "Hypnotism    et    Croyances  93. 

Anciennes    (Paris.   1891),   in  Avhich   the  "Alcoholismus  Chronicus,  Stockholm, 

patholog}^  of  religious  emotion  is  traced  1852. 

til  rough  many  of  the  ancient  rites.  '"The   statement   in   the   text   follows 

i«.^,  Les      Demoniaques       dans       I'Art  tlie  ordinary  opinion,  but  Berthelot  has 

(1887);    Les   Malades   et   les   Difformes  written  a  learned  essay  on  "La  Decou- 

dnns    I'Art     (1889);    fitudes     Cliniques  verte   de    I'Alcool"    (Science    et   Morale, 

sur    la    Grande    Hysterie    ou     Hystero-  Paris,  1897,  p.  352),  in  which  he  refutes 

^pilepsie        (2d      ed.      1885).     Richer's  this  opinion  that  alcohol  was  discovered 

treatise   (fitudes  Clin icjues  sur  I'Hystero-  by   the  Arabs.     The    first    savant    who 

K|)ilepsie,    ou    Grande    Hysteric,    Paris,  speaks  of  alcohol   is  Arnaud  de  Villen- 

1881)    contains  a  vast  amount  of  infor-  e*ive,  in  1309.     Berthelot  also  says  that 

mation,  and  is  illustrated  with  original  this  substance  was  not  isolated   by  the 

drawings  by  the  author.  See  also  Mills'  ancients.     But  the  Arabs  of  the  middle 

artii;U'S  on    Hysteria    and    Hystero-Epi-  ages  seem  to  have  had  the  art  of  pre- 

lej)sy    in     Pepper's    Syst.    of    Medicine,  paring    a    strong    alcoholic    drink,    even 

Vol.  V.   pp.   20.5-2SS.   for  many  referen-  if  they  did  not  learn  how  to  distil  the 

CCS  to  historic  and  epidemic  hysteria.  pure  spirit  itself;  and  the  name  is  un- 

"  Text-Book   of   Nerv.   Dis.   edited   by  questionably  of  Arabian  origin. 


§  58'J]  THE   SCIENTIFIC   CONCEPTION   OF   INSANITY.  593 

cases  caused  by  chronic  alcoholism,  which  they  presumably  did  not 
have,  at  least  to  so  great  an  extent,  among  the  ancients.  In  1857 
Morel,  a  French  alienist,  wrote  a  systematic  treatise"^  in  which  he 
demonstrated  that  alcohol  is  the  cause  of  a  chronic  degeneration  in 
the  nervous  system,  which  shows  its  effects  not  only  upon  its  imme- 
diate victims,  but  also  upon  their  .descendants  through  several  gen- 
erations. It  is  not  too  much  to  say  that  Morel's  book  pointed  the 
way  for  the  scientific  study  of  this  subject  which  it  has  ever  since 
received. 

Alcohol  is  a  direct  poison  to  the  nervous  system,  but  it  acts  also 
upon  the  blood  vessels,  the  stomach,  the  kidneys,  the  liver,  and  the 
connective  tissue.  Its  effects  are  of  two  kinds:  immediate  or  acute, 
and  remote  or  chronic.  The  immediate  effects  are  well  known  to  all, 
but  the  chronic  effects  may  escape  the  observation  of  those  who  are  not 
trained  in  the  study  of  disease.  It  is  these  chronic  effects,  however, 
which  are  of  the  greatest  im))ortance  in  medico-legal  studies.  They 
are  not  sufficiently  apprehended  in  courts  of  law,  for  the  courts  are 
too  apt  to  confine  their  attention  to  the  acute  effects.  It  is  futile 
here  to  attempt  a  full  discussion  of  this  subject;  moreover,  it  will  be 
treated  more  in  detail  in  the  chapter  devoted  to  alcoholic  insanity. 
It  suffices  to  say  that  alcohol  may  cause  a  variety  of  mental  diseases. 
For  instance,  as  an  acute  poison,  it  causes  delirium  tremens;  while 
as  a  chronic  poison  it  causes  forms  of  systematized  insanity  with  de- 
lusions, and  contributes  also  to  general  paresis.  Finally,  it  is  a 
large  factor  in  heredity,  as  already  explained,  and  may  thus  act  as 
a  cause  of  idiocy  and  imbecility  in  the  offspring,  or  of  a  chronic  de- 
generation upon  which,  as  a  foundation,  various  kinds  of  alienation, 
such  as  periodical  insanity,  paranoia,  epilepsy,  etc.,  may  be  firmly 
fixed. 

590.  Alcoholism  and  crime. — Chronic  alcoholism  has  also  a  close 
relationship  with  crime,  both  in  the  individual  and  in  his  descend- 
ants. In  the  San  Quentin  state  prison,  in  California,  49  per  cent 
of  the  inmates  were  habitual  inebriates  at  the  time  of  commitment; 
in  Auburn  penitentiary,  in  Xew  York  state,  42.78  per  cent;  in 
Joliet,  Illinois,  20  per  cent.^^  Of  hereditary  insanities  and  epilepsy 
in  the  Elmira  Reformatory,  N.  Y.,  there  were  found  11  per  cent, 
while    dninkenness    was    hereditary    in    37.6    per    cent    and    doubt- 

""  Traits  des  Degenerescences,     Paris,        '^  Drillinis.    op.    cit.   p.    1.37.     See   also 
1857.  Hiivelock   Ellis,   The   Criinina.!. 

Vol.  I.  ilED.  Jle. — 38. 


594  INSANITY— FORilS   AND  IMEDICO-LEGAL  ASPECTS.  [§  590 

ful  in  51  per  cent.^-  Such  figures  are  strongly  suggestive  of  a  re- 
lationship not  only  between  alcoholism  and  criminality  (which  is,  of 
course,  a  matter  of  common  observation),  but  also  between  alcohol- 
ism and  hereditary  criminality.  This  is  a  much  more  intricate 
subject.  Marro  has  estimated  that  more  than  40  per  cent  of  crim- 
inals are  descended  from  drunken  parents.  Heredity  by  trans- 
formation is  also  seen  among  inebriates,  as  in  cases  in  which  the  off- 
spring of  a  chronic  drunkard  is  born  an  idiot,  or  becomes  epileptic 
or  insane. 

The  medical  jurist  should  not  forget  that  alcohol  may  be  merely 
a  contributing  or  complicating  cause  in  some  cases,  as,  for  instance, 
where,  in  a  pre-existent  case  of  melancholia,  an  alcoholic  debauch 
throws  the  patient  into  an  agitated,  or  stuporous,  state ;  or  in  a  case 
of  mania,  in  which  alcohol  may  induce  an  attack  of  acute  fury.  In 
such  cases  criminal  impulsive  acts  are  not  to  be  estimated  as  merely 
the  results  of  drunkenness. 

591.  The  influence  of  infectious  diseases. — ISText  in  importance  to 
alcohol  is  infection.  By  this  term  is  meant  the  action  of  a  germ  or 
microbe,  or  of  some  agent,  yet  unknown,  which  acts  like  a  germ. 
This  is  a  very  modern  field  for  investigation.  The  science  of  bac- 
teriology is  still  young ;  nevertheless,  it  has  made  extraordinary  prog- 
ress, and  it  has  already  thrown  not  a  little  light  on  the  causation  of 
insanity.  This  is  not  the  place  for  mere  speculation,  but  it  is  fair  to 
assume  that  in  the  process  of  blood-infection,  or  blood-poisoning,  will 
j-et  be  found  the  true  explanation  of  many  of  the  insanities  which, 
for  so  long  a  time,  have  been  called  functional.  The  term  "func- 
tional" merely  hides  our  ignorance:  it  is  intended  to  apply  to  that 
class  of  diseases  in  which  the  actual  organic  process  eludes  our  re- 
searches,— that  is  all;  but  it  is  in  just  this  class  that  we  begin  to  see 
that  we  have  a  wade  field  for  the  action  of  microbian  bodies.  Such 
mental  diseases  or  disorders  as  accompany  the  infectious  fevers — the 
delirium,  for  instance,  of  typhoid  or  typhus  fever — present  us  wdth 
a  type  in  which  we  unquestionably  see  the  intoxicating  action  of  mi- 
crobes, or  their  toxins,  on  the  brain.-^  From  this  it  is  not  a  wide 
step  to  infer  that  other  delirious  forms  of  disorder  are  also  caused  by 
infection,  even  though  the  exact  agent  is  not  yet  discovered  in  every 
case.  Such  mental  diseases  as  melancholia,  mania,  confusional  and 
stuporous  insanity,  and  acute  delirium,  are  examples.     This  whole 

"Report  of  1893.  The  roports  of  this  "  Kraepelin,  Einfless  acuter  Krank- 
institution  are  admirably  compiled  and  heiten,  etc.  Arch.  f.  Psych,  u.  Nervenk. 
have  ^reat  scientific  value.  188?.. 


I  591]  THE   SCIENTIFIC   CONCErTlON   OF   INSANITY.  595 

subject  is  more  fully  discussed  in  the  chapters  devoted  to  those  dis- 
eases. Among  the  common  febrile  diseases  which  sometimes  lead 
to  insanity  are  typhoid  fever,  pneumonia,  malaria,  erysipelas,  typhus 
fever,  cerebro-spinal  fever,  and  influenza.  Septic  conditions,  such 
as  occur  in  surgical  operations  and  in  childbed,  are  also  responsible. 
Another  wide  field  is  that  of  auto-infection,  in  which  the  system  be- 
comes surcharged  with  the  products  of  intestinal  decomposition  or 
the  vitiation  of  other  secretions.-"*  In  this  field  we  seem  to  be  almost 
about  to  return  to  the  doctrines  of  the  ancients,  who  found  the  causes 
of  most  diseases  in  certain  ''humours"  in  the  blood,  and  who  named 
melancholia  from  the  "black  bile"  which  they  imagined  to  be  pres- 
ent. But  the  difference  is  that  in  modern  times  we  have  more  sci- 
entific ground  for  our  opinions. 

592.  Syphilis  as  a  cause  of  insanity. — Syphilis  is  a  most  active  poi- 
son, to  the  nervous  system,  and  its  mode  of  action  is  well  understood 
since  the  researches  of  Heubner.^^  It  acts  primarily  upon  the  inner 
coat  of  the  blood  vessels,  and  spreads  thence,  causing  often  an  exudate 
which  involves  the  nerve  tissue.  The  disease  of  the  vessels  obstructs 
the  flow  of  blood,  and  thus  affects  injuriously  the  brain.  More  re- 
cent investigations  have  added  to  our  knowledge  in  yninutiw,  but  the 
opinions  of  Heubner  in  the  main  hold  true  as  to  the  mode  of  action 
of  the  syphilitic  poison.  But  the  exact  or  exciting  agent  of  syphilis 
is  not  yet  known,  for  no  microbe  has  been  isolated  to  which  the  dis- 
ease can  be  ascribed.  It  is  possible  that  the  infecting  agent,  what- 
ever it  be,  acts  not  only  upon  the  coats  of  the  blood  vessels,  but  also 
by  some  toxin  circulating  in  the  blood,  and  thus  brings  about  direct 
degeneration  of  nerve  cells  and  fibres,  as  is  seen  in  locomotor  ataxia 
and,  to  some  extent,  in  general  paresis.  This  poison,  whatever  it  is, 
has  the  faculty  of  picking  out  certain  nerves  or  certain  bundles  of 
nerves,  and  leaving  the  rest  of  the  nervous  system  untouched.  Thus, 
it  seizes  upon  the  posterior  columns  of  the  spinal  cord  in  locomotor 
ataxia;  again,  upon  the  optic  nerves;  and  it  seems  to  have  a  special 
predilection  for  the  third  nerve,  or  the  one  which  supplies  some  of 
the  muscles  of  the  eye.  So  true  is  this  that  Ricord  said  that  "syph- 
ilis sets  its  sign  manual  upon  the  third  nerve."  This  poison  is  active 
in  the  causation  of  general  paresis ;  also  of  many  diffused  or  localized 
lesions  of  the  brain  and  spinal  cord,  which  start  in  foci  of  inflamed 
blood  vessels,  as  explained  above ;  but  it  is  in  general  paresis  espe- 

"  Berkley's  Mental  Diseases,  p.  361.  Aineriean     papers,    see    Dercum,    Text- 

^  Die     Luetische     Erkrankungen     der  Book  of  Nervous  Diseases  by  American 

Hirnarterien,   1874.     See  also  his  paper  Authors,  p.  699. 

in  Ziemsseo's  Cyclopedia,  Vol.  XII.    Of 


sue  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  592 

ciallv  that  syphilis  makes  itself  known  in  mental  pathology.  Some 
German  writers  take  the  extreme  view  that  syphilis  is  the  only  cause 
of  paresis,  and  one  eminent  German  went  so  far  in  support  of  his 
opinion  as  to  inoculate  some  general  paretics  with  the  virus  of  syph- 
ilis; and  because  it  did  not  ''take,"  he  concluded  hastily  that  his  opin- 
ion was  correct.  Opinions  differ  widely  on  this  question :  there  are  ex- 
tremists on  both  sides ;  but  the  general  opinion  is  in  favor  vi  syphilis 
being  an  active,  but  not  the  only,  cause  of  the  disease.  To  detect 
syphilis,  or  to  draw  out  a  history  of  it,  is  often  difficult,  and  extrem- 
ists have  plenty  of  room  either  to  affirm  or  to  deny  that  the  disease 
exists  in  every  paretic  patient.  It  is  better  to  wait  for  more  light. 
Clouston^^  claimed  to  have  found  only  sixteen  cases  of  syphilitic 
insanity  in  more  than  three  thousand  insane  patients  in  the  Royal 
Edinburgh  Asylum,  but  whether  this  argues  in  favor  of  the  morality 
of  the  Scotch,  or  of  defective  observation,  is  perhaps  an  open  ques- 
tion. On  the  other  hand,  Douse  made  the  astounding  statement 
that,  of  ten  thousand  patients  under  his  care  in  the  Central  London 
Sick  Asylum,  three  fourths  were  the  subjects  of  acquired  or  inher- 
ited syphilis;  but  these  apparently  were  not  all  mental  cases. 

593.  The  various  metals. — The  mineral  poisons,  such  as  lead  and 
mercury,  can  cause  forms  of  delirium.  In  lead  poisoning,  espe- 
cially, a  very  grave  mental  disturbance,  known  as  load  encepha- 
l<)]i:ithy,  occurs. 

594.  Moral  and  emotional  causes  are  sometimes  active  in  insanity. — 
Among  those  are  shock,  fright,  remorse,  grief,  and  shame.  Such 
causes  act  with  greatest  force  in  pejrsons  who  are  predisposed  by 
heredity,  or  weakened  by  accident  or  disease.  The  depressive  delu- 
sions of  the  mehmcholiac  may  have  a  basis  in  fact.  The  puerperal 
patient  may  be  overwhelmed  by  the  loss  of  her  infant,  or,  in  cases  of 
ilh'gitimacy,  by  the  shame  of  lier  situation.  When  mental  shock,  as 
great  fright,  is  associated  with  physical  shock  or  injury,  as  in  rail- 
road accidents,  the  mind  may  be  thrown  into  a  state  in  which  a  gen- 
uine insanity  results.  Among  these  causes  may  be  placed  great  polit- 
ical and  religious  crises,  such  as  the  French  Revolution.  During  and 
after  that  social  upheaval  many  cases  of  mental  disturbance  occurred 
that  could  be  traced  directly  to  it."' 

595.  Injury  to  the  brain. — This  may  cause  insanity,  as  was  recog- 
nized by  J>ord  Chief  -Justice  Ilale.-^     These  traumatic  cases  are  of 

""Clinical    Lectures    on    ^^ent;^]    Dis-  French   Revolution, — those   historic   sil- 

eases.  p.  ,31 L  lioncttcs   on   a   background   of  so  much 

"  It  is  hardly  necessary  to  remind  tiie  lliat  was  ubnornial. 
Icailci   of  (Jarlyle's  dark  pictures  in  liis         "IP.  C.  Chap.  IV. 


§  595]  THE    SCIENTIFIC    CONCEl'TION    OF    INSANITY.  507 

great  iiriportance  in  suits  for  damages.  Had  field,  who  shot  at  the 
King,  and  was  defended  so  ably  by  Erskine,  had  been  severely 
wounded  in  battle.-'^  Junot,  one  of  Naj^oleon's  generals,  was  seri- 
ously wounded  in  the  head  at  Lonato ;  he  afterwards  went  insane  and 
killed  himself. 

596.  Miscellaneous  causes. — Among  special  causes  may  be  briefly 
mentioned  imprisonment,  especially  solitary  confinement;  military 
service  and  war,  especially  in  foreign  and  tropical  countries,  as  has 
been  illustrated  among  the  American  troops  in  the  Philippine  Is- 
lands; celibacy,  which  seems  to  act  as  a  predisposing  cause;  and  ex- 
posure to  the  sun,  or  sunstroke. 

697.  Disturbed  nutrition  of  the  brain. — In  fine,  any  cause  which  pre- 
disposes the  brain  to,  or  directly  excites,  an  injurious  alteration  in  its 
nutrition,  as  by  overwork,  exhaustion,  poisoning,  or  profound  emo- 
tional disturbance,  may  be  conducive  to  an  attack  of  insanity.  And 
this  is  in  accord  with  the  principle  which  was  stated  at  the  l)eginning 
of  this  chapter,  that  insanity  is  a  disorder  of  the  organic  brain. 

III.   The  pathology  of  insanity. 

598.  A  purely  technical  subject. — In  a  medico-legal  work  it  is  not 
desirable  to  enter  at  great  length  upon  the  discussion  of  purely  tech- 
nical scientific  subjects.  From  its  very  nature  the  pathology,  or  mor- 
bid anatomy,  of  insanity,  is  a  technical  subject.  It  caimot  well  be 
described  in  language  that  is  free  from  purely  scientific  terms,  or  in 
a  way  that  is  clearly  intelligible  to  lay  readers.  Nevertheless,  in  or- 
der to  present  a  scientific  view  of  insanity,  it  is  essential  to  refer 
briefly  to  this  subject.  By  "pathology"  is  meant  the  science  which 
treats  of  the  morbid  processes  in  the  body :  it  is  the  reverse  of  physi- 
ology, which  treats  of  the  normal  processes.  By  "morbid  anatomy'' 
is  meant  the  science  which  treats  of  the  organic  changes  which  occur 
in  the  body  as  the  results  of  morbid  processes.  The  two  terms, 
"pathology"  and  "morbid  anatomy,"  are  often  used  interchangeably ; 
but  there  is  a  practical  distinction. 

599.  Functional  and  organic  diseases. — As  stated  elsewhere,  diseases 
are  usually  distinguished  as  functional  and  organic.  By  the  former 
is  meant  a  disease  of  which  the  pathology,  or  exact  morbid  pi-ocess, 
is  obscure,  and  in  which  there  are  no  organic  or  anatomical  changes 
that  can  be  detected.     By  the  latter  is  meant  a  disease  in  which  the 

^Hadfield's  Trial,  27  How.  St.  Tr.  insanity,  see  Index-Catalogwc,  Vol.  VI. 
1281.     For    bibliograplij'    of    traumatic    ]).  985. 


598  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§  599 

])atl)olog-ical  process  has  left  changes  in  the  anatomical  structure 
which  are  appreciable.  A  mere  neuralgia  is  a  functional  disease:  a 
tumor  of  the  brain  is  an  organic  one.  But  this  distinction  is  arbi- 
trary, and  merely  draws  the  line  between  what  we  do  not  know,  on 
the  one  hand,  and  what  we  do  know,  on  the  other.  The  so-called 
functional  diseases  are  doubtless  due  to  changes  in  the  vital  tissues ; 
but  these  changes  are  so  minute,  or  so  transient,  or  so  inaccessible, 
that  they  are  not  revealed  to  science.  An  intoxicating  dose  of  alco- 
hol, or  a  poisonous  dose  of  moiiDhin,  acts  profoundly  on  the  nerve 
cells,  and  may  even  destroy  life ;  yet  a  single  poisonous  dose  leaves 
no  changes  that  can  be  detected  by  the  most  searching  and  exact  meth- 
ods known  to  science ;  but  the  long-continued  use  of  alcohol  does  leave 
changes  that  can  be  observed.  The  inference  is  that  the  difference  is 
merely  one  of  degree.  Therefore,  it  may  be  stated  as  a  rule,  that  the 
so-called  functional  diseases  are  merely  organic  diseases  that  are  still 
unknown. 

600.  A  sign  of  the  progress  of  mental  pathology. — The  progress  of 
mental  pathology  has  been  marked  in  part  by  the  transferring  of  some 
of  the  functional  insanities  into  the  group  of  the  organic  insanities. 
In  some  cases,  however,  the  knowledge  of  the  pathology  may  advance 
farther  than  the  knowledge  of  the  morbid  anatomy.  For  instance,  in 
a  case  of  blood-infection,  if  certain  microbes  were  found  constantly, 
they  might  be  accepted  as  causes  of  the  disease,  even  though  they  left 
no  distinct  changes  in  the  anatomy  of  the  brain ;  just  as  in  a  case  of 
poisoning  by  morphin  there  would  be  no  doubt  of  the  pathological 
cause,  even  though  no  anatomical  changes  could  be  discovered.  'Not 
a  few  of  the  insanities  are  still  in  this  position :  there  is  evidence  of 
their  being  caused  by  ijifection,  although  that  evidence  is  not  clearly 
seen  in  anatomical  changes.  In  some  of  these  cases,  however,  as  in 
acute  delirium,  anatomical  changes  which  are  the  evidences  of  inflam- 
mation are  found  in  the  brain. -^^ 

601.  The  morbid  anatomy. — In  some  forms  of  insanity  the  morbid 
anatomy  is  very  manifest.  General  paresis  is  a  striking  example. 
So  well  known  is  tlie  morbid  anatomv  of  this  disease  that  in  anv  a;iven 
case  it  can  be  predicted  before  death  with  reasonable  accuracy  what 
the  morbid  changes  will  be  found  to  be.  But  the  exact  pathology  is 
not  so  clearly  knoAvn ;  for  instance,  we  do  not  know  precisely  what 
the  morbid  agents  are,  although  there  is  good  evidence  that  syphilis, 

2  9^  The  writer    lias    seen    a    case  of    :i[)|ioaraiiee   of  being  overwheluied   with 
acute  delirium  cause  death  in  less  t.lmn    t  poison, 
three    days.     The    patient    had    all    the 


§  601]  THE   SCIENTIFIC   CONCEPTION  OF   INSANITY.  599 

alcohol,  and  exhaustion  are  all  active  causes.  Neither  do  we  know 
precisely  just  how  they-  act.  After  death  we  see  the  ruins  which  the 
disease  has  left:  it  is  like  gazing  upon  the  havoc  left  after  a  conflagra- 
tion ;  but  the  conflagration  itself  we  have  not  been  able  to  see  during 
life,  although  we  may  judge  very  accurately  of  its  progress  by  the 
symptoms  which  the  patient  presents. 

602.  An  obscure  problem. — One  of  the  most  obscure  problems  in 
mental  pathology  is  that  of  heredity.  Although  heredity,  as  already 
stated,  is  a  universal  law  of  organic  matter,  its  secret  cannot  be  read 
in  the  anatomical  structure.  There  is  no  power  of  the  microscope 
that  wall  reveal  this  occult  power  of  the  cell.  Biologists  believe  that 
it  is  inherent  in  some  Avay  in  the  vital  cells ;  in  fact,  it  is  not  possible 
to  believe  otherwise ;  but  its  manner  of  acting  is  a  profound  mystery. 
The  embryo  develops  unerringly  after  the  pattern  of  its  parent. 
Mammal  begets  mammal;  bird  begets  bird,  Darwin  was  driven  to 
the  theory  of  "pangenesis,"  according  to  which  the  various  cells  give 
off  minute  particles  which  all  go  to  form  the  offspring;  but  this  is 
speculation.  -  °  3  In  this  obscure  territory  it  is  possible  that  we  shall 
never  have  a  clear  light.  Certainly  at  present  we  do  not  know,  and 
cannot  demonstrate,  the  process  of  heredity:  we  only  know  the 
facts. 

It  is  no  exception  to  this  rule  that  idiocy,  often  with  profound  de- 
formity of  the  brain-structure,  is  the  result  sometimes  of  inebriety  in 
the  progenitor.  In  such  cases  the  deformity  itself  is  not  transmitted, 
but  a  perverted  nutrition  of  the  cells,  which  leads  to  the  deformity 
in  the  embryo. 

603.  The  organic  changes  in  the  brain. — Such  organic  changes  as 
are  already  known  in  insanity  are  numerous  and  varied.  They  con- 
sist in  inflammation  and  other  changes  in  the  blood  vessels,  in  the 
connective  tissue  which  supports  the  nerve  cells,  in  the  nerve  cells 
themselves,  and  in  their  numerous  branches.  These  changes,  without 
exception,  indicate  a  destructive  process.^^ 

604.  The  general  law  of  mental  pathology. — Therefore  the  general 
law  of  mental  pathology  may  be  stated  as  follows :  Insanity  is  the 
result  of  a  perversion  of  the  nutrition  of  the  brain  cells,  and  this  per- 
version tends  to  a  destruction  of  the  nerve  elements.  Recovery  indi- 
cates a  successful  resistance  of  the  brain  cells  to  a  destructive  process. 

605.  Bacteriology  and  insanity. — Bacteriology  offers  a  large  field 
for   the    investigation   of   this   destructive   process.      The  germs   of 

2  9^Shute,  Organic  Evolution,  pp.  66,        '» Berklev,  op.  cit.  p.  32ri. 
68.  69,   71. 


GOO 


INSANITY— FORMS    AND    MEDICO-LEGAL    ASPECTS. 


[§  605 


disease,  which,  in  such  large  number  and  in  such  variety  find  access 
to  the  blood,  are  doubtless  responsible  for  many  perversions  of  mental 
functions.  It  is  here  that  science,  with  profound  hope,  awaits  new 
light  on  the  causation  of  mental  disease,  and,  at  the  same  time,  new 
indications  for  successful  treatment.^^ 

606.  Conclusion. — In  conclusion  it  may  be  reaffirmed,  in  the  lan- 
guage of  liibot,''-  that  insanity  is  a  material  disease.  "The  idea  oi 
a  mental  disease  independent  of  all  organic  cause  is  a  theory  so  unin- 
telligible that  the  spiritualists  themselves  have  rejected  it,  and  it  is 
now  generally  admitted  that  the  cause  of  madness  is  always  to  be 
found  in  a  diseased  state  of  the  organs;  insanity,  like  other  maladies, 
is  a  disease  physical  in  its  cause,  though  mental  as  regards  most  of 
its  symptoms."     This  is  the  scientific  conception  of  insanity. ^^ 


="  Tlio  host  works  in  tlie  English  lan- 
guage on  tlie  pathology  and  morbid  an- 
atomy of  insanity  are  Bevan  Lewis's 
Text-Book  of  IMental  Diseases,  2d  ed. 
1899,  and  Berkley's  Treatise  on  Mental 
Diseases,   1900. 

=-0p.  cit.  p.  120. 

'^In  closing  this  chapter  a  short  his- 
torical digression  may  be  allowed  in  fa- 
vor of  the  French  Revolution  as  a  cause 
of  curious  mental  phenomena  and  even 
of  insanity. — a  subject  which  was  re- 
ferred to  in  passing  in  the  text  (§  594). 
During  the  Great  Terror  there  was  a 
morbid  doubt  in  everybody's  mind  about 
everybody  else  and  about  everything. 
According  to  Carlyle.  Desmoulins  came 
to  doubt  the  sincerity  (four  years  after 
the  event)  of  those  who  rose  at  his 
voice  in  '89,  and  stormed  the  Bastile; 
he  had  a  morbid  suspicion  which 
amounted  almost  to  a  delusion.  Car- 
lyle calls  it  preternaturalism  of  sus- 
picion. 

Charlotte  Corday  was  not  without  her 
imitators,  one  of  whom  was  C#cile  Re- 
nault,   who    tried    to    kill    Robespierre 


(Carlyle,    French    Rev.    Bk.   VI.   Chap. 

m.) 

The  characters  of  Marat  and  Robes- 
pierre present  many  aspects  of  mad  fa- 
naticism, if  not  strictly  of  insanity. 
( See  the  latest  apologist  for  Marat, 
Ernest  Balfort  Bax,  in  his  Life  of  The 
People's  Friend,  Boston,  1901.) 

After  the  Terror  it  became  a  custom 
of  women  of  society  and  fashion  to  ap- 
pear "in  an  interesting  condition;"  and 
if  they  were  not  really  so,  they  stuffed 
and  padded  with  pillows  so  as  to  pre- 
sent the  appearance.  Tliis  was  sup- 
posed to  typify  the  desire  of  all  good 
women  to  repopulate  the  land  which 
had  been  depopulated  by  the  guillotine. 

The  imprisoned,  and  even  the  con- 
demned, amused  themselves  with  mock 
trials,  and  even  with  mock  executions 
with  the  guillotine  (as  by  "over-turn- 
ing chairs"'),  and  personated  Tinville 
and  otliers,  whom  they  handed  over  to 
an  improvised  Devil.  Goethe  made  ob- 
servations at  Argonne  on  the  "canon- 
fever,"'  which  was  a  sort  of  neurasthenic 
condition. 


CHAPTER  XXXL 

THE   CLASSIFICATION   OF   INSANITY. 

607.  Classification  cannot  be  ignored. 

608.  There  are  varieties  of  insanity. 

609.  Methods  of  ehissification. 

610.  The  best  method  is  a  mixed  one. 

611.  A  hint  for  classification. 

612.  Still  another  fact. 

613.  Acquired   insanity. 
014.  An  anatomical  basis. 

615.  Krafft-Ebing's  scheme. 

616.  Easy  to  criticize. 

617.  Several  objections  stated. 

618.  Classification  not  a  medico-legal  subject. 

607.  Classification  cannot  be  ignored. — Mr.  Wharton,*  like  many 
other  legal  writers,  advocated  the  unsound  theory  that  a  classification 
of  insanity  is  unnecessary ;  that  insanity  is  only  one  disease.  He 
was  here  not  even  abreast  of  Coke,^  who,  t^vo  hundred  years  before, 
had  proposed  a  scheme  of  classification  which,  with  all  its  faults, 
had  the  merit,  at  least,  of  recognizing  that  there  are  varieties  of  men- 
tal disease.  But  Mr.  Wharton's  attitude  has  been  the  attitude  of  the 
vast  majority  of  legal  writers,  for  they  have  treated  the  subject  of  in- 
sanity as  though  it  were  capable  of  being  limited  to  a  very  few  and 
very  simple  definitions. 

608.  There  are  varieties  of  insanity. — Insanity  is  not  one,  but  many. 
The  only  difficulty  is  in  defining  just  how  many.  Hence,  the  subject 
of  classification  is  one  of  peculiar  difficulty,  and  this  is  so  because  our 
knowledge  of  all  forms  of  insanity  is  not  yet  complete.  In  order  to 
classify  properly  we  should  require  very  exact  knowledge  of  the 
causes  and  pathology  of  the  various  kinds  of  insanity;  for  instance, 
we  should  need  exact  knowledge  of  the  morbid  processes  in  the  or- 
ganic brain  which  cause  the  various  derangements  of  the  mental 
functions  which  we  call  mental  diseases.      Our  knowledge  in   this 

'Med.   Jur.    Vol.    I.    by    Wharton    &        =  2  Litt.  247a. 
Stills,  p.  253,  4th  ed. 

601 


602  INSANITY— FORIVIS   AND   MEDICO-LEGAL   ASPECTS.  [§  608 

respect  is  not  yet  complete,  but  it  is  advancing,  and  is  more  complete 
for  some  forms  than  for  others. 

609.  Methods  of  classification. — Several  methods  of  classification^^ 
are  possible : 

First,  the  etiological  method, — or  according  to  causes.  This 
method  is  not  at  all  satisfactory,  because  the  causes  of  insanity  are 
immerous  and  complex,  and  cannot  always  be  unraveled.  Moreover, 
different  causes  may  produce  similar  results,  or  the  same  cause  may 
produce  different  results,  or  many  causes  may  combine  to  produce 
one  form  of  disease.  Thus  we  have  alcoholic  insanity,  syphilitic  in- 
sanity, puerperal  insanity,  etc.^9 

Second,  the  pathological  method, — or  according  to  the  morbid  proc- 
ess in  the  brain.  But  here  we  meet  with  an  obstacle  in  the  fact  that 
our  knowledge  is  not  yet  complete.  In  some  cases  there  in  an  inflam- 
mation or  infection ;  in  others,  a  degeneration  of  tissue ;  in  still  others, 
an  hereditary  defect  in  development.  If  we  had  exact  knowledge, 
this  method  would  be  the  most  scientific. 

Third,  the  clinical  method, — or  according  to  symptoms.  This  con- 
sists in  grouping  the  insanities  according  to  the  character  of  the 
mental  disturbances,  without  regard  to  causation  or  pathology.  Thus 
mania  forms  one  group,  melancholia,  another.^ 

610.  The  best  method  is  a  mixed  one. — All  these  modes  have  been 
advocated  and  used,  but  none  of  them  has  the  unanimous  indorse- 
ment of  alienists.  They  are  merely  tentative,  and  subject  to  alter- 
ation and  improvement.^  The  best  method  for  the  present  is  the 
mixed  method,  in  which  all  the  above  methods  are  utilized.  In  order 
to  understand  the  advantages  of  such  a  composite  method,  it  is  neces- 
sary to  consider  briefly  the  present  state  of  the  science  of  psychiatry. 

611.  A  hint  for  classification. — The  first  great  fact  in  psychiatry  is 
heredity.     Many  persons  are  born  to  be  insane.     They  are  markert 

2^  "The  condition  common  to     .     .     .  ^  No   notice     is     taken     above   of   the 

classification    is    to    comprehend    every-  method   of   classifying   insanity   accord- 

thinor  and  to  suppose  nothing."  ing    to    the    mental   faculties   involved. 

"We  may  classify  objects  arbitrarily  Thus,  we  should  have  emotional,  intel- 

in  any  point  of  view   in  which   we  are  loctual,  volitional,  and   moral  insanity, 

pleased  to  regard  them.     But  a  natural  For   reasons   whicli   are  hard   to  under- 

classification  can  only  proceed  according  stand.     Dr.     ^Maudsley     has     given     the 

to  the  real  nature  and  qualities  of  the  weight  of  his  great  authority  to  such  a 

objects." — Fleming,  Vocabulary  of  Phi-  scheme.     P.ut  such  a  plan  is  metaphysi- 

losophy,  art.  "Classification."  cal,  not  scientific,  and  is  criticized  else- 

-S  This  method  has  been  much  used  by  where  in  these  pages. 

British  alienists,  following  Skae.     It  has  *  Kraflt-Ebing,     Traitg     Clinique     de 

led   to   a   listing   of   more   than   twenty  Psychiatrie,  traduit  par  Laurent,  Paris, 

forms   of   insanity,   many  of  which  are  1897,  p.  339. 
identical.     It  is  one  of  the  most  objec- 
tionable of  all  schemes. 


§611]  THE    CLASSIFICATION    OF    INSANITY.  603 

from  their  mothers'  wombs  with  a  fatal  tendency  to  degeneracy. 
Therefoi*e,  these  patients  are  constitutionally  affected;  their  mental 
impairment  is  not  acquired  from  causes  acting  temporarily,  but  it  is 
the  logical  result  of  a  badly  constructed  nervous  system ;  it  is  evolu- 
tional and  inevitable.  Our  asylums  bear  eloquent  testimony  to  the 
truth  of  this  doctrine.  There  is  thus  fixed  by  nature  a  great  sub- 
division of  the  insane, — those  who  are  constitutionally  affected :  such 
as  the  monomaniacs  or  paranoiacs.  This  fact  supplies  at  once  a  hint 
for  classification. 

612.  Still  another  fact. — Another  fact,  closely  allied  to  the  fore- 
going, is  that,  in  a  certain  large  class,  the  brain  does  not  develop ;  the 
patient  never  acquires  a  normal  mental  strength ;  he  is  weak-minded 
from  birth.  This  class  constitutes  the  great  subdivision  of  the  idiots, 
— a  subdivision  which  has  been  recognized  in  the  law  from  a  remote 
period.^  They  were  called  fatui  or  stultes  naturales,  or  natural 
fools. 

613.  Acquired  Insanity. — Again,  persons  who  are  quite  healthy  and 
of  good  heredity  may  acquire  some  forms  of  insanity,  just  as  they  may 
acquire  a  fever  or  other  form  of  ill  health.  Given  the  appropriate 
causes,  the  natural  results  will  follow.  Thus,  there  is  a  large  group 
of  the  insanities  which  are  not  necessarily  hereditary,  but  which  arise 
from  temporary  or  accidental  causes.  They  may  or  may  not  be  fatal ; 
they  may  or  may  not  lead  to  permanent  and  incurable  forms ;  they 
are,  in  fact,  often  curable.  Moreover,  these  affections  have  no  recog- 
nized pathology  as  yet:  the  underlying  anatomical  changes  in  the; 
brain  are  still  unknown,  or,  at  least,  only  approximately  known. 
Hence,  they  are  styled  functional  disorders ;  but  this  term,  it  must  be 
noted,  is  only  provisional,  for  every  disease  must  have  an  anatomical 
basis.  A  functional  disease  is  merely  one  in  which  this  anatomical 
basis  is  still  unrecogiiized.  This  group  is  called  the  psychoneuroses. 
It  includes  the  great  majority  of  the  acute  insanities,  such  as  mania 
and  melancholia. 

614.  An  anatomical  basis. — Finally,  there  is  a  gToup  of  insanities 
in  which  there  is  a  recognizable  anatomical  basis.  The  members  of 
this  group  depend  upon  organic  changes  in  the  brain,  which  have  been 
studied,  and  which  are  as  well  recognized  in  some  cases  as  the  patho- 
logical changes  of  pneumonia.  Such  mental  diseases  are  general 
paresis,  syphilitic  insanity,  and  chronic  alcoholic  insanity.  They 
ciold  an  assured  scientific  position,  because  the  lesions  underlying 

"Statute    de    Prerogativfi     Regis,     17 
fidw.  II.  A.  D.  1342. 


604  INSANITY— FORAIS   AND   MEDICO-LEGAL   ASPECTS.  [|  614- 

them  can  be  seen  and  examined.  They  occupy  a  position  in  whicli 
it  is  to  be  hoped  that  all  the  insanities  may  one  day  be  included, — 
the  day  when  the  anatomy  of  insanity  will  be  fully  demonstrated. 

615.  Krafft-Ebing's  scheme. — Upon  the  foundations  of  these  dis- 
tinctions Krafft-Ebing,  an  eminent  German  alienist,  has  based  a 
scheme  of  classification  which  is,  on  the  whole,  the  most  satisfactory 
that  has  yet  been  suggested.''     It  is  as  follows: 

A.  Ins<anities  of  tlie  developed  brain. 

1.  Diseases  without  anatomical  changes,  or  functional  diseases. 

(1)  Ps}^choneuroses;    diseases  of  the  brain  otherwise  normal. 

1st.  jMelancholia. 
2d.  ]\Iania. 
3d.  Stupor. 
4th.  Confusional   insanity. 
[These  forms  may  lead  to  chronic  insanity  and  terminal  dementia.] 

(2)  Degenerative  insanities:  diseases  of  the  brain  constitutionally  pre 

disposed  to  insanit}'. 

1st.  Reasoning  insanity. 

2d.  Paranoia   (corresponding  to  monomania). 

3d.  Periodic    or    circular   insanity. 
4th.  Insanity  engrafted  on  the  great  neuroses,   such   as  neuras- 
thenia, hysteria,  epilepsy,  and  hypochondria. 

2.  Diseases  with  recognizable  anatomical  changes. 

1st.  Acute  delirium,  or  Bell's  mania. 

2d.  General  paresis,  or  dementia  paralytica. 

3d.  Cerebral  syphilis. 
4th.  Senile  dementia. 
5th.  Alcoholic  insanity. 

B.  Arrest  of  development  of  the  brain. 

1st.  Imbecility. 
2d.  Idiocy. 

The  above  scheme  is  somewhat  condensed  from  Krafft-Ebing's 
original.  It  is  also  very  slightly  modified,  and  the  terminology  has 
been  translated  so  as  to  conform  with  our  American  usages.  The 
main  features  of  the  original,  however,  are  preserved, 

616.  Easy  to  criticize. — It  is  not  difficult  to  raise  objections  to  the 
classification  of  Krafi^t-Ebing.  That  classification  is  not  perfect; 
and,  in  fact,  in  the  present  state  of  the  science  of  psychiatry  a  perfect 
scheme  is  not  possible,  for  reasons  which  have  already  been  indicated; 
but  it  is  a  good,  practical  scheme,  and  as  such  it  is  adopted  here. 

•Op.  cit.  pp.  346.  347. 


§  617]  THE    CLASSIFICATION    OF    INSANITY.  (iOo 

617.  Several  objections  stated.— There  are  several  obje<,;tious,  how- 
ever, which  rnay  be  briefly  indicated.  In  the  first  place,  the  psycho- 
neuroses  are  not  entirely  without  knovv^l  anatomical  basis.  Recent 
investigations  have  tended  to  show  that  in  some  forms  of  mania  and 
delirium  there  are  changes  in  the  nerve  cells,  due  to  infection,  which 
are  recognizable.^  There  is  good  reason  to  hope  that  in  time  great 
advances  will  be  made  in  the  study  of  the  morbid  anatomy  of  the  so- 
called  psychoneuroses,  and  that  many  of  these  forms  may  yet  have 
to  take  their  places  among  the  organic  insanities. 

The  distinction  between  the  degenerative  insanities,  on  the  one 
hand,  and  the  psychoneuroses,  on  the  other,  is  too  absolute  in  Krafft- 
Ebing's  classification.  Heredity,  or  a  constitutional  taint,  is  a  not 
unimportant  factor  in  some  of  the  latter  grouj).  Mania  and  melan- 
cholia, especially  the  latter,  are  often  found  in  patients  in  whom 
heredity  is  well-marked,  and  in  whom  the  stigmata  of  degeneration 
are  not  wanting. 

These  are  the  two  chief  grounds  of  criticism  of  Krafft-Ebing's 
plan.  On  the  other  hand,  that  plan  has  the  great  merit  of  being 
elastic,  or  readily  adjustable.  It  admits  easily  of  the  introduction  of 
new  forms ;  and  new  forms  of  insanity  will  doubtless  be  recognized 
and  demonstrated  as  science  advances.  The  general  principles  under- 
lying the  scheme  of  the  German  alienist  are  correct ;  the  working  of  > 
the  scheme  is,  in  the  main,  admirable.* 

618.  Classification  not  a  medico-legal  subject. — There  has  been  no 
attempt  in  this  chapter  to  give  an  exhaustive  resume  of  the  subject 
of  classification.  That  subject  is  not  particularly  a  medico-legal  one. 
All  that  has  been  attempted  has  been  to  indicate  the  outlines  of  the 
subject,  and  to  introduce  a  good  working  scheme.  English  and  Amer- 
ican alienists  have  not  been  foremost,  or  altogether  happy,  in  their 

'  See,  especially,  Berkley,  Treatise  on  ])ression    and    exaltation    are    confused. 

Mental  Diseases,  and  Bevan  Lewis,  Text-  (Thompson,  Abstract  in  Boston  M.  &  S. 

Book    on    Mental    Diseases.     These    two  Journal,    November    24,    1004,    p.    570.) 

■works  are  especially  rich   in  pathologi-  This  form  seems  to  be  intended  to  take 

cal  studies  of  insanity.  the  place  of  mania,  but  some  of  its  advo- 

'  There   is   a   tendency   at   present   in  cat^s    balk    when   asked    to   aflirm    that 

America,  under  the  leadership  of  Kraep-  there   is  no  pure  melancholia.     Consult 

«lin,  the  German  alienist,  to  break  down  Adolpli  Mayer's  chapter  in  the  4th  edi- 

some  of  the  time-honored  distinctions  be-  tion  of  Church  &  Peterson's  Nervous  and 

tween       the       various      psychoneuroses.  Mental  Diseases,  for  a  discussion  of  re- 

Thus,  a  "manic-depressive"  type  of  in-  cent  views  of  European  specialists, 
sanity  is  described, — a  form  in  which  de- 


606  INSANITY— FORMS   ANT)   MEDICO-LEGAL   ASPECTS.  [§618 

attempts  at  classification.      Our  progTess  in  this   not  unimportant 
field  has  been  due  larirely  to  French  and  German  psychiatrists.^ 

°  The  followiiij;  works  are  valuable  for  on  the  subject  of  classification  in  in- 
reference  on  this  subject:  Kraflt-Ebing,  sanity;  nevertheless,  as  in  any  of  the 
Lehrbuch  der  Psychiatric;  also  in  a  sciences,  such  as  botany  and  zoology, 
French  translation  by  Laurent,  Traite  this  subject  will  always  retain  its  ira- 
Clinique  de  Psychiatric;  Spitzka,  Insan-  portance.  Buchez,  quoted  by  Regis,  has 
ity;  Stearns,  Lectures  on  Mental  Dis-  said:  "When  they  think  they  have  fin- 
eases;  Sankey,  Lectures  on  INIental  ished  their  studies,  the  rhetoricians 
Disease;  Regis,  Manuel  Pratique  de  construct  a  tragedy  and  the  alienists  a 
Medecine  Mentale;  Kraepelin,  Psychia-  classification.'  This  witticism  may  di- 
trie.  vert  us,  but  it  will  not  turn  us  aside. 

Not  a  little  sarcasm  has  been  wasted 


CHAPTER  XXXII. 

MANIA. 

I.  The  medical  aspects  of  mania. 
*  619.  The  disease  defined. 

G20.  Mania  the  opposite  of  melancholia. 

621.  Exaltation  is  a  prominent  symptom  of  mania. 

622.  Acceleration  of  the  ideas  in  mania. 

623.  The  moral   faculties  in  mania. 

624.  Motor  excitement. 

625.  Plallucinations  in  mania. 

626.  The  conduct  is  affected. 

627.  The  physical  disoi'der. 

628.  Impulsive  acts. 

629.  Severe  cases. 

630.  The  mode  of  onset. 

631.  The  distinction  between  mania  and  melancholia  ignored. 

632.  The  mode  of  termination. 

633.  Examples  of  the  abuse  of  the  term. 

II.  The  medico-legal  aspects  of  mania. 

634.  The  incipient  stages.  ^ 

635.  Mania  is  a  much  abused  term  in  medical  jurisprudence. 

636.  Its  greatest  abuse. 

637.  Emotional  insanity. 

638.  Emotional    disturbance    is   not   nece^^sarily   mania. 

639.  Impulsive  insanity  and  mania. 

640.  Transitory  mania   and  homicidal  mania. 

641.  Epilepsy  and  mania. 

642.  Other   forms. 

643.  Puerperal  mania. 

644.  The  sudden  onset  of  insanity  after  childbirth. 

645.  The   causes   of   puerperal   insanity. 

646.  From  the  medico-legal  standpoint,  puerperal  mania  is  a  grave  affection. 

647.  Responsibility  in  the  childbearing  woman. 

648.  The  responsibility  varies. 

649.  The  social  penalty-. 

650.  Insane  impulses  in   puerperal   insanity. 

651.  False  accusations. 

652.  The  delusions  of  puerperal  patients. 

I.  The  medical  aspects  of  mai^ia. 
619.  The  disease  defined. — Mania  is  defined  by  Krafft-Ebing*    as 

'Traite    Clinique    de    Psych,   p.   381. 
Traduit  par  Laurent,  Paris,   1897. 

60/ 


008  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [8  «519 

au  affection  in  which  there  is  au  alteration  of  the  self-consciousness, 
with  a  feeling  of  gaiety  and  an  acceleration  of  the  mental  acts.  Men- 
<leP  gives  a  better  definition  than  Krafft-Ebing  when  he  says  that 
mania  is  a  functional  mental  disease,  characterized  by  a  morbid 
acceleration  of  the  ideas,  and  by  increased  irritability  of  the  motor 
centers  of  the  brain.  In  other  words,  mania  can  be  described  as  a 
disease  which  is  marked  by  exaltation,  incoherence,  and  motor  excite- 
ment. 

620.  Mania  the  opposite  of  melancholia. — Mania  is  usually  described 
as  the  opposite  of  melancholia.  The  one  is  marked  by  excitement: 
the  other  by  depression.  The  one  is  characterized  by  gaiety:  the 
other  by  despondency.  In  mania  there  is  a  wider  range  of  ideas, 
and  these  may  become  confused:  in  melancholia  the  ideas  are  limited 
in  range,  and  become  fixed,  as  delusions. 

621.  Exaltation  is  a  prominent  symptom  of  mania. — The  patient  is 
excited  and  often  gay;  he  is  as  one  who  is  mildly  intx3xicated  with 
alcohol.  The  emotional  tone  in  the  early  stages  is  good-humor:  the 
patient  laughs  promptly,  jokes  easily,  and  is  readily  satisfied  with 
himself  and  the  world.  In  spite  of  this  fact,  however,  he  does  not 
bear  crossing,  and  his  emotional  instability  is  often  shown  by  the 
quickness  with  which  he  resents  opposition  or  coercion.  A  part  of 
his  emotional  excitement  is  a  pronounced  egotism.  He  is  often  too 
well  satisfied  with  himself  to  be  either  rational  or  agreeable.  The 
maniac,  in  fact,  as  in  most  forms  of  insanity,  has  a  well-marked  dis- 
turbance of  his  sense  of  the  ego,  or  his  self-consciousness.  With  him 
this  takes  the  form  of  a  vanity  which  sometimes  approaches  to  cox- 
combry. He  is  self-assertive  and  self-confident.  A  very  marked 
feature  of  this  gaiety  is  that  it  has  no  relation  with  the  facts  of  life : 
the  patient  is  quite  oblivious  of  the  lack  of  harmony  between  his 
feeling  of  well-being  and  the  realities  of  his  case.  His  fortunes  maj? 
be  at  a  low  ebb,  yet  he  is  gay.  His  friends  may  show  the  greatest 
apprehension  over  his  state,  yet  he  is  undismayed.  The  asylum  may 
open  to  receive  him,  yet  he  will  continue  to  enjoy  life.  In  the  worst 
cases  the  gaiety  may  lead  to  extravagant  actions,  such  as  shouting, 
dancing,  and  singing.  In  mild  cases,  or  in  the  early  stages  of  severe 
cases,  an  excessive  loquaciousness  is  a  marked  symptom. 

622.  Acceleration  of  the  ideas  in  mania. — But  although  it  is  true 
that  gaiety  predominates  in  many  cases,  it  is  an  error  to  say  that  it 
prevails  in  every  case  of  mania ;  and  therefore  Mendel  is  correct  when 
he    does    not    include    it   in    his    definition,    but    says    merely    that 

•Din  Manie,  quoted  by  Krafft-Ebin(Sf. 


5  622  J  MANIA.  <W0 

mania  is  marked  bj  acceleration  of  the  ideas  and  irritability  of  the 
motor  centers.^^  Gaiety  is  not  necessarily  the  prevailing  tone  in 
every  case,  for  some  maniacs  are  irritable  and  ill-natured  almost  from 
the  start;  while  others  are  merely  vain  and  offensive.  Following 
Mendel,  we  should  say  that  excitement  of  the  brain  generally,  with 
acceleration  of  ideas,  and  great  motor  activity,  is  the  essential  condi- 
tion in  mania.  The  emotional  disturbance  is  a  part  of  this  general 
v}xcitement,  and,  while  usually  joyous,  it  is  not  necessarily  so,  but 
depends  for  its  tone  on  the  prevailing  range  of  the  morbid  ideas.^' 

The  excitement  shows  itself  in  acceleration  in  the  formation  of 
ideas.  The  maniac's  mind  is  active  and  quick.  His  thoughts  range 
over  a  wide  territory,  but  they  are  usually  not  under  the  control  of 
common  sense.  The  association  of  ideas  is  complex,  but  the  coherence 
of  ideas  is  not  sound.  This  .leads  to  erratic  conduct  and  rambling 
speech.  Not  unusually  the  perceptions  are  accurate  and  the  wit 
lively,  so  that  the  patient  may  appear  to  have  a  superficial  brilliancy. 
He  is  capable  of  sarcasm,  of  wit,  and  of  invectiv^e,  but  he  is  quite  as 
(^pable  of  folly,  verbiage,  and  insult.  The  maniac  is  not  capable  of 
sustained  thought,  of  rational  converse,  except  within  a  limited  range. 
He  soon  exceeds  the  bounds  both  of  reason  and  of  civility.  As  his 
mind  becomes  more  impaired,  he  misinterprets  his  own  thoughts, 
and  begins  to  form  delusions ;  but  these  delusions  are  usually  as  fleet- 
ing as  his  ideas.  In  other  words,  the  patient  does  not  develop  fixed 
and  systematized  delusions;  he  has  not  sufiicient  coherence  of  ideas 
for  this.  Incoherence,  in  fact,  becomes  sooner  or  later  a  marked  fea- 
ture in  some  cases.  The  ideas  are  formed  rapidly,  but  they  are  not 
permanent.  New  concepts  crowd  out  the  old  ones.  The  mental  state 
is  kaleidoscopic,  except  that  there  is  nothing  particularly  beautiful 
about  it. 

623.  The  moral  faculties  in  mania. — The  moral  concepts  are,  of 
course,  equally  impaired.  At  first  unconventional,  the  maniac  soon 
becomes  unrestrained.  He  may  be  reckless,  thriftless,  even  dishonest ; 
and  he  is  not  unusually  vulgar,  immodest,  indecent,  and  profane. 
In  the  early  stages  extravagance  with  money  may  cause  serious  em- 
barrassment    The  patient  may  even  steal,  but  he  does  this  not  so 

24  Thus,  too,  Esquirol  said  that  mania  the  intelligence,  and  a  tumultuous  desire 

was  a  clironic  cerebral  affection,  ordina-  for  movement    (quoted   by  Regis,   Med. 

rily  unattended  by  fever,  and  character-  Mentole).     In    neither    of    these    defini- 

ized  by  perturbation  and  exaltation  of  tions  is  gaiety  mentioned  as  essential  in 

the  sensibility,  the  intelligence,  and  the  mania. 

will     (Des    Maladies    Mentales,    Paris,        2|  R^gis^    Ment.    Med.    translated    by 

1838)  ;  and  Ball  defines  mania  as  char-  Bannister,  pp.  150,  151. 
acterized  by  delirium,  hyperexcitation  of 
Vol.  I.  Med.  Jub.— 39. 


GIO  INSANITY— FORMS   AND   MEDICO  LEGAL   ASPECTS.  [§  02:1 

much  -with  malice  aforetlioiight  as  from  the  mere  impulse  to  appro- 
priate what  does  not  belong  to  him.  The  sexual  instinct  may  be  in- 
CTeased,  and  is  often  uncontrolled.  Sexual  ideas  may  predominate 
in  the  mind,  and  find  expression  most  flagrantly  in  word  and  deed. 
There  may  also  be  excess  in  the  use  of  alcohol,  tobacco,  and  food.  The 
affections  are  much  involved  in  mania.  The  patient  becomes  quite 
indifferent  to  the  ties  of  friendship  and  family.  The  anxiety  and 
grief  of  those  nearest  to  him  make  no  impression  on  him.  Parents, 
wife,  children,  are  soon  out  of  mind.  At  his  worst  he  is  quite  in- 
capable of  realizing  the  impulses  of  love  or  solicitude.  He  may 
even  be  cruel  in  speech  and  conduct,  but  his  motives  are  fleeting.  He 
has  no  enduring  resentments.^ 

624.  Motor  excitement. — In  mania  we  see  motor  excitement  as  a 
result  of  the  excitement  of  the  brain.  The  patient  is  restless:  his 
muscles  react  to  every  varying  phase  of  the  mental  disturbance.  If 
he  is  on  his  feet,  he  paces  to  and  fro ;  if  he  sits  oi  reclines,  he  is  ill  at 
ease :  his 'arms  and  hands  are  in  frequent  movement,  or  his  whole  body 
may  be  tossed  about.  The  muscles  of  his  face  are  especially  mobile, 
and  portray  the  ever-changing  thoughts  and  emotions  Avithin.  In  the 
more  excited  cases,  the  patients  gesticulate.  Clouston'^i  relates  the 
case  of  a  young  woman  in  whom  the  motor  disturbance  was  almost 
automatic.  The  patient,  when  left  alone,  would  make  faces,  jump 
about,  tear  her  clothes,  turn  heels  over  head,  scream,  pick  her  skin, 
and  masturbate  without  erotic  feeling.  In  the  midst  of  all  this,  if  one 
addressed  her,  she  would  sit  up  and  talk  quietly  and  intelligently. 
Picking  at  the  skin,  biting  the  nails,  and  otherwise  maltreating  the 
person,  are  sometimes  done  as  acquired  habits,  especially  in  the  more 
advanced  cases.  Clouston  calls  this  pseudo-automatic  form  "muscular 
xaania;"  and  draws  attention  to  the  fact  that  the  intellectual  powers 
may  not  be  so  much  involved  as  the  motor  functions  of  the  brain. 

625.  Hallucinations  in  mania. — Hallucinations  of  sight,  hearing, 
smell,  and  taste  are  not  uncommon  in  mania,  but,  as  in  the  case  of 
delusions,  they  are  not  at  all  persistent,  unless  it  be  in  chronic  cases. 
The  patients  hear  voices  or  see  faces.  They  sometimes  smell  and 
taste  disgusting  objects.  One  of  the  author's  patients  believed  that 
some  one  grabbed  her  by  the  arm  in  the  dark;  and  this  encouraged 

'M.   Ribot    ( Psychol ojry  of  the  Emo-  process   in   the   brain.     Tlie   attempt  of 

tions,  pp.  224,  225)   agrees  with  Krafft-  some  writers  to  separate  the  two,  or  to 

]<]bing  that  the  two  series  of  phenomena  explain  one  by  the  other,  is  entirely  arti- 

— the   intellectual   disorder,   on   the  one  ficial. 

hand,  and  the  emotional  excitement,  on        3^  Clinical    Lectures    on    Mental    Dis- 

tlie  other — are  due  to  one  and  the  same  eases,   1st  ed.  p.   132. 
cause;  i.   e.,   a   deep-seated   pathological 


Acute  Mania  (Chapir.) 


§  625]  ]VL\NIA.  611 

her  in  the  delusion  that  some  one  was  under  her  bed  at  night.  When 
Talking  of  these  things,  she  laughed  and  looked  foolish,  and  seemed 
half-ashamed  of  them. 

626.  The  conduct  is  affected. — The  conduct  in  mania  is  such  as 
would  bo  ex]jected  from  so  protean  a  disorder.  In  the  early  stages, 
as  already  said,  the  patient  may  be  extravagant  and  wasteful.  Money 
and  property  are  not  safe  in  his  hands.  He  shows  a  complete  change 
of  character.  His  moral  sense  is  perverted:  from  being  a  man  of 
good  repute,  he  may  become  one  who  seriously  compromises  his  char- 
acter. He  may  drink  to  excess;  and  it  is  more  than  probable  that  he 
will  indulge  in  sexual  debauchery.  The  maniac  is  most  loquacious. 
He  is  often  not  a  little  boastful.  He  is  always,  even  at  his  best,  on 
the  verge  of  saying,  or  is  actually  saying,  something  inconsequential 
or  erratic.  Sometimes  he  has  a  craze  for  scribbling, — a  veritable 
cacoethes  scrihendij, — which  vents  itself  in  long-winded  letters.^''' 
Some  maniacs  are  mischief-makers  in  a  mild  way.  They  have  an 
instinct  for  annoying  and  insulting  people;  and,  while  not  capable  of 
very  elaborate  schemes,  they  resort  to  petty  means  of  offense.  These 
[)atients  are  not  always  in  good  humor;  they  can  quarrel,  scold,  and 
light;  and  they  are  capable  of  acts  of  violence,  mostly  from  passion, 
which  may  bring  them  to  the  notice  of  the  law.  The  maniac  is  not 
choice  in  his  language :  he  swears  proficiently ;  and  even  women  of 
refinement  use  vulgar  and  indecent  words. 

627.  The  physical  disorder. — The  physical  symptoms  in  mania  are 
usually  well-marked.  In  early  cases  the  patient  may  have  a  vigorous 
appetite,  but,  in  spite  of  it,  he  loses  flesh.  In  time  he  runs  down, 
becomes  haggard  and  even  emaciated ;  he  has  a  disheveled  and  un- 
kempt appearance,  and  in  fact  is  quite  indifferent  to  his  toilet  and 
to  the  question  of  clothes.  There  may  be  some  febrile  reaction  in 
very  acute  and  violent  cases.     Insomnia  is  marked. 

628.  Impulsive  acts. — The  maniac  sometimes  acts  impulsively. 
Deeds  of  violence  are  thus  committed.  In  a  case  of  puerperal  mania, 
known  to  the  author,  the  patient,  without  warning  or  provocation, 
flung  a  heavy  inkstand  at  her  husband's  head.  The  patient  may  sud- 
denly decamp  and  wander  away  without  aim. 

629.  Severe  .cases. —  In  severe  cases  the  excitement  and  incoher- 
ence increase  rapidly  to  a  high  degree.  The  j)atient  becomes 
noisy,  violent,  and  destructive.     Singing,  shouting,  swearing,  pray- 

3§  The  insanabile  scribendi  cacoethes 
of  Juvenal,  7,  52, — not  confined  to  mani- 
acs. 


612  INSANITY— FORIMS   AND   MEDICO-LEGAL   ASPECTS.  l§  t>29 

ing,  and  quoting  poetry  are  indulged  in  with  abandon.  The  violence 
is  not  premeditated,  but  is  the  reaction  of  the  badly  disordered  brain. 
Destruction  of  furniture  and  clothing,  breaking  windows,  and  fight- 
ing the  attendants,  are  signs  of  the  tumultuous  thoughts.  In- 
coherence of  si:)cech  is  now  very  marked.  The  association  of  ideas 
is  broken  uj),  but  by  carefully  following  the  language  it  is  possible 
sometimes  to  trace  out  the  prevalent  mental  concepts.  In  this  stage 
the  consciousness  and  memory  are  greatly  impaired,  and  to  the  pa 
tient,  on  recovery,  much  of  the  period  of  the  disease  remains  a  com- 
plete blank. 

630.  The  mode  of  onset. — The  onset  of  mania  is  not  usually  abrupt, 
although  exceptions  to  this  rule  occur.  Nevertheless,  the  disease  may 
declare  itself  rapidly.  In  the  early  stages,  when  the  patient  is  still 
only  mildly  exalted,  acts  of  medico-legal  import  may  occur,  and  give 
rise  to  nice  questions  of  responsibility.  There  may  be  an  initial 
period  of  depression,  in  which  the  patient  is  anxious  and  weeps. 

It  is  not  an  uncommon  observation,  in  fact,  that  a  melancholic 
status  is  the  immediate  forerunner  of  an  attack  of  acute  mania.  In 
a  literal  sense,  as  Shakespeare  has  expressed  it,  "melancholy  is  tlu! 
nurse  of  frenzy,"  and  marks  that  initial  period  during  which  the 
patient  still  has  enough  self-consciousness  preserved  to  be  aware  of 
impending  suffering  and  illness, — something  amiss  or  awry  in  the 
mental  fabric, — before  the  personality  is  lost  in  the  agitation  and 
incoherence  of  the  maniacal  processes."*  In  puerperal  cases  this  prece- 
dent stage  of  depression  may  be  short,  and  may  escape  the  observa- 
tion of  nurses  and  friends ;  or  it  may  be  noted  that  the  patient  be- 
comes irritable  and  moody,  and  apt  to  find  fault  easily  and  unreason- 
ably. At  this  period  she  becomes  the  creature  of  uncontrollable  im- 
pulses ;  and  it  is  especially  under  the  spell  of  this  melancholic  humor 
that  she  may  do  injury  to  herself  or  her  babe.  Some  sudden  act  of 
this  kind  is  occasionally  the  first  symptom  which  abruptly  intrudes 
itself  upon  the  notice  of  unobservant  attendants,  and  forces  upou 
them  the  alarming  conviction  that  their  patient  has  become  a 
maniac.*^ 

631.  The  distinetion  between  mania  and  melancholia  ignored. —  As 
explained  elsewlioro,  the  combinatioTi  of  the  symptoms  pf  melancholia 

*  Krafft-Ehiiif,',  op.  cit.  p.  .'iSf).     Bmati  188.'{.  p.  137)  does  not  agree  that  this  in- 

Lewis    (Text-Jiook  of  Mont.  Dis.  2d  ed.  itial  stage  of  depression  is  truly  melan- 

pp.    19G,    197).     The    latter     writer    de-  cholic. 

pcribes     this     stadium     melancholicum,  "i  J  Am.  Syst.  of  Obstetrics,  Vol.  II.  art. 

and  saj's  it  is  the  usual  feature  at  the  "I'uerperal  Insanity,  etc."  pp.  567.  568. 
onset  of  mania.    But  Spitzka   (Insanity, 


Chronic  Mania  (Chapin). 


§  631]  MANIA.  6)3 

and  mania,  as  seen  in  some  patients,  has  led  some  alienists,  notably 
Kraepelin,^  to  seek  to  break  down  the  distinction  between  these  two 
diseases,  and  to  include  them  in  one, — a  so-called  manic-depressive 
type ;  but  this  is  too  radical. 

632.  The  mode  of  termination. — The  termination  of  mania  may  be 
in  recovery,  in  death,  or  in  chronic  deterioration.  After  recovery 
some  patients  enjoy  a  more  or  less  prolonged  period  of  good  health, 
only  to  break  down  in  another  attack.  These  cases  of  recurrent  mania 
are  exceedingly  dangerous  to  the  patient's  mental  integrity,  and  may 
ultimately  lead  to  chronic  mania.  In  chronic  mania  the  symptoms 
of  exaltation  and  incoherence,  but  with  less  emotional  disturbance, 
are  continuous,  and  modified  in  various  ways.  There  is  usually  a  pro- 
gressive failure  of  the  mental  faculties.  Memory,  self-consciousness, 
intelligence,  the  affections,  and  the  moral  sentiments  are  all  impaired.' 
In  this  stage  the  patient  may  develop  delusions  wliich  are  fixed,  but 
not  well-systematized.  These  delusions  are  usually  rather  expan- 
sive and  grandiose,  and  lead  to  corresponding  eccentricities  in  dress 
and  manners.  In  most  asylums  there  are  old  chronic  maniacs  who  are 
noted  as  the  odd  characters  of  the  institution.  Garrulous,  delusional, 
and  decked  in  odd  raiment,  they  lead  a  prolonged  and  quite  harmless 
existence.  The  final  stage  is  one  of  terminal  dementia,  in  which  the 
mind  is  hopelessly  wrecked. 

633,  Examples  of  the  abuse  of  the  term. — No  account  is  taken  in 
this  chapter  of  the  group  of  so-called  insanities  which  arc  called 
"kleptomania,"  "pyromania,"  "dipsomania,"  and  kindred  terms. 
These  terms  denote  special  tendencies  or  symptoms  rather  than  dis- 
tinct clinical  forms  of  mental  disease.  Moreover,  they  are  not  espe- 
cially associated  with  true  mania.  They  are  examples  of  an  abuse  of 
the  word  "mania,"  which  has  grown  out  of  the  custom,  in  former 
times,  of  grouping  many  diverse  kinds  of  insanity  under  this  head. 
This  is  not  the  place,  therefore,  to  discuss  these  somewhat  artificial 
terms  and  the  impulses  which  they  are  made  to  stand  for;  they  will 
be  noted  in  their  appropriate  places.  It  is  enough  to  say  here  that  a 
prejudice,  not  unwarranted,  has  been  aroused  against  them  by  reason 
of  the  abuse,  and  even  absurdities,  to  which  they  have  contributed. 
Nevertheless,  when  properly  used,  these  terms  have  a  legitimate 
meaning.  They  stand  for  certain  morbid  prepensities  or  impulses. 
Thus,  "dipsomania"  is  an  uncontrollable  impulse  to  drink,  which  has 
significance  in  alcoholic  insanity;  and  "klejDtomania,"  or  a  morbid 

•  Psychiatrie,  1903. 


6U  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§  63:( 

impulse  to  steal,  is  found  in  some  degenerates,  and  in  other  example:} 
of  genuine  insanity.'* 

II.   The  medico-legal  aspects  of  mania. 

634.  The  incipient  stages. — It  is  in  the  incipient  stage  of  mania 
that  the  question  of  legal  responsibility  is  most  likely  to  arise ;  but  the 
cases  in  which  genuine  maniacs  have  figured  in  courts  of  law  are  not 
numerous,  for  the  simple  reason  that  the  maniac,  when  his  disease  is 
once  well  declared,  is  so  obviously  insane  that  no  question  is  raised 
about  his  lack  of  accountability.  Moreover,  the  patient  in  this  dis- 
ease is  not  in  a  condition  of  mind  to  form  a  determination  to  commit 
an  act  in  its  nature  criminal.     He  acts  from  impulse.     His  deeds 

'of  violence  are  rather  in  the  nature  of  accidents;  and  he  is  seldom 
•homicidal,  even  by  accident. 

635.  Mania  is  a  much  abused  term  in  medical  jurisprudence. — This 
term  has  been  abused  both  by  the  la^^yers  and  the  doctors.  Griesin- 
ger"  protested  against  this  tendency  when  he  advised  against  the  in- 
troduction of  various  obscure  forms  of  mental  peculiarity  into  the 
class  called  "mania."  From  the  way  some  writers  use  the  term  we 
might  suppose  that  any  patient  who  displayed  a  little  excitement 
i'ould  be  included  under  this  head.  Of  all  such  writers,  Ray^  espe- 
cially has  contributed  to  this  confusion.  In  his  treatise,  which  has 
been  so  widely  read  in  this  country,  and  has  so  many  excellences, 
he  practically  places  all  forms  of  insanity  under  the  head  of  "mania," 
which  he  subdivides  into  intellectual  and  moral  mania.  This  is,  i]i 
effect,  to  deprive  the  term  of  all  distinctive  value ;  and  is  not  in  ac- 
eprd  with  correct  usage.  The  proof  of  this  is  found  in  the  fact  that 
it  has  led  Ray  himself  into  much  error,  especially  in  his  desci'iption 
of  cases  and  his  medico-legal  conclusions. 

636.  Its  greatest  abuse.— The  greatest  abuse  of  the  term  "mania" 
has  been  in  lx?half  of  those  persons  who  have  committed  crime  under 
great  emotional  stress.  It  is  not  difficult  to  confuse,  in  the  minds 
of  a  court  and  jury,  the  emotional  excitement  of  an  injured  husband 
with  the  general  excitement  of  a  oase  of  mania.  There  is  necessarily 
no  real  analogy  between  them,  however.     The  one  arises  from  a  real 

'  Regis  doscril)Cs  these  impulses  under  joct    of    obsessions,    see    Seglas,  Jjecons 

the  head  of  the  Neurasthenias   (Mental  Cliniques  sur  les  Mai.   INIont. ;   also  see 

Med.    p.   274)  ;    but   they   are   certainly  page  71.3  in  the  present  work, 

not  confined  to  neurasthenia  as  we  use  'Mental  Pathology  and  Therapeutics. 

the  term   in   America.     For  a  full   dis-  Eng.  trans,  pp.  212.  21.3. 

cussion  of  the  kindred,  but   wider,  sub-  'Med.  .Tur.  Insanity,  5th  ed.  1871. 


§  63G]  MANIA.  615 

wrong:  the  other  from  a  pathological  process  in  the  brain.  The 
one  is  natural  and,  in  a  sense,  normal:  the  other  is  morbid.  The  one 
displays  the  full  force  of  intention,  of  choice,  of  malice  prepense :  the 
other  is  the  fleeting  impulse  of  a  mind  disjointed  and  out  of  order. 
The  one  is  deliberate :  the  other  spontaneous.  The  results,  also,  are 
different;  for  the  normal  man,  having  accomj:)lished  his  purpose,  is 
no  longer  excited ;  whereas  the  course  of  the  maniac's  disease  is  in  no 
wise  affected  by  the  ebullition  of  his  wrath.^^ 

637.  Emotional  insanity. — Emotional  insanity  is  only  another  term 
for  these  cases  of  transitory  rage.  As  an  example  of  the  tendency  to 
open  the  door  of  escape  for  criminals  who  have  the  popular  sympa- 
thies, the  case  of  Whitler^  is  to  the  point.  The  accused  was  tried  in 
Philadelphia  for  killing  a  man  whom  he  found  in  adultery  wath  hig 
wife ;  and  Judge  Ludlow  charged  the  jury  that  it  would  be  for  them 
to  say  whether  ^'the  frenzy  which  would  take  possession  of  a  man  un- 
der the  circumstances  would  be  tantamount  to  insanity."  This  w^as 
great  latitude  to  leave  to  the  jury;  and  they  were  not  hampered 
with  the  ordinary  tests  of  right  and  wrong.^*^ 

Walter  B.  Mitchell,  Esq.,  counsel  for  Whitler,  reminded  the  court 
that,  although  it  had  been  held,  as  long  ago  as  the  Manning  Case, 
that  where  a  person  had  found  another  in  the  act  of  adultery  with 
his  wife,  and  killed  him  in  the  first  transport  of  passion,  the  of- 
fense was  merely  manslaughter,  and  that  courts  had  so  held  from 
that  time  down,  nevertheless  "no  jury  had  ever  convicted  a  husband 
of  any  offense,  under  such  a  state  of  facts,  either  in  England  or  this 
country,  from  that  time  to  this,  although  more  than  tw^o  hundred 
years  had  passed  since  that  decision,  and  as  many  as  twenty-five  per- 
sons had  been  tried  for  the  murder  of  the  seducers  of  tlieir  wives." 
He  added  that  "the  licentious  age  of  Charles  II.,  in  which  adultery 
was  no  offense,  was  not  the  source  from  which  either  courts  or  juries 
should,  at  this  period  of  civilization,  look  for  light  to  determine  what 
was  the  proper  and  just  punishment  of  the  adulterer,  or  the  offense 
of  his  slayer."  All  this  may  be  true,  but  it  is  no  reason  for  not 
calling  things  by  their  proper  names.  The  avenging  husband  may 
be  acquitted  on  the  score  of  justifiable  manslaughter,  if  that  is  what 

8i  The    distinction     between    insanity  about    tlie    ''knowlediie     of     risfht     and 

and  the  passions  was  clearly  recognized  wrong,"  or  "the  nature  and  quality  of 

by  the   Roman  law.     See  Morel,  Traite  the  act."     It  is  fair  to  ask,  would  such 

de  la  Mudecine  Legale  des  Alienes,  Paris,  latitude  have  been  allowed  the  juiy  in 

186G.  any  case  but  one  Avliich  always  evokes 

^Com.  V.  Whitler,  2  Brejvst.  (Pa.)   388.  universal  sympathy,  and  for  an  offense 

^"  It   is   significant  that   in   Whitler's  for  which  no  man  has  been  found  guilty 

Case  Judge  Ludlow  had  nothing  to  say  for  more  than  two  hundred  years? 


616  INSANITY— FORMS   AND   MEDICO-LEGA/.   ASPECTS.  [§  637 

is  wanted,  but  let  not  his  wrath  be  called  a  case  of  emotional  insanity 
or  frenzy.  The  responsibility  for  such  an  acquittal  should  not  be  put 
upon  medical  science.^ ^ 

Dr.  Ray^^  discourses  at  great  length  on  the  somewhat  similar  case 
of  Mercer,  who  shot  and  killed  Heberton,  the  seducer  of  his  sister. 
Ray  sees  in  the  excitement,  fury,  and  thirst  for  revenge  in  this 
young  p.ssassin  the  evidences  of  insanity ;  and  accepts  without  demur 
the  report  of  the  symptoms  from  a  newspaper.  The  fact  that  noth- 
ing more  was  seen  of  the  insanity  after  the  act  of  vengeance  is  glossed 
over  by  Dr.  Ray,  who  describes  the  case  under  the  head  of  mania. 
It  does  not  correspond  to  mania,  unless  we  accept  the  theory  that 
mania  can  be  caused  by  the  seduction  of  a  sister,  can  run  its  course 
in  two  days,  and  can  be  cured  promptly  by  the  assassination  of  the 
seducer.^ -2 

638.  Emotional  disturbance  is  not  necessarily  mania. — ^Nothing  can 
be  farther  from  the  truth  than  to  suppose  that  a  so-called  emotional 
insanity  has  any  real  affinity  to  mania.  Emotional  insanity  is  an 
artificial  psychosis  in  which  it  is  assiuned,  quite  gratuitously,  that 
the  only  disturbance  is  in  the  emotions. ■'^  JSTow  in  mania,  as  we  have 
already  seen,  an  acceleration  in  the  formation  of  ideas,  leading  to  in- 

"  Some  ancient  codes,  as  of  the  He-  "The  plea  of  paroxysmal  insanity  was 
brews,  certain  of  the  Greek  states,  and  merely  used  as  a  means  of  evadinj^ 
the  German  tribes,  recognized  the  law  technical  rules  of  evidence,  and  reach- 
of  vonfToanco.  (BOmont  and  IVIonod.  ing  a  triumphant  justification  in  spite 
Medieval  Europe,  p.  27.)  This  is  of  precedent,  and  in  the  face  of  law." 
against  the  spirit  of  modern  laws,  but  (8  Crim.  Law  Mag.  p.  2.34.)  The  de- 
only  in  theory;  for  in  practice  it  is  fense  of  Sickles  had  been  "instantane- 
often  recognized.  If  there  is  no  law  ous  emotional  homicidal  insanity;"  and 
for  killing  the  adulterer,  there  is  equity  it  is  to  be  hoped  that  such  a  defense  in 
for  it,  and  in  such  cases  Public  Opinion  such  a  case  will  never  again  be  sup- 
is  always  the  thirteenth  juror.  The  ported  by  medical  experts  in  this  coun- 
man  who  knows  that  "the  foimtain  try.  Let  the  law  find  its  own  way  for 
through  which  his  current  runs  had  acquitting  these  aggrieved  men.  jiledi- 
been  made  a  cistern  for  foul  toads  to  cal  science  is  not  to  be  made  a  eatspaw 
knot  and  gender  in,"  and  is  patient,  is  of. 
not  tolerated   in   society.     But   if  there  ^- Op.  cit.  p.  160. 

is  excuse  for  killing  the  seducer,  there  I2j'-The  ancients  defined  anger  as  a 

is  no  excuse   for   calling  his  slayer  in-  short  madness;  which  would  relegate  it 

sane.     In   the   SicJcles'   Case    (which    is  at   once   and   entirely   to   the   region   of 

the  type  of  all  such  cases)   the  act  was  pathology.     Without   qualification,    this 

deliberate, — more     than     sixteen    hours  formula    cannot    be    accepted." — Ribot, 

after  the  husband  learned  tlie  truth  of  Psychology  of  the  Emotions,  p.  223. 

his   wife's   guilt.     Says   a   legal    writer,  "There    is    no    passion    that    so   muc^^ 

commenting    on    that    celebrated    case:  transports   men    from   their   right   judg- 

"That   it   is   right   for   the   husband    to  ment    as     anger." — Montaigne,    Essays, 

filay  his  wife's  seducer  was  the  real  de-  "Of  Anger." 

i'ense,   and    insanity   a    mere    ruse,    to  "  See    paper   by   David   Dudley   Field 

reach  it,  is  evident  from  the  entire  con-  (7   Alb.   L.   J.   p.   273),   in   which    this 

duct   of   the   case,    and   made   perfectly  opinion  is  sustained, 
plain   by   the   argument."     And   again: 


I  638]  MANIA.  617 

attention,  inability  to  concentrate  the  mind,  incoherence,  and  even 
confusion,  is  one  of  the  essentials.  In  other  words,  the  disturbance  of 
the  intellectual  concepts  is  fundamental,  and  the  emotional  tone,  as 
was  claimed  by  Mendel,  is  secondary,  and  dependent  on  the  charac- 
ter of  the  ideas.  It  would  be  difficult,  indeed,  to  understand  how 
a  profound  emotional  disturbance  could  exist  in  any  disease  with- 
out an  affection  of  the  intellect.  Certainly  such  does  not  exist  in  true 
mania.  But  the  attempt  to  construct  a  sort  of  emotional  mania,  dis- 
tinct from  an  intellectual  one,  is  not  a  new  thing  in  psychiatry.  Many 
years  ago  Pinel,  the  famous  French  alienist,  described  what  he  called 
manie  sans  delire,  by  which  apparently  he  meant  a  state  of  exalta- 
tion without  impairment  of  the  intellect.^^^  In  criticizing  this  doc- 
trine, Griesinger^^  called  attention  to  the  fact  that  in  no  case  of  mania 
is  the  conscious  thought,  the  intelligence,  perfectly  free  from  disorder. 
Pinel's  doctrine  cannot  apply  to  genuine  mania ;  and,  in  fact,  his 
manie  sans  delire  is  either  now  generally  rejected,  or  restricted  to  a 
form  of  insanity  which  belongs  to  the  degenerative  group,  and  has 
nothing  to  do  with  real  mania.  It  is  more  nearly  allied  to  monoma- 
nia or  paranoia.^"*^ 

639.  Impulsive  insanity  and  mania. — Much  of  this  criticism  applies 
also  to  the  so-called  ''impulsive  insanity,"  which  some  writers  tend 
to  confuse  with  mania.  In  mania  we  may  say  with  truth  that  the 
patient  often  acts  impulsively,  but  this  does  not  give  a  warrant  for  in- 
cluding in  the  group  of  "mania"  all  persons  who  act  from  impulses. 
^Normal  minds  may  act  from  impulses,  and  so  may  other  patients 
than  maniacs.  An  impulse  is  merely  a  more  or  less  involuntary  re- 
action to  a  motive,  or  to  a  mental  concept.  Maniacs,  doubtless,  are 
very  prone  to  them ;  but  this  is  no  reason  for  including  among  the 
maniacs  all  persons  who  act  upon  impulses.  The  term  "impulsive" 
has  no  scientific  merit  as  a  designation  for  a  special  form  of  insan- 
ity, and  should  never  be  confused  with  genuine  mania.^^s  In  the 
Walivorth  Case^^  Judge  Davis  charged  against  impulsive  insanity, 
but  the  jury  rendered  a  verdict  of  murder  in  the  second  degree. 
This  was  against  the  evidence,  and  Avas  a  senseless  ver- 
dict,    and     indicated     that    the    jury    simply    acted    from     their 

I3i  Traits    Medico-philosophique     sur         i^ii  "Impulsive  insanity"' was  included 

I'Alienation  Mentale.     Paris,  1800.  in  the  .classification  of  the  International 

"Op.  eit.  p.  212.  Congress  of  Alienists,  in   1807.     It  was 

1^4  See  Falret    ("La  Manie,   peut-elle  probably  intended  to  apply  to  patients 

exister    sans   une   Lesion    de   I'Entende-  with  obsessions,  or  morbid  impulses,  Tiot 

ment?"    in    his    Maladies    Mentalos,    p.  to  maniacs. 

449)    for  a  criticism   in   which   he  com-         ^"People  v.  Walicorth,  4  N.  Y.  Crim. 

bated  Pinel's  views.  Rep.  355. 


018  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§  639 

sympathies.  The  defense  had  been  uncontrollable  impulse.^*  There 
is  a  form  of  insanity  in  which  impulses,  or  obsessions,  are  much  more 
likely  to  dominate  the  patient  than  in  mania,  and  this  is  described 
elsewhere  in  these  pages,  in  the  neurasthenic  group.-^'^ 

640.  Transitory  mania  and  homicidal  mania. — These  are  terms 
which  haA^e  figured  in  the  courts.  They  are  intended  especially  for 
these  cases  of  sudden  rage,  or  the  desire  for  revenge  which  leads  per- 
sons to  commit  murder.^^  The  limit  of  this  doctrine  is  reached  when 
it  is  claimed  that  a  person  who  is  acknowledged  to  have  been  sane 
just  before  and  just  after  the  act  was  insane  merely  at  the  moment 
when  the  act  was  committed.  There  is  no  support  for  such  a  doctrine 
in  anything  that  is  seen  in  actual  cases  of  mania.  This  disease — 
mania — is  not  a  matter  of  a  few  hours,  minutes,  or  seconds.  A  ref- 
erence to  the  natural  history  of  the  disease  is  sufficient  to  refute  such 
a  claim.  These  artificial  terms  are  as  much  the  invention  of  the 
lawyers,  anxious  to  acquit  their  clients,  as  of  the  physicians  who  are 
anxious  to  help  them  to  do  it.  "Transitory  homicidal  mania,"  says 
a  legal  writer,^ ^  "is  a  term  invented  by  ingenious  lawyers  to  afford 
to  the  jury  a  safe  bridge  upon  which  to  pass  from  a  disagreeable 
technical  duty  to  the  accomplishment  of  their  desire,  when  the  ac- 
cused has  killed  some  one  who,  according  to  the  consensus  of  opinion, 
ought  to  have  been  killed." 

It  is  not  the  part  of  science  to  aid  and  abet  such  schemes.  Becker-'^ 
says,  however,  that  transitory  mania  is  acknowledged  in  principle  as 
an  excuse  for  crime ;  but  he  gives  few  instances.     It  is  usually,  and 

"  "Irresistible   impulse"   has  been   re-  ample  of  mania  in  the  strict  scientific 

jected  as  no  excuse  in  a  large  number  sense  of  that  term.     Becker    (Med.  Ju- 

of  cases  in  American  courts.     By  rights  risp.   For.   j\Ied.   and  Tox.   Vol.   III.,   p. 

it  should  depend  upon  what  the  impulse  446)     lias     an     interesting     chapter    on 

is  due  to,  whether  it  is  a  good  defense,  what  he  calls  "impulsive  insanity,"  and 

There  are  insane  impulses;  such,  for  in-  has  collected  many  cases  in  which  the 

stance,  as  arise  from  insane  delusions,  subject    has     been     adjudicated   in   the 

According  to  the  Penal  Code  of  New  courts;  but  from  the  scientific  stand- 
York  (§23)  a  morbid  impulse  to  com-  point  there  is  no  such  thing  as  a  dis- 
niit  a  crinnnal  act,  in  a  person  who  is  tinct  group,  to  be  called  "impulsive  in- 
capable of  knowing  that  the  act  is  sanity."  Insane  impulses  may  occur, 
wrong,  is  no  defense.  On  this  head  as  said  above,  in  various  forms  of  in- 
consnlt  People  v.  Taylor,  138  N.  Y.  398,  sanity,  but  they  cannot  all  be  grouped 
34  N.  E.  275;  People  v.  Walworth,  4  under  one  head,  any  more  than  the 
N.  Y.  Crim.  PvCp.  355;  People  v.  Cole-  symptom  "fever"  could  be  made  the 
man,  11  Am.  Rep.  731,  1  N.  Y.  Crim.  ground  for  grouping  together  all  forms 
Rep.  1 ;  Flanagan  v.  People,  52  N.  Y.  of  disease  in  which  fever  occurs. 
467;  People  v.  Wnltz,  50  How.  Pr.  214;  "P.  713,  post. 

People  V.   Carpenter,   102   N.   Y.  23S,    1  "^Com,  v.   Wirehack,   190   Pa.    13S.  70 

N.  Y.  S.  R.  648,  6  N.  E.  584;  Moctt  v.  Am.  St.  Rep.  625.  42  Atl.  542. 

People,  85  N.  Y.  379;  People  v.  Caaey,  "16  Am.  &  Eng.  Enc.  Law,  2d  ed.  p. 

31  llun,  158;  ^yillis  v.  People,  32  N.  Y.  564. 

715.  -°  Witthous  and  Becker,  Med.  Jurisp. 

None  of  the  above  cases  was  an  ex-  For.  Med.  and  Tox.  Vol.  III. 


§  G40]  MANIA.  G19 

justly,  looked  upon  with  suspicion;-^  and  especially  when  made  tht» 
shield  for  someone  who  has  killed  merely  in  anger  or  resentment.  A 
type  of  such  cases  was  that  of  Casey,  a  policeman,  who  killed  a  fellow 
officer  deliberately,  in  resentment.^^    The  defense  was  not  allowed. 

641.  Epilepsy  and  mania. — In  epileptic  mania  we  have  a  very  differ- 
ent affair.  This  is  a  distinct  and  important  variety ;  but  it  is  of  such 
special  significance  that  it  requires  a  place  by  itself,  and  is  described 
elsewhere  in  these  pages.  In  this  disease  we  may  have  a  genuine 
transitory  or  explosive  mania,  but  it  is  dependent  entirely  on  the 
epileptic  habit  or  diathesis,  and  is  by  no  means  the  same  thing  as 
the  "transitory"  mania  which  is  conjured  up  in  court  as  a  last  resort 
for  criminals. 

642.  Other  forms. — The  same  may  be  said  of  the  abrupt  and  some- 
times quite  transient  delirium,  or  maniacal  excitement,  of  fever,  heat- 
stroke, and  alcoholism.-^  Such  phenomena  are  not  properly  in- 
cluded under  the  head  of  a  mere  "transitory"  mania.  It  is  better  to 
call  them  by  their  proper  names. 

643.  Puerperal  mania. — The  insanity  which  follows  childbirth 
sometimes  assumes  the  form  of  mania,  and  is  frequently  referred  to 
as  puerperal  mania.^*  But  many  of  these  cases  belong  rather  to  the 
class  called  confusional  insanity;  and  resemble  delirimn  rather  than 
mania  proper.  In  the  mania  or  delirium  following  childbirth  there 
may  occur  impulsive  acts  of  great  violence  and  of  tragic  consequences* 
This  disease  has  been  recognized  from  a  very  early  period  of  human 
history,  and  by  almost  universal  consent  it  is  regarded  as  one  af  the 
most  pathetic  of  mental  diseases.  Pregnancy  and  childbirth  have 
always  been  recognized  as  potent  factors  in  causing  changes  in  the 
nervous  system.^^     Hippocrates' '^  mentions  the  subject,  and  it  was 

'^People  V.  Osmond,  138  N.  Y.  80,  33  into  the  wilderness,  perhaps  symbolizes, 

N.  E.  739.  in   an   archaic   form,   the   perversion   of 

--People  V.  Casey,  2  N.  Y.  Crim.  Rep.  tlie  maternal  instinct  wliich  sometimes 

187.  accompanies    puerperal    mania..     Under 

-^  Krafft-Ebing,    op.    cit.    pp.    252-254.  the  ancient  Allienian  laws  tlie  liouse  of 

^^  Lloyd,    "Puerperal    Insanity,    etc.,"  a  woman  pregnant  or  just  delivered  was 

in  Hirst's  American  System  of  Obstet-  guarded   so   jealouslj^  against  intrusion 

rics.  Vol.  II.  p.  545.  that  a  murderer  could  not  be  seized  wlio 

-°  "The  wife  of  Phineas,   when   about  sought  refuge   there;    and   tlie   Komans 

to  be  delivered,  could  not  withstand  the  suspended  a  crown  at  the  liouse  of  tlia 

shock  produced  by  the  defeat  and  deatli  confined,    to    indicate    that     it    was    s 

of    her    liusband,    whicli    soon    deprived  sacred  asylum."     From  the  autlior's  ar- 

her  of  reason  and  of  life.      (1   Samuel,  tide,    in    Hirst's    System   of  ObstetricSp 

iv.    19,    22.)      The    fable    of    the    insane  Vol.  II.   p.   54G,  547. 

Proetides,  who  spread  tlieir  mental  con-        ^  Works,  translated   by   Adains..    For 

tagion    to    unhappy    mothers,     so  that  a     more     complete     bibliography,     sea 

these    killed    their    offspring,    and    lied  Hirst's  System  of  Obstetrics,  loc.  cit. 


620  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§  G42 

treated  by  many  of  the  early  moderns.  But  EsquiroP"  Avas  the  first 
author  who  described  this  affection  with  proper  system.  Since  his 
time  it  has  been  described  in  detail  by  many  writers,  especially 
Marce,^^  and  statistical  papers  have  been  contributed  by  Reid,-'' 
Tuke,"*>  Schmidt,^^  Leubben,^^  Boyd,^^^  McLeod/^  and  others.  All 
systematic  treatises  on  insanity  give  more  or  less  attention  to  it. 

644.  The  sudden  onset  of  insanity  after  childbirth. — This  disease 
may  declare  itself  suddenly,  and  it  usually  begins  during  the  first 
month  after  the  lying-in.  Impvilsive  acts  are  not  uncommon  in  the 
beginning.  These  may  be  in  the  nature  of  assaults  or  even  homicidal 
acts.  Change  of  disposition,  dullness,  listlessness,  and  irritability 
are  among  the  prodromal  symptoms  in  cases  that  begin  gradually. 
Fleeting  delusions,  hallucinations,  excitement,  and  incoherence  are 
seen.  In  the  early  stages  there  may  be  a  period  of  initial  depres- 
sion, during  which  the  patient  weeps.  The  symptoriis  in  the  main 
are  such  as  have  been  described  in  the  preceding  pages. 

645.  The  causes  of  puerperal  insanity. — The  causes  of  puerperal 
mania  are  heredity,  moral  shock,  exhaustion,  and  especially  blood  poi- 
soning. The  latter  may  be  due  to  septic  infection  incident  to  the 
puerperal  state.  A  large  proportion  of  cases  occur  in  primipara?,  or 
women  with  their  first  children ;  and  not  a  few  of  them  occur  in 
women  who  bear  illegitimate  children.  This  latter  fact  is  of  medico- 
legal import  with  reference  to  the  crime  of  infanticide.  Esquirol 
noted  this  fact  in  a  hospital  which  received  the  poor  and  abandoned 
cases  of  Paris,  Clouston  found  about  25  per  cent  of  his  cases  to  be 
illegitimate;  whereas  the  average  rate  of  illegitimacy  in  Edinburgh, 
from  which  city  and  neighborhood  many  of  his  cases  came,  is  only 
about  one  third  of  that.     These  figures  are  significant. 

646.  From  the  medico-legal  standpoint,  puerperal  mania  is  a  grave 
affection. — The  greatest  danger  in  these  cases  is  infanticide.  The 
patient  may  kill  her  infant  from  a  sudden  insane  impulse.  Dr.  E. 
P.  ToAvnsend,  of  Camden,  N.  J.,  narrated  to  the  writer  the  case  of 
a  young  primipara,  who,  after  a  hard  labor,  in  which  forceps  had  been 
used,  and  during  which  she  had  nine  convulsions,  became  insane  and 
remained  violent  for  nine  days.  There  was  then  a  remission,  and  the 
nurse,  contrary  to  strict  orders,  placed  the  child  in  the  mother's  arms. 

"  Des  Maladies  Mentales,  Paris,  1838.  "  Ziir  Stat,  der  Puerperal  Psvchosen, 

=*Traite  de  la  Folie  des  Femmos  En-  Halle.   1872. 

cientes,   Paris,   1858.  "Joiirn.  ]\Ient.  Sci.  Julv,  1870. 

*»Jour.  Psyeli.  Med.  1848.  "*  Brit.  Med.  Journ.   1886,  Vol.   II.  p. 

"Ed.  Med.  Journ.  May,  1865.  239. 

"  Bcitr.     zur     Kinntniss    der    Puerp. 
I'syrliosen.  Berlin,  1880. 


§  646]  MANIA.  621 

Instantly  the  unfortunate  woman  killed  the  infant  l)y  dashing  its 
head  against  the  wall.     Suicide  may  also  occur  in  these  cases. 

Osiander^^  delivered  a  woman  of  twins,  who  was  wnth  difRcuIty 
restrained  from  throwing  herself  from  a  window.  He  had  also  seen 
another  woman  in  labor  who  demanded  that  her  abdomen  be  o})ened, 
and  had  procured  a  knife  for  that  purpose.  lie  cites  the  case  of  a 
negress,  seized  with  maniacal  excitement  in  the  midst  of  a  ])rolonged 
and  painful  labor,  who  opened  her  abdomen,  extracted  the  child,  and 
recovered.  King  (quoted  by  Marce)  reports  the  case  of  a  peasant 
woman  who,  in  an  access  of  acute  mania,  endeavored  to  strangle  her 
child  immediately  after  its  birth.  Kraepelin  had  under  his  care 
a  puerpera  who  threw  herself  out  of  a  window.  I  once  saw  a  case 
of  attempted  suicide  in  a  woman  four  months  pregnant,  who  had 
thrown  herself  out  of  a  window,  and  who  did  not  even  abort  as  a  con- 
sequence. 

647.  Responsibility  in  the  childbearing  woman. — The  legal  respon- 
sibility of  parturient  women  in  the  various  psychoses  to  which  they 
are  subject  has  been,  and  will  continue  to  be,  a  nice  question  of  casuis- 
try for  the  courts.  The  unfortunate  woman  who  kills  her  child  in  an 
access  of  acute  mania,  and  the  victim  of  melancholia  who  kills  her- 
self to  escape  the  burden  of  her  profound  psychalgia,  do  not  furnish 
complex  problems  to  tax  the  judgment  or  the  charity  of  mankind : 
the  nature  of  their  cases  is  too  evident  to  admit  of  a  doubt  thnt  reason 
has  been  dethroned.  But  there  is  a  wide  range  of  cases  in  which  con- 
sciousness and  reason  are  not  so  overwhelmed  as  in  mania,  or  the 
emotions  so  depressed  as  in  melancholia.  They  are  the  cases  in  which 
the  whims  and  morbid  dispositions  of  pregnant  women,  or  the  im- 
pulses and  transient  frenzies  of  parturient  ones,  place  these  patients 
on  the  border  line,  as  it  were,  between  sanity  and  insanity,  or  consti- 
tute such  an  indistinct  type  of  alienation  that,  in  the  practical  de- 
mands of  medical  jurisprndence,  tlie  opinions  of  physicians  vary,  and 
the  jury  is  apt  to  decide  the  case  according  to  their  sympathies  or  the 
prevailing  current  of  public  opinion.  Such  cases  are  sometimes  seen 
in  young  women,  illegitimately  pregnant,  who  commit  infanticide. 
Fiction  has  portrayed  these  cases,  and  the  public  which  has  wept 
over  the  misfortunes  of  Effie  Deans  and  Ilettie  Sorel  is  apt  to  have 
a  ready  sympathy,  not  inappropriate,  for  these  interesting  and  ap- 
pealing women.^'' 

648.  The  responsibility  varies.— I  think   the   psychology  in   these 

» Quoted  frnm  .lorg.  Hirst's   Syst.   of   Obstetrics,    Vol.    II.   p. 

*•  Lloyd,      "Puerperal      In.sanity,"     in    586. 


622  INSANITY— FORMS   ANT)   MEDICO-LEGAL   ASPECTS,  [§  648 

cases  varies,  and  that  the  degree  of  guilt,  therefore,  is  not  measur- 
able by  any  fixed  rule.  Some  women  entertain  a  strong  aversion  to 
Iheir  unborn  babes :  these  are  cases  especially  of  illegitimacy,  in  which 
the  mother  comes  to  regard  the  infant  as  the  source,  the  evidence,  and 
the  penalty  of  her  own  shame.  In  some  peculiar  circumstances  this 
aversion  is  intensified,  and  cannot  be  corrected  by  any  moral  appeals. 
I  once  had  under  my  care  a  young  woman,  of  a  highly  respected  fam- 
ily, who  became  pregnant  by  a  negro  servant.  She  had  the  most 
intense  disgust  for  her  unborn  babe ;  would  not  speak  of  it  or  prepare 
for  it;  and  after  its  birth  refused  persistently  to  see  it,  to  nurse  it, 
or  to  ha^'e  it  brought  near  her. 

649.  The  social  penalty. — When  we  consider  the  social  penalty  for 
such  offenses  we  cannot  wonder  that  some  of  these  poor  Magdalens, 
in  a  frenzy  of  terror  and  despair,  unattended  in  the  agony  of  their 
parturition,  uncomforted  and  unsupported,  either  abandon  their 
helpless  offspring,  or  destroy  them  in  a  paroxysm  of  rage  and  fear. 
Such  cases  can  scarcely  be  called  instances  of  real  mania,  but  they 
are  eases  which  have  often  contributed  to  the  annals  of  medical 
jurisprudence.  Esquirol  related  the  case  of  a  girl  who  became 
illegitimately  pregnant,  did  not  conceal  it,  made  preparations,  and 
was  confined  alone  during  the  night;  on  the  following  day  she  was 
fonnd  in  her  bed,  and  the  child's  body  in  the  privy  with  twenty-one 
wounds  from  a  pair  of  scissors.  She  avowed  her  crime,  did  not  de- 
fend herself,  showed  no  regret,  but  refused  to  eat.  Esquirol  supposed 
her  to  be  insane ;  but  the  mental  processes  in  such  cases  are  probably 
i^uch  as  arise  from  intense  but  temporary  emotional  excitement,  and 
the  measure  of  guilt  must  be  left  to  the  compromises  and  sophisms 
of  the  courts.  Marce  gives  a  case  from  the  assize  court  of  Marne 
(1847),  of  a  young  woman  who  had  killed  her  babe  by  tightening  a 
cord  around  its  neck ;  she  claimed  that  she  was  out  of  her  mind,  and 
a  compliant  jury  acquitted  her.  Boileau  de  Castlenau^'  gives  the 
case  of  a  young  woman  who  mutilated  her  infant  in  a  shocking  way 
on  the  head,  back,  belly,  and  limbs,  cutting  off  the  head,  and  conceal- 
ing the  bloody  fragments.  The  jury  admitted  the  extenuating  cir- 
cumstances. This  appears  to  have  been  merely  a  desperate  and  bru- 
tal attempt  of  the  accused  to  conceal  her  shame.  Some  years  ago  a 
woman  named  Hester  Vaughn  was  convicted  in  Philadelphia  of  in- 
fanticide, but  public  aversion  to  her  execution  was  so  great  that  the 
case  was  compromised,  and  the  woman  sent  to  England,  whence  she 

"  Ann.  d'Hyg.  Pub.  et  Med.  L6g.  XLV. 
437. 


§  G49]  MANIA.  (J23 

liad  come.  It  is  not  easy  to  measure  such  cases  by  an  exact  scientific 
standard.  Some  of  these  women  are  certainly  not  technically  in- 
sane. Their  cases  are  decided,  not  by  an  appeal  either  to  science  or 
to  law,  but  to  symitath}-. 
"650.  Insane  impulses  in  puerperal  insanity. — The  impulsiveness  of 
the  acts  of  violence  in  some  cases  of  puerperal  insanity  has  been  re- 
ferred to.^*  This  impulsiveness,  however,  while  it  may  be  very  ap- 
parent in  the  act  itself,  does  not  prove  that  the  suggestion  of  this 
act  may  not  have  lain  in  the  mind  for  some  time,  and  have  been  re- 
sisted and  controlled  by  the  patient  until  the  will-power  has  suddenly 
given  way  before  the  pressure  of  a  fixed  idea.  This  is  of  importance 
in  the  legal  aspect  of  these  cases,  because  it  may  possibly  be  shown, 
as  Taylor^^  suggests,  that  the  patient  knew  what  she  was  about,  and 
had  requested  that  the  child  be  taken  away  from  her  lest  she  kill 
it.  This  superficial  appearance  of  sanity  might  have  some  influence 
on  the  legal  mind,  and  give  rise  to  the  specious  reasoning  that  a  pa- 
tient who  had  such  an  accurate  self-knowledge  and  prescience  could 
not  be  irresponsibly  insane.  But  such  reasoning  is  false ;  the  morbid 
impulse — the  lurking  idea — is  in  itself  the  symptom  of  insanity,  and 
this  may  readily  come  within  the  patient's  self-consciousness  before 
her  mind  falls  into  the  complete  disorder  of  mania,  or  even  in  cases 
in  which  but  very  mild  delirium  follows ;  and  the  subversion  of  the 
patient's  will-power  to  such  an  impulse  in  the  commission  of  a  crim- 
inal and  unnatural  act  is  only  the  outward  evidence  of  the  extent  of 
her  alienation.  Morel  relates  a  case  of  fixed  idea  in  a  young  nursing- 
woman,  caused  by  her  reading  the  reports  of  criminal  trials  wherein 
it  was  said  that  women  were  sometimes  seized  with  the  irresistible  im- 
pulse to  kill  their  children.  She  became  so  filled  with  this  idea  that 
her  infant  ^lad  to  be  taken  from  her.  In  those  cases  in  which  the  im- 
pulsive homicidal  act  has  been  attempted  or  committed  during  the 
maniacal  paroxysm,  or  just  after  it,  as  in  Dr.  Townsend's  case,  al- 
ready narrated,  it  is  possible  that  the  deed  is  in  response,  sometimes, 
at  least,  to  some  such  idea,  which  has  lain  fragmentary  or  confused 
in  the  patient's  mind  from  an  earlier  period  of  her  malady. 

651.  False  accusations. — Some  authors,  among  them  McLeod,  say 
these  patients  are  prone  to  make  unfounded  accusations  of  assault 
and  immorality,  with  much  plausible  and  circumstantial  detail.  Tar- 
dieu  rejected  the  claim  of  a  transitory  mania  in  these  cases,  and  Le- 
grand  du  SaulP^  says  that  the  cases  of  pretended  transitory  mania 

"See   also    United   f^tates   v.    Hewson        '"  Manual  of  Mod.  .Turisp.  Pliila.  1873. 
(Brun.   Col.   Cas.   532).  «» Traite  de  Med.  Log.  p.  854,  note. 


624  INSANITY— FORMS   AND   MEDICO-LEGAL   ASPECTS.  [§651 

\vliich  be  had  observed  were  allied  to  epilepsy.  He  evidently  is  scep- 
tical about  this  psychosis.  Eocher  believed  in  a  transitory  mania 
during  delivery,  and  says  that  the  causes  which  produce  it  are  shame 
over  an  illegitimate  birth,  heredity,  and  the  extreme  pains  of  labor. 
Among  those  who  favor  the  existence  of  such  transitory  mania  in 
childbirth  are  some  of  the  most  eminent  alienists,  such  as  Morel, 
Griesinger,  and  Kraepeiin.  According  to  Taylor,  irresponsibility 
on  the  ground  of  transitory  mania  under  these  circumstances  has  not 
been  admitted  in  an  English  court. 

652.  The  delusions  of  puerperal  patients. — Some  of  the  most  import- 
ant questions  in  the  medical  jurisprudence  of  the  puerperium 
arise  in  reference  to  the  delusions  or  alleged  delusions  of  the  patient. 
These  patients  have  been  known  to  make  unfounded  accusations  of 
inmioral  conduct,  and  sometimes  even  to  implicate  themselves.  On 
the  other  hand,  they  have  been  known  to  make  confessions  which  were 
true.  The  obligation  to  distinguish  these  cases  is  great,  and  the  im- 
portance to  the  patient  and  her  family  cannot  be  overestimated.  In- 
sane persons  m^y  tell  unpleasant  truths,  and  interested  friends  may 
find  it  convenient  to  have  such  statements  interpreted  as  delusions. 
A  woman  in  a  Pennsylvania  town,  in  puerperal  delirium,  revealed 
the  fact  that  she  had  another  husband  living.  The  most  noted  of 
these  cases,  among  all  causes  celebres,  was  the  Mordaunt  Case^'^  in 
England.  The  wife  of  an  English  baronet  confessed,  soon  after  her 
confinement,  and  in  the  commencement  of  what  appears  to  have  been 
an  attack  of  puerperal  insanity,  that  she  had  been  an  unfaithful  wife, 
and  that  the  child  was  not  her  husband's.  She  implicated  a  number 
of  men  well  known  in  the  social  world.  A  trial  resulted,  which  was 
unsurpassed  in  the  unsavory  scandal  and  serious  consequences  which 
arose  from  it.  The  collateral  evidence,  which  confirmed  tlie  patient's 
statements,  and  compromised  her  still  more,  does  not  appear  to  have 
been  refuted.  On  the  other  hand,  the  testimony  of  eminent  alien- 
ists leaves  no  doubt  that  after  her  confinement  the  patient  sank  into  a 
state  of  delirium.  The  conclusion  seems  inevitable  that  the  woman 
made  a  truthful  confession  in  the  initial  stages  of  an  attack  of  in- 
sanity. It  would  not  do  to  conclude,  however,  that  every  woman 
should  be  believed  in  all  she  says  in  an  attack  of  puerperal  mania. ^^ 

*^Mordaunt    v.    Mordaunt,     L.     R.     2  and  the  Insanity  of  Pregnancy  and  Lae- 

Prob.  &  Div.   103.  tation,"  in  Hirst's  American  System  of 

"  In   writing  the   foregoing  pages  on  Obstetrics,  Vol.  II.  p.  546,  Phila.   1889, 

Puerperal  Mania,  I  have  made  free  use  Lea  Bros.  &  Co. 
of  my  article    on    "Puerperal    Insanity 


CHAPTER  XXXTIL 

MELANCHOLIA. 

3?.  The  medical  aspects  of  melancholia. 

653.  Melancholia  as  contrasted  witli  mania. 

654.  The  sense  of  personal  unwortliiness 

655.  The  essential  features  of  the  disease, 

656.  Delusions  in  melancholia. 

657.  Sexual  delusions. 

658.  Religious  delusions. 

659.  Varieties  of  delusions. 

660.  Hallucinations. 

661.  The  bodily  condition. 

662.  Forms  of  melancholia. 

663.  Agitated  melancholia. 

664.  Stuporous  melancholia. 

665.  Hypocliondriacal  melancholia. 

666.  The  termination  of  melancholia. 

667.  Chronic  melancholia. 

668.  Infection  as  a  cause  of  this  disease. 
II.  The  medico-legal  aspects  of  melancholia. 

668^.  Melancholia  is  a  form  of  "partial"  insanity. 

669.  Suicide  is  a  common  danger  in  melancholia. 

670.  The  mental  state  in  suicides. 

671.  The  riglit-and-wrong  test  as  applied  to  suicides. 

672.  The  medico-legal  importance  of  suicide. 

673.  Among  the  ancients. 

674.  Bracton's  statement. 

675.  The  law  in  America  on  attempt  to  commit  suicide. 

676.  If  a  would-be  suicide  kills  another  person  he  is  guilty  (  f  homicide 

677.  Accidental  suicide  while  attempting  to  commit  a  felony. 

678.  Cases  of  double  suicide. 

679.  The  guilt  of  the  survivor. 

680.  The  psychology  of  double  suicide. 

681.  Double  suicide  in  mother  and  child. 

682.  Assisting  in  any  way  to  commit  suicide  is  a  crime. 

683.  The  principle  of  husband's  control. 

684.  The  refinements  of  the  law  on  the  subject  of  suicide. 

685.  The  futility  of  laws  against  suicide. 

686.  Christianity  condemned  suicide. 

687.  Public  opinion  is  more  tolerant. 

688.  Laws  against  suicidal  attempts  also  useless. 
680.  Suicide  and  life  insurance. 

625 
Vol.  I.  Med.  Jur. — 40. 


626  IXSA>s"lTY— FORMS  AND  MP:DIC0-LEGAL  ASPECTS.  [§  35:] 

690.  Voluntary  or  involuntary  suicide. 

691.  The  law  in  America. 

692.  What  constitutes  a  criminal  intent  in  suicide. 

693.  The  better  psychiatry  is  the  better  law. 

694.  The  proof  of  suicide. 

695.  Can  a  man  contract  that  he  will  never  go  insane? 

696.  Suicide  raises  no  presumption  of  insanity. 

697.  The  findings  of  coroners'  juries  in  cases  of  suicide. 

698.  An  academic  question. 

699.  The  real  problem  in  suicidal  melancholia. 

700.  The  presumption  of  sanity. 

701.  The  relation  of  the  suicidal  act  to  a  delusion. 

702.  The  present  doctrine  of  English  law. 

703.  Some  legal  opinions  differ. 

704.  In  cases  in  which  suicide  is  a  crime,  insanity  exculpates. 

705.  The  difiiculty  of  diagnosis  in  some  cases  of  insane  suicides. 

706.  The  study  of  statistics  of  insane  suicides, 

707.  The  difficulty  of  analyzing  statistics. 

708.  Homicide  may  be  committed  by  the  melancholiac. 

709.  Deliberation  and  premeditation  in  these  patients. 

710.  Homicidal  impulses  in  melancholia. 

711.  The  complicated  motives  that  may  lead  to  homicide. 

712.  Criminal  motives  in  suicidal  patients. 

I.  The  medical  aspects  of  ]\ielanciiolia. 

653.  Melancholia  as  contrasted  with  mania. — This  disease  is  often 
described  as  the  opposite  of  mania.  It  is  marked  by  depression, 
whereas  the  latter  is  known  bj  its  exaltation.  Clouston^  gives  the 
simplest  definition  when  he  says  that  melancholia  is  marked  by  men- 
tal pain  (psychalgia)  ;  but  he  hastens  to  add  that  mental  pain  does 
not  alone  constitute  melancholia.  Normal  minds  may  suffer  intense 
mental  pain,  and  yet  not  suffer  from  melancholia.  Grief,  anxiety,  fear, 
remorse,  despair, — none  of  these  is  melancholia,  yet  they  are  all  ex- 
amples of  mental  pain.  To  constitute  a  true  melancholia  (just  as  a 
true  mania)  there  must  be  a  pathological  process  in  the  brain  itself; 
and  this  morbid  process  so  affects  the  nutrition  and  action  of  the  or- 
gan that  a  general  sense  of  depression  results.  This  depression  has 
no  necessary  relation  to  anything  without,  as  grief  and  other  normal 
emotions  have,  but  it  arises  from  a  disease  within.  In  other  words, 
it  is  subjective. 

654.  The  sense  of  personal  unworthiness. — But  emotional  disturb- 
ance, or  depression,  is  not  the  whole  of  melancholia;  hence  the  defi- 
ed inical    Lectures    on     Mental     Dis- 
eases,   1st  ed.   p.  53. 


§  (554]  MELANCHOLIA.  627 

nition  must  include  more.  The  ideas,  or  intellectual  functions,  are  al- 
so involved.  If  the  patient  is  sad,  there  must  be  something  for  him 
to  be  sad  about.  The  morbid  process  interferes  with  the  free  action 
of  the  brain ;  ideas  are  not  accelerated,  as  in  mania,  but  the  reverse. 
There  is  soon  a  subjective  sense  of  limitation,  of  embarrassment,  of 
debasement,  of  personal  unworthiness.  This  is  quite  as  essential  as 
the  mental  pain.  There  has,  indeed,  been  some  futile  discussion  as 
to  which  of  these  two — the  emotional  or  the  intellectual  disorder — is 
the  primary  one  in.  melancholia ;  but  Kraift-Ebing^  has  taken  the 
most  philosophic  view  when  he  says  that  neither  is  primary ;  that  each 
is  allied  to  the  other.  They  are  coexistent,  and  both  depend  on  the 
-;ame  underlying  disease  in  the  organic  brain.  The  attempt  to  dis- 
sociate the  various  mental  faculties  in  insanity  is  purely  academic.^^ 
In  the  diseased  brain  there  is  not  likely  to  be  such  dissociation.  The 
(.'motions  and  the  intelligence  suffer  together.  So  it  is,  at  least,  in 
melancholia. 

655.  The  essential  features  of  the  disease. — It  is  in  the  sense  of 
personal  unworthiness  that  we  probably  see  the  essential  psychic  fea- 
ture of  melancholia.  These  patients  have  a  painful  sense  of  a  limi- 
tation or  debasement  of  the  ego.  The  entire  depression  centers  about 
this  injured  sense  of  self-consciousness.  The  pain  or  anxiety  is  not 
concerned  with  the  outside  world,  but  with  the  world  within.  The  mel- 
uncholiac  does  not  worry  or  concern  himself  wntli  the  real  affairs  of 
life,  but  with  the  disorder  of  his  own  soul.  Hence  it  happens  that  the 
patient,  except  in  severe  or  advanced  cases,  is  not  deprived  of  the 
power  of  reasoning  correctly  about  matters  external  to  himself.  He 
is  not  incoherent.  It  has  even  been  said  that  the  melancholiac  is  the 
least  insane  of  all  the  insane;  but  such  a  statement  must  be  taken 
with  due  reservations. 

656.  Delusions  in  melancholia. — The  disorder  of  intelligence  in  mel- 
ancholia is  shown  by  the  formation  of  delusions.  Some  authorities 
explain,  these  delusions  as  the  results  of  the  interpretation  by  the 
patient  of  his  own  painful  sensations.^s  According  to  this  view  we 
raust  suppose  that  the  patient,  as  it  were,  manufactures  his  delusions 
by  a  process  of  ratiocination.  Such  an  explanation  is  far-fetched.  It 
is  more  in  accord  with  probability  to  suppose  that  the  delusions  are 
caused  spontaneously,  by  the  morbid  association  of  ideas.     However 

'Traitg  Clin,  de  Psych,  p.  350.  Emotions,  has  gone  on  the  principle  of 

2^  Spitzka,  Insanity,  p.  141  ;  Griesing-  separating    too    radically    the    emotions 

er,  Mental  Pathology  and  Therapeutics,  from  the  intelligence.     His  work  is  the 

p.  146.  fullest  exposition  of  this  subject,  and  ia 

^  iElibot,    in    his    Psychology    of    the  a  mine  of  learning. 


628  INSANITY— FOKMS  AND  MEDICOLEGAL  ASPECTS.  [§  658 

they  arise,  the  delusions  in  this  disease  have  always  one  characteris- 
tic that  distinguishes  them  from  the  delusions  in  all  other  forms  of 
insanity:  they  take  their  tone  from  the  sense  of  personal  abasement. 
The  melancholiac,  however  he  may  reason  about  his  own  state,  has 
ahvays  the  belief  that  he  is  himself  at  fault.  It  is  his  own  unworthi- 
ness,  his  own  sin,  his  own  imperfection,  that  lies  at  the  foundation 
of  his  delusions.  In  this  respect  he  differs  profoundly  from  the  ma- 
niac, who  has  a  sense  of  personal  exaltation ;  and  from  the  paranoiac, 
who  believes  that  he  is  unjustly  persecuted.  To  understand  fully  the 
emotional  reaction  in  melancholia,  as  well  as  the  behavior  and  acts — 
especially  the  criminal  acts — of  the  melancholy  patient,  it  is  neces- 
sary never  to  lose  sight  of  this  peculiarity  of  his  delusional  state. 

The  delusions  vary  as  to  their  contents.  In  mild  or  early  cases  they 
are  not  systematized,  and  not  revealed.  The  patient  is  reserved  about 
them ;  he  makes  no  confidants.  He  is  not  yet  fully  under  their  influ- 
ence, and  may  control  and  even  tend  to  correct  them.  Neither  are 
they  fixed,  but  vary  from  time  to  time.  They  are  not  yet  concerned 
with  the  more  serious  problems  of  life ;  their  details  may  be  petty, 
and  the  patient  himself  is  not  yet  fully  convinced  of  their  importance. 
In  graver  or  more  advanced  cases,  however,  the  delusions  are  more- 
overwhelming,  and  may  become  systematized  and  fixed.  There  arc 
two  varieties  of  them  especially, — the  sexual  and  the  religious;  and 
there  is  usually  an  ethical  element  in  them. 

657.  Sexual  delusions. — Sexual  subjects  sometimes  engross  the  mind 
of  the  melancholiac.  The  patient  charges  himself  with  sexual  sins. 
These  ideas  may  have  a  hypochondriacal  tinge.  The  patient  may  be- 
lieve that  he  has  contracted  syphilis;  he  becomes  a  syi)hilophobiac. 
This  may,  indeed,  not  be  a  delusion  in  itself,  but  the  patient  may 
draw  delusional  inferences  from  it.  iSTot  a  few  patients  are  con- 
vinced that  they  are  ruined  from  the  effects  of  masturbation ;  they 
believe  that  they  are  wasting  away  from  an  involuntary  discharge  of 
semen.  These  patients  may  resort  to  self-mutilation  of  the  most 
shocking  kind.  I  have  seen  two  cases  in  men  who  had  excised  their 
testicles.  The  motive  for  this  act  may  be  self -protection :  the  patient 
wishes  to  be  rid  of  the  sources  of  physical  weakness.  In  other  cases, 
the  motive  is  ethical :  the  patient  plucks  out  the  offending  organ.  It 
is  self-punishment  or  self-sacrifice  that  impels  him,  or  a  religious 
craze,  as  in  the  well-known  case  of  Origen,  the  Christian  father. 
He  followed  the  Biblictil  injunction  somewhat  too  literally.^     Asso- 

•Tlioolofjians     seem     to     differ    with    tion.     Tims.  Moslieim.  in  liis  liistory  of 
alienists    about    the   act   of    self-castra-    Christianity  during  the  first  three  ceo- 


?  057]  MELANCHOLIA.  G29 

eiated  with  these  ideas  of  sexual  sin  is  a  sense  of  profound  degrada- 
tion. 

658.  Reli^ous  delusions.— Religious  topics  are  frequently  the 
source  of  the  delusions  in  melancholia.  The  patient  is  a  sinner, — he 
has  offended  God, — he  has  forfeited  his  chances  of  salvation.  In  some 
cases  the  delusion  of  the  '"unpardonable  sin"  becomes  fixed.  There 
-are  few  asylums  that  have  not  had  their  quota  of  unpardonable  sin- 
ners. In  severe  cases  the  religious  delusions  may  be  exceedingly 
terrifying,  especially  in  persons  whose  religious  beliefs  have  been 
largely  superstitions.  The  belief  in  a  personal  devil  and  his  imps, 
and  in  a  literal  hell-fire,  here  finds  its  most  revolting  development. 
In  the  case  of  a  lady,  who  has  since  recovered,  the  patient  believed 
that  the  Devil  took  bodily  possession  of  her ;  that  he  violated  her  per- 
son every  night ;  that  she  was  in  hell ;  and  that  she  was  doomed  for- 
ever. In  such  a  case  the  mental  state  becomes  a  genuine  delirium ; 
the  patient  weeps  and  raves ;  she  makes  the  most  abominable  disclos- 
ures of  her  delirious  ideas,  and  she  is  as  much  excited  and  as  dithcult 
to  control  as  a  maniac. 

659.  Varieties  of  delusions. — Clouston'*  gives  a  list  of  more  than 
fifty  examples  of  delusions  such  as  he  has  seen  in  melancholia,  and  he 
says  the  list  does  not  exhaust  his  collection.  Some  of  the  commonest 
are  a  sense  of  impending  calamity;  of  having  committed  murder, 
theft,  or  other  grave  crime ;  of  being  about  to  die ;  that  he  will  never 
recover;  a  sense  of  having  neither  brain  nor  stomach;  of  having  lost 
(werything ;  of  being  a  fish,  or  otherwise  transformed ;  fear  of  being- 
hanged  ;  and,  finally,  of  being  dead.^     It  is  impossible  to  complete 

turies   (Vol.  II.  §  27),  comes  bravely  to  ni.ade  at  different  times,  and  the  second 

the    defense    of   Origen.     "He    was    cen-  is  not  reported  in  Movilton's  paper,  "At- 

siired    indeed    by  Demetrius   and   others  tempted    Self-Castration    in    an    Insane 

for  havinjT  emasculated  himself;   and   I  Patient,"    in    the    Phila.    Med.    Journ., 

will  not  acquit  him  of  all  fault  in  that  May  31,  1902. 

matter.     But  the  fault  itself  is  such  as        *  Op.  cit.  p.  88.     It  is  a  curious  f.act 

demonstrates   the   strength   of  his   reso-  that     there     is     no     better     agreement 

lution.  and  his  devotedness  to  religion;  among  the  insane  than  among  the  sane 

nor  could  it  be  committed  by  an  ordi-  abcut  what  constitutes  the  "unpardon- 

nary    man."     On    the    contrary,    as    we  able    sin."     Few    lunatics    agree    on    the 

have  seen  above,  it  is  usually  commit-  subject.     Some   melanclioliacs   have   the 

ted  now-a-days  by  insane  men,  and  very  most    trivial    and    preposterous  notions 

^'ordinary''  ones  at  that.     Instead  of  an  about  this  theological  nightmare,  which 

evidence   of   devotedness   to   religion,    it  seems  to  be  well  designed  to  drive  weak- 

is  usually  found,  in  this  prosaic  age,  to  minded  men  crazy.     Clouston  says  that 

be  an  evidence  of  an  unsound  mind.  dozens  of  patients  had  confessed  to  him 

Moulton,   of  the   Pennsylvania  Hospi-  tliat  their  "unpardonable  sin"  was  mas- 

tal  for  the  Insane,  has  reported  the  case  turbation.     This   sliows   of   what   mate- 

of  an  insane  man  who  not  only  excised  rial  these  delusions  are  made, 
one  of  his  testicles,  but  also  amputated        ^  One  of  the  earliest  recorded  instan- 

his  penis,  and  threw  it  out  of  the  win-  ces  of  insanity  is  that  of  Nebuchadnez- 

<lovv.     The     two     self-mutilations     were  zar,    king   of   Babylon,   who   became   a* 


630  INSAJ^ITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  G59 

this  Anatomy  of  Melancholy.  The  delirious  ideas  are  almost  as 
numerous  and  varied  as  are  the  patients  themselves ;  but  underlying 
them  is  always  the  sense  of  personal  unworthiness,  with  its  corre- 
sponding emotions.^2 

660.  Hallucinations. — Hallucinations  are  not  common  in  mild,  or 
in  the  early  stages  of  gTave,  cases,  but  they  are  not  rare  in  advanced 
or  severe  attacks.  In  religious  delirium,  already  noted,  the  patient 
may  smell  the  sulphurous  fumes  of  hell.  Auditory  and  visual  hallu- 
cinations are  also  observed,  and  disgusting  hallucinations  of  taste. 
General  sensibility  may  be  impaired :  there  may  be  anesthesia,  or  loss 
of  sensation ;  and  paresthesia,  or  perversion  of  sensation. 

661.  The  bodily  condition. — The  physical  state  of  the  melancholiac 
shares  in  the  general  depression.  There  is  loss  of  appetite,  even  aver- 
sion to  food ;  and  in  some  cases  the  patient  would  not  eat  at  all  if  not 
forced  to.  The  tongue  is  coated,  the  breath  foul,  the  bowels  obstinate- 
ly constipated.  Sleep  may  or  may  not  be  disturbed ;  in  the  anxious 
and  excited  cases  there  is  insomnia.  Fever  is  not  a  symptom  in  mel- 
ancholia, nor  are  there  characteristic  changes  in  the  pulse.^^  Seglas 
has  noted  an  increased  resistance  to  electricity  in  the  skin  and  tis- 
sues, which  seems  to  indicate  gj-eat  physical  changes. 

The  attitude  and  demeanor  are  strongly  suggestive  of  the  mental 
state.  The  melancholy  patient  is  apathetic,  and  the  facial  expression 
is  dull  and  downcast.  He  takes  no  interest  in  things;  does  not  read, 
as  a  rule,  or  occupy  himself  in  useful  ways,  and  he  avoids  society.  He 
is,  in  a  word,  self-centered ;  he  dwells  constantly  on  his  own  unhappy- 
state.     His  mind  is  pent  up  and  hedged  in.^ 

662.  Forms  of  melancholia. — Melancholia  may  assume  several  forms, 
but  these  varieties  are  based  upon  merely  superficial  differences.     At 

one  of  the  beasts  of  the  fields   (Dan.  iv.  •Areta^us  1ms  described  this  state  as 

30).        The   delusion   of   being   changed  Animi  angor  in  una  cofjitatione  defixus 

into  a  beast  has  been  very  common,  and  atque  inhacrens, — anguish  of  mind,  lim- 

has    received    many    fantastical   names;  ited   and   inhering  in   one   idea.     Angor 

thus,    "zoanthropy,"   a   beast-man;    "ly-  means   literally  a   sense  of  constriction 

canthropy,"    a   wolf-man;    and    "'cynan-  at  the  neck,  wliich  is  a  prominent  symp- 

thropy."    a     dog-man.        See     Esquirol,  toni    in   many   forms   of   mental   excite- 

Mental    Maladies,    Am.    Trans.,  chapter  ment  or  distress.     The  word,  or  its  de- 

on  "Demonomania."  rivativos,  is  still  used  by  the  French  to 

5i  Burton,  in  his  Anatomy  of  Melan-  describe  a  form  of  melancholia — melan- 
choly, gives  many  kinds  of  delusions  and  cholie  nvcc  angoissc  prccordiale — in 
morbid  fears  which  he  had  gatliered  from  which  there  is  an  explosion  of  excite- 
old  authors,  showing,  as  Sankey  ob-  ment,  witli  oppression  of  breathing,  and 
serves,  the  universality  of  these  charac-  great  disturbance  of  the  mental  facul- 
teristics  from  all  time.  ties;    also   called   raptiis  melancholicus. 

5p("My  pulse,  as  yours,  doth  temper-  R^gis,  Practical  Manunl  of  l\fental  Med. 

ately  keep  time." — Ilamlet,  Act.  3,  Sc.  4.  Am.    Truis.    p.    172;    KratTt-Ebing.    op. 

But  Hamlet's  c-ase  was  not  one  of  melan-  cit.  p.  359. 
cholia. 


§  662]  MELANCHOLIA.  631 

bottom  the  melancholic  state  is  very  simple,  and  it  is  vei*y  similar 
in  all  cases.  Variations  are  due  largely  to  the  way  the  mind  reacts 
to  the  painful  disturbance  within.  This  reaction  naturally  varies  ac- 
cording to  the  intensity  of  the  distress  and  the  mental  traits  of  the 
individual.  , 

663.  Agitated  melancholia. — In  some  melancholiacs  the  mental  pain 
is  not  borne  patiently.  The  sufferer  reacts  to  it  by  showing  both  men- 
tal and  physical  excitement.  Instead  of  presenting  the  typical  pic- 
ture of  apathy,  depression,  and  sloth,  he  displays  great  activity.  He 
walks  the  floor,  gesticulating  and  wringing  his  hands ;  he  weeps, 
raves,  and  accuses  himself.  He  is  the  picture  of  despair,  and  the 
spokesman  of  it,  too.  This  form  is  called  agitated  melancholia, — 
melancliolia  agitata, — and  its  chief  significance,  from  the  diagn(jstic 
standpoint,  is  that  it  may  easily  be  mistaken  for  mania.  But  this  mis- 
take will  not  be  made  by  experienced  observers ;  the  emotional 
state  is  entirely  different  from  that  of  mania :  it  is  the  state  already 
described  as  mental  pain. 

664.  Stuporous  melancholia. — In  some  patients  the  state  is  exactly 
the  reverse  of  excitement.  The  mental  disturbance  is  so  profound, 
owing  to  the  intensity  of  the  emotional  shock,  that  the  patient  is 
overwhelmed  by  it.  He  is  plunged  into  a  condition  of  stupor.  The 
mental  reflexes  are  abolished.  The  mind  is  oblivious  of,  or  indiffer- 
ent to,  its  surroundings.  The  patient  may  be  mute  for  days  or  even 
months ;  no  urging,  no  appeal,  can  induce  him  to  speak.'^  He  is  as 
one  who  does  not  hear.  The  face  is  a  blank.  All  spontaneity  is  gone. 
Food  is  ignored,  and  the  patient  requires  to  be  fed  by  force.  The 
consciousness  and  memory  are  much  impaired,  and  to  the  unfortu- 
nate patient,  when  he  recovers,  the  period  through  which  he  has 
passed  may  appear  as  a  horrid  dream  or  nightmare.  This  condition 
is  called  "stuporous"  or  "atonic"  melancholia, — melancholia  attonita. 
It  requires  to  be  distinguished  from  dementia,  which  it  closely  re- 
sembles, but  from  which  it  differs  in  the  important  fact,  among 
others,  that  the  patient  may  recover. "^ 

'Stearns  (Lectures  on  Mental  Dis-  approached  and  spoke  to  lier.  wlien  she 
eases,  p.  157)  refers  to  a  case  of  niehxn-  suddenly  spat  at  liim.  exchiiniing  in  nn- 
cholic  mutism  in  which  the  patient  had  mistakable  English,  ''Got  out,  you 
not  spoken  a  word  for  twelve  years,  and  d d  English  rascal!"  The  attend- 
yet  recovered.  ants,   who  had  never   before  licard   the 

The  English  physician.  Burrows  sound  of  her  voice,  were  amazed,  for 
(Commentaries,  etc.  pp.  203,  264),  re-  they  had  never  suspected  that  the  pa- 
lates this  incident:  He  was  visiting  a  tient  was  not  a  Frenchwoman. 
French  asylum,  and  became  interested  "i  KrafTt-El)ing,  op.  cit.  p.  372.  The 
in  a  patient  who  had  not  spoken  since  first  observer  who  clearly  pointed  out 
her  admission,  a  long  while  before.    He  the  radical  difference  between  stuporous 


632  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  G65 

665.  Hypochrondriacal  melancholia. — In  this  form  the  patient  has 
delusions  that  he  is  diseased  or  affected  in  body ;  he  is  poisoned,  or  in- 
fected with  vermin,  or  loathsomely  diseased ;  his  arm  may  he  turned 
to  glass,  or  his  sexual  power  abolished.  But  if  he  entertains  ideas  of 
persecution,  these  differ  from  those  of  the  paranoiac  in  the  fact  that 
the  melancholiac  believes  that  his  misfortunes  are  deserved ;  whereas 
the  paranoiac  is  convinced  that  he  is  persecuted  unjustly.  This  dis- 
tinction has  great  medico-legal  importance. 

666.  The  termination  of  melancholia. — Melancholia  may  terminate 
in  recovery,  in  death,  or  in  chronic  and  incurable  insanity. 

667.  Chronic  melancholia. — In  chronic  melancholia  the  intensity 
of  the  mental  pain  gradually  diminishes  with  the  progressive  loss  of 
the  mental  integrity.  The  patient  may  continue  for  years  to  enter- 
tain depressive  delusions,  but  he  seems  in  time  to  accommodate  him- 
self to  them :  their  force  is  spent ;  and  while  he  still  displays,  as  by 
the  force  of  habit,  his  melancholic  demeanor  and  speech,  in  a  sort  of 
automatic  way,  he  is  really  more  comfortable  in  mind  than  he  looks. 
But  the  mental  faculties  are  permanently  impaired.  I  knew  of  one 
old  lady  in  an  asylum,  who  had  believed  for  thirty  years  that  each 
day  would  be  her  last, — that  she  would  die  before  the  morrow, — 
and  yet  she  led  a  quiet  and  even  contented  life. 

668.  Infection  as  a  cause  of  this  disease. — The  opinion  prevails 
among  some  alienists  that  melancholia  is  due  to  an  infection  of  the 
blood,  and  that  this  infection  has  its  origin  within  the  body  itself; 
in  other  words,  that  it  is  an  auto-infection.  The  material  for  this  in 
fection  may  be  elaborated  in  the  stomach  and  bowels  by  a  process  of 
faulty  digestion.  These  ideas  are  somewhat  speculative,  and  seem 
to  take  us  back  to  the  ancients,  who  traced  melancholia  to  a  perverted 
state  of  the  bile ;  from  which,  indeed,  the  disease  derived  its  name 
{fi£?.a<z,  black,  and  )roA/^,  bile),  Bouchard  and  other  French  writ- 
ers are  especially  identified  with  these  views  of  an  auto-infection. 
They  say  that  gastrointestinal  affections  are  very  common  in  mel- 
ancholia, and  in  this  they  are  undoubtedly  correct.  Dilatation  of  the 
stomach,  impaired  digestion,  fermentation  of  undigested  food,  torpid 
bowels, — these  are  the  chief  symptoms  upon  which  they  rely.  Bet- 
tencourt  Rodriguez^  wrote  on  the  influence  of  auto-intoxication  and 
dilatation  of  the  stomach  in  melancholia,  and  good  results  liave  been 

Jiielancholia  and  imbecility,  stupor,  etc.,  fectious  Diseases  on  the  Development  of 

was  BaiHari,'er,  Ann.  Med.  Psych.   184.3.  Mental  Disorders,"  Lille,   1SS9-90;   also 

'  Internatiimal     Congress     of     Mental  thesis   by   Feyal,   Lyons,    1890,   and   the 

^ledioine    (1889).     See    also    the   thesis  writings  of  Rf-gis   (Med.  Mentale). 
Iiy    Cliaidon    on    "'The    influence    of    In- 


§  6C81  MELANCHOLIA.  633 

claimed  from  washing  out  the  stomach,  and  stimulating  the  intes- 
tinal tract.  If  the^e  views  should  prove  correct,  they  would  prove 
that  melancholia  is  one  of  the  toxic  insanities;  and  we  should  no 
longer  be  justified  in  claiming  that  it  is  a  purely  functional  insanity, 
or  an  insanity  without  a  pathology.^ 

II.  The  medico-legal  aspects  of  melancholia. 

6681/2.  Melancholia  is  a  form  of  "partial"  insanity. — In  this  disease, 
as  has  been  pointed  out,  the  intelligence  is  often  not  seriously  in- 
volved. The  morbid  process  centers  upon  the  depressive  ideas;  but 
in  grave  cases  these  deliria  so  overpower  the  mind  that  the  patient 
practically  has  no  thought  for  aught  else.  He  may  be  perfectly 
aware  of  himself  and  his  surroundings;  he  may  even  have  his  moral 
sense;  but  everything  is  as  nothing  to  him  compared  with  the  over- 
whelming sense  of  personal  abasement.  For  the  medical  jurist  this 
is  the  keynote  of  melancholia:  it  reveals  the  motive  for  the  patient's 
insane  acts.  Melancholia  thus  answers  to  the  "partial"  insanity  of 
Sir  Matthew  Hale,^i  which  included  persons  who  "discover  their 
defects  in  excessive  fears  and  griefs,  and  yet  are  not  wholly  destitute 
of  the  use  of  reason."  But  Hale  committed  the  great  error  of  saying 
that  such  an  insanity  does  not  excuse  a  person  "in  the  committing  of 
an  offense  for  its  matter  capital."     We  shall  see. 

669.  Suicide  is  a  common  danger  in  melancholia. — The  melancholy 
patient  may  commit  suicide,  or  homicide,  or  both;  but,  of  these  two 
acts,  suicide  is  far  the  more  common.  Suicide  is  an  ever-present 
danger  in  melancholia.  More  suicides  occur  in  this  disease  than  in 
any  other  form  of  insanity,^"  and  a  large  proportion  of  all  cases  of 
suicide  occur  in  melancholiacs.  Suicide,  in  fact,  is  a  logical  sequence 
of  melancholia.  It  is  a  result  to  which  the  disease  directly  tends. 
The  mental  suffering  is  full  of  the  suggestion  of  self-immolation  as 
the  only  way  out.  The  act  itself  may  be  impulsive  or  deliberate. 
The  impulse  may  arise  from  the  sudden  suggestion  of  the  moment; 
as  the  sight  of  a  convenient  instrument,  or  a  good  opportunity ;  but 
even  in  such  cases  the  idea  has  evidently  long  been  dormant  in  the 
mind.  The  deliberate  cases  are  very  common,  and  very  per- 
sistent. After  one  failure  the  attempt  will  be  made  again.  Many 
patients  are  reticent  on  the  subject;  others  talk  about  it.  The  latter 
are  often  said  to  be  the  less  likely  to  do  it;  but  there  can  be  no  greater 

•  See    chapter   on    "Classification,"    in         9*  1  P.  C.  Chap.  IV. 
the  present  work.  '"  Morselli,  Suicide,  p.  282. 


634  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  669 

mistake.  The  wife  of  a  melauclioliac  told  his  physician  that  the 
patient  had  been  talking  suicide ;  the  physician  reassured  the  wife  by 
saying  that  persons  who  talked  about  it  seldom  did  it;  but  within 
twenty-four  hours  the  patient  shot  himself. 

670.  The  mental  state  in  suicides. — The  psychology  of  suicide  is  a 
profound  stud}^  and  nowhere  more  so  than  in  melancholia.  Why 
should  a  patient  who  believes  that  he  is  doomed  to  everlasting  perdi- 
tion kill  himself  ?  He  seems  to  be  merely  anticipating  his  doom,  or 
else  not  to  believe  in  the  reality  of  it.  But  there  is  no  doubt  of  his 
belief;  for  he  kills  himself  because  of  that  very  belief,  according  to 
which,  by  that  very  act  of  self-destruction,  he  sends  himself  straight 
to  Sheol.^^i  If  it  were  possible  in  this  world  to  try  him  for  his  deed, 
his  defense  could  not  be  that  he  did  not  know  the  nature  and  quality 
of  the  act,  for  he  knew  it  only  too  well ;  but  such  a  case  illustrates 
with  peculiar  force  the  power  and  unreason  of  an  insane  delusion. 
Such  a  delusion  is  able  to  overcome  not  only  the  instinct  of  self- 
preservation,  but  also  the  horror  of  hell-fire.^ ^ 

671.  The  right-and-wrong  test  as  applied  to  suicides. — Again,  the 
suicide  of  a  melancholiac  in  some  cases  destroys  the  value  of  that 
precise  test  of  right  and  wrong  upon  which  the  law  insists.  Some  of 
these  patients  resist  suicide  for  a  long  while,  and  they  even  display 
moral  scruples;  others,  it  is  true,  are  not  thus  scrupulous,  for  their 
minds  are  in  fact  incapable  of  moral  perceptions.  But  in  the  former 
cases,  the  act  of  suicide  is  done  deliberately,  in  spite  of  the  moral 
promptings,  and  by  a  patient  who  is  already  overwhelmed  with  a  sense 
of  moral  turpitude.  In  other  words,  in  spite  of  the  fact  that  the  pa- 
tient is  morbidly  sensitive  to  his  own  imperfections,  he  is  incapable 
of  moral  control  over  his  own  impulse  to  commit  what  he  may  con- 
sider a  great  sin.  According  to  the  legal  test,  some  of  these  patients 
(although  not  all  of  them)  are  giiilty  of  what  we  may  call  "suicide  in 
the  first  degree,"  because  they  know  the  distinction  between  right  and 
wrong,  even  though  they  have  not  power  to  control  their  conduct  ac- 
cordingly.^ ^^ 

10^  "Etsi  mortem  timent  tamen  pier-  clioly  would  cleave  to  me  there."     Let- 

umque     mortem     conciscunt."     This     is  ter   to    Lady   Hesketh. 

quoted    bj'    Burton     (Anatomy   of   Mel-  ii}We  are   not  concerned  here   with 

ancholv) ,' who  says  it  was  original  with  the  ethics  of  suicide;  we  merely  discuss 

Hippocrates  but  is  given  in  the  words  of  the  jurisprudence  of  it.     For  the  former 

Galen.     See  Sankey,  Mental  Disease,  p.  subject  Fleming's  JMoral  Philosophy,  p. 

112.  233  et  infra,  may  be  consulted  with  prof- 

"  Cowper,  the    poet,    who    attempted  it.     Pytliagoras  is  represented  by  Cicero 

suicide,    wrote    to   a    friend:      "Could    I  (De  Senectutc)    as  saying  that  "no  one 

be  translated  to  paradise,  unless  I  could  should  depart  from  his  station  without 

leave   my  body   behind   me,   my  melan-  the   command   of   his   general;    that   is, 


§   072] 


MELANCHOLIA. 


G35 


672.  The  medico-legal  importance  of  suicide. — At  first  thought  it 
may  seem  that  suicide  is  not  a  subject  of  medico-legal  importance. 
If  a  man  kills  himself,  that  is  the  end  of  him;  the  law  can  have  noth 
ing  to  do  with  his  case.  But  this  view  is  too  narrow,  for  suicide 
comes  under  the  cognizance  of  the  law  in  more  wavs  than  one.  Ac- 
cording to  the  common  law,^-  suicide  is  a  felony;  and  the  conse- 
quences of  it  were  once  very  serious ;  for  it  was  followed  by  a  forfeit- 
ure to  the  King  of  all  the  goods  and  chattels  of  the  suicide.^ ^  The 
body  of  the  suicide,  with  a  stake  driven  through  it,  was  buried  in  the 
highway;  but,  by  the  act  4  Geo.  IV.,  52,  this  barbarity  was  abolished, 
and  the  body  was  merely  denied  the  rites  of  Christian  burial.^'*^ 
Mr.  Christian  S9lemnly  advised  that  the  body  of  the  suicide  be  deliv- 
ered to  the  surgeons  for  dissection,  as  he  imagined  a  check  would 
thus  be  placed  upon  this  crime.  This  reminds  us  of  the  ancient 
Greek  tyrant  who  put  an  end  to  an  epidemic  of  suicide  among  the 
young  women  of  Miletus  by  ordering  that  the  naked  body  of  the  next 
victim  be  exposed  in  the  market-place. 

673.  Among  the  ancients. — Suicide  appears  to  have  been  legal 
among  most  of  the  people  of  antiquity.  ^^  JSTeither  Moses  nor  any 
other  of  the  Old  Testament  authors  once  mentioned  suicide  as  im- 
moral or  illegal.^"^^  The  Greeks  seem,  how^ever,  to  have  had  some  prej- 


Ood."  Plato  lias  said  (PhaBclo)  :  "In 
this  life  we  are  placed  in  a  garrison, 
from  which  we  must  not  retire."  But 
the  cynics  furnished  their  disciples  with 
reasons  for  suicide,  and  Hegesias  wrote 
several  books  to  prove  the  utter  worth- 
lessness  of  life;  "and  so  powerful,"  says 
Butler  (Hist,  of  Philosophy,  Vol.  I.  p. 
459),  "was  the  melancholy  rhetoric  of 
this  advocate  of  the  grave,  that  an 
Egyptian  king  was  obliged  to  prohibit 
the  publication  of  his  discourses."  The 
stoics  argued  that  a  man  was  at  liberty 
-at  any  time  to  terminate  his  bodily  life. 
But  "I  would  rather  die  by  the  wicked- 
ness of  another  than  by  my  own,"  said 
Darius,  whom  the  sages  of  Greece  and 
Rome  called  a  barbarian.  Among  the 
best  modern  writings  on  the  subject  are 
Reflections  sur  le  Suicide,  by  Madame 
de  Stael,  and  Essays  on  Suicide  and  Im- 
mortality, by  David  Hume. 

'■-  4  BL  Com.  189.  According  to  Stra- 
han  (Suicide  and  Insanity),  forfeiture 
was  an  old  Roman  law,  and  in  the 
time  of  Henry  III.  it  applied  to  both 
real  and  personal  property,  which  es- 
cheated to  the  Crown  or  to  the  lord  of 
the  manor.  But  in  the  matter  of  free- 
holds the  law  fell  into  disuse,  although 
it  applied  in  case  of  personal  property 


until  1870,  when  all  forfeiture  for  fel- 
ony was  abolished. 

"  Forfeiture  of  property,  as  a  pun- 
ishment for  suicide,  was  abolished  in 
England  by  the  act  33  &  34  Vict.  chap. 
23. 

13*  Hale  (1  P.  C,  Chap.  XXXI.,  411- 
418)  expounds  the  old  law  on  suicide, 
especially  as  to  forfeitures.  Among 
other  things  he  says  tliat  if  a  man  give 
himself  a  moital  wound  and  die  "with- 
in a  year  and  a  day"  of  that  wound,  he 
is  felo  de  se.  Tlie  inference  would  seem 
to  be  that  if  he  died  of  the  wound  after 
a  year  and  a  clay,  he  would  not  be  ac- 
counted a  suicide.  Hale  says  also  that 
the  finding  by  a  coroner's  inquest  that  a 
man  was  a  suicide  was  traversable. 
When  forfeitures  were  involved,  this 
was  a  matter  of  great  importance.  For 
otlier  details,  see  footnote  to  the  Ameri- 
can edition  of  Hale,  bv  Stokes  and  In- 
gersoll.  Also  Hawk.'  P.  C,  Chap. 
XXV  n. 

"  Strahan,  op.  cit.  See  also  Lecky, 
Historv  of  European  Morals,  Lond. 
1809.  *Vol.  J.  pp.  223  et  seq.;  and  Vol. 
II.  pp.  4(5-6.5. 

144  The  present  writer  follows  liter- 
ary usage  merely  when  he  speaks  of 
Moses   as   an   "Old   Testament   author." 


636  INSANITY— rORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  673 

iidice  against  it,  and  the  Athenians  cut  off  the  hand  mth  which  the 
deed  was  done.  The  custom  of  burying  the  body  after  sunset  was 
also  of  Athenian  origin.  The  Romans,  as  is  well  known,  resorted 
readily  to  suicide,  and  to  this  day  we  give  the  name  to  it  of  the 
"good  old  Eomnn  way," 

674.  Bracton's  statement. — According  to  Bracton,^^  if  a  person  ac- 
cused of  felony  committed  suicide  through  fear  of  being  hanged,  or 
of  some  other  punishment,  his  act  did  not  avoid  a  forfeiture  of  his 
land ;  but  if  the  suicide  was  done  in  a  frenzy,  or  impatience  of  grief ^ 
or  by  misadventure,  it  was  otherwise.  This  was  a  recognition  of  in- 
sanity as  a  cause  of,  and  excuse  for,  suicide.    (See  footnote  91,  infra.) 

675.  The  law  in  America  on  attempt  to  commit  suicide. — In  the 
United  States  forfeitures  are  not  allowable;^®  therefore,  in  this  coun- 
try, suicide  is  not  punishable.  But  the  attempt  to  commit  suicide^ 
which  at  common  law  was  a  misdemeanor,^"  is  also  so  considered  in 
some  of  our  American  states.  Apparently,  however,  there  is  no  uni- 
formity among  us  on  this  subject.  In  Massachusetts  it  is  not  a  stat- 
utory offense,^ ^  while  in  New  York  it  is  against  the  Penal  Code.'*' 
The  law  in  the  other  states  varies  or  is  silent.  In  Pennsylvania  there 
seems  to  be  some  doubt  whether  an  attempt  at  suicide  is  punishable.^" 

676.  If  a  would-be  suicide  kills  another  person,  he  is  guilty  of  hom- 
icide.— It  has  been  decided  that  one  who  attempts  to  kill  himself,  and 
accidentally  kills  another  instead,  is  guilty  of  criminal  homicide. 
This  is  based  on  the  principle  that  if  a  person,  in  the  perpetration  of 
a  criminal  act  (such,  for  instance,  as  burglary),  kills  another  person 
even  accidentally  or  unintentionally,  he  is  guilty  of  murder.  It  is 
therefore  necessary  to  show  that  suicide  is  a  criminal  act;  otherwise 
the  accidental  killing  of  the  other  person  is  not  a  crime.  In  the  case 
of  Mink,-^  in  Massachusetts,  a  woman  attempted  suicide  by  shooting 
herself  with  a  pistol,  just  after  being  rejected  by  her  lover.  The 
man  attempted  to  prevent  her,  and  in  so  doing  was  accidentally  shot 
by  her,  and  killed.  The  effort  was  made  to  show  that,  as  suicide  was 
not  a  crime,  according  to  Massachusetts  law,  therefore  tlie  prisoner 

It  seems  well  determined  by  the  higher  Am.  Rep.   109. 

critics  that  tlie  various  codes  in  the  Old  "Darrow    v.    Family    Fund    Soc.   42 

Testament    date    from    many    centuries  Hun,  2^5;  UleacJiam  v.  Neio  York  State 

after  Moses.  Mut.  lien.  .Asso.  46  Hun,   363. 

"De  Legibus.  fol.  130.  =">  Ashman,     "The     Legal     Aspect     of 

'"24  Am.  &  Eng.  Enc.  Law,  p.  490.  Suicide,"   in   The  Polyclinic,   Feb.    1888. 

''Reg.  V.  Doo'ly.  6  Cox,    C.    C.    463;  "'Com.    v.    Mink,    123    Mass.    422,    2.'> 

Reg.  V.  Bttrr/e.s.s, '  Leigh  &  C.  258,  32  L.  Am.     Rep.     109.     In     a     lengthy     and 

J.  Mag.  Cas.  N.  S.  55,  9  Jur.  N.  S.  28,  learned  opinion  by  Chief  Justice  Gray, 

7  L.  1*.  N.  S.  472,  11   Week.  Rep.  96,  9  this  whole  subject  of  the  criminality  of 

Cox,  C.  C.   247.  suicide  is  reviewed,  with  numerous  ref- 

"Com.    V.    Mink,    123    Mass.    422.    25  crences. 


§  676]  MELANCHOLIA.  0:57 

was  not  guilty  of  any  offense ;  but  the  court  held  that  by  the  law  of 
that  state  suicide  was  deemed  a  crime,  as  malum  in  se,  and  that,  in- 
asmuch as  a  person  who,  attempting  to  commit  a  crime,  kills  another 
even  accidentally,  is  guilty  of  criminal  homicide,  therefore  the  pris- 
oner was  properly  convicted  of  manslaughter. 

677.  Accidental  suicide  while  attempting  to  commit  a  felony. — If  a 
man  attempted  to  kill  another,  and  accidentally  killed  himself,  as  by 
falling  on  his  own  sword,  or  upon  the  sword  of  his  adversary,  he  was, 
according  to  the  old  common  law,  guilty  of  self-murder,  and  subject 
to  its  penalties;  such  as  forfeiture.--  This  was  according  to  the 
principle,  already  mentioned,  that  if  a  man,  in  attempting  to  commit 
a  felony,  committed  murder  even  accidentally,  he  was  guilty  of  the 
latter  crime.  But  the  forfeiture  extended  only  to  the  personal  estate 
of  the  suicide ;  therefore  no  will  of  a  felo  de  se  that  devised  personal 
property  was  good,  no  matter  how  long  beforehand  it  had  been 
written.^^ 

In  Reg.  v.  Gatherode,  1839,  the  prisoner  attempted  to  drown  him- 
self; another  man  jumped  into  the  water  to  save  him,  but  lost  his 
own  life  in  the  attempt.  Gatherode  was  thereupon  convicted  of  mur- 
der.^^  It  is  indeed  riding  a  legal  principle  to  death  to  apply  it  in 
such  a  case;  and  there  is  small  wonder  that  good  legal  authorities 
liave  demanded  that  most  of  the  laws  concerning  suicide  be  abolished,  j 

678.  Cases  of  double  suicide. — But  the  nicest  questions  arise  in  the 
cases  of  double,  or  mutual,  suicide,  in  which  one  of  the  parties  sur- 
vives. Not  a  few  such  cases  have  occurred  and  have  come  before  the 
courts.  It  has  been  quite  generally  held  in  law  that  "if  two  persons 
enter  into  an  agreement  to  commit  suicide  together,  and  the  means 
employed  to  produce  death  prove  fatal  to  one  only,  the  survivor  is 
guilty  of  murder."  Two  men  agreed  to  commit  suicide  together, 
and  each  took  laudanum  in  the  presence  of  the  other,  from  the  effects 
of  which  one  died,  while  the  other  recovered.  The  survivor  was 
found  guilty,  and  sentenced  to  be  hanged,  but  was  respited.^-^  In 
another  case,  in  which  a  man  and  woman  had  agreed  to  throw  them- 
selves into  the  water  together,  she  drowning,  but  he  being  rescued,  it 
was  held  that  if  the  deceased  threw  herself  into  the  water  by  encour- 
agement of  the  prisoner,  and  because  she  thought  he  had  set  her  the 
example,  in  pursuance  of  their  previous  agreement,  he  was  a  princi- 
pal in  the  second  degree,  and  was  guilty  of  murder;  but  as  it  was 

'*!  Hawk.  p.  C.  Chap.  XXVII.   §   4.  862.     A   valuable  note   is   appended   to 

"2  Bl.  Com.  499.  this  report,  in  which  the  laws  of  vari- 

"  Westcott,  Suicide,  p.  48.  ous  American  states  as  to  suicide  are 

'^Reg.  V.  Jessop,  10  Crim.  Law  Mag.  referred  to. 


63S  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  678 

doubtful  whether  the  deceased  did  not  fall  in  by  accident,  it  was  not 
murder  in  either  of  them ;  and  the  prisoner  was  recommended  for  a 
pardon. ^*^  This  sounds  like  Dogberry  justice;  and  shows  how  courts, 
as  a  rule,  are  averse  to  the  extreme  penalty  in  these  cases,  even  while 
they  insist  on  the  legal  principle. 

679.  The  guilt  of  the  survivor. — It  seems  like  a  harsh  rule  in  such 
cases  to  hold  the  survivor  guilty  of  murder,  when  it  is  considered  that 
the  suicide  of  the  other  party  was  a  perfectly  voluntary  act  on  his  or 
her  part.  The  question,  also,  of  the  exact  nature  of  the  crime  is  not 
an  easy  one  to  determine.  Was  the  survivor  guilty  of  murder,  or 
merely  of  being  an  accessory  to  an  act  of  suicide  ?  In  the  case  of 
Blackburn,-"  in  Ohio,  it  was  conceded  by  the  court  that  suicide  was 
not  a  crime  by  the  laws  of  that  state,  and  therefore  there  could  be  no 
accessories  or  principals  in  the  second  degree  in  suicide.  It  would 
seem,  therefore,  that  the  true  nature  of  the  crime  could  only  be  mur- 
der on  the  part  of  the  survivor,  even  though  the  act  of  the  other  part}' 
was  voluntary,  and  perfectly  within  his  rights ;  for  it  must  have  been 
within  his  rights,  if  there  was  no  law  against  it.^^i 

680.  The  psychology  of  double  suicide. — If  we  attempt  to  analyze 
the  psychology  of  these  cases  of  double  suicide,  we  are  met  by  some 
strange  difficulties.  In  the  first  place,  there  must  always,  it  would 
seem,  be  a  prime  mover  in  such  a  case.  The  suggestion  probably  does 
not  arise  spontaneously  in  both  minds  at  the  same  time  with  equal 
force ;  one  party  is  probably  the  stronger  in  will-power  and  initiative ; 
the  suggestion  comes  from  one,  before  it  has  time  to  dominate  both. 
But  it  is  by  no  means  certain  that  the  guiltier  of  the  two,  if  we  ma}' 
distinguish  the  degrees  of  their  culpability,  will  always  be  the  sur- 

^Rex  V.  Tyson,  1  Russ.  &  R.  C.  C.  after  the  woman's  death.  The  supreme 
523.  See  also  Bcf].  v.  Alison.  8  Car.  &  court  held  that  the  proper  count  was, 
P.  418;  and  1  Hawk.  P.  C.  78.  lirst,  murder,  and,  second,  persuading  to 
'"Blackhurn  v.  State,  23  Ohio  St.  146.  murder;  but  reversed  the  judgment  of 
2'iA  recent  case  (Burnett  v.  People,  guilty  for  error.  The  law  as  "to  acccs- 
204  111.  208,  98  Am.  St.  Rep.  20G,  68  N.  soiy  and  principal  was  also  discussed. 
E.  50.5)  was  not  strictly  a  case  of  at-  Most  of  the  evidence  was  based  on  a 
tempted  double  suicide.  A  man  and  confession  wrung  from  the  defendant 
woman,  paramours,  l)eing  drunk  on  re-  while  still  intoxicated  with  alcohol  and 
tiring,  she  took  mor])hin.  he  dissuading  morphin.  See  also  Reg.  v.  Stormonlh 
her.  In  the  morning  ho  discovered  her  (Q.  13.  Div. )  01  .J.  P.  729,  for  a  somewhat 
dead,  and  in  his  alarm  he  then  took  similar  case,  in  which  the  woman  died, 
morphin,  but  was  resuscitated.  There  but  the  man  recovered,  and  was  tried 
was  no  evidence  that  the  man  either  ad-  and  convicted,  but  his  sentence  was  aft- 
ministered,  or  advised  the  woman  to  erwards  commuted.  (N.  B:  When  a 
take,  the  drug  with  murderous  intent,  ex-  man  and  Avoman,  both  drunk,  shut  them- 
cept  that  he  had  purchased  morphin  for  selves  up  in  a  room,  take  opium,  and 
her  wliile  he  was  very  drunk.  It  seems  one  dies,  it  is  hard  to  determine  just 
that  she  had  been  in  the  habit  of  using  what  happened.) 
it.     The  man's  attempt  at  suicide  was 


§  GSOJ  MELANCHOLIA.  639 

vivor.  The  weaker  of  the  two  may  survive.  The  law,  of  course, 
cannot  be  expected  to  make  such  distinctions,  provided  both  parties 
are  of  sound  mind,  but  if  one  of  them  could  be  shown  to  be  a  victim 
of  meianchoiia,  and  that  one  sliould  be  the  survivor,  the  case  would 
have  a  clear  medico-legal  significance.  Two  young  w^omen  of  Phila- 
delj)hia  threw  themselves  together  from  a  ferry-boat  into  the  Dela- 
ware river,  and  were  drowned ;  the  circumstances  seemed  to  indicate 
that  one  of  them  had  induced  the  other  to  join  her  in  the  act.  Misery 
loves  company.  There  is  gTound  for  supposing  that  such  a  case 
might  present  the  elements  of  morbid  or  insane  example.  Epidemics 
of  suicide  have  occurred. ^'^  Suggestion  is  a  powerfully  impelling 
force  to  it,^^  Melancholiacs,  as  is  well  kno^\^l,  sometimes  cominit  the 
act  on  the  impulse  of  the  moment,  from  the  mere  suggestion  presented 
to  their  minds  by  a  favorable  opportunity^ ;  as,  by  the  sight  of  a  knife 
or  an  open  window.  It  is  quite  conceivable  that  one  melancholiac 
might  induce  another  to  commit  suicide  in  one  of  these  double  acts. 

681.  Double  suicide  in  mother  and  child. — Among  the  most  distress- 
ing of  these  cases  of  double  suicide  are  those  in  which  a  mother  per- 
suades a  child  to  join  her  in  this  desperate  deed.  Such  an  act  is  most 
unnatural,  and  at  once  raises  the  suggestion  of  insanity  in  the  mother. 
A  French  alienist,  Garnier,^^  reports  two  instances  of  this  sort.  In 
one  case  a  woman  and  her  child,  a  girl  aged  twelve  years,  threw  them- 
selves into  a  river,  but  both  were  rescued.  The  woman  was  found,  on 
medico-legal  inquiry,  to  be  "neuropathic,"  and  addicted  to  alcohol ; 
and  was  not  punished.  The  other  case  was  in  a  widow  who  induced 
her  son,  a  boy  aged  ten  years,  to  join  her  in  inhaling  the  fumes  of  car- 
bon monoxid.  Both  were  found  unconscious,  and  the  mother  was 
restored,  but  the  child  died.  The  woman  was  declared,  upon  exam- 
ination, to  be  suffering  with  melancholia.  The  tender  age  of  these 
children  would  probably  exempt  them  from  punishment  in  any  coun- 
try, while  the  unnatural  character  of  the  act  in  a  mother  raises  the 
presumption,  in  medicine,  if  not  in  law,  that  the  woman  is  irrespon- 
sible. Such  cases  also  illustrate  how,  in  a  case  of  double  suicide,  the 
suggestion  may  come  from  one  of  the  parties,  and  be  imposed  on  the 
other. 

682.  Assisting  in  any  way  to  commit  suicide  is  a  crime. — Persuad- 
ing, advising,  and  abetting  another  to  commit  suicide,  is  a  crime;  as, 

^'Winslow.      Anatomy      of      Suicide,  reports   the   cases   of  three  sisters   who 

Chap.  V.     "Imitative  or  Epidemic  Sui-  committed    suicide.     A     New     England 

cide."  family    is    on    record    with    more    than 

^  Moreau,    De    la    Contagion    du    Sui-  twenty  cases, 

cide,    Paris,    1875.     Also   Mabille    (Ann.  '"Ann.    d'Hygidne,    Paris.    1801,    3    S. 

Med.  Psych.   1891,  7  S.  XIV.  229),  who  XXV.  202. 


640  INSAls IT Y— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  682 

for  instance,  where  a  father  encourages  a  son,  convicted  of  a  capital 
crime,  to  kill  himself.^^  Such  cases  have  occurred,  but  they  would  not 
be  of  special  medico-legal  significance  unless  it  were  attempted  to  be 
shown  that  the  father  was  suffering  with  ''impulsive"  or  "emotional" 
insanity.  In  the  case  of  Jewett,  in  Massachusetts,  in  1816,  the  con- 
demned man  was  advised  by  a  fellow  prisoner,  named  Bowen,  to  kill 
himself,  and  thus  cheat  the  gallows.  Jewett  did  so  by  hanging  him- 
self in  his  cell ;  and  the  court  decided  that  Bowen's  act  was  an  act  of 
murder. 

683.  The  principle  of  husband's  control. — A  curious  twist  of  the 
law  was  seen  in  a  case  of  double  suicide  that  happened  in  the  reign  of 
James  I.  A  man  and  his  wife  decided  to  die  together,  and  together 
they  took  poison,  from  which  he  died,  but  she  recovered.  She  was 
tried  for  the  murder  of  her  husband,  and  was  acquitted ;  but  solely  on 
the  old  principle  that,  being  the  wife  of  the  deceased,  she  was  under 
his  control,  and  had  acted  upon  his  suggestion,  and  therefore  was  not 
a  free  agent. '^^  Here  the  law,  nearly  three  hundred  years  ago,  recog- 
nized the  psychological  principle,  already  referred  to,  that  in  such 
an  act  the  controlling  motive  may  proceed  from  one  of  the  parties, 
and  not  from  both  of  them  equally.  But  the  law  would  probably  not 
recognize  this  principle  in  any  relation  except  that  of  husband  and 
wife ;  and  therefore  takes  too  narrow  a  view  of  human  nature,  for 
the  principle  can  act  with  equal  force  in  other  relations. 

Strahan  refers  to  the  case  of  a  well-known  literary  man,  suffering 
with  an  incurable  disease,  who  killed  himself  by  shooting.  His  wife 
aided  him  to  prepare  for  the  act,  by  removing  his  false  teeth,  and  in 
other  ways;  and  afterwards  avowed  her  complicity,  and  defended  it. 
She  was  not  prosecuted,  but  she  was  technically  guilty,  unless  on  the 
old  principle  of  husband's  control. 

684.  The  refinements  of  the  law  on  the  subject  of  suicide. — The  re- 
finements of  the  law  on  this  subject  of  suicide  are  apparently  endless. 
According  to  an  old  English  authority,'^"  if  A  gives  a  bottle  of  poison 
to  B,  with  instructions  to  deliver  it  to  C,  who  is  intending  suicide, 
and  C  thereupon  drinks  the  poison  in  the  presence  of  B,  and  dies  in 
consequence,  B  is  guilty  of  murder,  as  a  principal ;  while  A,  who  in- 
stigated the  crime,  but  was  absent  at  its  commission,  will  be  merely 
an  accessory  before  the  fact.  Aside  from  its  refinements,  however, 
the  law  which  holds  a  person  responsible  for  instigating  another  to 

"  24   Am.   &    Eng.    Enc.    of    Law,   p.  ^  Cited  by  Judge   Ashman,   "The  Le- 

490.  gal    Aspect   of    Suicide,"    in   The    Poly- 

"^Sce  Reg.  v.  Alison,  8  Car.  &  P.  418,  clinic,  Phila.  Feb.  1888,  p.  245. 
for  reference  to  this  case. 


§  684]  MELANCHOLIA.  C41 

commit  suicide  is  a  just  and  salutary  one,  for  it  might  easily  occur 
that  a  designing  party  would  induce  or  encourage  an  insane  person 
to  kill  himself.  A  criminal  intent  might  be  concealed ;  and  in  view 
of  the  ease  with  which  these  unfortunate  melancholiacs  yield  to  sug- 
gestion, the  deed  might  be  left  to  appear  as  entirely  the  spontaneous 
jict  of  the  invalid. ^"2 

685.  The  futility  of  laws  against  suicide. — The  opinions  of  jurists 
hardly  vary  to-day  about  the  barbarity  of  inflicting  a  so-called  y)enalty 
for  suicide.  It  is  impossible  to  penalize  a  man  who  is  dead.  All 
that  the  law  can  do,  and  all  it  ever  intended  to  do,  was  to  wreak  its 
vengeance  on  his  property,  his  dead  body,  and  his  reputation ;  and  it 
was  instigated  to  do  this  by  the  sentiments,  largely  clerical,  of  the 
darker  ages.  The  Church  fulminated  against  suicide,  and  the  hand 
and  spirit  of  the  Church  are  visible  in  the  denial  of  Christian  burial. 

686.  Christianity  condemned  suicide. — Christianity  early  came  to 
denounce  suicide  as  a  "deadly  sin;"^^  and  the  Council  of  Aries,  in 
452,  forbade  it  under  all  circumstances.  The  early  Christians,  in 
their  extreme  fanaticism,  had  indeed  courted  martyrdom  to  the  ex- 
tent sometimes  of  deliberately  sacrificing  their  lives  f^  and  some  were 
oven  guilty  of  suicide ;  but  the  prejudice  of  the  Church  was  gradually 
roused  against  it,  and  finally  to  a  high  pitch.'^^-  Some  of  the  early 
fathers  had  defended  self-destruction  under  special  circumstances,  as, 
where  a  virgin  killed  herself  to  escape  ravishment;  and  St.  Palagia 
was  canonized  for  having  thrown  herself  from  the  house-top  to  pre- 
serve her  virginity.  St.  Augustine,  however,  condemned  even  this 
"virgin  suicide,"  as  it  was  called,  and  his  extreme  pietism  gave  the 
tone  to  much  of  the  thought  of  the  Middle  Ages.^^  By  the  10th  cen- 
tury the  civil  law,  following  the  lead  of  the  Church,  had  made  suicide 
a  crime  in  England.  The  Christians  surpassed  all  others  in  dis- 
ss^ And  yet,  in   the  case  of  Reg.  v.       3  5£f "Among  the  early  Christians  those 

Leddington  [1839],  9  Car.  &  P.  79,  where  persons  who  exposed  themselves  to  death 

the    prisoner    was    charged    with    felo-  in  their  attempts  to  deface  or  demolish 

niously  inciting  and  procuring  a  woman  the  idols  of  the  heathens  were  forbidden 

to  commit  suicide.  Baron  Alderson  told  to  be  numbered  among  the  martyrs.  And 

the  jury:      "You  have  no  authority  to  the  circumcelliones,  who,  out  of  a  desire 

inquire  into  this  charge;  this  is  a  case  for  martyrdom,  would  provoke  others  to 

of  suicide,  and  the  prisoner  is  charged  kill  them,  or,  being  disappointed  in  that, 

with  inciting  it;  that  is  a  case  that,  in  would   do  so  themselves,  were  reckoned 

law,  we  cannot  try.     The  prisoner  must  no     better     than     madmen." — Fleming, 

be  acquitted."    He  quoted  no  law  or  au-  Moral    Philosophy,    p.    237.      See    also 

thority.  Mosheim,  History  of  Christianity,  Vol. 

"*  Strahan,  Suicide  and  Insanity,  Lon-  II.  p.  439. 

don,  1893.     This  little  work,  written  by  ***  Consult     Lecky,    History   of     Euro- 

a  barrister-at-law,   contains  much   curi-  pean  Morals,   Vol.   II.,   pp.   4G-65;   also 

ous   information.  Westcott,  Suicide,  London,  1885. 

»  Gibbon,  Decline  and  Fall. 
Vol   I.  Med.  Jub. — 41. 


G42  INSANITY— FOKMS  AND  :MEDIC0-LEGAL  ASPECTS.  [§  086 

liouoring  the  body  of  the  suicide.  It  was  dragged  through  the  dust 
at  a  cart-tail;  it  was  hung  on  a  gibbet,  head  down,  and  then  thrown 
to  the  beasts  as  carrion;  the  church-yards  were  closed  to  it,  and  a 
stake  was  driven  through  it  when  it  was  buried  at  a  cross-roads, — an 
outrage  which  was  done  in  England,  says  Mr.  Strahan,  as  late  as 
1827.  Clergymen  and  priests  have,  until  very  recently,  refused  to 
officiate. 

687.  Public  opinion  is  more  tolerant. — An  enlightened  public  opin- 
ion would  to-day  no  more  tolerate  the  forfeiture  of  a  suicide's  prop- 
erty than  it  would  permit  a  stake  to  be  driven  through  his  body,  or 
than  it  would  fail  to  visit  condemnation  on  the  "churlish  priest"  who 
should  refuse  to  officiate  at  the  burial.^'  It  is  idle  to  say  that  the  mo- 
tive in  forfeiting  a  suicide's  property  was  a  benevolent  one,  or  in- 
tended solely  to  deter  others  from  the  act.  The  motive  was  a  priestly 
one ;  and  was  the  expression  of  outraged  priestly  authority.  Its  utter 
cruelty  and  senselessness  in  striking  at  a  dead  man's  family  were 
highly  characteristic;  and  an  eminent  writer  like  Blackstone^^  does 
little  credit  either  to  his  profession  or  himself  in  apologizing  for  such 
law. 

688.  Laws  against  suicidal  attempts  also  useless. — Almost  the  same 
criticism  can  be  leveled  against  any  law  to  punish  an  attempt  .at  sui- 
cide ;  and  the  futility  of  such  a  law  is  shown  by  the  fact  that  prosecu- 
tions for  this  act  are  now  seldom  heard  of.^^  Judge  Ashman'*^  has 
pointed  out  how  unphilosophical  it  is  to  inflict  a  penalty  for  such  a 
deed.^^  When  a  man  proposes  to  depart  from  this  world  by  killing 
himself,  he  generally  has,  or  thinks  he  has,  good  cause  for  being  dis- 
satisfied with  life.  If  he  fails  in  one  attempt  at  self-destruction,  he 
is  almost  sure,  sooner  or  later,  to  make  another.  This  is  the  teaching 
of  experience,  as  every  psychiatrist  knows.  What,  then,  is  to  be 
gained,  either  as  a  corrective  for  himself  or  as  an  example  for  others 
like  him,  by  making  this  world  a  still  more  unendurable  place  by 
holding  him  up  to  public  obloquy  ?     Such  a  law  puts  a  premium  on 

"  The  popular  detpstation  of  tlie  *"  "The  T^egal  Aspect  of  Suicide,"  in 
priests  who  refused  "Christian  burial"  The  Polyclinic,  loc.  cit. 
to  the  body  of  a  suicide  is  shown  in  the  "  Of  743  insane  criminals  in  Broad- 
grave  scene  in  Hamlet,  where  Laertes  moor  Criminal  Lunatic  Asj'lum  in  Eng- 
tells  the  priest,  "A  ministering  angel  land,  thirteen  were  committed  for  at- 
shall  my  sister  be  when  thou  liest  howl-  tempts  at  suicide.  No  details  are 
ing."  Act  V.  scene  L  given,  but  it  is  probable  that  some  of 
"4  Com.  189,  190.  these  lunatics  were  considered  danger- 
"Recently  (May,  1904)  a  man  was  ously  insane  on  other  grounds  than 
haled  before  a  New  Jersey  judge  for  an  mere  suicide.  Nicholson,  "Criminal 
attempt  at  suicide,  but  was  not  tried  Lunacy  in  England,"  in  Allbutt's  Syst. 
for  his  ofifense.  of  Med.  Vol.  IX.  pp.  444,  445. 


J.  688]  MELANCHOLIA.  643 

suicide.     The  truth  is  that  suicide  is  the  last  appeal  which  a  man 
makes  to  fate:  no  human  tribunal  has  jurisdiction.^^^ 

689.  Suicide  and  life  insurance. — In  the  matter  of  life  insurance  the 
act  of  suicide  has  medico-legal  import  for  the  alienist  in  so  far  only  as 
it  raises  the  question  of  insanity.^^^  In  equity,  if  not  in  law,  as  West- 
cott  observes,'*-  such  a  death,  if  caused  by  insanity,  should  not  vitiate 
a  policy;  and,  according  to  Judge  Ashman,^^  in  many  of  the  Ameri- 
can states,  including  Pennsylvania,  only  criminal  acts  of  self-destruc- 
tion, and  not  those  which  are  uncontrolled  by  the  will,  vitiate  a  policy 
of  insurance.^^  In  English  law,  however,  there  seems  to  have  been 
some  confusion  and  diversity  of  opinion.  In  the  case  of  BoiTadaih 
V.  Hunter'^^  the  insane  person  drowned  himself ;  and  the  court  charged 
that  the  policy  must  be  void  if  the  deceased  jumped  into  the  water, 
intending  to  kill  himself,  and  knowing  that  this  action  would  kill 
him ;  and  left  it  to  the  jury  to  determine  whether  he  could  distinguish 
right  and  wrong.  This  was  simply  reiterating  the  tests  so  often  used 
in  homicide  cases.  The  question  of  self-control,  of  the  impelling 
power  of  disease,  was  ignored.  In  the  case  of  Clift  v.  Schivahe*^ 
the  deceased  drank  sulphuric  acid  and  died,  evidently  insane.  Jus- 
tice Cresswell  held  that  the  word  "suicide,"  used  in  the  policy  as  a 
vitiating  condition,  meant  criminal  self-destruction ;  and  the  jury 
found  that  death  occurred  during  insanity, — meaning  that  the  policy 
should  tiot  be  void.  On  appeal,  some  judges  held  that  the  policy  was 
void  even  if  the  deceased  was  insane;  but  the  minority  were  of  con- 
trary opinion.^'^  Westcott  says  that,  as  the  law  stood  in  1885,  where 
the  suicide  was  insane,  the  policy  was  not  avoided,  unless  by  special 
condition  of  the  policy.^^  A  condition  supporting  the  insurance  in 
ihe  event  of  suicide  during  insanity  would  not  be  void  in  law ;  but  a 
condition  supporting  the  insurance  even  if  the  assured  killed  himself 
while  in  his  sound  mind  would  be  void  in  law,  as  against  public  pol- 
icy.'*® But  according  to  Westcott,  a  condition  avoiding  the  policy 
in  case  the  assured  should  "commit  suicide,"  "die  by  his  own  hand," 

41^  Quern  Dens  vult  perdere  prius  Breasted  v.  Farmers'  Loan  d  T.  Co.  8 
dementat.  N.  Y.  299,  59  Am.  Dec.  482;   Muiual  L. 

Ins.   Co.  V.   Terry,   15  Wall.   580,   21   L. 

God    maddens    him    whom    'tis    his    will    to  „j    ngg 

lose,  * 

And  gives  the  choice  of  death  or    phrensy  '"'  5  Mann.  &  G.  637,  5  Scott  N.  R.  418, 

—choose!                            -Byron.  12   L.  J.   C.   P.   N.   S.  225,   7   Jur.   443: 

•ii^fFor   a   complete  discussion   of   the  Phadcnhaucr  v.  Germania  L.  Ins.  Co.  7 

Segal  phases  of  this  question,  see  ante,  Heisk.  507,  19  Am.  RciJ.  62.S. 

§§  248-255.  ""S  C.  B.  437,  2  Car.  &  K.  134,  17  L. 

"  Suicide,  p.  52.  J.  C  P.  N.  S.  2. 

"Op.  cit.  p.  247.  "Westcott,  op.  cit.  p.  53. 

-"Eastahrook    v.    Union    Mut.    L.    Ins.  *^  Horn  v.  Anglo-Ausl.  Ass.   Co. 

Co.    54    Me.    224,     89     Am.     Dec.    743;  "For    an    American    case,    see   Ritter 


644  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  089 

or  "perish  bv  his  own  hand,"  includes  all  cases  of  voluntary  death, 
whether  the  person  be  sane  or  insane.  This  might  properly  raise  the 
question  of  the  meaning  of  the  word  "voluntary ;"  for  suicidal  melan- 
choliacs  are  sometimes  so  impelled  by  their  mental  disease  to  kill 
themselves  as  to  have  lost  self-control. 

690.  Voluntary  or  involuntary  suicide. — But  it  seems  to  be  under- 
stood in  the  courts  that  w^hen  the  words  "voluntary  or  involuntary" 
are  used,  as  applied  to  suicide,  parties  arc  precluded  from  setting  up 
the  condition  of  the  mind,  and  arguing  from  it  that  the  act  was  in- 
voluntary.'^'^ In  other  w^ords,  the  word  "involuntary"  does  not  refer 
here  to  a  pathological  condition,  but  to  accident. 

691.  The  law  in  America. — In  America  there  is  already  a  very  full 
literature  on  this  subject,  embodied  in  a  large  number  of  case-re- 
ports.^* The  comparison  with  English  law  is  rather  favorable  to  the 
American  courts.  It  seems  to  be  held  in  England  that  all  that  the 
contract  requires  is  that  the  act  of  self-destruction  be  voluntary,  and 
the  wilful  act  of  a  man  having  sufficient  powers  of  mind  to  under- 
stand the  physical  nature  and  consequences  of  such  an  act,  and  having 
at  the  time  a  purpose  and  intention  to  cause  his  death  by  his  own  act. 
Whether  he  was  capable  of  understanding  the  moral  nature  of  his 
purpose  is  not  relevant.  This  construction  has  been  followed  in 
Massachusetts,  but  rejected  by  the  Supreme  Court  of  the  United 
States  in  favor  of  a  more  liberal  construction.  For  instance,  if  the 
reasoning  faculties  of  the  insured  are  so  far  impaired  that  he  is  not 
able  to  understand  the  moral  character  of  the  act,  and  its  nature,  con- 
sequences, and  effects,  or  if  he  is  impelled  thereto  by  an  insane  im- 
pulse which  he  has  not  power  to  resist,  his  death  is  not  to  be  regarded 
as  within  the  contemplation  of  the  parties  to  the  contract,  and  does 
not  avoid  the  policy.^^ 

Thus,  the  Supreme  Court  held  in  a  recent  case^'^  that,  although 
there  had  been  considerable  doubt  at  one  time  as  to  what  extent  sui- 
cide avoided  a  policy,  the  question  was  no  longer  an  open  one  in  that 
court  since  the  decision  in  the  leading  case  of  Terry.^*  Mr.  Justice 
Davis,  for  the  court,  said  that  in  that  case  the  words  intended  to  avoid 
the  policy  were  "shall  die  by  his  own  hand;"  and  the  court  had  held 
that  they  referred  to  an  act  of  criminal  self-destruction,  and  did  not 

V.   Mutual   L.   Ins.   Co.    169   U.   S.    139,  ^^lligelnw  v.  Berkshire  L.  Ins.  Co.  93 

42  L.  ed.  693,  18  Sup.  Ct.  Rep.  300.  U.  S.  284,  23  L.  ed.  918. 

'"Edwards  v.  Travelers  L.  Ins.  Co.  20  "Mutual    L.    Ins.     Co.    v.   Terry,    16 

Fed.  GGl.  Wall.  580,  21  L.  ed.  236. 

"Soe  ante,  §§  248-25.5. 

"Am.  &    Eng.    Enc.    of    Law,  p.   75. 


§  G91]  MEIiAN(v'H()LiA.  045 

apply  to  an  insane  person  who  took  his  own  life ;  but  in  the  case  then 
under  consideration,  that  of  Bigelow,  another  question  arose,  and 
that  question  had  reference  to  the  right  of  a  company  to  insert,  as  a 
vitiating  clause,  the  Avords  "shall  die  by  suicide  (sane  or  insane)." 
Justice  Davis  held  that  the  company  had  just  as  good  a  right  to  make 
this  condition  as  it  had  to  make  any  other  condition  ;  as,  for  instance, 
that  the  policy  should  be  void  in  case  the  insured  died  by  the  hand  of 
the  law,  or  by  accident  while  intoxicated,  or  to  discriminate  against 
hazardous  occupations.  According  to  this  decision,  therefore,  if  the 
contract  includes  as  a  condition  that  the  policy  is  to  be  void  in  case 
of  suicide  "whether  sane  or  insane,"  the  policy  will  be  avoided ;  but 
a  mere  reference  to  suicide,  without  the  words  "sane  or  insane,"  will 
not  avoid  a  policy  if  it  be  proved  that  the  insured  was  insane  when  he 
killed  himself. 

But  even  when  the  words  "sane  or  insane"  are  used,  it  seems  that 
some  courts  will  uphold  the  policy  if  the  insured  was  in  such  a  state 
of  mind  as  to  be  unconscious  of  the  physical  consequences  of  the  act 
which  caused  death. 

692.  What  constitutes  a  criminal  intent  in  suicide. — The  confusion 
on  this  subject  is  almost  as  gTeat  as  on  the  subject  of  homicide,  and 
mostly  from  the  same  causes;  i.  e.,  the  various  definitions  of  what 
constitutes  a  voluntary  act,  or,  in  other  words,  a  criminal  intent, 
Nothing  could  be  more  irrational  to  the  mind  of  an  alienist  than  the 
English  law  as  stated  above.  All  that  is  requisite  to  constitute  re- 
sponsibility, according  to  that  law,  is  that  the  suicide  should  have 
mind  enough  to  know  the  physical  nature  and  consequences  of  the 
suicidal  act.  It  would  indeed  be  difficult  to  imagine  a  man  commit- 
ting suicide  in  any  mental  state  whatever  who  did  not  understand 
that  the  deed  he  was  about  to  do  Avould  kill  him.  The  very  act  of  sui- 
cide presupposes  that  much  knowledge.  According  to  the  English 
doctrine  there  can  be  no  such  thing  as  insane  suicide.  Every  person 
who  kills  himself  must  know  to  that  extent  what  he  is  about  to  do. 
It  is  to  be  noted  also  that  the  English  law  puts  aside  any  considera- 
tion of  a  knowledge  of  right  and  wrong,  which  it  makes  a  cardinal  test 
in  eases  of  homicide.  Such  distinctions  are  beyond  the  ken  of  sci- 
entists, who  get  their  ideas  of  insanity  from  the  hospitals  rather  than 
from  the  courts.^^ 

693.  The  better  psychiatry  is  the  better  law. — The  American  deci- 
sion, that  an  insane  impulse  to  suicide  is  a  valid  ground  for  uphold- 
ing a  policy,  is  better  psychiatry,  and  therefore  it  ought  to  be  better 

"  Moore   v.   Connecticut  Mut.   L.   Ins. 
Co.  1  Flipp.  3G3,  Fed.  Cas.  No.  9,755. 


646  INSANITY— FORMS  AND  MEDICIO-LECAL  ASPECTS.  [§  69.S 

law.  As  we  have  already  seen,  the  melaucholy  patieut  is  usually 
impelled  to  suicide  by  a  mental  sense  of  gTeat  suffering.  To  use  a 
metaphysical  expression,  the  will  is  overthrown ;  that  is  to  say,  the 
j)atient  is  driven  by  the  impelling  power  of  disease  to  kill  himself. 
There  may  be  no  systematized  delusion;  or,  if  there  be,  it  may  be 
concealed,  and  the  patient  may  retain  his  moral  sense  intact;  but  he 
is  just  as  truly  impelled  to  kill  himself  as  a  normal  man  is  impelled 
involuntarily  to  withdraw  his  finger  from  a  flame.  In  either  case  it  is 
the  recoil  of  suffering.  Who  shall  measure  such  an  act  with  an  aca- 
demic test? 

694.  The  proof  of  suicide, — There  are  some  minor  legal  points  of 
importance,  usually  with  reference  to  the  proof  of  suicide  during  in- 
sanity. Thus,  the  burden  of  proof  requires  that  the  insured  must  be 
sho^\Ti  to  have  been  insane  at  the  time  of  the  act:  it  is  not  sufficient 
to  prove  that  he  was  insane  at  other  times,  especially  at  times  remote 
from  the  act.  Again,  as  suicide  raises  no  presumption  of  insanity, 
as  we  have  already  seen,  so  neither  does  insanity  raise  a  presumption 
of  suicide."^  For  instance,  if  an  insane  person  be  found  drowned, 
there  is  no  presumption  that  he  killed  himself.  In  any  case  of 
death  the  presumption  in  law  is  in  favor  of  natural  causes,  or  of  ac- 
cident; not  of  suicide.^^  The  latter  must  be  proven.  The  verdict 
of  a  coroner's  jury  that  the  insured  killed  himself  while  insane  does 
rot  estop  the  defendant  from  showing  the  fact  to  be  otherwise.^^  The 
courts  are  thus  ready  to  discredit  the  hackneyed  and  unscientific  find- 
ings of  coroners'  juries  on  this  subject.  Finally,  the  question  is  om; 
of  fact,  to  be  determined  by  the  jury ;  not  a  question  of  tests. ""^ 

695.  Can  a  man  contract  that  he  will  never  go  insane? — It  is  not 
easy  to  see  why  there  should  be  any  difficulty  in  deciding  that,  in  a 
case  of  suicide  from  insanity,  the  policy  should  hold  in  spite  of  any 
conditional  clause  in  it.  Certainly  it  is  a  principle  in  law  that  an 
insane  man  is  not  to  suffer  for  his  disease.  Furiosus  soIg  furore  pun- 
itor,  says  Coke,^°  quoting  a  civil  law  maxim,  and,  in  simple  equity, 
this  principle  should  stand  in  the  matter  of  life  insurance.  A  man 
cannot  contract  that  he  will  never  go  insane.^^ 

696.  Suicide  raises  no  presumption  of  insanity. — That  the  law  does 

'^Walcott  V.  Metropolitan  L.  Ins.  Co.        ^^Zimmcrman    v.    Masonic    Aid  Asso. 

64   Vt.   221,   .33   Am.    St.   Rep.    923,   24  75   Fed.  236. 
Atl.  092.  ^"Germatiia  L.  Ins.  Co.  v.  Jioss  Leioin, 

"  Eeufling    cases    on    this    point    are  24   Colo.   43,   65   Am.   St.   Rep.   215,   51 

Connecticut    Mnt.    L.    Ins.   Co.   v.   Mc-  Pac.  488,  and  other  cases. 
Whirier,  19  C:  C.  A.  519,  44  U.  S.  App.        «» 2  Co.  Litt.  Lib.  III.  Chap.  VI. 
492,   73   Fed.  444;   InycrsoU  v.   Knifjhts        ""Sec    15iinyon,    Treatise    on    Life    In- 

of  Coldcn  llvle,  47  Fed.  272.  surance. 


§  696]  MELANCHOLIA.  C47 

not  presume,  from  the  mere  act  of  suicide,  that  insanity  oxi>;ts,  is 
shown  in  cases  in  which  contracts  and  wills  have  been  sustained,  al- 
though the  parties  making  them  committed  suicide  within  a  1)rief 
period  thereafter.  In  the  case  of  M' Adams  v.  Walker^~  a  marriage 
was  upheld  although  the  bridegroom  killed  himself  the  same  day. 
In  Burroius  v.  Burroivs^'^  a  will  was  sustained  although  the  testator 
killed  himself  three  days  after  sigming  it.  In  the  case  of  Chavihers 
V.  Queens  Proctor^*  a  will  was  u})held,  although  the  testator  commit- 
ted suicide  the  day  after  signing  it,  and  was  proved  to  have  suffered 
with  delusions  three  days  before  death.*^^  These  cases  are  a  sufficient 
indication  to  experts  not  to  rely  exclusively  upon  the  act  of  suicide 
as  an  evidence  of  insanity.  This  act  is  not  of  necessity  such  an  evi- 
dence, and  no  more  so  in  science  than  in  law.  A  sane  man  might 
conceivably  kill  himself  on  the  day  of  his  wedding,  or  on  the  day  of 
his  signing  his  will;  and  the  law  is  unquestionably  right  in  declining 
to  accept  the  mere  act  as  proof  of  insanity,  without  corroborating  evi- 
dence. But  where  this  act  is  immediately  preceded  by  delusions,  as 
in  one  of  the  above-mentioned  cases,  the  evidence  of  its  being  the  deed 
of  an  insane  man  is  greatly  strengthened. 

697.  The  findings  of  coroners'  juries  in  cases  of  suicide. — In  its  med- 
ico-legal aspects  suicide  is  thus  seen,  from  what  precedes,  to  have 
great  significance ;  and  this  fact  was  recognized  by  Blackstone^^  when 
he  wrote : 

'"The  party  must  be  of  years  of  discretion,  and  in  his  senses,  else 
it  is  no  crime.  But  this  excuse  ought  not  to  be  strained  to  that  length 
to  which  our  coroners'  juries  are  apt  to  carry  it,  viz. :  that  the  very  act 
of  suicide  is  an  evidence  of  insanity ;  as  if  every  man  who  acts  con- 
trary to  reason  had  no  reason  at  all ;  for  the  same  argument  would 
prove  every  other  criminal  non  compos,  as  well  as  the  self-murderer. 
The  law  very  rationally  judges  that  every  melancholy  or  hypochon- 
driac fit  does  not  deprive  a  man  of  the  capacity  of  discerning  right 
from  wrong,  which  is  necessary  ...  to  form  a  legal  excuse. 
And,  therefore,  if  a  real  lunatic  kills  himself  in  a  lucid  interval,  he  is 
a  felo  de  se  as  much  as  another  man." 

In  this  passage  the  eminent  commentator  has  confused  some  truth 
with  not  a  little  error.  He  is  doubtless  right  when  he  denies  that  the 
very  act  of  suicide  is  an  evidence  of  insanity,  and  no  such  proposition 
is  now  entertained  by  the  best  alienists.     The  vicious  custom  of  al- 

"1  Dow,  P.  C.  148.  also  Steed  v.  Galley,  1  Keen,  620;  Reg. 

^  1  Hatjg.  Eccl.  Rep.  109.  v.  Rumlall,  and  Reg.  v.  Farley,  quoted 

•*2  Curt.  Eccl.  Rep.  415.  bv  Westeott. 

•"Westcott,   op.   cit.   pp.   56,  57.     See        ""4  Com.  190. 


G48  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  697 

lowing  this  subject  to  be  decided  by  a  coroner's  jury  has  been  strongly 
condemned  by  Judge  Ashman,^^  who  says  that  the  old  law  permitted 
this  "most  irregiilar  body  of  officials  in  the  world"  to  find  a  suicide 
to  be  a  felon,  and  guilty  of  murder,  or  else  a  lunatic,  and  innocent, 
and  this  at  a  time  when  the  former  verdict  carried  with  it  a  forfeit 
ure  of  goods.  But  a  suicide  is  not  necessarily  either  a  felon  or  a  lu- 
natic. Surely  the  English  law  never  put  itself  in  a  worse  position 
towards  insanity  than  when  it  allowed  such  a  delicate  question  to  be 
detennined  by  such  a  tribunal,  and  necessarily  in  the  absence  of  the 
person  whose  estate  and  reputation  were  in  jeopardy;  and  even  now, 
when  only  reputation  is  at  stake,  such  a  tribunal  is  a  poor  one  indeed 
to  have  the  decision  of  such  a  question.  Under  the  old  law  the  mo- 
tive of  the  coroner's  jury  was  doubtless  often  a  humane  one,  as  by 
finding  the  suicide  insane  his  property  was  exempt  from  forfeiture ; 
but  this  doubtless  promoted  the  erroneous  popular  opinion  that  sui- 
cide is  in  itself  an  evidence  of  insanity.  From  the  scientific  stand- 
point the  whole  procedure  is  unreliable  and  antiquated.  Such  ver- 
dicts have  little,  if  any,  scientific  value.^^  All  suicides  are  not  in- 
sane, but  many  of  the  insane  become  suicides. 

698.  An  academic  question. — As  for  the  test  of  right  and  wrong  in 
cases  of  suicide,  upon  which  Blackstone  insists,  it  has  little,  if  any, 
applicability  in  such  cases,  and  is  now,  since  forfeitures  are  abol- 
ished, merely  an  academic  question.  All  alienists  know  that  many 
suicidal  melancholiacs  can  distinguish  right  and  wrong  well  enough, 
but  that  they  are  impelled  to  the  act  of  self-destruction  by  their  men- 
tal suffering ;  and,  in  some  cases,  even  against  their  avowed  principles. 
In  fact,  melancholia  furnishes  an  especially  good  illustration  of  the 
fact  that  a  knowledge  of  right  and  wrong  is  not  a  true  test  of  respon- 
sibility. 

699.  The  real  problem  in  suicidal  melancholia. — In  any  case  in 
which  suicide,  or  an  attempt  at  suicide,  comes  to  the  attention  of  the 
law,  as  in  any  of  the  instances  above  mentioned,  the  medico-legal 
problem  rests  largely  on  the  question  of  the  person's  sanity.  This 
is,  of  course,  entirely  a  question  of  fact,  and  should  be  determined  ac- 
cording to  the  evidence.  It  has  already  been  pointed  out  how  falla- 
cious the  ordinary  tests,  such  as  a  knowledge  of  right  and  wrong,  or 
a  knowledge  of  the  nature  and  consequences  of  the  act,  might  be  in 
melancholia.     The  whole  problem  in  melancholia  is  a  simple  one. 

"Op.  cit.  oaths,     ...     by    finding    suicides    to 

"  "Jeremy  Bentham  remarks  that  ju-    be     non     compos." — Westcott,     Suicide, 
rors   do   not   hesitate    to    violate    their    p.  47. 


§  G99]  MELANCHOLIA.  649 

and  is  merely  this :  Was  the  patient  the  victim  of  such  mental  suffer- 
ing because  of  his  disease  as  to  be  impelled  to  the  act  of  self-destruc- 
tion ?  It  matters  not,  as  a  question  of  fact,  whether  he  could  distin- 
guish right  and  wrong,  even  with  reference  to  the  act,  or  that  he  had 
full  knowledge  of  the  nature  of  the  act  and  what  its  consequences 
would  be, — as,  for  instance,  with  reference  to  his  life  insurance, — if 
he  were  so  overwhelmed  with  despair  as  to  be  impelled  to  take  his  own 
life.  The  true  test,  rather,  is  self-control;  and  the  accuracy  of  this 
test,  upon  which  Sir  Fitzjames  Stephen^^  insisted  as  the  correct  one 
in  all  cases  of  insanity,  is  nowhere  so  strikingly  shown  as  in  suicidal 
melancholia.  In  the  language  of  Lord  Denman  -J^  "If  some  con- 
trolling disease  was,  in  truth,  the  active  power  within  him,  which  he 
could  not  resist,  then  he  will  not  be  responsible."  These  words,  which 
were  spoken  of  a  homicide,  have  still  greater  force  when  applied  to  a 
suicide  from  melancholia.  Such  is  the  impelling  power  of  this  dis- 
ease that  its  victim  may  kill  himself  in  spite  of  his  moral  prompt- 
ings; and  even  hurl  himself  irresistibly  to  his  doom  in  spite  of  his 
belief  that  he  but  anticipates  the  perdition  which  is  the  phantasm  of 
his  disordered  mind.  The  attempt  to  reduce  such  madness  to  fixed 
rules — to  limit  it  by  the  conventional  tests  of  our  courts  of  law — is 
both  futile  and  unjust. 

700.  The  presumption  of  sanity. — The  law  will  doubtless  insist  in 
such  cases,  as  in  all  other  cases,  that  the  presumption  of  sanity  holds 
imtil  evidence  is  shown  to  the  contrary.  Blackstone^^  has  correctly 
stated  this  maxim  when  he  implies  that  the  act  of  suicide,  in  itself, 
is  not  an  evidence  of  insanity.  To  this  statement  few,  if  any,  scien- 
tists will  object,  although  they  may  see  cause  to  make  exception  of 
some  cases  in  which  the  act  of  suicide,  from  special  circumstances  at- 
tending it,  is  so  extraordinary  and  unnatural  that  it  suggests  insanity. 
But  a  presumption  in  law  is,  after  all,  merely  a  working  hypothesis. 
It  is  always  open  to  attack,  and  is  liable  to  be  broken  down ;  so  that,  as 
Lord  Brougham''^^  said,  the  presumption  constantly  shifts  from  one 
side  to  the  other,  according  to  the  weight  of  evidence.  For  instance, 
in  science,  if  strong  evidence  were  adduced  in  favor  of  the  person's 
insanity,  that  fact  would  raise  the  presumption  that  the  act  of  suicide 
was  the  result  of  the  disease.  It  is  therefore  incumbent  upon  experts 
to  base  a  diagnosis  upon  all  known  previous  symptoms,  rather  than 
upon  the  mere  act  of  suicide  itself.     For  instance,  in  Garnier's  cases, 

•"History  Crim.  Law,  loc.  cit.  "Waring  v.   Waring,   6  Moore,   P.   C. 

'"Reg.  V.  Oxford,  9  Car.  &  P.  525.  C.  341,  12  Jur.  947. 

"4  Com.  190. 


tioO  IXSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  700 

already  cited,  in  which  the  mothers  had  induced  their  children  to  join 
them  in  the  desperate  act,  that  astute  expert  did  not  confine  himself 
to  a  statement  of  the  unnatural  character  of  the  act,  but  analyzed  the 
histories  of  these  women,  and  demonstrated  that  they  were  irrespon- 
sible. The  inference,  then,  w^as  practically  certain  that  their  acts 
were  the  results  of  disease,  even  if  it  had  not  been  possible  to  trace 
the  act  directly  to  an  insane  motive. 

701.  The  relation  of  the  suicidal  act  to  a  delusion. — This  certainly 
would  be  the  scientific  inference ;  and  the  law  itself  would  hardly  in- 
sist, in  such  a  case,  on  the  principle  which  it  applies  in  homicidal 
cases,  that  the  act  must  be  directly  traced  to  a  delusion.  To  trace 
such  a  direct  relation  might  be  impossible  in  some  melancholiacs,  be- 
cause of  the  reticence  of  these  patients.  Here,  again,  melancholia 
runs  counter  to  the  law,  for  it  demonstrates  that  from  the  very  nature 
of  some  of  these  cases  the  immediate  motive  for  suicide  cannot  be 
exposed.  Few  persons  can  read  accurately  the  thoughts  of  a  melan- 
choly patient;  the  springs  of  action  are  aften  concealed  deep  in  the 
gloomy  recesses  of  the  mind ;  the  inferences  as  to  conduct  must  rest 
on  the  mere  general  appearance  of  mental  suffering.  But  if  this  be 
true  of  suicide,  why  may  it  not  also  be  true  of  homicide  ?  If  a  delu- 
sional lunatic  kills,  his  act  may  not  always  be  traced  more  directly  to 
his  delusions  than  the  suicide  of  a  melancholy  patient  can  always  be 
traced  to  the  controlling  ideas.  The  one  patent  fact  is  that  the  mind 
is  unsound;  and  the  inference  is  that  its  actions  are  perverted;  for, 
as  Lord  Brougham  said,  the  mind  is  one  and  indivisible ;  and,  as  Lord 
Lyndhurst'^^  put  it,  the  mind  cannot  be  at  the  same  time  both  sane 
and  insane,  for  if  it  is  partially  impaired  it  is  unsound. 

702.  The  present  doctrine  of  English  law. — According  to  a  recent 
writer"*  the  true  doctrine  of  the  English  criminal  law  at  present 
would  be,  perhaps,  as  follows:  If  suicide  affords  any  presumption 
of  insanity,  it  is  of  insanity  at  the  moment  only;  and  even  then,  if 
not  supported  by  other  evidence,  it  is  not  enough  to  exculpate.'" 
This  may  be  good  law,  but  it  is  hardly  good  science;  for,  while  of 
course  the  immediate  presumption  is  in  favor  of  insanity  only  at  the 
time,  and  no  inference  can  be  drawn,  without  other  evidence,  of  a 
more  remote  antecedent  insanity,  yet  the  fact  is  that  in  the  vast  ma- 
jority of  insane  suicides  the  insanity  has  existed  for  some  time  prior 
to  the  act.     The  preponderance  of  evidence  would  be  so  great  in  favor 

"Z)C7(;  V.  Clark,  3  Addams.  Eccl.  Rep.  "il/'Adam  v.  Walker,  1  Dow.  P.  C. 
79.  187. 

"  Prescott,  op.  cit.  p.  48. 


§  7021  MELANCHOLIA.  051 

of  the  latter  position  that  it  would  at  once  constitute  a  presumption 
in  the  mind  of  an  alienist;  but  the  law  shows,  in  this  matter,  its  pre- 
cise methods,  and  its  demand  for  evidence  step  by  step,  and  expert 
witnesses  must  be  prepared  to  meet  this  demand  ;  therefore  it  is  really 
useless  to  deny  that  the  act  of  suicide,  if  it  raises  any  presumption  at 
all  in  favor  of  insanity,  affords  a  presumption  of  insanity  at  the  mo- 
ment only.  More  could  hardly  be  expected ;  and  even  this  much  is 
against  the  principle  announced  by  Blackstone.  If  more  were  al- 
lowed, there  would  practically  be  no  limit,  and  it  would  be  proper  to 
presume  a  suicide  to  have  been  insane  for  an  indefinite  time  merely 
from  his  one  act.  To  establish  an  antecedent  insanity,  therefore,  re- 
quires evidence,  and  properly  so. 

703.  Some  legal  opinions  differ.— But  legal  opinions  differ  on  this 
subject,  as  is  shown  by  Strahan,^^  who  advises  that  a  law  be  enacted 
declaring  that  all  attempts  at  suicide  be  considered  in  themselves  evi- 
dence of  insanity,  and  that  the  offender  be  sent  to  a  madhouse.  One 
finds  it  difficult  to  accept  such  a  proposition  seriously.  It  is  against 
both  law  and  science;  for,  as  Blackstgne  properly  said,  suicide  is  in 
itself  not  evidence  of  insanity.  It  requires  corroborative  proof. 
Therefore  it  is  still  more  strange  to  have  Strahan  inveigh  against 
coroners'  juries  for  finding  all  suicides  insane.  One  would  suppose 
that  this  custom  was  just  what  he  wanted. 

704.  In  cases  in  which  suicide  is  a  crime,  insanity  exculpates. — If 
suicide  is  a  crime,  the  person  is  innocent  until  found  guilty,  and  the 
same  is  true  of  the  attempt  at  suicide,  if  this  be  a  misdemeanor.  But 
if  the  accused  is  insane,  his  insanity  operates  as  an  excuse,  just  as  in 
any  other  crime  or  misdemeanor.  Hence,  an  insane  man  is  guilty 
of  no  offense  under  any  law  in  committing  suicide,  or  in  making  the 
attempt;  and  this  applies  to  all  instances  mentioned  above;  as,  for 
instance,  the  accidental  killing  of  another  person  instead  of  himself; 
or  the  joining  in  a  double  suicide,  of  which  he  is  the  survivor ;  or  the 
instigating  another  person  to  commit  suicide ;  or  in  the  matter  of  life 
insurance.  Hence,  the  subject  has  very  wide  importance  in  medical 
jurisprudence. 

705.  The  difficulty  of  diagnosis  in  some  cases  of  insane  suicides. — 
From  the  medical  standpoint,  however,  it  may  bo  a  matter  of  cxlreme 
difficulty  in  some  cases  to  establish  the  pre-existcnce  of  insianity  in  a 
suicide.  All  suicides  are  not  insane,  and  even  in  those  who  are  so,  it 
is  not  always  easy  to  prove  it.  In  the  cases  of  melancholia,  which 
are  the  most  numerous,  the  evidence  of  depression,  as  described  in  the 

"Op.  cit. 


652  INSANITY— FORMS  AN'D  .MEDICO-LEGAL  ASPECTS.  [§  705 

preceding  pages,  must  be  sought;  but  systematized  delusions  are  not 
always  present  in  melancholia,  and  their  absence  is  no  proof  that  the 
patient  was  not  irresponsible.  The  degree  of  mental  pain,  the  loss 
of  self-control,  are  the  more  exact  tests.  Moreover,  delusions  may  be 
concealed  by  melancholy  patients :  the  fact  that  they  are  not  expressed 
is  not  evidence  that  they  are  not  present.  In  short,  the  evidence  of 
the  insanity  must  be  based  upon  a  study  of  the  sjTiiptoms  in  each  in- 
dividual case. 

706.  The  study  of  statistics  of  insane  suicides. — The  statistics  of  su- 
icide have  value  for  the  medical  jurist  in  so  far  as  they  show  the  prev- 
alence of  various  forms  of  insanity  as  causes  of  this  act ;  and  the  most 
reliable  statistics  show  clearly  (what  would,  indeed,  be  expected)  that 
melancholia  is  hj  far  the  most  common  pathological  cause  of  suicide. 
Thus,  the  statistics  of  Saxony'^^  for  thirty  years,  from  1847-76,  re- 
veal that  of  insane  suicides  66.6  per  cent  of  men,  and  63.5  per  cent 
of  women,  were  suffering  with  melancholia ;  and  the  statistics  of 
Prussia  for  nine  years,  1866-75,  show  67  per  cent  of  men  and  66  per 
cent  of  women.  Next  in  frequency  comes  mania ;  while  imbecility, 
idiocy,  and  religious  excitement  figure  in  the  list.  Thus  it  appears 
that  the  alienist  has  good  reason  to  claim  that  a  study  of  the  facts 
raises  a  presumption,  by  a  ratio  of  2  to  1,  in  favor  of  any  particular 
case  of  insane  suicide  being  an  example  of  melancholia ;  and  even 
more  than  this,  because,  even  in  mania,  imbecility,  and  idiocy,  the 
act  may  arise  from  a  melancholy  impulse,  such  as  is  not  unknown  in 
those  states.  But  the  greatest  objection  to  statistics  is,  that  they  are 
founded  on  cases  some  of  which  have  been  badly  observed.  The  diag- 
nosis may  not  be  equally  reliable  in  all  cases  which  are  included  in 
the  tables.  Moreover,  statistics  lead  us  too  much  to  ignore  the  indi- 
vidual, whereas  it  is  the  individual  that  the  law  is  concerned  with. 

The  nature  of  the  average  cases  of  suicide,  as  they  occur  in  a  large 
general  class  of  people,  is  sho^vn  in  a  peculiar  light  by  statistics.  The 
following  are  from  the  Chief  Medical  Examiner  of  the  Royal  Ar- 
canum, a  beneficial  order."^* 

"Moraelli,    Suicide,    p.    282.  cal  metliod  in  liis  study  of  suicide.     He 

"American   Medicine,  June   11,   1904,  docs  not  fail  to  recognize,  liowever.  that 

p.  916.  statistics  can  throw  little,  if  any,  light 

'•  See  Morsel !i  (Suicide,  pp.  276,  306)  on   individual   motives;    and   it  is  such 

for  a  discussion  of  the  causes  of  suicide,  motives  which  are  the  study  both  of  tlia 

especially  with    reference    to    madness,  jurist    and    the    alienist.     See   his    "Jn- 

Morselli   relies  largely  on  the  statisti-  troduction." 


§  706j  MELANCHOLIA.  0:.3 

For  four  years  as  follows : 

1903.  1902.  1901.  1000. 

Domestic  trouble   10  9  12  7 

Financial   trouble    20  30  10  21 

Intemperate  and  out  of  employment. .  2  2  3  3 

Temperate  and  out  of  employment...  9  6  2  1 

Intemperance  the  chief  cause 12  5  4  7 

111    health    31  23  25  l!i 

Known  insanity   2  2  4  3 

Supposed    insanity    9  7  8  10 

Supposed  temporary  insanity 5  6  12  6 

Illness    from    overwork    4  3  2  0 

No  cause  known    5  7  6  — 

707.  The  difficulty  of  analyzing  statistics. — If  we  attempt  to  analyze 
these  statistics,  which  arc,  perhaps,  fairly  representative,  we  meet 
with  great  difficulties.  j\Iany  of  the  causes  assigned  may  or  may  not 
be  causes  also  of  insanity.  Thus,  domestic  and  financial  troubles 
may  cause  melancholia ;  so  may  intemperance  and  various  forms  of 
ill  health.  Moreover,  such  statistics  are  often  founded  on  inexact 
observation,  and  are  no  more  reliable  than  the  findings  of  a  coroner's 
jury ;  in  fact,  some  of  them  probably  are  based  on  the  findings  of 
coroners'  juries.  This  criticism  applies  to  very  much  of  the  litera- 
ture of  suicide,  which  is  often  inexact,  or  even  dilettantish.''^  For 
the  purposes  of  medical  jurisprudence,  the  only  allowable  method  is 
by  a  careful,  detailed  study  of  the  individual  case  which  is  under  ad- 
judication. It  is  a  question  of  fact,  to  be  determined  by  the  evi- 
dence. The  historians  of  suicide  are  fond  of  striking  incidents; 
their  works  are  loaded  with  historic  narrative  and  not  a  little  specu- 
lation. It  does  not  help  us  to  know  that  Empedocles  threw  himself 
into  Etna;  that  King  Saul  ran  upon  his  sword;  that  Mark  Antony 
disemboweled  himself;  thatCato  took  his  own  life  after  reading  Plato 
on  immortality ;  that  Cleopatra  applied  the  asp ;  that  Seneca  and  his 
wife  committed  double  suicide  by  opening  their  veins;  that  Chatter- 
ton,  in  his  poverty,  poisoned  himself;  or  that  Hugh  Miller  killed  him- 
self after  overwork.  The  history  of  humanity  is  dotted  with  acts  of 
self-destruction,  from  the  earliest  times,  among  all  peoples.  Reli- 
gion has  not  con-trolled  this  distemper,  for  we  find  that,  according  to 
Legoyt,^^  sixty-two  out  of  one  million  Catholics  kill  themselves ;  one 
hundred  and  two  of  Protestants ;  thirty-six  of  the  Greek  Church  ;  and 
forty-eight  of  the  Jews.  Hence,  Christianity,  with  all  its  thunder- 
ings  against  suicide,  has  not  prevented  a  high  death-rate.  The  fact 
is  that  suicide  is  due  to  numerous  causes,  of  which  insanity  is  only 
one;  and  for  the  medical  jurist  tbe  question  resolves  itself  into  a 

"Le  .Suicide,  Paris,  1881. 


654  INSANITY— FOKTtIS  AND  MEDICO-LEGAL  ASPECTS.  [§  707 

stiidj  of  individual  cases.     Statistics  will  not  decide  this  question  in 
any  court  of  law.*^ 

708.  Homicide  may  be  committed  by  the  melancholiac. — The  melan- 
choly patient  may  also  commit  homicide,  l)ut  this  act  is  much  less 
common  than  suicide.  In  order  to  understand  the  motive  for  it,  it 
is  necessary  to  appreciate  fully  the  state  of  mental  depression  M^hich 
overwhelms  these  patients.  When  we  consider  this  state  in  all  its 
relations  we  can  readily  see  how  it  may  suggest  to  some  patients  the 
mad  impulse  to  make  way  with  the  lives  of  others  as  well  as  their 
own.  Hence,  it  follows  that  the  person  or  persons  immolated  by  the 
suicidal  melancholiac  are  usually  those  who  are  near  and  dear  to 
him.  Thus,  the  disordered  mind  of  a  mother,  intent  upon  suicide  to 
escape  the  burden  of  existence,  may  turn  to  her  young  children, 
whom  she  is  unwilling  to  leave  behind  in  a  world  which  to  her  seems 
so  unendurable.  Those  are  the  commonest  cases  of  joint  homicide 
and  suicide.  The  motive  is  perfectly  intelligible;  and  the  act  is,  in 
a  sense,  a  logical  sequence  of  the  profound  psychalgia.  In  these 
cases  there  is  usually  nothing  left  for  the  courts  to  pass  on,  although 
occasionally  the  unhappy  woman  survives  the  attempt  on  her  own 
life,  and  her  case  comes  up  for  adjudication.  In  a  case  in  which  a 
woman  had  killed  one  child  and  had  intended  to  kill  another,  which 
saved  its  life  by  giving  its  mother  an  innocent  caress,  an  English 
judge.  Lord  Blackburn,  told  the  jury  that  there  were  exceptional 
cases,  in  ^hich  the  ordinary  tests,  such  as  the  knowledge  of  right  and 
wrong,  would  not  apply.^^  This  was  a  brief,  accurate,  and  profound 
commentary  on  such  cases. 

"  The  literature  of  suicide  is  enor-  of  information  about  suicide,  from  every 
mous.  The  Index-Catalogue  of  the  li-  historic,  legal,  and  scientific  source, 
brary  of  the  Surgeon-General's  office  at  Their  works  are  monumental,  and  not 
Washington  contains  seven  large  pages  a  few  of  them  are  among  the  curiosities 
of  two  columns  each,  of  closely  printed  of  literature.  Thus,  Winslow's  book 
references  to  the  subject  of  suicide,  seems  written  as  though  to  cast  a  gla- 
Among  the  best  works  on  the  subject  mour  over  the  subject;  it  is  laboriously 
are  WinsloAv,  The  Anatomy  of  Suicide,  anecdotal  rather  than  scientific,  and 
London,  1S40;  Brierre  de  Boismont,  Du  contains  a  poetical  quotation  on  almost 
Suicide  et  de  la  Folic  Suicide,  Paris,  every  other  page.  The  writers  on  au- 
1SG5;  Legoyt,  Le  Suicide  Aneien  et  tocheiria  have  even  affected  startling 
Moderne,  Paris,  1881 ;  IMorselli,  Suicide  titles,  and  we  have  in  consequence  such 
(in  its  English  translation)  ;  Strahan,  efltusions  as  The  Right  to  Die,  by  Bon- 
Suicide  and  Insanity,  London,  1893;  ser;  while  the  Curiosities  of  Suicide  and 
VVestcott,  Suicide,  London,  1885;  and  the  Aesthetics  of  Suicide,  are  titles 
Carrier,  Des  Obsessions  et  des  Impul-  which  illustrate  the  morbid  fancies  of 
sions  a  I'Homicide  et  au  Suicide,  Paris,  authors  as  well  as  of  the  suicides  them- 
1899.     In  these  valuable  works  the  au-  selves. 

thors   seem   to  have   attempted   to   out-        '^Quoted  by  Dixon  Mann,   For.  Med. 

shino  all  rivals  in  collecting  every  scrap  and  Tox.  2d  ed.  p.  361. 


§  708]  MELiVNCHOLIA.  655 

EsquiroP^  refers  to  the  case  of  a  woman  who,  during  an  attack  of 
melancholia,  in  which  she  believed  that  she  was  to  be  arrested,  con- 
demned, and  led  to  the  scaffold,  rendered  desperate  by  the  thought  of 
the  grief  she  would  bring  to  her  husband,  tried  to  kill  him  before  kill- 
ing herself.  The  motive  in  such  a  case  is  easy  to  understand ;  the  in- 
sane mind  in  such  circumstances  clings  tenaciously  to  those  who  are 
most  dear,  and  seeks  to  include  them  in  its  own  fate.  A  melancholy 
patient,  known  to  the  writer,  believed  she  was  in  hell,  and  constantly 
raved  about  her  mother  in  such  a  way  as  indicated  that  she  might 
make  a  dangerous  assault  upon  her.  Such  cases  are  instances  of  agi- 
tated melancholia,  in  which  the  patients  are  particularly  apt  to  be 
seized  by  impulses,  suicidal  or  homicidal,  or  both.  They  are  in  a 
kind  of  melancholy  delirium,  and  are  totally  irresponsible.^^ 

709.  Deliberation  and  premeditation  in  these  patients. — But  some  of 
these  melancholy  patients  are  capable  of  acting  with  great  delibera- 
tion; their  plans  are  well  matured;  they  have  no  idea  of  failing  in 
their  terrible  designs.  They  completely  upset  the  legal  tests  of  re- 
sponsibility. Esquirol  records  the  tragic  case  of  a  Belgian  woman, 
who,  after  throwing  four  of  her  children  into  a  well,  threw  herself  in 
iifter  them.  She  would  have  destroyed  a  fifth  if  it  had  not  escaped 
her;  and  she  had  sent  a  dose  of  poison  to  a  sixth  child,  who  was  away 
from  home.  The  mind  stands  aghast  at  such  a  perversion  of  the 
most  sacred  feelings  in  the  human  breast,  and  refuses  to  read  in  such 
nn  act  anything  but  the  impulses  of  insanity.^^^ 

710.  Homicidal  impulses  in  melancholia. — Among  the  most  shocking 
examples  of  homicidal  impulse  are  to  be  placed  the  cases  of  women 
who  kill  their  infanta  in  an  access  of  puerperal  insanity.  These  cases 
have  already  been  treated  of  in  the  chapter  on  "Mania,"  but  it  would 
not  be  proper  to  dismiss  the  subject  entirely  from  the  discussion  of 
"Melancholia."  Many  of  these  cases  are  probably  instances  of  a  mel- 
ancholy impulse,  for  we  know  that  in  mania  and  in  various  forms  of 
delirium  there  are  periods  of  melancholic  perversion.  This  is  espe- 
cially true  of  the  early  stages  of  those  diseases,  at  which  time  a  period 
of  melancholic  depression  is  not  unusual,  and  it  is  in  the  early  stages 
of  the  insanity  of  childbirth  that  infanticide  is  most  likely  to  occur. 
To  analyze  the  insane  motive  or  impulse  that  leads  a  mother  to  kill 

''Mental    Maladies,   Am.    translation,  when  she  was  deserted  by  Jason,  killed 

p.    259.     "Suicide    Preceded     by    Homi-  her  two  sons  whom  she  had  had  l)y  him, 

cide."  supplies   us   with   an   early   example   of 

"  Clouston,  Clinical  Lectures  on  Men-  infanticide  by  a  jealous  and  despondent 

tal  Diseases,  p.   111.  woman. 

siJThe  classic  fable  of  Medea,   who, 


656  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§710 

her  newborn  babe  is  most  difficult,  often  impossible.  In  these  cases 
there  is  great  confusion  of  mind,  with  hallucinations,  and  most  dis- 
turbing delirious  ideas.  The  character  of  the  unnatural  act,  how- 
ever, suggests  that  the  deed  is  prompted  not  by  hate  so  much  as  by 
fear,  anxiety,  depression.  Where  all  is  disorder,  however,  it  is  im- 
possible to  detect  the  sequence  of  ideas. 

711.  The  complicated  motives  that  may  lead  to  homicide. — The  com- 
plexity of  the  human  mind  is  so  great  that  we  need  not  be  surprised 
that  very  complicated  motives  may  lead  a  would-be  suicide  to  commit 
a  homicide.  Brierre  de  Boismont*^^  says  that  it  is  well  established  by 
numerous  observations  that  persons  seized  with  the  idea  of  suicide, 
but  not  willing  to  kill  themselves,  because  of  their  religious  scruples, 
kill  another  person,  in  order  to  have  time  to  reconcile  themselves 
with  God.  Such  a  motive  might  not  meet  with  a  favorable  reception 
in  an  American  or  English  court,  and  yet  it  may  be  recalled  that  Had- 
field,  who  shot  at  George  III.,  and  was  acquitted,  was  impelled  by  the 
desire,  not  to  injure  the  King,  but  to  secure  his  own  execution.^** 
The  motive  was  an  insane  one;  and  allied  to  the  motives  which  lead 
some  melancholiacs  to  make  homicidal  attempts.  We  see  in  such 
cases  a  strange  confusion  of  the  moral  instincts;  for  although  the 
person  is  too  scrupulous  to  kill  himself,  he  is  not  too  scrupulous  to 
kill  another ;  but  the  explanation  lies  in  the  fact  that  the  act  of  homi- 
cide gives  him  a  chance  to  repent,  which  the  act  of  suicide  neces- 
sarily deprives  him  of.  Esquirol,  who  also  noted  such  cases,  in- 
cluded them  all  in  the  class  of  melancholiacs ;  but  Esquirol  confused 
melancholiacs  and  monomaniacs,  especially  those  of  the  latter  class 
who  have  delusions  of  persecution.  This  fact  should  be  emphasized ; 
for  some  of  these  cases  of  homicidal  suicides,  and  those  especially 
who  act  from  religious  motives,  are  really  cases  of  religious  par- 
anoia. The  madman  who  thinks  he  is  commanded  by  God  to  com- 
mit murder  is  not  usually  a  melancholy  patient:  he  is  a  paranoiac. 
The  motive  in  the  melancholiac  rises  from  the  sense  of  depression 
and  personal  unworthiness.  These  facts  are  of  medico-legal  import 
as  well  as  of  purely  psychological  interest.  The  lunatic  who  emu- 
lates the  example  of  Abraham  in  sacrificing  his  son  is  not  a  melan- 
choliac. His  motive  is  profoundly  different,  and  he  is  not  usually  a 
suicide.  Of  course,  he  does  not  recognize  that  the  story  of  Abraham 
is  a  mere  legend,  in  which  Ave  catch  a  glimpse  of  the  practice  of  human 
sacrifice  as  it  undoubtedly  existed  among  the  primitive  Semites.^'' 

"Du    Suicide,   etc..   p.    729.     Consult,        '^Uadfield's   Trial,   27     How.    St.    Tr. 
also,  Marc,  De  la  Folic,  etc.  Tome  I.  p.    1281. 
671.  "Driver.     (The  Book  of  Genesis,  N.  Y. 


§  712] 


MELANCHOLIA. 


657 


712.  Criminal  motives  in  suicidal  patients. — The  medical  jurist  wiD 
sometimes  be  asked  for  an  opinion  in  cases  of  conjoint  attempts  at 
homicide  and  suicide,  in  which  the  motive  had  been  purely  criminal, 
but  where  an  attempt  is  made  to  prove  the  murderer  insane.  The 
mere  atrocity  of  an  act  does  not  prove  a  man  insane  in  law.  These 
double  crimes  often  arise  from  jealousy,  anger,  or  revenge;  as,  for 
instance,  when  a  man  kills  his  mistress,  with  whom  he  has  quarreled, 
and  then  attempts  suicide.**^  Assassins  not  infrequently  try  to  kill 
themselves;  if  they  do  not  succeed,  they  are  to  be  tried  exactly  as 
other  murderers  are.  The  mere  attempt  at  suicide  proves  nothing, 
for  here,  especially,  the  courts  would  be  likely  to  insist  on  the  legal 
principle  stated  by  Blackstone,^^  that  the  act  of  suicide  is  not,  in 
itself,  an  evidence  of  insanity.^*' 

Finally,  these  cases  are  to  be  distinguished  from  the  cases  of  toxic 
insanity,  such  as  are  caused  by  alcohol,  morphin,  and  cocain,  in  which 
impulsive  acts  of  homicide  and  suicide  occur.  Thus,  recently  in 
Philadelphia  a  man  shot  and  killed  his  wife  without  warning,  and 
then  committed  suicide.  He  was  reported  to  be  a  victim  of  a  drug 
habit,  and  was  probably  insane.^^ 


1904,  p.  221.)  Canon  Driver  shows  vis 
that  the  custom  of  human  sacrifice  was 
prevalent  among  the  primitive  Israel- 
ites and  tlieir  neighbors.  Under  the 
later  Jewish  kings,  as  Ahaz  and  Manas- 
seh,  the  rite  was  performed.  Renan 
also  says  it  A\as  practised  in  Jerusalem. 
According  to  the  Hebrew  law  the  first- 
born was  offered  to  Jehovah  ( Jahvah ) , 
l)ut  was  redeemed  at  a  price  (Exod. 
xxii.  29;  xiii.  12-1.5).  a  statute  still 
obeyed  by  orthodox  Jews.  This  law,  in 
the  opinion  of  Canon  Driver,  stands  in 
some  relation  to  the  primitive  custom 
of  liuman  sacrifice.  According  to  some 
Greek  authors,  the  Carthaginians,  in 
times  of  national  peril,  sacrificed  by  the 
hundred  the  children  of  their  noblest 
families. 

"^Hall  V.  Com.  22  W.  N.  C.  25,  12  Atl. 
163. 

»M  Com.  190. 

"^Coyle  v.  Com.  100  Pa.  573,  45  Am. 
Rep.  397. 

"  It  is  hardly  necessary  to  remind  the 
Vol.  I.  Med.  Jub. — 42. 


well-read  student  of  Lecky's  elaborate 
discussion  of  suicide  in  his  History  of 
European  INIorals,  to  which  reference  has 
already  been  made  in  the  preanling 
footnotes.  For  a  note  on  the  legality  of 
suicide  in  ancient  Rome,  see  his  first 
volume,  p.  230  (also  Gibbon's  Decline 
and  Fall,  Chap.  XLIV.).  The  Emperor 
Domitian  made  a  law  that,  if  an  accused 
person  committed  suicide  in  order  to  es- 
cape trial  and  condemnation,  he  should 
sufler  the  same  penalties  (such  as  con- 
fiscation of  goods)  as  thougli  he  had 
been  condemned.  (Compare  §  074.  su- 
pra.) Lecky  says  that  the  best  history 
of  suicide  is  by  Cromaziano,  a  monk 
(Istoria  Critica  del  Suicido,  Venice, 
1788).  (Seneca's  praise  of  suicide  (Con 
sol.  ad  Mare,  CXX.)  is  quoted  by  Lecky, 
Vol.  I.  p.  228 :  "To  death  alone  it  is 
due  that  life  is  not  a  punisliment;"  and 
again,  "Against  all  the  injuries  of  life  I 
have  the  refuge  of  death."  He  wan 
forced  to  commit  suicide  by  the  Emper- 
or Nero. 


CHAPTER  XXXIV. 

STUPOROUS  INSANITY. 

I.  The  medical  aspects  of  stupobous  insanity. 

713.  Definition. 

714.  Occurrence. 

715.  The  onset. 

716.  Characteristics. 

717.  The  physical  state. 

718.  Special  symptoms. 

719.  The  prognosis. 

720.  This  insanity  is  a  physical  disease. 

[I.  The  medico-legal  aspects  of  stuporous  insanity. 

721.  This  is  not  a  disease  at  all  likely  to  figure  in  the  courts. 

I.  The  medical  aspects  of  stuporous  insanity. 

713.  Definition. — There  is  a  psjchoneiirosis  which  differs  from  both 
mania  and  melancholia  in  the  fact  that  it  is  characterized  by  neither 
an  exaltation  nor  a  depression  of  the  emotions.  Instead  of  a  dis- 
turbance of  the  emotional  life  there  is  a  weakening  or  even  abolition 
of  all  the  mental  life,  and  the  patient  sinks  into  a  condition  of  stupor 
This  disease  is  sometimes  called  "primary  dementia/'  or  "primary 
curable  dementia;"  but,  as  Spitzka^  has  pointed  out,  the  term  "de- 
mentia" is  a  misnomer  as  applied  to  this  psychosis,  for  dementia 
indicates  a  state  in  which  there  is  a  permanent  deterioration  of  the 
mental  faculties.  Such  does  not  exist  in  stuporous  insanity,  for  the 
brain,  although  profoundly  deranged,  is  not  permanently  so. 

714.  Occurrence. — Stuporous  insanity  is  a  disease  of  early  adult 
life.  Krafft-Ebing-  says  that  this  state  of  mental  weakness  is  not 
encountered  after  thirty  years  of  age.  It  is  caused  especially  by 
things  that  tend  to  weaken  the  general  physical  health,  and  is  seen  in 
those  yoi'ing  persons  who  are  by  nature  delicate  and  weakly ;  hence 
the  neuropathic  are  its  natural  victims.  Among  the  common  causes 
are  the  acute  febrile  diseases,  hemorrhages,  childbirth,  masturba- 
tion, injuries  to  the  head,  and  mental  and  moral  shock.     The  best 

'  Insanity,  chapter  on  "Stuporous  In-  ^  TraitC  Clinique  de  Psychiatrie,  p. 
Banitv."  401. 

658 


§  714]  STUPOROUS  INSANITY.  V,-)9 

authorities  insist  upon  including  masturbation  in  this  list  of  causes, 
but  the  writer  has  always  been  sceptical  about  this  habit  having  nearly 
as  much  to  do  with  the  causation  of  mental  diseases  as  it  is  credited 
with. 

715.  The  onset. — This  disease  usually  develops  rapidly.  The 
patient  becomes  more  and  more  preoccupied  and  absorbed ;  he  ceases 
to  attend  to  his  ordinary  affairs;  he  is  no  longer  interested  in  his 
work  or  his  amusements.  The  mental  faculties  are  all  involved, — 
attention,  intelligence,  memory,  the  affections,  and  the  moral  sense. 
There  is,  in  fact,  as  the  case  reaches  its  acme,  a  total  abolition  or  ex- 
tinction of  the  mental  life.  In  severe  cases  this  is  shown  by  the  impos- 
sibility of  obtaining  any  mental  reflexes  in  the  patient,  and  by  the 
complete  blank  which  exists  in  the  memory  after  recovery.  The  whole 
aspect  of  the  case  is  one  of  stupor,  deepening  even  into  unconscious- 
ness ;  but  the  patient  is  not  always  deeply  unconscious :  he  can  often 
be  roused  a  little  by  repeated  urging,  and  it  is  said  that,  even  in  severe 
oases,  a  change  in  the  pulse  can  sometimes  be  detected  on  loud  and 
familiar  conversation  in  the  patient's  presence. 

716.  Characteristics. — Savage'  says  that,  in  his  opinion,  the  touch- 
stone in  these  cases  is  the  state  of  the  memory.  Patients  with  stupor- 
ous insanity,  or,  as  he  calls  it,  acute  primary  dementia,  have  no  re- 
membrance of  the  period  of  their  disease.  This  distinguishes  them, 
in  his  judgment,  from  cases  of  melancholia,  in  which  a  painful  im- 
press is  left  upon  the  mind.  He  refers  to  a  patient  who,  on  recover- 
ing, said  that  the  time  of  his  inactivity  was  a  blank  to  him,  and  was 
in  no  way  associated  with  painful  recollections.  This  accords  with 
the  teaching  of  Krafft-Ebing,  Crichton-Brown,  and  other  authorities. 

717.  The  physical  state. — The  physical  symptoms  are  in  accord 
with  the  mental.  The  patient's  expression  is  one  of  apathy,  or  is  even 
entirely  blank ;  the  pulse  is  slow,  the  skin  cool  and  dry,  the  tempera- 
ture perhaps  slightly  below  normal ;  the  eye-reflexes  may  be  sluggish ; 
the  vaso-motor  system  is  involved,  as  is  shown  by  edema  of  the  feet 
and  hands ;  and  most  authors  say  that  the  urine  is  rich  in  phosphates. 
Motion  and  sensation  are  impaired:  the  patient  makes  few  voluntary 
movements,  and  even  the  calls  of  nature  may  be  neglected ;  anesthesia 
of  the  skin,  or,  more  properly,  the  loss  of  perception  to  touch,  may  be 
complete. 

718.  Special  symptoms. — Krafft-Ebing  says  that  these  patients  may 
have  episodes  of  excitement,  caused,  for  instance,  by  terrifying  hal- 

'  Insanity      and       Allied       Neuroses, 
Phila.   1884,  p.  180. 


660  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§718 

lucinations,  and  there  may  be  a  rare  intercurrent  stage  of  what  seems 
like  maniacal  exaltation,  marked  by  mental  and  physical  excitement, 
during  which  the  patient  sings,,  paces  to  and  fro,  goes  about  without 
object,  tears  his  clothes,  talks  verbiage,  and  commits  impulsive  acts. 
This  state  should  not  be  confounded  with  mania,  from  which  it  dif- 
fers in  the  absence  of  an  exalted  emotional  state,  just  as  the  profound- 
ly stuporous  stadium  differs  from  melancliolia  attonita  in  the  absence 
of  emotional  depression.  It  is  proper  to  state,  however,  that  some 
authors,  as  Eegis,*  teach  that  stupor  is  only  a  form  of  melancholia, 
and  that  the  emotional  depression  is  only  concealed  under  the  mask 
of  the  stupor.  It  is  possible,  in  fact,  that  these  forms  insensibly 
grade  into  one  another.^2 

719.  The  prognosis. — The  prognosis  in  these  cases  is,  as  a  rule, 
good  :  the  patients  usually  recover. 

720.  This  insanity  is  a  physical  disease. — Stuporous  insanity  should 
be  of  not  a  little  interest  to  lay  readers  from  the  fact  that  it  exhibits 
a  form  of  mental  disease  which  has  many  analogies  with  a  purely 
physical  disease;  that  is  to  say,  it  shows  that  purely  physical  causes 
underlie  an  affection  the  seat  of  which  is  in  the  brain  cells,  which 
have  become  disturbed  in  their  nutrition. 

11.   The  medico-legal  aspects  of  stuporous  insanity. 

721.  This  is  not  a  disease  at  all  likely  to  figure  in  the  courts. — The 

stuporous  patient  takes  so  little  notice  of  anything,  and  has  so  little 
initiative,  that  he  is  not  capable  of  performing  a  voluntary  act.  Such 
a  person  can  not  only  not  commit  a  criminal  act,  but  he  would  be 
quite  insensate  in  the  presence  of  such  an  act.  Clouston^  refers  to  a 
stuporous  patient  in  Morningside  Asylum  who  took  no  notice  what- 
ever of  another  patient's  committing  suicide  in  his  presence  by  hang- 
ing. If,  however,  a  stuporous  patient  were  to  have  an  episode  of 
excitement,  such  as  Krafft-Ebing  refers  to,  he  might  conceivably 
commit  an  impulsive  act  of  violence,  and  such  an  act  would,  of  course, 
have  to  be  judged  as  an  insane  act  in  any  of  its  medico-legal  rela- 
tions. 

'  Mt'decine  Mentale.  was  one  of   the   first  observers  to  note 

^iGeorget    (De   la   Folie,  Paris.   1820,    this  form  of  mental  disease, 
p.    115),    under    the   title   of   stupidite,        'Mental  Diseases,  p.  217. 


CHAPTER  XXXV. 

CONFUSIONAL  INSANITY. 

I.  The  medical  aspects  of  confusionax,  insanity, 

722.  A  statement  of  the  disease. 

723.  Its  liistory. 

724.  Similar  to  delirium. 

725.  The  causes  of  the  disease. 

726.  Hallucinations  are  common. 

727.  The  emotional  disturbance. 

728.  The  intelligence  is  involved. 

729.  Impulsive  acts. 

730.  The  physical  state. 

731.  Various  forms. 

732.  Duration  and  prognosis. 

733.  The  pathology  is  not  entirely  unknown. 

734.  The  scientific  interest  in  these  cases. 

U.  The  medico-legal  aspects  of  confusional  insanitt. 

735.  Impulsive  acts  of  violence. 

736.  Loss  of  responsibility. 

737.  The  word  "impulse"  has  been  greatly  abused. 

738.  The  defense  of  impulsive  insanity. 

739.  Suicide  in  these  patients. 

740.  Disturbance  of  the  emotions  denied. 

741.  The  evil  passions. 

742.  Impulsive  acts  not  always  dangerous. 

I.   The  medical  aspects  of  confusional  insanity. 

722.  A  statement  of  the  disease. — Closely  allied  to  stupor  in  its 
causation,  but  differing  from  it  in  some  of  its  symptoms,  is  the  mental 
disease  known  in  this  country  as  confusional  insanity.  It  is  the 
Verwin^theit  of  the  Germans ;  the  folie  liallncinatoire  of  the  French. 
When  we  consider  the  causes  of  these  various  psychoneuroses. — 
stupor,  confusional  insanity,  mania,  and  melancholia, — we  are  struck 
with  the  fact  that  they  are  all  based  upon  much  the  same  foundation, 
and  that,  however  they  may  differ  from  one  another  in  their  clinical 
phenomena,  they  seem  insensibly  to  shade  into  each  other.  Thus, 
stupor  and  melancholia  approach  each  other  by  almost  insensible 
gradations,  and  mania  and  the  present  disease  have  not  a  few  symp- 

661 


662  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  722 

toms  in  common.  This  fact  leads  some  alienists  to  think  that  some 
of  the  German  anthors,  in  the  rage  for  classifying,  have  gone  too  far, 
and  have  insisted  on  too  many  refinements.-^  But,  with  reference  to 
confusional  insanity,  there  are  features  which  distinguish  it  fairly 
well;  and  it  is  not  unscientific  to  assign  it  a  clinical  place  by  itself. 
This  should  be  done,  however,  with  all  rights  reserved.  If,  in  the 
future,  this  disease,  or  any  or  all  of  the  other  psychoneuroses,  shall 
be  found  to  be  dependent  on  essentially  the  same  disease  processes  in 
the  brain  cells,  then  it  w^ill  be  our  privilege,  and  also  time  enough, 
to  reconstruct  our  classes.  In  the  meantime,  the  disease  which  we 
here  consider  offers  most  instructive  material  to  the  alienist  as  well 
as  to  the  jurist. 

723.  Its  history. — The  history  of  this  disease  is  not  without  inter- 
est. Probably  the  first  notice  of  it  was  in  the  work  of  Esquirol,^  who 
described  an  acute  dementia  following  a  fever,  a  hemorrhage,  or  the 
debilitating  treatment  which  was  formerly  so  much  in  vogue.  This 
acute  dementia  of  Esquirol  was  recognized  by  Georget^  under  the 
name  of  "stupidity."  Delasiauve,  in  France,  contributed  important 
studies  to  the  subject,  but,  according  to  Seglas,^  this  disease  was  for  a 
long  time  but  little  recognijsed  in  that  country.  In  Germany  the 
post-febrile  insanities  have  been  described  by  Kraepelin,  and  Krafft- 
Ebing  has  an  important  chapter  on  this  affection.  The  literature  of 
the  subject  in  late  years  has  grown  voluminous,  but  this  brief  his- 
torical note  will  serve  to  show  how  slowly  a  new  clinical  form  finds 
its  way  in  psychiatry,  and  will  illustrate  the  conservatism  of  alien- 
ists,— a  characteristic  Avith  which  they  are  not  always  credited  in  the 
courts. 

724.  Similar  to  delirium. — For  lay  reading  this  disease  can  best  be 
described  as  closel}'  allied  to  the  delirium  of  fever.  It  is  sometimes 
called  "confusional  delirium;"  but  this  term  is  tautological,  for  in 
every  kind  of  delirium,  as  this  word  is  used  in  the  English  language, 
there  is  more  or  less  confusion. 

725.  The  causes  of  the  disease. — The  causes  of  confusional  insanity 

'Kraepelin      (Psychiatrie,     1903),     a  '  Dc  la  Folie,  Paris,  1S20,  p.  115. 

leading    German    authority,    is    among  *  Lemons    Cliniques    sur    les    Maladies 

those    who    are    not    satisfied    with    the  Mcntales,   Paris,    1S95,    p.    185.      Seglas 

present  method  of   classifying  the   psy-  has   contributed    a    valuable    series   of 

choneuroses,  and  his  criticism  is  based  lectures   on   this   disease   in   this   work, 

on  the  fact  that  those  various  forms  are  It  can  be   read   with   profit  along  with 

not  always  so  distinct,  nor  so  function-  KrafFt-Ebing's    chapter     in     his     Lehr- 

al,  as  is  claimed.     See  Berkley,  Treatise  buch. 
on  Mental  Diseases,  p.  142. 

'Mentnl    ]\fnladips.   Am.   Tran.ti-    chap- 
ter on   "Dementia."  o-  - 


§  725]  CONFUSIONAL  INSANITY.  663 

are  such  as  lead  to  a  weakening  or  poisoning  of  the  system ;  hence, 
anything  that  depletes  the  blood,  and  overwhelms  the  brain  and  nerve 
centers  with  the  products  of  infection.  Thus,  the  febrile  diseases, 
such  as  typhoid  and  typhus  fevers,  may  cause  this  psychosis,  and  it 
is  then  called  post-febrile  insanity.  So  like  to  delirium,  indeed,  is 
this  insanity  that  the  ordinary  delirium  which  attends  typhoid  fever 
may  merge  gradually  into  confusional  insanity.  Instead  of  recover- 
ing his  mind  when  the  fever  decreases,  as  in  most  cases,  the  patient 
continues  in  a  wandering  delirium;  the  regular  symptoms  of  th(r 
typhoid  infection  may  all  disappear,  and  there  remains  only  this 
post-febrile  insanity  to  mark  the  extent  and  power  of  the  disease.  In 
other  cases  the  delirium  may  set  in  during  convalescence  from  the 
fever ;  or  it  may  occur  after  a  serious  surgical  operation, — especially 
an  operation  within  the  abdomen, — and  is  then  called  post-operative 
insanity.  One  of  the  commonest  causes  of  this  delirious  insanity 
is  childbirth ;  and  a  large  percentage  of  the  cases  of  puerperal  in- 
sanity are  really  of  this  type.  They  are  commonly  called  cases  of 
mania,  following  an  old  usage ;  but  the  mental  symptoms  more  nearly 
approach  a  true  delirium,  like  that  of  fever,  than  a  state  of  maniacal 
exaltation.  This,  it  must  be  confessed,  is  often  a  nice  question,  for  a 
true  maniacal  exaltation,  or  what  approaches  such,  may  arise  out  of 
the  midst  of  the  delirium.  Krafft-Ebing^  speaks  of  such  attacks  as 
episodes  in  the  course  of  the  confusional  insanity;  but  this  seems  like 
an  attempt  to  keep  up  appearances ;  and  it  is  better  to  regard  these 
cases  as  instances  which  show  how  the  two  affections  may  merge 
into  each  other. 

Among  other  causes  mentioned  by  various  observers  are  malaria, 
acute  rheumatism,  hemorrhage,  and  the  abuse  of  alcohol.  The  mental 
affection  known  as  delirium  tremens  is  psychologically  very  much 
like  confusional  insanity,  but  has  some  special  physical  symptoms 
due  to  the  alcohol  poisoning;  such  as  extreme  muscular  tremor. 
In  our  hospitals  it  is  not  uncommon  to  see  a  delirious  insanity  set  in 
and  complicate  other  affections  in  alcoholic  patients.  This  is  true 
especially  in  pneumonia,  and  in  surgical  cases,  such  as  fractures. 
Within  a  year  the  writer  has  seen  such  a  case  in  a  woman  with  a 
broken  leg.  She  progressed  well  until  the  second  week  after  the  acci- 
dent, when  she  quite  suddenly  developed  delirium  with  halhicina- 
tions.     She  had  a  history  of  alcoholism. 

726.  Hallucinations  are  common. — The  French  give  the  name  ''hal- 
lucinatory insanity''  to  this  disease,  and  this  indicates  one  of  its 

•Traite  Clinique,  p.   415. 


664  INSANITY— FOllMS  AND  MEDICO-LEGAL  ASPECTS.  [§  726 

chief  characteristics.  Hallucinations  are  very  common,  especially 
hallucinations  of  sight.  In  this  respect  the  disease  differs  from 
melancholia,  in  which  hallucinations  of  hearing  are  more  common. 
But  in  the  height  of  the  affection  all  the  sensorial  organs  are  involved, 
and  the  patient  has  hallucinations  and  illusions  of  hearing,  smell, 
taste,  and  general  sensation.  This  extreme  disorder  of  the  senses  is 
naturallv  accompanied  with  gTeat  confusion  of  mind.  Hallucina- 
tions, in  all  forms  of  insanity,  are  very  dominating  to  the  mental 
functions ;  much  more  so  in  this  form,  in  which  these  phenomena 
appear  often  in  great  profusion  and  complexity.  They  follow  each 
other  rapidly,  and  produce  a  bewilderment  which  shows  itself  in  the 
reaction  of  the  patient  to  them.  They  readily  translate  themselves 
into  delusions,  and  these  are  fleeting  and  changeable ;  there  is  no 
tendency  for  them  to  become  fixed  and  systematized.  The  delirious 
ideas  are  usually  of  a  disturbing  and  even  of  an  alarming  kind.  The 
patient  is  therefore  irritable,  alarmed,  anxious,  and  unhappy.  Occa- 
sionally the  ideas  are  expansive  and  grandiose :  the  patient  is,  in  a 
measure,  exalted.  Sometimes  they  have  a  religious  tinge,  and  may 
be  terrifying.  The  patient  may  see  disgusting  and  alarming  objects ; 
and  the  tendency  of  the  victim  of  delirium  tremens  to  see  snakes  is 
proverbial. 

727.  The  emotional  disturbance. — The  emotional  reaction  is  in  ac- 
cord with  the  nature  of  the  hallucinations  and  delusions.  A  gay  or 
happy  expansive  state  is  very  uncommon:  the  patient  is  move  apt  to 
be  depressed,  annoyed,  or  alarmed. 

728.  The  intelligence  is  involved. — The  intelligence  is  in  great  dis- 
order: the  attention  cannot  be  fixed,  or  only  for  a  moment,  and  the 
memory  is  greatly  impaired;  as  a  consequence,  there  is  marked 
confusion  of  identity,  both  of  person  and  of  place.  The  patient's 
self -consciousness  is  obliterated :  he  does  not  recognize  either  himself 
or  his  surroundings,  nor  does  he  identify  his  friends  and  attendants. 

729.  Impulsive  acts. — Impulsive  acts  are  very  common  in  con- 
fusional  insanity,  and  they  are  the  natural  reaction  of  the  mind  to 
its  disordered  contents.  There  can  be  little,  if  any,  premeditation  in 
such  a  confused  brain;  the  impulse  is,  in  a  sense,  mechanical, — un- 
conscious,— without  any  ethical  quality.  But  these  acts  may  be 
violent  and  very  dangerous,  and  such  patients  sometimes  do  injury 
to  themselves  or  to  others.  They  may  also  refuse  food,  under  the 
influence  of  delusions,  or  from  the  anorexia  which  is  a  natural  result 
of  the  physical  state. 

730.  The  physical  state. — The  bodily  functions  are,  as  a  rule,  much 


§  730]  CONFUSIONAL  INSANITY.  665 

disturbed.  The  patient  is  debilitated,  and  loses  in  weight ;  the  tongue 
is  coated ;  the  digestion  impaired.  As  a  rule  there  is  no  fever,  unless 
in  cases  in  which  the  primary  disease,  such  as  typhoid  infection  or  a 
puerperal  blood-poisoning,  lingers.  The  writer  has  seen  a  ease  in  a 
woman,  brought  on  by  over-childbearing  and  by  a  septic  state  result- 
ing from  a  recent  confinement,  in  which  fever  persisted ;  the  patient 
was  in  a  wandering  delirium,  and  did  not  fully  recover  for  a  year. 
Moreover,  in  this  case,  the  patient  before  recovering  passed  from  a 
delirious  state  into  a  state  of  melancholia,  with  well-marked  weaken- 
ing of  all  the  mental  faculties,  or  a  threatened  dementia ;  thus  sliow- 
ing  how  tliis  psychoneurosis  may  change  its  type,  and  merge  into 
another  in  the  same  patient, — a  fact  which  is  not  always  emphasized 
by  the  systematists.  Insomnia  is  a  complication  in  most  of  these 
eases.  In  women  suffering  from  this  disease,  from  whatever  cause, 
a  menstrual  period  usually  causes  an  access  of  the  delirium. 

731.  Various  forms. — Some  authors,  notably  Kegis,*^  attempt  to 
describe  a  separate  form  of  insanity  for  each  individual  cause  that 
produces  it;  thus,  there  is  one  form  following  small-pox,  another 
form  following  typhoid  fever,  etc.,  but  this  excessive  subdivision  is 
not  called  for  in  these  pages.  The  delirium,  or  confusional  insanity, 
which  follows  these  various  infectious  diseases,  is  of  one  type,  as  a 
rule,  and  is  sufficiently  indicated  in  one  general  description.  This 
type  may,  it  is  true,  present  variations,  but  these  do  not  conform  so 
much  to  the  individual  causes  as  to  special  conditions.  Thus,  the 
mental  affection  that  comes  on  during  prolonged  convalescence  from 
an  infectious  disease  may  tend  to  be  of  a  melancholy  kind,  while  the 
affection  which  presents  itself  earlier  in  these  states  of  blood-poison- 
ing is  more  likely  to  be  of  the  delirious  kind  described  above.  In 
truth,  it  is  hardly  possible  to  draw  hard-and-fast  lines  between  the 
varieties  of  psychoneuroses  which  appear  as  results  of  exhausting 
and  infectious  processes.  In  these  cases  the  nutrition  of  the  brain 
cells  is  doubtless  perverted,  and  the  manifestation  of  this  perverted 
nutrition,  Mdiich  we  call  insanity,  varies  within  certain  limits.  These 
various  forms  shade  into  each  other,  as  already  said ;  and,  indeed, 
we  could  expect  nothing  else,  for  nature  does  not  work  by  set  rules 
and  definitions.  Just  as  in  botany  or  zoology  we  see  one  variety,  or 
even  one  species,  insensibly  merge  into  another,  so  it  is  all  through 
nature ;  and  so  it  is  with  the  functional  insanities. 

732.  Duration  and  prognosis. — The  duration  of  these  cases  varies 
according  to  the  intensity  of  the  causes.     In  most  cases  the  prognosis 

•MSdecine  Mentale. 


666  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  732 

is  good :  the  patients  eventiiallj  recover ;  but  in  unfavorable  cases 
death  may  occur,  or  the  patient  may  pass  into  a  state  of  secondary 
or  chronic  insanity. 

733.  The  pathology  is  not  entirely  unknown. — The  morbid  proc- 
ess underlying  confusional  insanity  is  probably  a  disturbance  of  the 
nutrition  of  the  brain  cells,  and  this  may  be  due  to  various  causes. 
In  febrile  and  septic  cases  the  opinion  is  now  generally  held  that  the 
agents  are  Ijacteria  and  the  toxins,  or  poisonous  substances  which  they 
elaborate  in  the  blood.  Hence,  this  disease  properly  belongs  to  the 
class  of  the  toxic  insanities.  Kraepelin'^  divides  these  post-febrile 
insanities  into  various  groups,  according  as  they  are  distinguished 
by  collapse,  hallucinations  and  delirium,  and  dementia ;  but  these 
various  forms  probably  only  represent  variation  in  the  intensity  of 
the  action  of  the  poisons.  Berkley^  says  that  the  exact  process  is 
incompletely  known ;  but  he  describes  appearances  in  the  substance 
of  the  brain  which  indicate  an  infectious  process. 

734.  The  scientific  interest  in  these  cases. — These  infections,  or 
toxic  insanities,  which  are  included  here  in  a  general  way  under  the 
term  "confusional  insanity,"  offer  a  great  and  fruitful  field  for 
scientific  investigation.  It  is  not  too  much  to  believe  that  the  future 
will  reveal  in  this  field  a  more  definite  basis  for  our  knowledge  of 
mental  pathology.  It  daily  becomes  more  clear  that  insanity  is  an 
organic  disease  of  the  brain  cells,  and  that  this  disease  is  not  out  of 
the  reach  of  the  microscope  to  the  extent  that  has  sometimes  been 
held. 

II.  The  medico-legal  aspects  of  coxfusigxal  insanity. 

735.  Impulsive  acts  of  violence. — Under  the  influences  of  terrify- 
ing delusions  or  of  frightful  hallucinations  the  delirious  patient  may 
commit  impulsive  acts  of  violence.  The  most  common  of  these  cases 
occur  in  the  insanity  of  childbed.  Infanticide  may  occur,  or  suicide. 
or  both.  This  subject  has  already  been  fully  discussed  in  the  chapter 
on  "Mania,"  and  need  not  be  repeated  here.  What  was  said  there 
applies  in  great  part  here.  The  puerperal  patient  is,  by  long  custom, 
regarded  as  having  an  attack  of  "mania"  when  she  falls  into  in- 
sanity ;  but  the  exact  form  of  her  disorder  is  not  seldom  the  form  we 

'"Einfluss  acutes   Krankheiten,"  Arch,  due  to  infection.     In  this  respect  it  is 

f.  Psych,  u.  Narvenk,  1882.  the  most  complete  treatise  in  the  Eng- 

*  Treat,    on    Ment.    Dis.  p.   348.     Dr.  lish    language.     The    literature    of    the 

Berkley's   valuable   treatise   contains    a  subject   is    already   very   great,    and    is 

very   full    discussion    of   the    insanities  fully  represented  in  that  work. 


5  735]  CONFUSIONAL  INSANITY.  GOT 

are  here  discussing.  She  is  suffering  from  a  blood-infection, — a 
septic  state, — associated  with  prostration  of  the  physical  liealth ;  the 
nutrition  of  the  brain  cells  is  impaired.  From  the  medico-legal 
standpoint  it  is  not  a  matter  of  first  importance  what  exact  form,  or 
type,  her  mental  disease  may  assume.  Whether  it  declares  itself  in 
a  melancholic  depression,  a  maniacal  outburst,  a  lapse  into  stupor, 
or  an  access  of  delirium,  is  a  question  of  less  importance  than  whether 
it  so  impairs  her  mind  as  to  render  her  irresponsible.  The  courts, 
without  exception,  would  probably  hold  with  the  Scotch  judge'' 
(although  his  opinion  was  not  given  in  this  kind  of  case)  that  if  the 
mind  is  diseased,  the  patient  is  insane;  and  if  the  mind  is  diseased, 
it  is  no  matter  what  has  caused  it,  so  that  the  insanity  is  actually  pro- 
duced and  present  at  the  time. 

736.  Loss  of  responsibility.— In  these  cases  the  insanity  is  so  clear 
that,  as  a  matter  of  fact,  the  patients  are  seldom,  if  ever,  brought 
into  court.  In  the  whole  range  of  medico-legal  literature  there  are 
probably  very  few  genuine  cases  of  puerperal  insanity  that  have  come 
before  the  courts.  There  are,  however,  a  large  number  of  alleged 
cases,  in  which  the  crime  of  infanticide  has  been  shielded  by  the 
defense  of  insanity.  For  this  reason,  if  for  no  other,  it  is  essential 
that  the  medical  jurist  should  have  a  clear  conception  of  the  various 
psychoses  occurring  in  childbed.  He  should  note,  for  instance,  that, 
in  spite  of  the  fact  that  these  patients  often  act  from  impulses,  their 
cases  do  not  support  the  claim  for  an  "impulsive  insanity,"  as  it  is 
urged  sometimes  in  court.  The  impulse  of  a  confused  or  delirious 
patient  arises  from  the  midst  of  her  delirium ;  the  mental  confusion 
preceding  and  succeeding  the  act  is  continuous,  and  in  no  Avay  affected 
in  its  course  by  the  impulse.  The  patient  has  but  little  knowledge 
of  her  act,  and  may  have  no  remembrance  of  it  whatever.  In  other 
words,  the  impulse  is  but  an  episode  in  tlie  disease,  and,  relatively  to 
the  disease  itself,  an  unimportant  one.  It  had  not  been  premeditated, 
and  whatever  motive  for  it  had  existed  was  a  confused  and  insane  one. 
This  is  a  very  different  affair  from  an  impulse  that  arises  in  a  sane- 
mind,  and  that  constitutes  practically  the  whole  of  the  alleged 
disease,  or  is  based  upon  passion  or  self-interest,  and  leaves  no  trace 
behind  it  after  the  commission  of  the  deed.-*" 

737,  The  word  "impulse"  has  been  greatly  abused. — Impulse  is  not 
synonymous  with  insane  motive,  as  attempted  to  be  proved  sometimes 
in  court.     The  word  has  no  special  significance  in  psychiatry,  but  is 

•The  case  of  Milne.  Ed.  Med.  Journal  ^"People  v.  ]\'alworth,  4  N.  Y.  Crim. 
Vol.  XI.  p.  18.  Rep.  355. 


668  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  737 

used  merely  as  a  general  term,  to  describe  those  acts  of  the  insane 
mind  which  proceed  from  morbid  concepts  irresistibly  acted  on. 
Its  morbid  character  depends  entirely  upon  the  morbid  state  of  the 
brain  from  which  it  takes  its  rise.  Hence,  in  mental  diseases  in 
which  there  is  diminished  self-control  (as  in  melancholia),  and 
especially  in  those  in  which  there  is  a  confused  intelligence,  with 
disordered  delusions  and  rapidly  repeated  hallucinations  (as  in  con- 
fusional  insanity),  insane  impulses  are  commonest.^ ^ 

738.  The  defense  of  impulsive  insanity. — It  is  significant  that  the 
plea  of  impulsive  insanity  is  never  used  for  delirious  or  confusional 
patients,  although  these  patients  are  very  subject  to  impulses.  The 
term  is  reserved  almost  exclusively  for  persons  who  commit  crime 
under  the  stress  of  emotion,  as  anger  or  revenge ;  and  in  that  connec- 
tion it  is  often  a  pure  invention.^ ^  But  these  remarks  are  not  intended 
to  apply  to  forms  of  insane  impulse,  or  imperative  conception,  which 
are  observed  in  neurasthenics  and  paranoiacs,  and  which  may  dom- 
inate the  mind  for  long  periods  with  the  same  tyranny  as  an  insane 
delusion.  These  will  be  considered  in  their  proper  place ;  they  have 
no  resemblance,  however,  to  the  sudden  impulses  which  arise  in 
mania,  melancholia,  and  delirium. 

739.  Suicide  in  these  patients. — The  delirious,  or  confusional, 
patient  may  commit  suicide,  and  when  this  is  done,  it  is  usually  doii(>^ 
as  an  impulsive  act.  Puerperal  patients  have  been  known  to  throw 
themselves  out  of  a  window.  Suicides  committed  in  the  state  of 
pregnancy  or  after  childbirth,  often  preceded,  in  the  latter  case,  by 
infanticide,  are  not  rare.  According  to  Morselli^^  they  number  2'Z 
per  1,000  in  Italy  and  Prussia,  29  in  France,  and  50  in  Norway  ^ 
but  the  greater  number  of  these  cases  occur  in  girls  who  liave  been 
seduced,  and  these  figures  do  not  tell  us  how  many  of  them  are  due  to 
insanity. 

Suicide  may  occur  in  the  delirium  of  typhoid  fever,  small-pox^ 
and  measles.  Brierre  de  Boismont^'*  gives  a  list  of  such  cases.  He 
has  seen  it,  he  says,  in  the  acute  insanity  sometimes  observed  towards 
the  end  of  typhoid  fever, — the  post-febrile  insanity  here  described. 
He  refers  to  five  cases,  in  one  of  which  the  patient  was  in  a  furious 
delirium.     The  act  is  usually  sudden, — impulsive. 

740.  Disturbance  of  the  emotions  denied. — It  is  said  by  some  authors 
that  disturbance  of  the  emotions  is  not  observed  in  confusional  in- 

"For  a  discussion   of  "impulsive  in-  son,  30   W.  Va.   729,    18   L.   R.  A.   224, 

sanity,"  with   references    to    cases,    see  15  S.  E.  082. 

chapter  on  "Mania."  "Suicide,  Am.  Trans,  p.  291. 

'=  See  Brannon,  J.  in  S!tate  v.   Harri-  "See   Suicide,   p.  237. 


§  740]  CONFUSIONAL  INSANITY.  G69 

sanity,  and  that  this  serves  to  distinguish  this  affection  from  mania, 
on  the  one  hand,  and  melancholia,  on  the  other  ;^^  but  this  claim  is 
much  too  absolute.  Krafft-Ebing  is  more  nearly  correct  when  he 
says  that  the  emotional  disturbance  is  in  accord  with  the  fleeting 
hallucinations  and  delusions;  it  is  itself  undoubtedly  very  fleeting 
and  changeable. 

741.  The  evil  passions. — lu  the  courts,  also,  there  has  been  some 
tendency  to  separate  ''irresistible  impulse"  from  the  emotions,  and 
to  say  that  if  the  accused  had  an  evil  passion  as  a  motive  for  his 
impulse,  he  is  responsible.  Thus,  Chief  Justice  Lewis,^*'  of  Penn- 
sylvania, charged  that  if  the  prisoner  was  actuated  by  an  irresist- 
ible inclination,  and  was  unable  to  control  his  will  or  subjugate  his 
intellect,  and  was  not  actuated  by  anger,  jealousy,  or  revenge,  he  was 
entitled  to  an  acquittal.  Such  an  opinion  might  be  all  right  in  the 
case  for  which  it  was  intended,  which  was  not  a  case  of  confusional 
insanity;  but  it  might  be  all  wrong  to  claim  that  any  display  of  such 
passions  in  any  form  of  insanity  would  entail  responsibility.  The 
impulse  in  confusional  insanity,  or  in  mania,  or  melancholia,  is  irre- 
sistible, because.it  arises  in  an  insane  mind;  and  the  fact  that  it  is 
accompanied  with  some  disturbed  emotion,  such  as  anger,  fear,  or 
despair,  is  not  evidence  that  the  person  is  not  irresponsibly  insane. 
To  impute  irresponsibility  to  an  insane  impulse,  and  then,  in  the . 
same  sentence,  to  deny  such  irresponsibility  if  the  impulse  is  accom- 
panied with  a  disturbed  emotion,  is  to  ignore  some  of  the  ordinary 
laws  of  psychology,  and  to  reach  the  height  of  paradox.  An  atten- 
tive study  of  the  mental  state  of  a  delirious  patient  must  convince 
any  one  that  there  is  often  profound  disturbance  of  the  emotions, 
and  that  such  disturbance  often  forms  a  part  of  the  confused  motive 
for  the  impulsive  acts.  This  is  not  disproved  by  the  fact  that  in 
some  other  cases  there  may  be  great  apathy,  both  of  intelligence  and 
emotion. 

742.  Impulsive  acts  not  always  dangerous. — Seglas'"  has  pointed 
out  that,  although  the  impulsive  acts  in  confusional  insanity  may  be 
dangerous  to  the  patient  and  to  others,  it  is  possible  to  exaggerate 
this  danger.  He  says  that  it  happens  frequently  that  between  the 
moment  when  the  idea  arises  in  the  mind,  and  the  accomplishment  of 
the  act,  the  patient  forgets  the  idea,  and  does  not  put  it  into  execu- 
tion.    One  of  his  patients  who  had  suicidal  impulses  would  suddenly 

"Spitzka,  Insanity,  p.  161.  "  Legons  Cliniques,  p.  166. 

"Quoted  by  Taylor,  Med.   Jur.    Uth 
cd.  p.  763. 


670  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  742 

make  a  move  towards  the  window,  as  though  to  throw  himself  out; 
but  it  was  enough  to  detain  him  for  a  moment,  and  to  speak  to  him, 
to  make  him  forget  the  impulse.  Delasiauve  has  well  said  that 
these  impulses  have  none  of  the  characteristics  of  a  voluntary  act. 
They  are,  in  fact,  almost  automatic  in  some  patients,  so  profoundly 
affected  is  the  self-consciousuesa. 


CHAPTER  XXXVI. 

SECONDARY  OR  CHRONIC  INSANITY. 

I.  The  medical  aspects  of  secondary  or  chronic  insanity. 

743.  A  statement  of  the  disease. 

744.  The  cases  vary  within  wide  limits, 

745.  Progressive  weakness  of  mind. 

746.  Symptoms  become  fixed. 

747.  The  emotions  are  weakened. 

748.  The  keynote  of  chronic  insanity  is  weakness. 

749.  Exacerbations  occur. 

750.  The  conduct. 

751.  Habits  and  tendencies. 

II.  The  medico-legal  aspects  of  chronic  insanity. 

752.  Chronic  lunatics  may  commit  crime. 

753.  How  distinguished  from  acute  cases. 

754.  The  presumption  in  favor  of  irresponsibility. 

755.  Few  courts  would  hesitate  to  admit  such  presumption. 

756.  The  distinction  between  chronic  lunatics  and  paranoiacs. 

757.  Epilepsy  and  chronic  insanity. 

758.  What  cases  are  to  be  called  chronic. 

759.  Ofi'enses  against  decency. 

I.   The  medical  aspects  of  secondary  or  chronic  insanity. 

743.  A  statement  of  the  disease. — In  the  acute  or  primary  insani- 
ties which  have  just  been  described,  we  have  to  do  with  an  active 
pathological  process;  and  this  process,  as  in  the  case  of  all  acute 
diseases,  has  one  of  three  tendencies :  it  may  tend  to  recovery,  to 
death,  or  to  a  state  of  chronicity.  When  the  chance  of  recovery  has 
gone  by,  and  the  violence  of  the  disease  has  not  been  great  enough 
to  end  in  death,  the  patient  passes  into  a  state  of  permanent  insanity. 
He  becomes  a  chronic  lunatic;  and  joixis  the  gTeat  body  of  unfortu- 
nates who  go  so  largely  to  fill  the  wards  of  our  asylums. 

744.  The  cases  vary  within  wide  limits. — It  can  readily  be  under- 
stood that  the  symptoms  of  this  chronic  stage  vary  within  wide  lim- 
its, according  to  the  antecedent  disease  and  the  personal  traits  of  pa- 
tients. We  have  to  do  here  Avith  a  residuum  of  mental  disorder,  and 
the  primary  affection  has  varied  according  as  the  patient  has  been 

671 


672  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  744 

a  maniac,  a  melancholiac,  a  stuporous,  or  a  confusional  lunatic.  Thus 
it  happens  that  in  chronic  or  secondary  insanity  there  is  often  left  a 
kind  of  stereotyped  form  of  the  primary  disease,  so  that  this  latter 
may  even  be  predicated  by  an  experienced  observer ;  but,  at  the  same 
time,  very  much  of  the  primary  disease  is  effaced. 

745.  Progressive  weakness  of  mind. — Whatever  may  have  been  the 
form  of  primary  or  acute  insanity,  the  chronic  form  always  presents, 
as  its  most  prominent  feature,  a  progressive  deterioration  or  weaken- 
ing of  the  mental  faculties.  The  stamp  of  chronicity  is  unmistak- 
able ;  and  it  is  deeply  impressed  in  this  enfeeblement  of  the  mind. 

746.  Symptoms  become  fixed. — It  is  the  delusional  state  especially 
which  becomes  stereotyped.  The  maniac  or  melancholiac  settles 
do^\Ti,  as  it  were,  into  a  kind  of  monotony  of  insanity.  "Whereas,  in 
the  primary  affection,  the  delusions  were  apt  to  be  changeable  and 
unsystematized,  in  chronic  insanity  a  few  of  these  delirious  ideas  bo 
come  fixed  in  the  mind;  but  they  are  never  systematized  and  elabo- 
rated as  in  the  monomaniac.  This  lack  of  system,  or  logical  consist- 
ence, is  a  mark  of  the  mental  debility.  There  is  not  an  accord,  as 
Krafft-Ebing^  expresses  it,  between  the  sentiments  and  the  ideas ;  the 
delusions  do  not  profoundly  affect  conduct  and  character,  as  in  the 
paranoiac.  They  are  simply  mental  representations  of  a  superficial 
kind,  and  they  are  often  contradictory  and  entirely  opposed  to  the 
laws  of  time,  of  space,  of  logic,  and  of  experience. 

747.  The  emotions  are  weakened. — A  proof,  as  well  as  a  result,  of 
the  superficial  character  of  the  delusions  in  chronic  insanity,  is  the 
dissociation  between  them  and  the  emotions.  As  we  have  seen, 
emotional  disturbance  is  a  prominent  symptom  in  acute  mania  or  mel- 
ancholia :  the  maniac  is  exalted ;  the  melancholiac  is  depressed.  But 
this  is  no  longer  so  in  chronic  lunacy,  or,  at  least,  if  there  is  any 
such  association  left,  it  is  but  slight.  The  chronic  maniac  is  no  long- 
er the  exalted  individual  of  his  primary  disease;  the  melancholiac 
no  longer  suffers  a  profound  psychalgia.  And  yet  the  primary  emo- 
tional storm  may  leave  traces;  thus,  in  melancholia  the  chronic  pa- 
tient may  continue  to  act  the  part  of  despair  without  feeling  it;  the 
chronic  maniac  may  have  his  grandiose  delusions  without  elation. 

748.  The  keynote  of  chronic  insanity  is  weakness. — The  mind  has 
suffered  an  irreparable  disaster;  it  has  fallen  into  a  groove  or  rut 
from  which  it  has  no  power  to  lift  itself.  This  is  shown  in  all  the 
faculties:  the  intelligence  is  disordered;  the  imagination  puts  forth 
only  a  few  morbid  fancies ;  the  attention  is  fixed  with  difficulty,  and 

•Traite  Clinique,  p.  424. 


§  748]  SECONDARY  OR  CHRONIC  INSANITY.  673 

only  for  a  brief  space ;  the  memory  is  impaired ;  and  the  moral  and 
emotional  instincts  are  lost  or  perverted.  These  disorders  vary  in 
different  patients  in  all  degrees  and  combinations ;  for  no  two  chronic 
hinatics  are  alike;  but  in  every  case  the  enfeeblement  of  the  mind  is 
unmistakable. 

749.  Exacerbations  occur. — In  some  cases  of  chronic  mania  there 
occur  exacerbations.  The  patients  have  relapses  into  spells  of  ma- 
niacal excitement.  In  fact,  mania  is  often  of  a  recurrent  type,  each 
successive  attack  leaving  the  mind  more  impaired;  and  even  after 
chronicity  is  well  pronounced,  the  disease  continues  to  present  this 
type.  So,  too,  in  melancholia,  the  chronic  patient  has  his  bet- 
ter and  worse  periods ;  episodes  of  stupor  or  agitation  may  occur,  in 
which  there  appears  to  be  a  lighting  up  of  the  primary  acute  disorder ; 
but  in  all  cases  in  which  chronicity  is  once  declared,  the  progress  is 
downward ;  every  relapse  is  a  landmark  in  a  territory  already  deso- 
lated. 

750.  The  conduct. — The  conduct  is  in  accord  with  the  mental  de- 
cline. The  chronic  patient,  when  not  too  far  advanced,  is  competent 
to  do  light  work.  Half  the  work  of  the  county  asylums  of  England, 
according  to  Savage,-  is  done  by  patients  who  belong  to  this  class. 
In  America  special  hospitals  have  been  built  for  them  in  farming  re- 
gions in  order  that  they  may  be  wholesomely  employed.  One  of  the 
most  noteworthy  of  these  is  the  asylum  for  the  chronic  insane  at  Wer- 
nersville,  in  Pennsylvania.^  The  capacity  for  work  varies,  of  course, 
with  the  individual,  and  usually  in  an  inverse  ratio  with  his  mental 
impairment.  In  advanced  cases  the  curious  tendency  to  routine  is 
seen.  The  patient  can  perform  a  set  task  in  an  almost  automatic  way. 
This  becomes  a  second  nature  to  him ;  he  keeps  at  his  work  in  a  me- 
chanical fashion  which  shows  the  narrow  limit  within  which  his  men- 
tal life  revolves.  Savage  had  one  patient  who,  for  many  years,  pol- 
ished a  floor;  another  who  was  happy  only  when  fitting  stones  or 
pebbles  into  gaps  in  the  paths.  If  left  alone  they  behaved  well ;  but 
any  attempt  to  change  their  occupations  was  violently  resisted.* 

751.  Habits  and  tendencies. — On  the  other  hand,  automatic  habits 
are  formed  which  are  useless  or  even  deleterious.  In  advanced  cases 
the  daily  life  becomes  a  void :  the  patient  is  idle,  apathetic,  vegeta- 
tive, unconcerned.     His  mode  of  life  becomes  more  and  more  re- 

'  Insanity    and    Allied    Neuroses,  pp.  amount  of  work  to  be  obtained  is  much 

225,  226.  less  per  patient  than  in  the  sane. 

^  The  experience  at  this  hospital  am-  *  "I  sometimes    compare    the    mental 

ply  proves  that,  although  the  system  is  state    of     such     patients   to   that   of   a 
most  advantageous  to  the  patient,  the 
Vol.  I.  Med.  Jur. — 4,3. 


o74  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  751 

laxed ;  lie  requires  constant  attention.  Thus  he  passes,  by  impercep- 
tible degrees,  into  the  terminal  period  of  his  disorder,  which  is  de- 
mentia. 

II.   The  medico-legal  aspects  of  chkonic  insanity. 

752.  Chronic  lunatics  may  commit  crime. — Much  of  this  ground  has 
already  been  covered  in  what  has  been  written  about  the  acute  psy- 
choneuroses.  Still,  the  chronic  cases  present  some  differences  which 
are  of  importance  to  the  medical  jurist.  Chronic  lunatics  have  been 
known  to  commit  crime,  and  to  be  tried  for  it. 

763.  How  distinguished  from  acute  cases. — These  patients  are  dis- 
tingiiished  from  the  acute  cases  by  the  debility  of  the  mental  fac- 
ulties, by  the  greater  fixity  of  the  delusions,  and  by  less  of  the  emo- 
tional tone.  l^Tevertheless,  they  are  capable  of  acting  from  insane  mo- 
tives, from  imjDulses,  and  from  emotional  disturbances.  Some  chron- 
ic lunatics  are  irascible,  passionate,  and  capable  of  acts  of  violence 
and  revenge.  Moreover,  some  of  them  are  not  so  affected  in  their 
minds  as  not  to  be  able  to  distingiiish  right  from  wrong  on  general 
principles,  or  to  know  the  nature  and  character  of  their  acts. 

754.  The  presumption  in  favor  of  irresponsibility. — Their  prolonged 
sojourn,  as  a  rule,  in  an  asylum,  creates  a  powerful  presumption,  even 
in  the  mind  of  a  court,  in  favor  of  their  insanity ;  but  this  is  not  al- 
ways so,  as  was  shown  in  the  case  of  Blampied.**  This  man  had 
been  an  inmate  of  an  asylum  for  four  years  when  he  killed  a  fellow- 
inmate  in  resentment,  and  with  not  a  little  design ;  but  Justice  Brett 
told  the  jury  that,  in  order  to  exempt  the  prisoner,  he  must  have  been 
so  mad  as  not  to  know  the  nature  and  character  of  his  act,  or  that  it 
was  wrong.  In  fact,  the  court  applied  the  conventional  test  to  the 
case  of  a  chronic  lunatic,  with  no  more  discrimination  than  though 
the  patient  were  a  mild  case  of  some  temporary  aberration.  It  is 
gratifying  to  note  that  the  jury  acquitted  the  prisoner  in  spite  of  the 
charge  of  the  judge. 

755.  Few  courts  would  hesitate  to  admit  such  presumption. — This 
case  of  Blamj^ied  illustrates  the  problems  which  may  arise  in  the  med- 
ical jurisi^rudence  of  chronic  lunacy,  and  shows  that  they  are  not  al- 
ways so  different  from  other  cases  as  might  be  supposed.  Still,  the 
history  of  these  cases  is  so  conclusive,  and  the  mental  state  of  the 
patients  so  unmistakable,  that  probably  few  judges  would  follow  the 

mountain  lake,  on  which  a  very  small        ^Reg.  v.  Blampied,  quoted  by  Taylor, 
storm   will   produce  a  large  amoimt  of    Med.  Jur.  12th  ed.  p.  762. 
disturbance." — Savage,   op.    cit. 


§  755]  SECONDARY  OR  CHRONIC  INSANITY.  675 

course  of  Justice  Brett.  If  there  are  any  patients  who  are  indis- 
putably insane,  and  who  should  appear  so  to  a  court  of  justice,  it  is 
these  chronic  patients,  who  have  passed  beyond  the  boundaries  of  re- 
covery, to  whom  the  avenues  of  hope  are  closed,  and  whose  cases  are 
indelibly  marked  with  the  stigmata  of  an  irreparable  derangement 
To  attempt  to  apply  to  them  the  test  of  a  knowledge  of  right  and 
wrong  seems  like  the  irony  of  law. 

756.  The  distinction  between  chronic  lunatics  and  paranoiacs. — In 
medico-legal  practice  the  difference  between  a  chronic  patient,  on  the 
one  hand,  and  a  monomaniac  or  paranoiac,  on  the  other,  should  be 
kept  clearly  in  mind.  In  chronic  insanity  the  delusions  are  not  sys- 
tematized as  in  paranoia;  they  are  not  so  deeply  founded  in  the  pa- 
tient's self -consciousness,  and  they  proceed  from  a  secondary  insanity, 
;is  has  been  showm  above.  In  paranoia,  the  insanity  is  not  a  sec- 
ondary one,  but  is,  in  itself,  primary  and  constitutional;  and  the  de- 
lusions are  much  more  elaborate  and  determinative  of  character  and 
conduct.  iSTor,  in  the  latter  cases,  is  there  such  a  marked  enfeeble- 
■nient  of  all  the  mental  faculties  as  is  seen  in  chronic  lunacy. 

757.  Epilepsy  and  chronic  insanity. — In  epilepsy  there  is  also  a  ten- 
lency  to  chronic  impairment ;  but  epilepsy  is  such  a  special  affection 
that  it  is  properly  treated  as  a  disease  apart.^ 

758.  What  cases  are  to  be  called  chronic? — The  term  "chronic  in- 
■^anity"  has  reference  to  time,  as  Dr.  Chapin^  has  pointed  out,  and  in 
hospital  reports  is  somewhat  arbitrarily  applied  to  a  duration  of  the 
])rimary  disease  beyond  one  year.  According  to  this  usage,  however, 
die  term  does  not  necessarily  imply  that  the  cases  are  all  incurable, 
it  includes  some  cases  which  have  a  tendency  to  become  incurable,  but 
which  may  yet  be  very  greatly  improved.  In  such  a  case  the  patient 
may  yet  resume  an  orderly  habit  of  living  and  thinking,  but  it  is  un- 
usual for  him  to  return  to  a  useful  occupation.  He  remains  peculiar, 
with  some  mental  weakness,  although  he  may  be  discharged  from  the 
hospital,  to  resume  his  life  with  his  family ;  but  he  is  always  a  care, 
and  may  have  relapses  which  again  consign  him  to  the  asylum.  These 
patients,  therefore,  are  not  really  cured ;  they  are  simply  mild  chronic 
cases, — cases  in  which  tlie  nerve-storm  has  been  arrested  before  it 
made  a  final  shipwreck  of  everything.  Such  patients,  as  Dr.  Chapin 
warns  us,  can  at  no  period  be  pronounced  mentally  well ;  but  for  the 

'The   case   of   Bowler    (Collinson,   L.        'Compendium      of     Insanity,     Fhila, 
Lunacy,   573)     was    an    instance    of    a    1898,  pp.  122,  123. 
chronic  lunatic.     Bowler  was  an  epilep- 
tic who  had  been  legally  foimd  insane, 
but  he  was  convicted  and  hanged. 


676  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  758 

very  reason  that  they  are  not  extensively  deranged,  they  may  present 
grave  problems  of  responsibility  in  medical  jurisprudence.  !N^o  posi- 
tive rules  can  be  prescribed,  however,  by  which  to  measure  them. 
Each  case  must  be  tried  by  the  evidence ;  and  the  degree  of  impair- 
ment is  a  question  of  fact,  to  be  determined  by  the  jury. 

759.  Offenses  against  decency. — We  are  too  apt  to  limit  our  ideas 
of  the  crimes  committed  by  the  insane  to  the  acts  of  homicide  and  sui- 
cide; but  we  should  not  forget  that  there  are  other  delinquencies 
of  which  these  patients  may  be  guilty.  In  the  chronic  insane,  espe- 
cially, there  may  be  offenses  against  modesty  and  decency ;  and  ex- 
ceptionally these  patients  may  commit  a  sexual  assault.  The  chronic 
insane  are  sometimes  grossly  immodest,  and  sometimes  very  indecent 
and  filthy;  but  the  indecent  act  of  a  weak-minded  person  is  usually 
puerile,  semi-conscious,  even  automatic.  In  some  cases,  as  Regis*' 
tells  us,  an  indecent  exposure  may  be  prompted  by  ill-defined  sexual 
ideas,  or  even  genesic  excitement;  but  often  it  is  silly,  absurd,  pur- 
poseless. Lasegue  has  described  as  "exhibitionists"  those  patients 
who,  without  knowing  why  they  do  so,  content  themselves  with  dis- 
playing their  genital  organs  in  public.® 

*Med.  Mentale,  translated  by  Bannis-    Zeit.  f.  Psych.  IX.  1903,  I,  2,  in  whicli 
ter,  p.  642.  he   describes  the  various  types  of  "ex- 

•  Burge    has   a   recent    paper    in   All.    hibitionista." 


CHAPTER  XXXVIL 

DEMENTIA. 

I.  The  medical  aspects  of  dementia. 

760.  A  terminal  deterioration. 

761.  Dementia  is  an  evidence  that  insanity  is  a  physical  disease. 

762.  An  analysis  of  the  disease. 

763.  Various  forms  of  dementia  are  seen. 
763i.  The  question  of  a  "primary"  dementia. 

II.  The  medico-legal  aspects  of  terminal  dementia. 

764.  A  common  legal  error  about  dementia. 

765.  Only  dements  are  "totally  deprived  of  understanding  and  memory." 

I.  The  medical  aspects  of  dementia. 

760.  A  terminal  deterioration. — ^Dementia  has  well  been  called  the 
•'goal  of  all  the  insanities;"  it  is  the  state  of  terminal  deterioration 
to  which  the  chronic  and  incurable  cases  naturally  tend.  Hence,  it 
is  often  the  termination  of  the  acute  insanities,  or  psychoneuroses, 
which  we  have  been  considering;  but  it  is  not  confined  to  those  acute 
insanities,  for  it  may  follow  upon  other  forms,  as  we  shall  see  here- 
after. It  cannot  be  stated  too  often  that  insanity  is  the  manifesta- 
tion of  a  morbid  process  in  the  organic  brain ;  and  whatever  this  proc- 
ess may  be,  or  from  whatever  cause  it  may  arise,  it  acts  in  the  end  as 
every  morbid  process  acts  in  any  organ  of  the  body  when  not  ar- 
rested. Its  effect  is  destruction  of  sound  tissue;  and  if  it  is  not  ar- 
rested, it  inevitably  causes  lasting  damage.  The  expression  of  this 
final  dissolution  of  sound  tissue  in  the  brain  is  dementia. 

761.  Dementia  is  an  evidence  that  insanity  is  a  physical  disease. — 
This  termination  in  dementia  is  therefore  a  striking  evidence  of  the 
fact  that  the  insanities  are  not  merely  functional,  but  that  they  are 
organic.  The  worn-out  tissue  has  been  ravaged  by  disease  until  it 
can  no  longer  perform  its  proper  functions.  Healthy  brain-tissue 
does  not  suffer  such  decay  except  from  adequate  causes ;  and  whether 
this  decay  comes  soon  or  late, — whether  it  follows  in  young  mater- 
nity, upon  the  assaults  of  puerperal  delirium,  or  is  postponed  until 
in  old  age  it  reveals  itself  in  the  ravages  of  senile  dementia, — it  is 
equally  a  physical  process.     Mens  insana  in  corpore  insano. 

677 


678  INSANITY— FUKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  761 

Dementia  is  usually  the  product  of  years ;  and  follows  by  insensi- 
ble degrees  upon  chronic  insanity,  which,  in  its  turn,  has  followed  an 
acute  attack.  Hence  it  is  not  easy  to  detect  the  dividing  line.  In 
some  cases,  however,  a  permanent  dementia  may  follow  with  sur- 
prising rapidity  upon  a  hyper-acute  delirium.  Even  in  young  per- 
sons this  may  be  seen  in  cases  of  what  is  called  furious  mania,  in 
which  the  morbid  agent  acts  with  great  virulence.  After  a  few 
months,  or  even  weeks,  the  violent  excitement  passes  by,  and  the  pa- 
tient is  found  hopelessly  impaired  in  mind. 

762.  An  analysis  of  the  disease. — If  we  attempt  to  analyze  step 
by  step  the  mental  state  in  dementia,  we  find  that  all  the  faculties 
are  impaired.  The  intellect  is  quite  in  ruins :  these  patients  have  no 
longer  the  ability  to  reason  or  to  think  except  in  the  most  ele- 
mentary way.  The  fragments  of  some  of  their  old  delusions  may 
cling  to  them,  but  they  have  no  longer  an  influence  upon  the  mind. 
Language  may  be  almost  or  quite  lost,  the  patients  using  verbiage 
and  disjointed  sentences.  The  memory  is  weakened;  it  may  even 
be  a  blank.  In  some  cases  remote  events  are  recalled,  even  though  the 
eVents  of  the  present  fade  instantly  from  the  mind.  The  attention 
cannot  be  fixed  for  any  useful  purpose :  the  genuine  dement  neither 
reads  nor  works.  The  affections  are  blunted  or  effaced.  The  emo- 
tions are  transitory,  without  depth.  The  perceptions  are  dulled  in  all 
stages.  These  symptoms  and  combinations  of  symptoms  vary  in  in- 
tensity according  to  the  cases.  Many  patients  require  constant  su- 
pervision: they  must  be  dressed  and  undressed,  fed,  bathed,  and 
their  natural  wants  attended  to  as  in  young  children.  But  in  these 
pages  no  attempt  is  made  to  exhaust  the  symptoms  in  their  various 
combinations.  The  one  word  for  them  is  "de-mentia,"' — deprivation 
of  the  mental  faculties. 

763-  Various  forms  of  dementia  are  seen. — Griesinger^  and  others 
have  described  types  of  dementia.  Thus  some  patients,  especially 
former  maniacs,  preserve  some  activity;  they  are  restless  and  loqua- 
cious. In  others  is  seen  an  apathetic  form,  usually  following  melan- 
cholia, and  this  is  the  most  profound  negation  of  mental  function  of 
which  poor  humanity  is  capable.  The  patient  is  listless,  stuporous, 
taking  no  notice,  without  thought,  without  emotion  or  affection,  dis- 
regarding the  calls  of  nature,  bedridden  or  planted  hopelessly  in  a 
chair,  a  mere  wreck  and  residue  of  a  man.  To  enlarge  upon  the 
picture  here  is  useless,  for  these  apathetic  patients  have  no  medico- 
legal importance. 

•Mental  Pathology  and  Therapeutics, 
Eng.  Trans,  p.  242.' 


S  763]  DEMENTIA.  679 

Among  the  commoner  forms  of  dementia  is  that  which  comes  on 
in  old  age, — senile  dementia;  but  this  will  be  described  in  a  section 
apart,  for  it  has  great  importance  in  the  courts.  Another  special 
form  is  dementia  paralytica,  or  general  paresis;  but  this  also  re- 
quires special  description.  Finally,  in  epilepsy  there  is  a  terminal 
dementia,  which  can  by  no  means  be  ignored  by  the  medical  jurist, 
and  this,  too,  is  described  apart. 

7631/2-  The  question  of  a  "primary"  dementia. — According  to  the 
view  here  taken  dementia  is  always  a  secondary  or  terminal  affection. 
It  follows  upon  a  primary  or  acute  form  of  insanity.  But  this  view 
has  not  been  held  by  all  alienists,  and  some  of  them  have  described  a 
"primary"  dementia ;  that  is,  a  dementia  which,  in  itself,  constitutes 
the  M^hole  of  the  mental  disease  from  the  very  start.  This  view  of  a 
primary  dementia  we  are  convinced  is  erroneous,  and  has  led  to  much 
confusion.  Thus,  the  primary,  or  acute,  dementia  of  Esquirol  and  of 
other  writers  who  have  too  blindly  followed  that  great  phychiater,  is 
not  a  dementia  at  all,  but  a  stupor,  a  delirium,  or  a  confusional  in- 
sanity, as  the  case  may  be ;  and  differs  from  a  true  dementia  in  the 
fact  (a  most  important  one  )that  the  patient  can  recover.  Dementia 
is  not  mere  weakness:  it  is  annihilation.^^ 

II.  The  medico-legal  aspects  of  terminal  dementia. 

764.  A  common  legal  error  about  dementia. — While  it  is  true,  as  al- 
ready said,  that  the  dementia  following  acute  insanity  has  but  little 
medico-legal  importance,  it  is  imperative  here  to  call  attention  to  the 
errors  into  which  legal  writers  and  courts  have  sometimes  fallen  in 
their  statements  about  criminal  insanity.  The  older  writers  have 
described  criminal  insanity  as  though  it  were  always  of  this  extreme 
type  of  dementia.  Bracton,^  as  we  have  seen,  following  the  Boman 
law,  described  an  insane  man  as  furiosi/ s  non  intelligit  quid  agit, 
et  animo  et  ratione  caret,  et  non  multum  distat  a  hruiis;  but  if  we 
except  some  of  the  more  excited  maniacs  and  delirious  patients,  it  is 
only  extreme  dements  who  do  not  know  what  they  are  doing,  and  who 
are  not  far  removed  from  the  brutes.  Such  patients  are  never  the  ob- 
jects of  medico-legal  inquiry,  for  their  state  is  too  evident  to  admit 

1^  Esquirol,     Mental     Maladies.     Am.  meiitia;  and  perhaps  this  is  the  nearest 

Trans,  p.  417;    Spitzka.  Insanity,   1883,  to  such  a  type  that  there  is. 
p.  ICO;  Regis,  Mental  Med.  Am.  Trans.        -De   Lejji'bus,   Lib.   III.    fol.    100,   and 

p.  323.     The  last-named  writer  includes  Lib.  V.  fol.  4206. 
senile    dementia    under    "primary"    de- 


680  INSANITY— FORMS  AND  MLDICO-LEGAL  ASPECTS.  [§  764 

of  question,  and  they  are  incapable  of  crime.  Justice  Tracy ,^  in  the 
case  of  Arnold,  said  that  an  insane  man,  to  be  exempt  in  the  eyes 
of  the  law,  must  be  "totally  deprived  of  his  understanding  and  mem- 
ory," and  not  know  what  he  is  doing,  "no  more  than  an  infant,  than 
a  brute,  or  a  wild  beast."  Coke'*  also  refers  to  a  loss  of  memory  and 
understanding  as  a  necessary  test  of  insanity. 

765.  Only  dements  are  "totally  deprived  of  understanding  and  mem- 
ory."— 'Now  these  extreme  statements,  which  have  been  widely  copied 
and  followed  in  the  courts,  can  apply,  as  a  rule,  only  to  dements; 
for  dements  alone  approach  a  condition  in  which  there  is  total  depri- 
vation of  memory ;  or  to  violently  excited  maniacs,  as  already  said. 
Hence,  if  these  older  writers  were  to  be  followed,  irresponsibility  for 
crime  would  have  to  be  narrowed  down  to  these  extreme  cases;  and 
as  such  patients  never  commit  crime  or  any  voluntary  act,  we  should 
practically  have  no  need  of  such  a  science  as  the  medical  jurispru- 
dence of  insanity;  at  least,  in  criminal  cases. 

Erskine  saw  the  fallacy  of  such  an  extreme  position,  and  in  his 
speech  for  Hadfield^  he  boldly  and  accurately  declared  that,  as  for 
a  man  being  "totally  deprived  of  his  memory  and  understanding 
no  such  madness  ever  existed  in  the  world."  Certainly 
no  such  madness  was  ever  seen  in  the  courts  of  Westminster  Hall  or 
in  any  other  courts ;  for  if  we  wish  to  find  patients  who  approach  such 
an  abject  type  of  insanity,  we  must  seek  them  in  the  chronic  wards 
of  our  asylums.  It  may  be  a  mere  academic  question  to  ask  whether, 
even  in  extreme  dementia,  there  is  total  deprivation  of  the  mental 
faculties ;  probably  there  is  no  dement,  even  the  worst,  who  has  not 
some  spark  of  mentality  left;  but  for  the  practical  purposes  of  med- 
ical jurists  it  may  be  broadly  stated  that  criminal  insanity  cannot, 
from  the  very  nature  of  things,  conform  to  such  a  type. 

'Arnold's  Trial,  16  How.  St.  Tr.  p.  'Hadfield's  Trial,  27  How.  St  Tr.  p. 
695.  1281. 

*  2  Litt.  247a. 


CHAPTEK  XXXVIII. 

PERIODICAL  INSANITY. 

I.  The  medical  aspects  of  periodical  insanity. 

766.  In    some  forms  of  mental    disease    there  is  observed    a    tendency  to 

periodicity. 

767.  Periodicity  in  mental  pathology  has  long  been  observed. 

768.  A  sign  of  degeneration. 

769.  The  marks  of  periodicitj'. 

770.  The  intervals  between  the  attacks. 

771.  The  nature  of  the  attack. 

772.  Periodical  insanity  may  assume  several  types. 

773.  Periodical  mania. 

774.  The  distinction  between  simple  primary  mania  and  periodical  mania. 

775.  Periodical  melancholia. 

776.  Circular  insanity. 

777.  This  is  a  special  form  of  mental  disease. 

778.  There  is  a  complete  cycle  in  this  disease. 

779.  The  maniacal  period  in  circular  insanity. 

780.  The  short  interval  is  not  a  true  "lucid  interval." 

781.  The  period  of  melancholia  in  circular  insanity. 

782.  The  periodicity  and  sameness  are  distinguishing  marks. 

783.  Varieties  of  circular  insanity  have  been  named. 
II.  The  medico-legal  aspects  of  periodical  insanity. 

784.  The  question  of  "lucid  intervals"  in  circular  insanity, 

785.  Testamentary  capacity  in  these  cases. 

786.  The  difficulty  of  determining  a  lucid  interval. 

787.  Abuse  of  the  doctrine  of  lucid  intervals. 

788.  A  legal  maxim  of  the  civilians. 

789.  Every  case  must  be  studied  by  itself. 

790.  Among  the  more  common  symptoms  are  insane  impulses. 

791.  But  the  criminal  acts  of  the  periodical  insane  have  no  special  charac- 

teristics. 

792.  Suicide  and  homicide  in  periodical  insanity. 

793.  The  period  of  transition  from  one  attack  to  another  is  not  necessarily  a 

"lucid  interval." 

I.  The  medical  aspects  of  periodical  insanity. 

766.  In  some  forms  of  mental  disease  there  is  observed  a  tendency  to 
periodicity. — The  insanity  is  not  characterized  by  a  single  attack, 
such  as  is  seen  in  the  ordinary  psychoneuroses,  in  which  the  patient, 
having  passed  through  an  access  of  mania  or  melancholia,  either  re- 

681 


G82  INSANITY— FOK.MS  AND  MEDICO-LEGAL  ASPECTS.  [§  766 

covers  or  proceeds  into  a  chronic  stage,  never  again  to  become  the  vic- 
tim of  a  paroxysm  of  the  disease.  In  these  simple  or  single  forms, 
as  we  may  call  them,  the  one  attack  constitutes  the  whole  history 
of  the  disease.  The  patient  either  recovers  permanently  or  suffers 
the  onset  of  a  chronic  stage,  passing  on  into  a  terminal  dementia ;  the 
history  is  complete.  But  in  the  forms  which  we  call  periodical  there 
is  a  much  deeper  basis  for  the  mental  malady.  The  patient  has  a  con- 
stitutional taint.  He  is  no  sooner  recovered  from  one  attack  thail  he 
may  be  laying  the  foundation  for  another;  for  even  though  he  enjoys 
a  prolonged  period  of  exemption,  yet  he  has  in  him  the  fatal  seeds 
which  in  time  will  engender  and  produce  another  paroxysm. 

767.  Periodicity  in  mental  pathology  has  long  been  observed. — Some 
evidence  of  this  belief  is  seen  in  the  popular  notion  that  the  moon 
has  an  influence  in  causing  exacerbations  of  insanity.  The  word 
"lunacy"  is  derived  from  the  Latin  word  luna, — the  moon, — ^and  the 
term  denotes  clearly  the  origin  of  the  doctrine  of  "lucid  intervals;" 
a  doctrine  which  has  had  such  sway  in  the  courts.^  Lord  Chief  Jus- 
tice Hale,^  as  is  well  kno^vn,  based  his  law  of  lunacy  on  this  belief, 
Dr.  Rush^  was  not  entirely  unconvinced,  and  EsquiroP  thought  it 
worth  while  to  deny  the  influence  of  the  moon  in  epilepsy;  but  this 
notion  has  no  scientific  warrant.  The  modern  doctrine  of  period- 
icity, on  the  other  hand,  is  founded  on  scientific  observation,  and 
leads  to  positive  conclusions  which  are  of  great  medico-legal  im- 
portance. 

768.  A  sign  of  degeneration. — Periodicity  in  mental  disease  is  a 
sign  of  degeneration.  This  is  now  a  cardinal  doctrine  among  alien- 
ists, following  Morel.'*^  It  is  seen  especially  in  hereditary  patients; 
in  those,  therefore,  who  have  a  constitutional  tendency  to  insanity.^ 
In  rare  cases  it  occurs  also  from  causes  which  profoundly  modify  the 
brain:  as  in  alcoholism  and  injury  to  the  head.  From  its  very  na- 
ture it  suggests  an  organic  and  constitutional  defect.  These  patients 
can  recover  from  individual  attacks,  but  they  cannot  keep  well.  Their 
mental  health  is  always  a  matter  of  doubt,  of  anxiety.  They  may  bo 
at  any  time,  and  at  their  best,  on  the  very  threshold  of  a  seizure. 
They  have  set  upon  them  the  indelible  brand  of  abnormality. 

In  this  respect  periodical  insanity  has  some  analogies  with  other 
nervous  diseases,  such  as  hysteria  and  epilepsy,  in  which  the  affection 

'  See  the   chapter    on    "Lucid    Inter-  ■^i  Traits  des  Deg6nereseences,    Paris, 

vals"  in  the  present  work,  page  496.  1857. 

n   P.  C.  Chap.  IV.  "Bevan    Lewis.    Text-Book    of    Ment. 

=  Diseases  of  the  Mind,  p.  170.  Dis.   2d  ed.  p.  238. 
*  Maladies  Mentales,  art.  "fipilopsie." 


§  768]  PERIODICAL  INSANITY.  683 

is  explosive.  In  these  nervous  diseases  the  most  conspicuous  syihp- 
toms  are  paroxysmal,  such  as  the  convulsions;  and  these  maladies, 
as  is  well  known,  are  constitutional,  depending  on  permanent  defects 
in  the  organism,  which  are  often  the  expression  of  heredity.*'  It  may 
be  said  that  all  these  periodical  diseases  of  the  brain  are  Promethean; 
the  patient  is  condemned  to  the  ever-renewed  assaults  of  a  foe  which 
preys  upon  his  vitals. 

769.  The  marks  of  periodicity. — Whatever  form  may  be  assumed  by 
periodical  insanity,  whether  it  be  mania  or  melancholia,  there  are 
some  particular  traits  which  serve  to  distinguish  it.'^  ; 

In  the  first  place,  the  individual  attacks  resemble  each  other  in  their 
evolution  and  symptoms.  Falret,^  who  was  one  of  the  first  to  de- 
scribe this  stereotyped  form  of  insanity,  said  that  the  latest  attack 
resembled  the  preceding  attacks  in  all  points;  in  its  physical  symp- 
toms as  well  as  in  its  mental  and  moral  traits,  and  even  in  the  delu- 
sional ideas  expressed,  as  well  as  in  its  progress.  This  accords  with 
the  law  of  periodicity  in  all  nervous  diseases,  and  is  seen  strikingly 
in  epilepsy,  in  which  each  fit  resembles  the  former  fits  in  the  minut- 
est particulars;  but  the  duration  of  the  attacks  in  periodical  insan- 
ity may  vary,  since  they  are  subject  to  modifying  influences,  which 
tend  either  to  prolong  or  to  shorten  them ;  and  in  some  instances  we 
may  see  abortive  attacks,  just  as  in  hysteria  and  epilepsy.  As  the 
patient  advances  in  life,  moreover,  the  attacks  tend  to  vary  from  their 
stereotyped  form. 

Again,  in  the  intervals  these  patients  are  not  always  entirely  well. 
It  is  common  to  observe  changes  from  a  normal  standard  of  mental 
health, — changes  which  perhaps  only  near  acquaintances  or  skilled 
observers  can  detect,  but  which  show  clearly  an  affection  of  the  mind 
more  or  less  permanent.  These  intervallary  eymptoms  vary  accord- 
ing to  individual  cases :  there  may  be  change  of  character,  irritabil- 
ity, moral  perversities,  apathy  of  the  emotions  and  instincts,  or  even 
mental  weakness.  The  type  seen  during  the  intermission  may 
be  that  of  the  degenerate :  there  may  be  loss  of  moral  control  and  of 
intellectual  balance  and  common  sense.  It  is  in  this  interval  that  the 
nicest  questions  of  responsibility  arise. 

^  San  key     (Lectures    on    Mental    Dis-        '  KrafTt-Ebing,  Lehrbuch;  also  Trait* 
ease,  p.  179)    claims  that  periodical  in-    Clinique    de    Psychiatrie,    traduit    par 
sanity  is  not  only  allied  to  epilepsy,  but    Laurent,    p.    492;     Kirn,    Die    Periodi- 
in   some  cases   may   actually   terminate    schen  Psychosen,   1878. 
in  epilepsy.     It  would  not  do  to  accept        '  IMaladies  Mentales,  p.  458 
such    a    statement    witliout  great .  cau- 
tion; the  cases  referred  to  are  pro1)al)ly 
epileptic  from  the  beginning. 


684  INSANITY— EORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  770 

770.  The  intervals  between  the  attacks. — These  intervals,  or  pe- 
riods between  attacks,  may  be  of  surprising  regularity.  In  many 
cases  they  are  equal  in  duration.  Clouston^  had  a  patient,  aged  forty- 
nine  years,  who  for  twenty-six  years  had  been  subject  to  the  most 
regularly  recurring  maniacal  attacks  every  four  weeks,  almost  to 
a  day.  The  attack  was  necessarily  short,  lasting  sometimes  only 
about  a  week.  Such  a  case  reveals  how  persistent  this  type  of  insan- 
ity may  be  for  many  years ;  and  confirms  the  statement  by  Falret 
that  it  is  a  mistake  to  believe  that  intermittent  insanity  always  ends 
by  becoming  continuous.  So  persistent,  indeed,  is  this  type,  and  so 
regular  the  recurrence  and  disaj)pearance  of  the  symptoms,  that  the 
physician  can  often  foretell  unerringly  how  and  when  the  paroxysm 
will  end.  Such  cases  also  prove  that,  although  the  individual  attacks 
are  curable,  the  disease  itself  is  inveterate. 

771.  The  nature  of  the  attack. — As  to  the  nature  of  the  attack  itself, 
this  is  usually  of  rather  sudden  onset,  with  short  prodromal  or  intro- 
ductory symptoms ;  and  the  termination  is  also,  as  a  rule,  abrupt. 
The  symptoms  themselves  are  usually  not  marked  by  the  formation 
of  delusions  and  hallucinations,  but  the  affective,  or  emotional  and 
moral,  imstincts  are  involved;  the  ideas  are  not  well  formed  or  sys- 
tematized. The  duration  of  the  attack  is  also,  as  a  rule,  not  so  pro- 
longed as  in  the  non-periodical  cases,  and  there  is  not  the  same  ob- 
vious tendency  to  chronic  insanity  and  dementia ;  but,  in  this  latter 
respect,  we  should  note  that  such  an  experienced  observer  as  Krafft- 
Ebing  claims  that  towards  the  end  there  is  a  tendency  for  the  dis- 
ease to  progi-ess  into  a  state  of  mental  feebleness,  in  which  there  is 
a  continuous  alienation,  with  defect  of  the  intelligence.  Cases  doubt- 
less vary  in  this  respect.^^ 

Finally,  all  observers  agree  that  there  is  marked  contrast  between 
the  personality  of  the  patient  during  the  attack  and  his  personality 
during  the  interval.  It  seems  as  though  he  is  not  the  same  individual, 
— that  his  case  is  one  of  double  personality,— so  profound  is  the 
change  in  the  patient's  ego. 

772.  Periodical  insanity  may  assume  several  types. — The  commonest 
are  mania,  melancholia,  and  a  combination  of  these  two, — the  so- 
called  "circular"  insanity. 

773.  Periodical  mania. — This   is   sometimes  called   also   recurrent 

"Clinical   Lectures   on   Ment.   Dis.    p.  rent"   insane    become    chronic;     but  he 

177.  groups  many  diverse   forms  under  this 

"*Bevan  L<!\vi.s    (op.  cit.  p.  250)    says  term, 
that  a  large  proportion   of  the  "recur- 


§  773]  PERIODICAL  INSANITY.  085 

mania ;^^  it  is  much  more  common  than  the  same  type  of  melancho- 
lia. Some  of  its  distinctive  features  have  been  indicated  in  what 
is  written  above.  The  onset  is  brusque  or  explosive.  Some  observers 
claim  that  there  is  always  a  short  precedent  attack  of  melancholic 
depression,  as  in  simple  mania ;  but  others  deny  this.  There  may  be, 
however,  a  kind  of  aura,  or  warning,  as  in  epilepsy ;  consisting  of 
flushing,  determination  of  blood  to  the  head,  neuralgia,  headache,  in- 
somnia, and  a  sense  of  general  malaise.  Exaltation  is  pronounced; 
the  ideas  flow  freely,  but  there  may  not  be  a  high  degree  of  incohe- 
rence, much  less  confusion.  The  patient  is  gay,  talkative,  restless, 
and  erratic;  he  may  be  also  irritable,  especially  if  opposed.  The 
moral  sense  is  blunted,  and  these  patients  often  present  the  picture 
of  a  so-called  moral  insanity,  or  reasoning  insanity,  in  which  a  cer- 
tain amount  of  wit  and  acimien  remain,  but  with  a  disregard  for 
conventionalities  and  ethics.  : 

Impulses  may  have  full  sway:  the  patient  is  intemperate  in  eat- 
ing, drinking,  smoking,  and  sexual  indulgence.  The  excitement  of 
the  sexual  feeling  is  almost  sure  to  reveal  itself  in  language  and  in 
the  bearing  towards  the  opposite  sex.  The  impulsive  tendency  may 
show  itself  also  in  acts  distinctly  criminal,  as  in  assaults  or  in  steal- 
ing. Extravagance  with  money  is  conunon.  Some  of  these  patients 
are  quarrelsome,  disagreeable,  insulting.  They  are  usually  devoid  of 
common  sense  and  of  the  finer  feelings.  In  some  cases  there  may  be 
episodes  of  extreme  excitement,  amounting  to  a  genuine  frenzy  or 
delirium,  especially  in  patients  who  have  indulged  too  freely  in  alco- 
hol. These,  however,  are  in  the  nature  of  complications.  Physical 
symptoms,  such  as  headache,  loss  of  weight,  indifterence  to  cold,  in- 
somnia, dyspepsia,  and  loss  of  appetite,  are  common.^  ^^ 

"The  term  "rccm-vent"  is  better  re-  170G.  Cliarles  Lamb  himself  went  in- 
served  for  the  cases  of  simple  mania  in  sane  from  the  shock,  and  spent  six  weeks 
which  tliere  is  a  relapse  or  a  remote  re-  in  Hoxton  asylum.  An  account  of  the 
appearance,  without  the  distinct  period-  tragedy,  with  the  finding  of  the  cor- 
icity  referred  to  in  the  text.  It  is  oner's  jury,  was  published  in  the  Annual 
worth  while  to  note  that  Esquirol  (jVIen-  Register,  Sept.  2o,  ]7!)6  (quoted  in  Ca- 
tal  Maladies,  art.  "Mania")  recognized  rew  Hazlitt's  work  on  ]\Iary  and  ChaTles 
an  intermittent  mania,  and  came  near  Lamb,  p.  138).  For  nearly  forty  years 
anticipating  later  writers  in  his  close  after  this  event  the  brother  and  sister 
description  of  it.  lived  together,  except  for  sucli   periods 

iii  There  is  nothing  more  tragic  and  as  she  spent  in  an  asylum;  and  he  was 
pathetic  in  the  history  of  insanity  than  practically  her  care-taker.  They  both 
the  .story  of  Charles  and  ^Mary  Lamb;  devoted  themselves  to  literature,  with 
and  it  is  one  long  story  of  recurrent  no  inconsiderable  success,  and  some  of 
mania.  This  ill-fated  woman,  whose  his  essays  are  among  the  choicest  in  our 
name   will   always   retain   an   honorable    language. 

place  in  English  literature,  killed  her  In  Mary  Lamb's  case  the  recurring  at- 
mother  by  stabbing  her  with  a  knife,  in  tacks  of  mania  were  usually  preceded  by 
an    access   of   maniacal    fury,    in    Sept.,    forewarnings,  which  enabled  her  brother 


686  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  773 

The  termination  of  the  attack  is  usually  as  abrupt  as  the  onset,  and 
is  likely  to  be  followed  by  a  stage  of  physical  and  mental  prostra- 
tion of  relatively  short  duration.  Recovery  from  the  attack  may  be 
apparently  quite  perfect;  but,  on  the  other  hand,  these  are  the  pa- 
tients especially  in  whom  there  is  likely  to  persist  during  the  inter- 
vals such  a  permanent  change  as  has  been  indicated  above.  They  are 
unstable,  irritable,  indisposed  to  work,  or  even  incapable  of  it;  and 
they  are  not  fully  accountable.  Permanent  cure,  even  in  cases  with 
long  intervals,  is  not  to  be  expected.  Cases  vary  as  to  the  length 
of  the  paroxysms  and  of  the  intervals;  some  are  of  long,  others  of 
short,  duration.  Spitzka^^  has  noted  the  relation  of  dipsomania  to 
periodical  excitement  or  mania,  and  defines  it  as  a  form  of  periodical 
insanity  manifesting  itself  in  a  blind  craving  for  stimulants.  It  is 
indisputable  that  dipsomania  is  a  marked  symptom  in  some  periodical 
maniacs. 

I  774.  The  distinction  between  simple  primary  mania  and  periodical 
mania. — This  distinction  is  perhaps  more  easily  made  in  writing  than 
practice.  Krafft-Ebing  gives  elaborate  rules,  but  a  more  recent 
school,  led  by  Kraepelin,  claims  that  all  forms  of  mania  are  liable 
to  recurrence;  that,  in  fact,  periodical  mania  is  the  only  form  of  the 
disease.  In  other  words,  a  patient  who  has  once  had  an  attack  of  ma- 
niais  liable  to  have  another  attack ;  but  this  claim  is  much  too  radical. 
According  to  such  a  view,  a  patient  w^ho  has  an  attack  of  simple  ma- 
nia in  early  life,  and  then  suffers  a  second  attack  in  middle  life, 
without  any  particular  relation  or  resemblance  between  the  two  at- 
tacks, is  a  case  of  periodical  mania.  We  should  rather  say  that  such 
a  case  was  one  of  simple  mania  with  recurrence,  or  a  case  of  simple  re- 
current mania,  to  distinguish  it  from  the  periodical  type.  This  dis- 
tinction is  not  unimportant,  for  in  the  one  case  there  is  not  the 
in,tervallary  degeneration  which  is  so  often  seen  in  the  other;  the 
prognosis  is  better;  the  medico-legal  aspects  are  different.  Kraepe- 
lin has  made  the  astonishing  statement  that  of  1,000  cases  of  mania 
which  he  had  seen,  only  one  was  not  of  the  recurrent  type.  Others^ '^ 
have  also  demonstrated  with  statistics  that  the  cases  of  mania  which 
never  relapse  are  much  fewer  than  has  been  supposed.  Nevertheless, 
it  must  be  repeated  that  a  mere  relapse  in  simple  mania  is  not  neces- 

und  herself  to  take  the  necpssary  precau-  (Charles  Lamh,  by  Ainger,   in  English 

tions;    and  a  friend  of  the  Lambs   has  Men    of   Letters,   edited   by   John    Mor- 

related   how,   on    one   occasion,   he   met  ley.) 

brother  and  sister  at  such  a  time,  walk-  "Insanity,  p.  271. 

ing  hand  in  hand  across  the  fields  to  the  "  Berkley,    Mental    Diseases,    p.    142, 

old      asylum,      both      shedding      tears,  footnote. 


§  774J  PPJRIODICAL  INSANITY.  G87 

sarily  an  instance  of  the  periodical  disease.     Such  a  conclusion  is 
strained. 

775.  Periodical  melancholia. — Typical  forms  are  more  rare  than 
in  the  same  type  of  mania,  and  the  symptoms  are  usually  mild  as  com- 
pared with  simple  primary  melancholia.  It  is  seen  especially  in  the 
latter  half  of  life ;  in  women  after  the  menopause ;  and  in  men  who 
have  succumbed  to  some  of  the  discouragements  of  life.  There  is  not 
so  marked  a  tendency  to  the  formation  of  delusions,  nor  so  profound 
a  sense  of  personal  abasement  as  in  the  more  acute  forms.  Many  of 
these  patients  do  not  find  their  way  into  the  asylums ;  they  pass 
through  a  listless  and  depressed  period  in  their  own  homes,  the  prey 
of  ennui  and  the  tcedium  vitce.  After  the  cloud  passes  by,  they  quick- 
ly resume  their  accustomed  life  until  the  next  attack.  They  are  not 
regarded  as  badly  insane,  and,  in  fact,  the  intellectual  faculties  in 
sonae  of  them  are  little,  if  at  all,  impaired.  There  is  simply  an  emo- 
tional depression,  with  ideas  of  discouragement  and  weariness  of 
life,  some  of  which,  indeed,  are  not  without  a  basis  of  fact. 

In  some  cases  the  paroxysm  is  more  pronounced.  In  all  these  cases 
there  is  danger  of  suicide,  and  not  a  few  of  the  cases  of  self-destruc- 
tion in  persons  past  middle  life  are  prompted  by  recurrent  attacks 
of  mild  melancholia.  During  the  access  the  patients  seem  to  age  rap- 
idly; after  recovery  they  regain  a  placidity  of  expression  in  marked 
contrast;  and  the  mental  state  may  gradually  merge  into  one  of  se- 
nility. In  younger  patients  the  appearance  of  mental  suffering  is 
more  marked,  but  the  attacks  often  end  suddenly  and  are  of  shorter 
duration,  as  a  rule,  than  in  simple  non-periodical  psychalgia. 

776.  Circular  insanity. — In  1854  Falret,  a  French  alienist,  de- 
scribed a  form  of  periodical  insanity  which  was  characterized  by  al- 
ternations of  mania  and  melancholia,  and  by  a  tendency  for  these 
two  states  to  reappear  at  more  or  less  regular  intervals  and  in  a  defin- 
ite sequence.^"*  To  this  affection  he  gave  the  name  of  folie  circulaire. 
About  the  same  time  Baillarger  read  a  paper  before  the  French  Acad- 
emy of  Medicine  upon  the  same  disease,  which  he  called  folie  a  dou- 
ble forme}^.  Since  that  time  this  disease  has  been  widely  recog- 
nized, and  is  classed,  by  universal  consent,  among  the  degenerative 
or  hereditary  insanities. 

777.  This  is  a  special  form  of  mental  disease. — Falret  emphasized 

"Des  Maladies  Mentales,  Paris,  1864,  Falret's.     The  dispute  is  merely  of  his- 

Chap.  VII.  p.  -iSe.  toric  interest,  for  the  disease  described 

^  Falret    disputed    Baillarger's    right  by  both  alienists  is  identical.     See  Fal- 

to    priority,    and     Baillarger     retorted  ret.  op.  eit.  p.  456.  note, 
that  his   disease   was   not   the   same   as 


CSS  1  X.SAMTY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  777 

the  fact  that  circular  insanity  is  a  special  form  of  mental  disease,  and 
is  not  to  bo  confounded  with  cases  in  which  a  patient  may  occasion- 
all}'  have  had  both  melancholic  and  maniacal  symptoms.  It  is  well 
known,  for  instance,  that  in  ordinary  mania  there  may  be  a  short 
precedent  attack  of  depression ;  also  that  after  an  attack  of  acute 
mania  there  may  be  a  period  of  prostration  which  resembles  melan- 
cholia; and  that  in  other  cases  there  may  be  episodes  of  either  of 
these  states  complicating  the  others ;  or  that,  in  still  other  cases,  there 
may  be  a  transformation  of  mania  into  melancholia,  or  vice  versa, 
from  accidental  causes.  None  of  these,  Falret  pointed  out,  consti- 
tutes a  true  circular  insanity. 

In  order  to  constitute  this  disease,  the  depression  and  the  exalta- 
tion should  succeed  each  other  in  recurring  cycles  during  a  long  time 
(even  during  the  most  of  the  patient's  life),  in  a  manner  quite  regu- 
lar, in  an  order  always  the  same,  and  with  an  interval  very  short  rel- 
atively to  the  duration  of  the  attack.  This  periodicity,  with  this 
clement  of  sameness,  is  the  main  characteristic  of  circular  insanity. 
The  cycle  may  be  short  or  long;  it  may  last  for  but  a  few  weeks  or 
it  may  extend  over  months  and  even  years  ;  but,  whether  rapid  or  slow, 
the  disease  remains  the  same  in  its  general  traits  and  its  principal 
details.  The  resemblance  of  each  cycle  to  those  that  preceded  it  in 
each  patient  is  marked ;  and  this  tendency  of  the  attacks  to  be  ste- 
reotyped, and  of  the  disease  to  be  composed  of  such  diverse  elements, 
which,  nevertheless,  always  retain  for  it  an  identity  of  its  own,  to- 
gether with  its  uncontrollable  tendency  to  recur,— all  these  are  the  in- 
dications of  a  deep-seated  basis  which  is  founded  only  in  heredity. 
Falret,  as  have  most  observers  after  him,  insisted  strongly  on  the  ele- 
ment of  heredity  in  the  causation  of  the  disease. 

778.  There  is  a  complete  cycle  in  this  disease. — The  three  periods  in 
circular  insanity  form,  according  to  Falret,  a  cycle  complete.  By 
these  three  periods  he  meant  the  distinct  attacks  of  mania  and  mel- 
ancholia, with  the  interval,  usually  short,  which  separates  them.  But, 
in  order  to  avoid  confusion,  there  should  be  pointed  out  a  fact  which 
Falret  did  not  sufficiently  distinguish;  that  in  order  to  form  a  com- 
plete cycle  there  is  a  fourth  period,  and  that  this  is  the  long  interval 
^v'hich  separates  the  one  attack  from  the  next.  For  instance,  a  patient 
begins  his  attack  with  mania ;  this  is  succeeded  by  a  short  period 
of  comparative  or  even  complete  lucidity,  to  be  followed  in  turn  by 
the  melancholia.  With  the  disappearance  of  the  latter,  the  patient 
recovers,  and  passes  into  his  normal  period,  which  endures  until  the 
whole  cycle  is  completed  by  the  return  of  another  attack.     This  ^t- 


5  778]  PERIODICAL  INSANITY.  689 

tack  then  repeats  exactly  the  preceding  one,  and  the  vicious  round 
of  alternating  disease  and  health  goes  on  for  a  lifetime.  It  is  thus 
seen  that  what  we  may  call  the  attack  is  composed,  as  Falret  said,  of 
three  periods, — mania,  short  interval,  melancholia, — but  that  the 
whole  cycle  is  composed  of  four  periods,  since  it  includes  the  long 
period  between  the  attacks.  From  a  medico-legal  standpoint  these 
distinctions  are  highly  important,  for  there  may  be  a  great  differ- 
ence between  the  short  and  the  long  interval,  as  these  two  })eriods  af- 
fect legal  accountability  and  capacity.^  ^* 

779.  The  maniacal  period  in  circular  insanity. — The  attack,  accord- 
ing to  Falret,  begins  with  the  maniacal  seizure.  This  resembles  an 
ordinary  mania,  as  a  rule.  Krafft-Ebing^^  says  that  neither  the  ma- 
nia nor  the  melancholia  presents  anything  specific.  There  is  a  simple 
exaltation,  without  a  distinct  tendency  to  the  formation  of  delu- 
sions, and,  as  compared  with  simple  acute  mania,  the  course  of  the 
disease  may  be  rather  mild.  There  is  not  much  tendency  to  extreme 
confusion,  or  especially  to  fury.  The  patient  is  merely  elated  in 
spirits,  talkative,  restless,  now  gay,  now  irritable,  with  a  rapid  succes- 
sion of  ideas,  and  with  a  corresponding  relaxation  of  the  moral  senti- 
ments. He  is  not  unlike  a  man  slightly  intoxicated.  He  says  and 
does  foolish  things.  He  is  not  himself,  and  his  habits  and  manner  of 
living  accord  with  his  disordered  state.  In  short,  he  is  in  a  maniacal 
paroxysm,  such  as  has  already  been  described  in  these  pages.  To  de- 
scribe mania,  as  Esquirol  said,  is  impossible ;  and  to  attempt  to  de- 
scribe it  twice  in  the  same  book  is  superfluous. 

780.  The  short  interval  is  not  a  true  "lucid  interval." — After  a  time 
more  or  less  prolonged,  according  to  the  case,  excitement  diminishes, 
and  there  succeeds  a  state  which,  as  Falret  observed,  is  difficult  to 
characterize.  This  is  the  short  interval  between  the  mania  and  the 
melancholia.  It  may  partake  of  the  excitement  of  the  one  and  the 
depression  of  the  other ;  and  a  grave  medico-legal  question  may  arise 
whether  it  is  a  true  lucid  interval.  Falret  claimed  that  it  is  not,  and 
most  authorities  agree  with  him.  Some  observers  even  state  that  in 
some  cases  this  transition  period  is  exceedingly  short,  the  patient 
passing  almost  abruptly,  even  in  a  single  night,  from  a  state  of  mania 
to  a  state  of  melancholia.     The  difficulty  arises  in  cases  in  which  this 

15?  In  some  cases,  as  Regis  points  out        '°  Lelirbueli ;     also    the    same,    Traits 
{Merit.   Med.   Am.   Trans,   p.    105),    tiie    Cliniqiie    de    Psychiatrie,    traduit    par 
interval    between    the    attacks    may    be    Laurent,  p.  506. 
very    short;    as    short,    in    fact,    as    the 
transition  period  from  the  one  stadium 
to  the  other. 

Vol.  I.  Med.  Jir. — 44. 


690  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  780 

period  is  so.  well-marked  that  the  patieut  even  presents  tlie  appear- 
ance of  recovery,  and  may  deceive  the  unwary;  but  an  experienced 
observer  will  always  find  in  this  transition  period  the  evidences  of  a 
disordered  mind.  Certainly,  it  would  be  a  dangerous  doctrine  to 
claim  that  in  a  patient  thus  passing  rapidly  from  one  phase  of  disease 
to  another,  the  mind  is  fully  recovered.  The  one  phase  is  too  re- 
cent, the  other  too  imminent,  to  admit  of  such  a  conclusion.  This 
transition  period,  even  in  cases  in  which  the  whole  attack  is  pro- 
longed, is  always  shorter  than  the  period  of  recovery  which  completes 
the  cycle. 

781.  The  period  of  melancholia  in  circular  insanity. — The  melan- 
cholia declares  itself  rapidly,  even  abruptly;  and  there  is  presented 
a  veritable  transformation  scene.  The  personality  and  appearance 
of  the  patient  are  completely  changed;  from  exaltation  he  passes 
quickly  to  the  other  extreme  of  depression ;  he  is  no  longer  seemingly 
the  same  individual;  and  most  persons  who  see  him  note  that  it  is 
difficult  to  recognize  him  as  the  same.  This  condition  of  melancho- 
lia presents  nothing  special  or  distinct ;  it  resembles  an  ordinary  pri- 
mary melancholia;  one,  however,  in  which  there  is  not  much  tenden- 
cy to  the  formation  of  systematized  delusions,  nor  to  pass  into  such  ex- 
treme conditions  as  stupor.  The  course  and  duration  are  often  be- 
nign and  short;  but  in  this  respect  cases  vary.  Clouston  says  that 
suicide  is  not  common. 

782.  The  periodicity  and  sameness  are  distinguishing  marks. — There 
has  been  some  tendency  to  over-description  of  circular  insanity,  and 
to  map  out  the  disease  in  a  rather  academic  fashion.  The  fact  re- 
mains, however,  that  the  periodicity  and  sameness  of  the  cycles  are 
distinguishing  traits.  The  following  features  are  also  more  or  less 
constant :  The  two  morbid  states  are  clearly  defined,  and  do  not  pre- 
sent a  confused  transition  or  mingling;  the  interval  between  them  is 
much  shorter  than  they  are  themselves,  and  much  shorter  than  the  in- 
terval between  the  attacks ;  the  melancholic  phase  is  longer  than  the 
maniacal  one ;  the  symptoms  in  prolonged  cases  may  be  mild,  the  pa- 
tient not  even  entering  an  asylum. 

The  order  of  appearance  of  the  morbid  phases  is  not  the  same  for 
all  patients.  Falret  described  the  mania  as  the  initial  phase,  and  in 
this  he  is  followed  by  Clouston,^  ^  by  Regis,^^  and  by  others.  Clous- 
ton  says  that  90  per  cent  of  the  cases  begin  with  mania ;  but  KratTt- 
Ebing^'*  reports  cases  in  which  the  melancholia  constituted  the  first 
Btage. 

"Od.  cit.  p.  1S4.  "Op.  cit.  p.  507. 

"Of),  cit.  p.   196. 


§  783)  PEKIUDJC'AL  INSANITY.  691 

783.  Varieties  of  circular  insanity  have  been  named. — Thus,  the 
form  in  which  the  morbid  states  are  not  separated  by  an  intermission 
lias  been  called  continuons  insanity  of  double  form;  also  alternating 
insanity.  Too  gi-eat  refinement,  however,  in  this  matter  is  not  neces- 
sary or  desirable  in  these  jiages.  These  periodical  and  circular  types 
of  insanity  are,  as  already  said,  of  constitutional  origin,  and  their 
medico-legal  importance  depends  largely  upon  the  fact  that  they  pre- 
sent such  marked  alternations  of  health  and  disease. 

11.  The  medico-legal  aspects  of  periodical  insanity. 

784.  The  question  of  "lucid  intervals"  in  circular  insanity. — The 
i;hief  question  in  all  these  cases  has  reference  to  what  the  law  calls  a 
"'lucid  interval."  From  the  purely  legal  standpoint  this  question  is 
not  so  difficult.  If  the  patient  has  a  lucid  interval  he  is,  in  the  eyes 
of  the  law,  both  capable  and  responsible.  This  legal  doctrine  is  dis- 
I'ussed  elsewhere  in  these  pages.'*^  But  from  the  medical  standpoint 
the  question  is  not  easily  reduced  to  such  simple  elements.  In  these 
transitions  from  health  to  disease  and  from  disease  to  health,  there 
are  borderlands  in  respect  to  which  it  is  extremely  difficult  to  give 
:>recise  answers. 

785.  Testamentary  capacity  in  these  cases. — According  to  the 
Jtoman  law^^  if  a  man  made  his  wall  during  a  lucid  interval,  he  was  a 
legal  testator,  and  it  was  certain  that  a  testament  which  a  man  had 
made  before  he  w^as  seized  with  madness  was  good;  for  a  subsequent 
fit  of  frenzy  could  not  invalidate  a  regular  testament  or  any  other  reg- 
ular transaction.  This  is  doubtless  good  law  to-day  in  every  civ- 
ilized country,  just  as  it  was  in  ancient  Rome;  and  it  is  just  as  good 
science  as  it  is  good  law.  It  applies  with  especial  point  to  cases  of 
periodical  insanity ;  and  one  might  almost  imagine  that  the  old  law- 
makers had  in  mind  the  circular  insanity  of  Falret.  This  Justinian 
law  recogTiizes  plainly  that  there  may  be  recurrences  in  mental  dis- 
ease, and  is  careful  to  guard  a  testator's  rights  against  any  false  in- 
ferences which  might  be  drawn  from  such  a  fact. 

786.  The  difficulty  of  determining  a  lucid  interval. — But,  on  the 
other  hand,  the  Roman  law  contains  no  inkling  of  the  fact  that  a 
lucid  interval  is  sometimes  one  of  the  hardest  things  to  determine  in 
psychiatry,  and  that  the  mental  state  of  a  patient  with  periodical  in- 

*•  Chapter  on  "Lucid  Intervals,"  page  =^  Justinian,  Institutes,  Lib.  II.  Title 
496,  ante.  XII.  §  1. 


692  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§786 

sanity  is  not  always  easy  to  fathom.  Herein  is  seen  the  limitation  of 
the  Roman  law  and  of  some  of  its  successors,  among  them  the  English 
law.  They  are  content  to  prescribe  a  definition,  to  draw  a  hard-and- 
fast  line,  and  then  to  insist  that  the  laws  of  God  and  nature  must  con- 
form to  it.^^^  ISTowhere  is  this  incongruity  more  plainly  shown  than 
in  cases  of  periodical  insanity,  where  the  rules  of  law  are  used  for  de- 
termining the  return  of  reason.  Alienists,  who  mingle  daily  with 
these  patients,  know  that  the  border  line  is  a  region  of  perplexity. 

787.  Abuse  of  the  doctrine  of  lucid  intervals. — Some  law-makers 
have  recognized  that  the  doctrine  of  lucid  interval  is  subject  to  abuse, 
especially  with  reference  to  testamentary  capacity.  The  English  law 
recognizes  no  such  danger,  for  it  has  elaborated  this  doctrine  with  per- 
fect confidence ;  but  the  French  law,  according  to  Le  Grande  du 
Saulle,^"  has  not  recognized  this  intermediary  state,  and  it  has  avoid- 
ed the  subject  intentionally.  Article  901  of  the  Civil  Code  is  con- 
tent simply  to  say:  "In  order  to  make  a  donation  inter  vivos,  or  a 
testament,  it  is  necessary  to  be  of  sound  mind."^-^  This  is  admirably 
brief,  and  could  not  be  improved  by  a  reference  to  lucid  intervals. 

As  is  well  known,  Sir  Matthew  Tlale^^  defined  the  law  of  lucid  in- 
tervals with  the  utmost  precision,  and  pointed  out  the  results  which 
flow  from  it:  crimes  committed  in  those  intervals  are  subject  to  pun- 
ishment, and  contracts  and  sales  made  then  are  obliging  to  the  heirs 
and  executors;  but  neither  did  Hale,  as,  indeed,  could  hardly  have 
been  expected,  recognize  the  difficulties  and  dangers  of  the  doctrine 
which  he  announced  so  complacently.  The  presumption  of  the  law, 
according  to  Hale,  is  in  favor  of  a  lucid  interval  in  the  case  of  a 
lunatic  who  signs  a  legal  paper;  but  this  presumption  is  not  sup- 
ported by  science,  and  is  easily  shown  to  be  a  dangerous  one  in  cases 
of  periodical  insanity.  In  such  cases  patients  might  be  induced  to 
sign  papers  while  still  under  the  influence  of  one  of  their  paroxysms. 

It  is  difficult  to  understand  why  there  should  be  any  presumption 
about  the  matter  in  cases  in  which  the  patients  spend  part  of  their 
time  insane  and  another  part  of  it  in  recovering  from  the  effects  of 
their  insanity.  The  question  is  one  of  fact,  not  of  presumption  one 
way  or  another,   and   should  be  simply   a  matter  for  proof.      Lord 

21^,  In    Clarke  v.   Cariicrifiht,   1    Pliil-  insane   persons   can   converse   rationally 

lim.   Eccl.  Rep.  90,  Sir  William  Wynne  on  many  subjects. 

said:      "If  she   could   converse  ralioiial-  "Traite   de   Medecine  Legale,  p.   666. 

ly.   tliat   is   a    lucid   interval;    and   that  ""Pour  faire  une  donation  entre-vifs 

she   so   did.   and    had    lucid    intervals,    I  ou     uit     testament,     11     faut     etre    sain 

think    is   completely    estubiishPd."      But  d'esprit."    French    Civil   Code,   art.   901. 

sucli  a  rule  ijrnores  the  fact  that  many  '*  1   P.  C.  Ciiap.  IV. 


§  787]  PERIODICAL  INSANITY.  G93 

Brougliam^^  discussed  this  question  of  presumption  in  a  case  of  re- 
curring insanity,  and  showed  that  the  presumption,  if  any,  was  rather 
in  favor  of  insanity  in  cases  in  which  mental  disease  was  known  tc 
have  pre-existed  for  long  periods.  His  statement  was  so  clearly  rea- 
sonable, and  his  authority  is  so  high,  that  his  opinion  may  be  accepted 
as  a  standard  one  by  medical  jurists.  But  as  this  subject  has  been 
discussed  elsewhere  in  these  pages  it  need  not  be  pursued  farther 
here.^^ 

788.  A  legal  maxim  of  the  civilians. — To  show,  however,  that  there 
has  not  been  unanimity  among  jurists  on  this  subject  of  presumption 
in  insanity,  it  is  enough  to  recall  a  legal  maxim  of  the  civilians: 
Semel  furiosus,  semper  furiosus  presumitur  et  contrarium  tenenti 
vncumbit  onus  prohandi  sanam  tnentem, — once  a  madman,  a  man  is 
presumed  to  be  always  a  madman;  and  upon  him  holding  the  con- 
trary is  placed  the  burden  of  proving  a  sane  mind.^'  This  is  directly 
•pposed  to  the  teaching  of  the  English  law.  The  doctrine,  moreover, 
will  certainly  not  be  sustained  by  modern  alienists  in  all  its  bearings, 
for  it  goes  to  the  opposite  extreme ;  but  it  is  quite  as  good  a  presump- 
tion in  logic  as  that  of  Anglo-American  jurists.  Pinel,  the  French 
alienist,  stoutly  protested  against  this  maxim  of  the  civilians,  for  it 
seemed  to  him  to  rest  upon  the  popular  error  that  insanity  is  always 
incurable;  but  Morel  defended  the  wisdom  of  this  principle.  He 
held  that  the  rationality  of  an  isolated  act  is  not  sufficient  to  prove 
the  sanity  of  an  individual  supposed  to  be  insane.  If  this  principle, 
he  says,  had  penetrated  more  deeply  into  the  spirit  of  modern  laws, 
we  should  not  see  so  many  testaments  referred  to  lucid  intervals 
merely  because  their  dispositions  did  not  suggest  that  the  testators 
were  of  unsound  mind.  In  spite  of  Morel,  however,  the  best  rule 
w^ould  seem  to  be  not  to  rely  too  confidently  on  presumptions,  but  to 
study  individual  cases  entirely  on  the  evidence.  If  there  is  any  pre- 
sumption, it  should  go  with  the  preponderance  of  proof. 

789.  Every  case  must  be  studied  by  itself. — From  the  medical  stand- 
point it  is  obviously  impossible  to  lay  down  positive  rules  for  the  de- 
termination of  all  cases.  Every  case  must  be  studied  by  itself.  The 
matter  to  be  determined  in  any  individual  case  is  whether  the  victim 
of  periodical  insanity  has  fully  recovered  from  the  last  attack,  and 
is  not  suffering  with  any  of  the  prodromal  symptoms  of  the  attack 

"^Waring  v.   Waring,   6  Moore,   P.  C.  4!)(),  ante. 
C  341,  12  Jur.  947.     See  also  an  opin-        "'  Morel,   Traite   de   Medecine   Legale, 

ion    by   Chancellor    Harrington,    Frazer  p.    70.      Morel    discusses    in    detail    the 

V.  Frazer,  2  Del.  Ch.  260.  civil,  or  Roman,  law  in  its  relations  to 

™  Chapter  on  "Lucid  Intervals,"  page  lunacy. 


694  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  789 

^vhich  is  next  to  follow.  In  a  case  of  alleged  crime  the  precise  mo- 
ment when  the  act  was  committed  must  be  studied  with  reference  to 
the  preceding  and  succeeding  attack,  and  it  must  never  be  forgotten 
that  many  of  these  periodical  lunatics  display  the  symptoms  of  a 
more  or  less  enduring  alienation  all  through  the  so-called  lucid  inter- 
val. In  other  words,  the  term  "lucid  interval"  as  applied  to  some  of 
them  is  a  misnomer.  This  fact  is  well  known  to  alienists.  The 
symptoms  are  too  multifarious  to  be  marshaled  in  detail  here. 

790.  Amongf  the  more  common  symptoms  are  insane  impulses. — 
These  may  persist  as  residua  of  the  former  attack,  or  they  may  ap- 
pear as  forerunners  of  the  next  seizure.  An  impulsive  criminal  act» 
committed  by  a  periodical  maniac  or  melancholiac,  would  raise  a  pre- 
sumption (to  use  the  legal  term)  in  the  mind  of  an  alienist  that  the 
person  was  insane;  and  by  any  system  of  logic  this  presumption 
would  be  more  valid  than  the  legal  presumption  that  he  was  sane.  A 
presumption  is  only  an  inference  based  upon  the  law  of  probabilities 
or  averages,  and  this  law^  in  such  a  case  would  be  in  favor  of  insanity. 

Such  impulses  may  lead  to  homicide,  suicide,  theft,  or  malicious 
mischief.  Sankey-^  relates  a  case  of  sacrilege  committed  in  Maryle- 
bone  church  under  mysterious  circumstances.  One  of  the  attendants 
at  Hanwell  asylum  immediately  suspected  a  patient  who  had  recently 
been  discharged  in  a  "lucid  internal."  Investigation  proved  the  sus- 
picion well-founded,  and  the  patient  was  convicted  and  sent  to  Broad- 
moor asylum  for  the  criminal  insane.  This  attendant  was  a  good 
diagnostician :  his  method  was  based  upon  an  intimate  knowledge  of 
the  patient.     There  is  no  other  method  that  is  sound. 

791.  But  the  criminal  acts  of  the  periodical  insane  have  no  special 
characteristics. — That  is  to  say,  their  criminal  acts  do  not  differ  from 
those  committed  by  ordinary  maniacs  or  melancholiacs.  An  excep- 
tion may  be  seen,  possibly,  in  those  cases  in  which  repeated  attacks  of 
insanity  have  impaired  the  brain  permanently,  and  left  the  patients 
in  a  state  of  chronic  lunacy,  with  perversion  of  the  moral  sentiments. 
Such  patients  may  present  a  superficial  resemblance  to  paranoiacs,  or 
monomaniacs;  but  in  fact  they  are  not  real  paranoiacs.  There  is 
not  the  same  profound  impress  on  character  and  conduct  that  we  see 
in  the  monomaniac;  not  the  same  systematized  delusions,  and  not  the 
same  logic  and  coherence  in  defending  delusions  and  living  up  to 
them.  The  chronic  lunatic,  especially  in  circular  insanity,  may 
somewhat  resemble  the  cases  of  so-called  moral  insanity.  He  may 
be  plausible,  but  erratic,  unreliable,  and  with  a  twist  in  his  moral 

*0p.  cit.  p.  173. 


§  791]  PEKIODITAL   INSANITY.  (i«5 

nature  which  only  those  who  know  him  well  can  sufficiently  estimate. 
Tf  such  defects  are  due  to  the  damage  which  his  brain  has  sustained 
from  repeated  attacks  of  disease,  he  is  not  in  a  normal  state,  nor  fully 
responsible.^^ 

792,  Suicide  and  homicide  in  periodical  insanity. — Clouston  says 
that  suicide  is  not  so  common  in  circular  insanity  as  in  ordinary  mel- 
ancholia. It  is,  however,  very  common  in  periodical  melancholia. 
These  patients  are  not  naturally  homicidal,  or,  at  least,  not  deliber- 
ately so,  as  a  rule.  Exceptions  may  occur  in  patients  who  commit 
impulsive  acts  of  violence,  and  in  melancholiacs  who  commit  murder, 
as  elsewhere  stated,  in  response  to  their  delusional  ideas  and  emo- 
tional depression.  In  considering  any  question  of  responsibility  in 
a  patient  who  is  subject  to  recurring  attacks  of  insanity,  if  a  doubt 
exists,  it  might  be  well  to  recall  the  rule  of  the  ancient  jurisconsults : 
if  it. is  doubtful  whether  an  act  was  committed  in  a  time  of  insanity 
or  in  a  lucid  interval,  the  presumption  is  in  favor  of  its  having  been 
done  in  a  time  of  insanity.^*'  This  is  a  safe  rule  for  an  expert  wit- 
ness to  adopt,  because  it  accords  with  the  probability  of  science.  If 
it  were  rejected  in  an  American  court,  the  inference  would  be  that 
the  modern  courts  are  not  as  inclined  to  a  liberal  interpretation  as 
were  the  ancient  tribunals ;  and  while  it  is  incumbent  on  an  expert  to 
respect  the  law,  it  is  not  imposed  upon  him  to  subordinate  his  judg- 
ment in  a  matter  of  fact. 

793.  The  period  of  transition  from  one  attack  to  another  is  not  neces- 
sarily a  "lucid  interval." — In  circular  insanity  the  short  interval  be- 
tween the  mania  and  melancholia  is  rarely  of  such  a  character  that 
it  can  be  called  a  "lucid  interval."  It  is  merely  a  period  of  transi- 
tion from  one  phase  of  disease  to  another,  and  is  sometimes  very 
brief.  It  has  been  known  in  some  cases  not  to  last  longer  than  a 
night.  Consequently  the  gravest  doubt  would  arise  as  to  the  sanity 
of  any  patient  in  this  interval,  in  the  event  of  his  committing  crime. 
In  the  longer  interval  which  separates  one  attack  from  the  other,  and 
completes  the  cycle,  the  restoration  to  normal  health  is  much  more 
evident;  but  even  here  there  is  often  left  the  evidence  of  mental 
impairment.  "^^ 

^  Ritti,   in  his  Traite  Clinique  de  la  '"■  For  various  opinions  on  "lucid  inter- 

Folie    a    Double    Forme,    has    discussed  vals"  see  Reg.  v.   Broolcs,  6  Cox  C.   C. 

many  medico-lejjal   cases,  but  the  book  149;  Haslam,  Med.  Jurisp.  p.  224;  Reid, 

is  not  readily  obtained  in  America.  Hypochondriacal  and  Other  Nervous  Af- 

^^  "Si    dubitatur    quo    tempore    dolin-  fections,  21st  essay;  Combe,  Mental  De- 

querit,  an  tempore  furoris,  an  tempore  rangement,  p.  241 ;   Cartwright  v.  Cart- 

sanffi  mentis,   in   dubio  est  potius  quod  icright,    1     Phillimore,    90;    Ray,    Med. 

delinquerit    tempore    furoris." — Farina-  Jurisp.  of  Insanity,  5th  ed.  Chap.  XV., 

rius,  Quaest.  XCVIII.  8.  with  numerous  references. 


CHAPTER  XXXIX. 

HYPOCHONDRIA, 

I.  The  medical  aspects  of  hypochondria. 

794.  The  term  defined. 

795.  Hypochondria  and  melancholia. 

796.  Hypochondria  and  neurasthenia. 

797.  Hypochondria  and  paranoia. 

798.  Various  forms  of  hypochondria. 

799.  Sexual  hypochondria. 

II.  The  medico-legal  aspects  of  iiypochondkia. 

800.  Hypocliondria  and  suicide. 

801.  Errors  in  diagnosis. 

I.  The  medical  aspects  of  hypochondeta. 

794.  The  term  defined. — This  is  a  very  old  term  in  medicine,  and  is 
derived  from  the  Greek  words 'u;r6.  under,  and  yhvdpoe:,  a  cartilage, — 
meaning  the  upper  region  of  the  abdomen,  beneath  the  cartilaginous 
borders  of  the  ribs,  where  the  disease  in  question  was  supposed  to 
have  its  origin.  The  term,  in  fact,  is  so  venerable  and  so  familiar 
from  common  usage,  that  it  seems  to  demand  notice  here,  although 
there  are  good  writers  who  do  not  regard  hypochondria  as  a  dis- 
tinct mental  disease.  The  essential  feature  of  this  affection  is  a  mor- 
bid fear  of,  or  a  delusional  belief  in  the  existence  of,  some  bodily 
disease.  It  is  thus  rather  a  symptom  of  other  diseases  than  a  dis- 
tinct disease  in  itself.  It  may  be  seen,  for  instance,  and  often  is 
seen,  in  melancholia ;  also  in  paranoia ;  and  again  in  some  forms  of 
neurasthenia.^ 

795.  Hypochondria  and  melancholia. — In  melancholia,  as  we  have 
already  seen,  it  is  not  uncommon  for  hypochondriacal  delusions  to  oc- 
cur.     In  fact,   to   distinguish   a   hypochondriacal   delusion   from    a 

*  One  of  the  early  writers  on  these  and  of   ascribing   too   much   to   the   alleged 

kindred  topics  was  Tissot   (Diseases  In-  cause.     In  the  cases  of  Tissofs  scholars 

cjdent  to  Literary  and   Sedentary  Per-  and  literati  every  ache,  every  symptom, 

sons,     translated      from      the      French,  is   to  be  ascribed  to   their   occupations. 

1769).     "This  essay  is  elegant  in  style  The   stone   in  the  bladder   is  with   hira 

but   not   always   convincing   in   matter,  a   concretion   of   learning." — 20th   Cent 

because  it  has  the  still  prevailing  fault  Pract.  of  Med.  Vol.  III.  p.  312. 

696 


S  795]  HYPOCHONDRIA.  697 

purely  melaiicliolic  delusion  is  not  always  easy;  and  yet  we  do  not 
quite  agree  with  Savage^  when  he  says  that  there  is  no  essential  dif- 
ference between  the  man  who  is  always  considering  the  state  of  his 
digestion  and  the  man  who  is  always  considering  the  state  of  his  mind. 
There  may  be  very  different  emotions  in  these  two  states,  for  the  mel- 
ancholy patient,  as  we  have  taken  pains  to  explain  elsewhere,  has  a 
sense  of  personal  unworthiness,  and  this  is  not  essential  in  pure  hypo- 
chondria. A  man  who  believes  that  his  bowels  are  occluded  may  be 
in  great  distress  of  mind  over  it,  but  he  has  not  necessarily  the  bad 
opinion  of  himself  (the  self -hatred)  which  poisons  the  soul  of  the 
melancholiac. 

796.  Hypochondria  and  neurasthenia. — In  neurasthenia  it  is  not  un- 
usual for  hypochondriacal  notions  to  exist.  In  this  state,  however, 
these  notions  are  usually  based  on  subjective  symptoms  of  pain  and 
weakness,  which  may  not  be  without  some  foundation.  Neither,  as 
a  rule,  do  they  assume  the  elaborate  and  systematized  form  which  we 
see  in  the  genuine  delusions  of  hypochondria.  But  morbid  dreads 
and  morbid  impulses  are  sometimes  distinctly  hypochondriacal  in 
tone ;  as,  for  instance,  in  the  case  of  the  obsessions  described  else- 
where. Thus,  mysophobia,  or  a  dread  of  contamination,  if  not  iden- 
tical with,  is  at  least  not  remote  from,  hypochondria.  The  one  is 
a  fear,  the  other  a  belief. 

797.  Hypochondria  and  paranoia. — In  paranoia,  or  monomania,  the 
false  beliefs  which  are  so  common  in  the  persecutory  stage  may  as- 
sume a  hypochondriacal  form,  as  Spitzka^  has  pointed  out.  We  have 
then  a  condition  of  hypochondriacal  monomania.  The  patient  be- 
lieves that  he  is  beset  with  bodily  ailments,  or  with  vermin,  which  he 
feels  crawling  over  him ;  or  that  he  has  an  animal  inside  of  him ;  or 
that  he  receives  electric  shocks ;  or  that  his  mind  is  being  drawn^i  off, 
or  his  semen  taken  from  him.  These  things  may  in  time  be  ascribed 
to  his  enemies,  and  form  an  important  part  of  the  persecutory  de- 
lirium.* 

798.  Various  forms  of  hypochondria. — Thus  there  are  various  grades 
and  combinations  of  hypochondriasis,  from  the  mere  morbid  fear  of 
disease  up  to  the  confirmed  belief  in  the  existence  of  it.  There  are 
also  some  special  varieties.  For  instance,  there  may  be  a  morbid 
dread  of  syphilis,  or  "syphiliphobia;"  of  hydrophobia,  or  "lysso- 
phobia;"  and  of  the  loss  of  semen,  or  "spermatophobia."     In  all 

'  "Hypochondriasis  and  Insanity,"  in  *  Krafft-Ebing,  Traits  de  Psychiatric, 
Tuke's  Dictionary  of  Psych.  Med.  traduit  par  Laurent,  pp.  60G-608. 

•Insanity,  1883,  p.  316. 


698;  INSANITY— 1< OHMS  AND  MEDICO-LEGAL  ASPECTS.  [§  798 

these  cases  there  is  one  underlying  mental  state, — a  morbid  appre- 
hension of  bodily  impairment  or  infection. 

The  reaction  of  the  patient  to  this  morbid  state  varies  according  to 
the  intensity  of  the  conviction.  Some  hypochondriacs  pursue  their 
ordinary  lives ;  others  are  completely  immersed  in  their  fears,  and 
become  radically  insane.  Suicide  is  sometimes  caused  by  the  mental 
disorder. 

799.  Sexual  hypochondria. — A  noteworthy  form  of  hypochondria  is 
that  which  affects  the  sexual  functions.  In  young  men  it  is  not  un- 
usual for  morbid  ideas  to  center  upon  the  generative  organs.  These 
individuals  are  often  the  victims  of  charlatans ;  of  the  advertising 
quacks  who  profess  to  restore  "lost  manhood."  They  become  pos- 
sessed of  the  idea  that  they  have  injured  themselves  by  self -abuse  or 
by  sexual  excesses ;  that  they  are  constantly  losing  their  semen,  and 
that  they  will  become,  if  they  have  not  already  become,  hopelessly  im- 
potent. These  cases  are  to  be  distinguished  from  the  religious 
fanatics  who  mortify  themselves  in  the  flesh  for  their  souls'  welfare, 
and  who  in  some  instances  emasculate  themselves  from  pious  motives. 
The  hypochondriac,  too,  may  mutilate  himself,  but  it  is  to  prevent 
himself  from  wasting  away.     (Ante,  §  657.) 

Under  the  influence  of  these  conceits  the  patient  sometimes  becomes 
sexually  impotent  from  mere  worry.  Such  is  the  influence  of  mind 
upon  body,  such  the  powder  of  the  imagination,  that  the  youthful 
bridegroom  has  been  known  to  approach  the  nuptial  night  with  fear 
rather  than  joy.^  In  some  cases  this  morbid  sexual  introspection  has 
disastrous  results ;  and,  as  Savage  has  remarked,  is  the  cause  of  sui- 
cide either  just  before  or  soon  after  marriage."'* 

•  John  Hunter,  in  his  Treatise  on  the  course   on   the   sexual    life,   not   forget- 
Venereal    Disease,    Phila.    1818,    p.    186,  tins?  the  hypochondriacal  side  of  it. 
lias  an  excellent  chapter  on  "Impotence        IJurns  has  referred  to  the  same  sub- 
Depending  on   the  iVIind,"   in  which   he  ject.    and    attributes    all    such    mishaps 
relates  how  he  cured  a  man  by  making  to  the  Devil : 

him  promise  that  when  he  retired  with  "Thence,    mystic   knots    make    great   abuse 

the  woman  of  his  choice  he  would  make  On  young  guidman,  fond,  keen  an'  croose ; 

no    attempt     for     seven     nights.       This  When    the    best    wark-lume    i'    the    house, 
1            1    A.                   i.      «    j-i       1,    „^„i  ^„  Ky  cantraip  wit, 

changed    the   current   of   the   hypochon-  jg  instant  made  no  worth  a  louse, 
driac's   ideas;    he   began   by   fearing   he  Just  at  the  bit." 

could    not    keep    his    promise,    and    he  — Address  to  the  Deil. 

ended  probably  by  breaking  it.     It  was        5*  Insanity.   1884.   Chap.   VI.   p.    128; 

a  permanent  cure.  also  p.  3G2.     The  so-called  "post-connu- 

Montaigne,  in  his  essay  "U'pon  Some  bial"    insanity    may    occasionally  be  of 

Verses  of  Virgil,"  has  given  us  a  dis-  this  type. 


5  800]  HYPOCHONDRIA.  699 

II.  The  medico-legal  aspects  of  iiYrocnoNDKiA. 

800.  Hypochondria  and  suicide. — Suicide,  as  already  said,  may  be 
the  last  resort  of  the  hypochondriac ;  but  this  subject  has  already  been 
discussed  under  the  head  of  "Melancholia"  (ante.  Chapter  XXXIII.). 
As  an  element  in  paranoia,  especially  in  the  persecutory  stage,  and  as 
giving  a  tinge  to  the  obsessions  of  the  neurasthenic,  the  subject  has 
also  been  discussed  under  those  heads. 

801.  Errors  in  diagnosis. — Errors  in  diagnosis,  which  might  lead  to 
^[uestions  of  malpractice,  may  occur.  Thus,  a  patient  may  complain 
')f  discomfort  or,  pain  within  the  body,  and  become  apparently  quite 
liypochondriacal,  without  anything  being  discoverable  to  account  for 
his  condition.  He  is  set  down  as  a  mere  hypochondriac;  but  in  time 
>ome  organic  disease  shows  itself,  and  vindicates  his  complaints. 
Allbutt^  relates  the  case  of  a  man  who  thus  became  quite  hypochon- 
driacal about  a  pain  in  the  rectum,  for  which  no  one  could  find  a 
<-ause;  but  in  time  real  disease  appeared,  to  the  confusion  of  his 
'loctors.  It  is  well  to  be  cautious  in  making  a  diagnosis  of  hypochon- 
.Iria.^ 

•' Syst.  of  Med.  Vol.  IX.  p.  155.  laily  appeal  to  an  ignorant  and  credu- 

'  The  belief  in  witches  was  doubtless  lous    hypochondriac.     Sexual    impotence 

often    associated    with    hypochondriacal  was     especially    one     of   the   devices   of 

ideas.     I^ecky      (History     of     European  witches.     To     administer     love     potions 

Morals,  Vol.  I.,  chapter  on  "Magic  and  was  illegal  according  to  Roman  law, — 

Witchcraft")      points     out     how     every  an     evidence     of   the   ancient    prejudice 

strange  and  unaccountable   disease  was  against     magic.      (See    the     article     on 

regarded  as  the  result  of  the  malice  of  "Witchcraft"  in  the  Encyclopedia  Brit- 

a  sorcerer.     Such  ideas  would  particu-  annica.) 


CHAPTER  XL. 

THE  INSANITIES  ASSOCIATED  WITH  THE  GREAT  NEUEOBES. 

I.  In  general. 

802.  The  chief  neuroses. 
II.  Hysterical  insanity. 

803.  The  curious  origin  of  the  term  "hysteria." 

804.  The  sjinptoms  of  hj'steria  are  of  two  kinds. 

805.  The  inter-paroxysmal  symptoms. 

806.  Hysteria  in  the  Middle  Ages. 

807.  The  paralyses  caused  by  hysteria. 

808.  Otner  bodily  symptoms. 

809.  The  paroxysmal  symptoms  of  hysteria  are  those  which  occur  in  con 

vulsive  attacks. 

810.  The  hysterical  tit  has  several  stages. 

III.  The  medico-legal  aspects  of  hysterical  insanity. 

811.  Hysterical  patients  are  impressionable. 

812.  Hysteria  and  suicide. 

813.  Hysteria  and  hypnotism. 

814.  The  power  of  suggestion  is  a  form  of  undue  influence. 

815.  Vulgar  errors  about  hysteria. 

816.  Hysteria  is  not  the  same  as  simulation. 

817.  Hysteria  is  not  moral  insanity. 

IV.  The  insanity  of  ciioeea. 

818.  A  brief  description  of  St.  Vitus'  dance. 

819.  The  mental  disorder  in  chorea. 

820.  Fatal  cases  may  occur. 

821.  Chronic  insanity  is  not  common  after  chorea. 

V.  The  medico-legal  aspects  of  the  insanity  of  chorea, 

822.  The  mental  disorder  is  mild  in  most  cases. 

823.  Grave  cases  may  occur. 

824.  Hereditary  chorea. 

VI.  The  mental  symptoms  of  neurasthenia. 

825.  Neurasthenia  is  a  term  introduced  by  Beard. 
82G.  Fixed  ideas,  morbid  impulses,  or  obsessions. 

827.  Varieties  of  obsessions. 

828.  The  insanity  of  doubt. 

829.  Morbid  fears  are  numerous. 

830.  Mysophobia  is  a  type. 

831.  A  true  form  of  impulsive  insanity. 

832.  Criminal  impulses,  such  as  kleptomania  and  pyromania. 

833.  Suicidal   and  homicidal  impulses  take  the  form,  in  some  cases,  of 

genuine  obsessions. 

834.  A  critical  analysis  of  obsessions. 

700 


9  802]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  701 

835.  The  intelligence  may  be  afl'ected. 

836.  The  pathological  nature  of  obsessions. 

837.  Their  resemblance  to  hallucinations. 
VII.  The  medico-legal  aspects  of  obsessions. 

838.  Obsessions  are  involuntary. 

839.  They  are  without  motive. 

840.  They  are  persistent. 

841.  Obsessions  are  not  ordinary  criminal  impulses. 

842.  These  cases  seldom  come  before  the  courts. 

843.  The  legal  prejudice  against  irresistible  impulses. 

844.  Irresistible  impulse  is  a  valid  defense. 

845.  This  defense  must  be  closely  scrutinized. 

846.  This  subject  is  not  treated  uniformly  in  the  courts. 

847.  Irresistible  impulse  may  be  simulated. 

848.  Homicide  is  rare  as  a  result  of  obsessions. 

849.  All  insane  impulses  are  not  obsessions. 

850.  Dogmatic  statements  on  this  subject. 

851.  Is  dipsomania  an  obsession? 

852.  Sexual  perversions  in  this  connection. 

I.  In  general. 

802.  The  chief  neuroses. — There  are  certain  important  nervous  dis- 
«ases,  widely  spread,  which  are  called  the  "neuroses."  The  chief  of 
rliese  are  epilepsy,  hysteria,  chorea,  and  neurasthenia.  They  are 
<,'alled  "neuroses"  because  they  are  still  included  in  the  class  of  func- 
tional diseases, — i.  e.,  diseases  which  have  no  recognizable  anatomical 
basis.  They  are  not,  properly  speaking,  examples  of  insanity,  but 
they  often  entail  such  grave  disturbance  of  the  mental  functions  that 
insanity  of  various  types  is  associated  with  them  or  results  from 
them.  The  most  important,  from  a  medico-legal  standpoint,  is  un- 
doubtedly epilepsy ;  and  this  disease  is  therefore  considered  in  a 
chapter  apart.     The  others  will  be  considered  here  in  brief  detail. 

11.  Hysterical  insanity. 

803.  The  curious  origin  of  the  term  "hysteria." — Hysteria*  was 
named  by  the  Greeks  more  than  two  thousand  years  ago,  from  the 
Greek  word  meaning  the  womb  {uaripa).  It  was  believed  that  the 
disease  had  its  origin  in  that  organ.  Hippocrates  taught  that  hysteri- 
cal symptoms  were  caused  by  the  ascent  of  the  womb  against  the  liver 
and  diaphragm.     This  fanciful  doctrine  of  the  wandering  womb  waa 

*  Text-Book  of  Nerv.  Dis.  edited  by 
Dercum;  art.  "Hysteria,"  by  Lloyd, 
p.  87. 


702  INSANITY— !■  OHMS  AND  MEUICO-LEGAL  ASPECTS.  [§  803 

also  held  by  Plato,  who  wrote  that  the  womb  is  an  animal  which  de- 
sires ardently  to  engender  children ;  when  it  remains  sterile  it  controls 
itself  with  difficulty;  it  is  indignant;  it  wanders  about  the  body,  ob- 
structing the  air-passages,  arresting  respiration,  throwing  the  body 
into  extreme  dangers,  and  causing  diverse  maladies.^  Aretseus  ac- 
cejDted  this  incredible  doctrine.  For  him  the  womb  was  an  animal 
within  an  animal,  enjoying  delicate  odors ;  it  could  be  driven  do^vn 
by  presenting  fetid  odors  to  the  nose,  and  driven  up  by  presenting  the 
same  odors  to  the  vulva.  This  opinion,  unworthy  of  an  untutored 
savage,  controlled  practice  down  to  the  Middle  Ages.  It  is  needless 
to  say  that  such  theories  have  long  since  been  exploded.  Hysteria  is 
now  uniformly  regarded  as  a  disease  of  the  nervous  system ;  it  is  not 
confined  to  women,  but  is  often  seen  in  men  and  in  children.  Yet 
even  to  this  day  there  remains  a  trace  of  the  old  doctrine,  and  the 
opinion  still  prevails  that  hysteria  is  in  some  way  associated  with  dis- 
orders of  the  sexual  system.     It  is  not  necessarily  so. 

804.  The  symptoms  of  hysteria  are  of  two  kinds. — They  are  convul- 
sive, or  paroxysmal,  and  those  that  occur  between  or  independent  of 
convulsions, — the  inter-paroxysmal. 

805.  The  inter-paroxysmal  symptoms. — These  symptoms  may  en- 
dure for  a  long  period,  and  may  closely  simulate  organic  diseases. 
Among  the  commonest  are  various  forms  of  paralysis,  such  as  hemi- 
plegia, or  paralysis  of  one  side ;  paraplegia,  or  paralysis  of  both  lower 
limbs ;  and  monoplegia,  confined  to  one  limb.  There  may  also  be 
contractures  and  tremors,  while  on  the  sensory  side  are  various  losses 
of  sensation,  varying  greatly  in  extent  and  location.  The  internal 
organs  may  be  affected ;  there  may  be  extreme  rapidity  of  the  respira- 
tion, also  of  the  heart's  action ;  aphonia,  or  loss  of  voice ;  and  anuria, 
or  inability  to  pass  water.  The  eyes  are  variously  affected,  especially 
in  the  extent  of  the  visual  fields.  Xeuralgic  and  hypersensitive  zones 
are  found,  especially  over  the  region  of  the  ovaries.  The  symptoms 
of  hysteria,  indeed,  are  multiform  and  often  perplexing;  they  may 
come  on  suddenly,  endure  for  long  periods,  closely  simulate  organic 
diseases,  and  then  disappear  quite  as  suddenly  as  they  came.  They 
are  often  called  stigmata,  or  marks  of  the  disease;  and  the  name  is 
not  inapjjropriate. 

806.  Hysteria  in  the  Middle  Ages.^vfe — Puring  the  Middle  Ages  the 
loss  of  sensation,  or  spots  of  anesthesia,  played  a  conspicuous  role. 
As  the  "marks  of  the  Devil"  (stigmata  diaholi)  these  spots  had  been 

'TimfTus.  p.  568,  Works  of  Plato,  2i  Lfcky,  Rationalism  in  Europe,  VoL 
tninslntc'l  by  Taylor,  London,  1804.  I.  Chfip.  1. 


§  S06]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  703 

noted  and  described  by  churchmen  as  far  back  as  the  time  of  Tertul- 
lian,  and  they  served  their  purpose  for  centuries  as  the  distinguishing 
marks  of  witches,^  It  had  been  noted  that  witches  and  those  pos- 
sessed of  evil  spirits  had  areas  of  anesthesia  in  which  the  prick  of  a 
needle  w^s  not  felt  and  did  not  draw  blood.  In  epidemic  hysteria, 
excited  hj  witchcraft  crazes,  the  poor  wretches  who  displayed  these 
sensory  stigmata  were  too  often  doomed.  This  fact  alone  refutes 
those  who  tell  us  that  hysteria  is  always  a  simulated  disease,  or  one 
which  it  is  in  the  power  of  the  patient  to  control.  Most  ingenious 
methods  were  taken  by  experts  to  detect  these  signs,  which,  far  from 
being  simulated,  were  disguised  by  the  unhappy  victim.  In  some 
cases,  it  is  significant,  the  sorceresses  had  no  consciousness,  until  they 
were  detected,  that  they  had  these  signs.  How  different  all  this  ap- 
pears from  wdiat  would  have  been  the  case  if  these  symptoms  were,  as 
some  modern  Avriters  assert,  always  unreal.* 

807.  The  paralyses  caused  by  hysteria. — Of  even  more  importance 
in  modern  times  are  the  various  kinds  of  paralysis  which  may  be- 
come obstinately  fixed  in  hysteria.  These  are  sometimes  the  results 
of  injuries  and  fright,  and  they  not  infrequently  figure  in  the  courts 
in  suits  for  damages.  They  may  be  associated  with  contracture, 
rigidity,  and  pain,  and  thus  resemble  grave  surgical  conditions,  as 
hip-joint  disease.^  The  contractures  are  so  severe  in  some  cases  as 
to  seriously  embarrass  the  patient.  I  once  had  under  observation  in 
the  Philadelphia  Hospital  a  young  woman,  a  Russian  Jewess,  who 
walked  entirely  on  her  toes  because  of  hysterical  contracture  of  the 
calf-muscles.  In  another  case,  a  seamstress,  the  arm  was  contract- 
ured  and  held  firmly  against  the  side,  effectually  preventing  the  pa- 
tient from  doing  her  work.  In  still  another  case,  a  young  woman 
was  bed-fast  for  weeks,  unable  to  move  her  limbs  below  the  hips,  or  to 
void  her  urine.  The  duration  of  some  cases  of  contracture  is  ex- 
traordinary, and  far  beyond  what  would  be  possible  by  volition. 
Moreover,  there  is  no  sense  of  fatigue,  a  fact  which  indicates  that 
the  muscles  are  not  kept  rigid  by  voluntary  action.  Under  ether  the 
contracture  relaxes  promptly  and  comjDletely,  but  it  is  likely  to  re- 
turn as  promptly  when  the  patient  wakes.  In  one  curious  state, 
known  as  astasia-abasia,  the  patient  walks  with  a  staggering,  inco- 
ordinate gait,  almost  like  a  drunken  person.^  I  have  seen  such  a  case 
in  a  young  woman,  caused  by  fright. 

^  Tourette,  Traite  de  rHysterie,  Paris.  '  Richer,    Paralyses    et    Contractures 

1891.  p.   128.  llysteriqiies. 

*  Am,  Text-Book  of  Nerv.  Dis.  loc.  cit.  '' Blocq,    Siir    une    Affection    Charac- 

p.  107.  torisee  par  de  I'Astasie  et  de  I'Abasie. 


704  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  80o 

808.  Other  bodily  symptoms. — When  the  heart  and  respiration  are 
affected,  the  case  may  resemble  one  of  organic  disease;  in  one  such 
case,  great  rapidity  of  breathing  came  on  after  a  surgical  operation.'^ 
Hysterical  aphonia,  or  loss  of  voice,  may  persist  for  weeks,  or  even 
for  years,  the  patient  not  being  able  to  speak  above  a  whisper.  Weir 
MitchelP  had  such  a  case  in  a  lady  who  talked  aloud  in  her  sleep, 
and  awakened  herself  with  the  unusual  sound  of  her  own  voice ;  but 
when  she  became  fully  awake  she  was  again  aphonic.  Persistent  cough 
is  sometimes  one  of  the  symptoms  of  hysteria.  It  is  a  peculiarly  ex- 
asperating cough  to  those  who  are  obliged  to  hear  it,  but  it  does  not 
particularly  harass  the  patient.  Persistent  vomiting,^  sometimes 
along  with  great  emaciation,  may  be  seen  in  hysteria;  also  the  con- 
dition known  as  "merycism,"  or  chewing  the  cud.  This  is  a  pure 
neurosis,  or  nervous  habit. 

809.  The  paroxysmal  symptoms  of  hysteria  are  those  which  occur  in 
convulsive  attacks. — These  symptoms  constitute  what  is  known  as  the 
hysterical  fit. 

The  hysterical  comTilsion,  as  usually  described,  has  four  stages. 
Beforehand,  however,  there  are  warnings,  or  prodromes,  of  the  ap- 
proaching seizure.  These  prodromes  are  mental.  The  patient  pre- 
sents a  change  of  character.  She  is  no  longer  able  to  apply  herself 
to  her  accustomed  work;  she  cannot  concentrate  her  mind.  She  is 
abstracted,  self-centered,  depressed.  She  shuns  society,  and  is  irri- 
table, repellant,  and  not  inclined  to  make  confidences.  These  changes 
show  plainly  the  psychical  nature  of  hysteria :  it  is  a  disease  of  dis- 
turbed cerebration.  As  the  climax  approaches,  the  patient's  emotions 
are  easily  disturbed.  Tears  and  laughter  are  readily  excited,  and  al- 
ternate without  apparent  cause ;  in  fact,  this  loss  of  emotional  balance 
may  usher  in  a  fit.  Hallucinations,  delusional  ideas,  and  disturbed 
dreams  are  common  in  this  prodromal  period.  Thus,  a  lady  under  my 
care  had  nightmares  and  dreams  of  her  scalp  falling  off,  and  these 
were  followed  by  headache.  In  accord  with  the  psychic  disorder  are 
the  neglect  of  dress  and  disregard  of  the  proprieties.  The  mental 
agitation  may  be  so  pronounced  that  it  becomes  maniacal  in  tone; 
the  patient  is  constantly  active,  paces  the  floor,  gesticulates,  utters 
incoherent  and  exclamatory  phrases,  and  seems  to  be  in  acute  mental 
distress.  In  other  cases  there  is  a  melancholy  tinge:  the  patient 
broods  and  is  sluggish  in  both  speech  and  movement.     In  all  that  the 

"Am.  Text-Book  of  Ncrv.  Dis.  loe.  cit.  •Lloyd,   ITvsterioal  Tremor  and  Hys- 

p.  126.  torical  Vomiting,  Am.  -Tourn.  Med.  Sci. 

•Diseases   of  the   Nervous   System    in  Sep.    1893. 
Women,   1885,  p.  213.                 ' 


Case  of  hysteria— (Harriet  B ).     First  stage  under 

hypnotism. 


5  809]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  703 

patient  does  and  says  in  either  case,  the  disturbed  emotions  and  the 
loss  of  will  power  arc  the  conspicuous  phenomena.^*' 

810.  The  hysterical  fit  has  several  stages. — The  first  stage  of  the  hys- 
terical convulsion  is  cpilej^toid ;  i.  e.,  it  resembles  epilepsy,  but  it  is 
not  identical  with  it.  The  patient  falls  convulsed  ;  the  muscles  at  first 
are  rigid,  but  the  rigidity  soon  passes  into  spasms;  consciousness  is 
obtunded,  but  seldom  lost ;  respiration  is  embarrassed ;  sensation  is 
abolished ;  but  the  patient  seldom  hurts  herself,  as  in  epilepsy,  and 
especially,  does  not  bite  the  tongue.  The  attack  subsides  gradually ; 
the  patient  lies  relaxed,  semi-conscious,  perhaps  sleeping. 

The  second  stage  is  one  of  renewed  excitement,  but  not  con\iilsive. 
The  French  call  it  the  period  of  "elownism."  In  it  the  patients  throw 
themselves  into  contortions,  sometimes  the  most  extravagant.  They 
dance,  leap,  throw  themselves  on  the  ground,  and  exhibit  all  sorts  of 
astonishing  feats.  This  stage  is  especially  prominent  in  epidemic 
hysteria,  or  the  hysteria  of  crowds ;  and  can  be  seen  in  camp-meetings 
and  revival  services.  In  the  epidemic  of  St.  Medard  the  movementa 
were  so  extraordinary  that,  as  Briquet  tells  us,  it  was  thought  neces- 
sary to  attribute  them  to  divine  influence.  By  a  reversal  of  the  same 
logic  they  were  attributed  in  some  of  the  brutal  witchcraft  crazes  to 
the  influence  of  the  Devil.  All  the  dances,  contortions,  mimicries, 
and  bizarre  and  grotesque  feats  which  we  read  about  in  those  horrid 
medieval  epidemics,  or  which  we  see  occasionally  at  present  in  the 
devotees  of  emotional  religion,  were  and  are  instances  of  this 
"elownism,"  which  constitutes  the  second  period  of  the  hysterical  fit. 

The  third  stage  is  more  dramatic  or  histrionic;  it  arises  by  insensi- 
ble gradations  from  the  second  stage.  The  French  have  described  this 
third  stage  with  much  attention  to  mimdiw.  According  to  Richer 
the  patient  assumes  passionate  attitudes.  Among  the  most  common 
are  the  attitude  of  the  cross ;  of  defense ;  of  menace ;  of  appeal ;  of 
lubricity ;  of  ecstacy ;  of  dread  of  animals,  such  as  rats ;  of  listening 
to  music ;  of  scorn ;  and  of  lamentation.  These  attitudes  are  the  ex- 
pression of  emotional  states  of  the  mind ;  they  represent  delirious 
ideas  and  hallucinations,  which  by  this  time  have  assumed  complete 
control  of  the  mind.  In  this  stage,  therefore,  the  patient  has  passed 
into  a  condition  of  mild  delirium ;  she  is  more  truly  in  an  insane,  or 
unsound,  mental  state  than,  in  the  preceding  stages. 

la  the  fourth  period  this  character  of  mental  alienation  is  still  more 
pronounced.     The  delirium  may  be  extreme;  and  in  severe  cases  this 

"  Am.   Text-Book   of   Nerv.   Dis.    loc 
cit.  pp.  98,  99. 

Vol.  I.  Med.  Jur. — 45. 


706  IXSAMTY— FOKAIS  AND  MEDICO-LEGAL  ASPECTS.  [§  810 

may  pass  on  into  states  of  ecstacy,  somnambulism,  catalepsy,  and  Ictli- 
argy.  In  this  extreme  stage  the  hysterical  perversion  is  complete,  and 
some  of  these  patients  become  for  the  time  irresponsibly  insane.  The 
patient  in  somnambulism  or  catalepsy  is  oblivious  of  her  surround- 
ings. This  condition  is,  if  anything,  even  more  pronounced  in  leth- 
argy or  trance.  Patients  have  been  known  to  remain  in  such  states 
for  long  periods,  and  to  defy  for  the  time  all  attempts  at  their  resus- 
citation. Cases  of  trance,  moreover,  have  lost  nothing  in  the  telling. 
Thus,  the  anatomist,  Vasalius,  is  said  to  have  had  a  "subject"  who 
revived  on  the  dissecting  table  at  the  first  stroke  of  the  knife;  and 
Lady  Russell  returned  to  consciousness  at  her  own  funeral. 

III.   The  medico-legal  aspects  of  hysterical  ixsaxity. 

811.  Hysterical  patients  are  impressionable. — Gilles  de  la  Tourette 
has  i3ointed  out  that  the  one  mental  trait  that  most  characterizes  hys- 
teria is  a  proneness  to  receive  morbid  suggestions.  These  suggestions 
may  come  from  without  or  from  within ;  and  when  once  firmly  es- 
tablished in  the  mind,  they  dominate  it  completely,  and  are  not  far 
removed  from  insane  delusions.  They  are  certainly  in  the  nature 
of  fixed  morbid  ideas,  over  which  the  patient  has  lost  control."  They 
may  gain  the  mastery  over  some  motor  or  sensory  nerves,  as  in  paraly- 
sis and  anesthesia ;  and  in  the  more  profound  disorders  they  act  as 
veritable  deliria,  influencing  the  patient's  conduct,  and  perverting  the 
mind,  as  in  the  latter  stages  of  the  grand  attacks.  Among  active 
causes  are  disturbed  emotions  and  physical  injury,  which  act  as 
shocks  to  impair  the  mind,  and  to  fix  firmly  morbid  and  uncontrolla- 
ble ideas.  The  delirious  and  other  perversions  of  the  fourth  stage 
are  evidences  of  a  radical  disorder  of  the  mental  functions.  Impor- 
tance also  attaches  to  the  nocturnal  dreams  and  nightmares  of  these 
patients.  It  is  from  suggestions  prompted  by  these  terrors  of  the 
night  that  a  whole  train  of  hysterical  symptoms  sometimes  dates. 
Under  this  head  come  the  disorders  of  sleep,  such  as  motor  shock.s  and 
palsies,  sensory  disturbances,  hallucinations  of  sight  and  hearing,  and 
even  dreamlike  delusions,  which  often  store  the  mind  with  the  evil 
promptings  of  disease. 

These  morbid  dreams  are  seen  sometimes  in  an  exaggerated  degree 
in  traumatic  hysteria,  the  patient  living  over  again,  night  after 
night,  the  alarming  incident.  Important  medico-legal  questions  may 

'*  Kraepelin,  Lectures  on  Clinical 
Psvoliiatry,  translated  by  Johnstone, 
p.  254.  . 


§  811]         INSANITIES  ASSOCIATED  WITH  GREAT  NEL'ROSES.  707 

arise  with  reference  to  the  hallucinations  and  nightmares  of  hysteria, 
as  well  as  to  the  many  other  morbid  ideas  and  suggestions.  False 
accusations  have  been  made  by  these  patients  while  in  a  true  delusion- 
al state.  An  historic  instance  was  the  witchcraft  epidemic  at  Salem, 
Massachusetts,  in  the  17th  century.  This  epidemic  is  said  to  have 
owed  its  origin  to  some  hysterical  children  in  the  kitchen  of  a  New 
England  puritan  parson ;  and  it  was  supported  in  the  perpetration  of 
some  of  its  greatest  atrocities  by  the  testimony  of  hysterical  per- 
verts.^" 

812.  Hysteria  and  suicide. — Attempts  at  suicide  have  also  been 
prompted  thus ;  and  the  fact  that  they  are  usually  abortive  in  hyster- 
ics is  possibly  because  they  are  merely  reflex  acts  from  an  hallucina- 
tory and  dream-like  state.  The  explanation  usually  given,  that  th(i 
attempts  are  merely  simulated,  is  totally  inadequate  to  explain  the 
exact  motive  prompting  them,  or  the  fact  that  they  are  occasionally 
successful. 

813.  Hysteria  and  hypnotism. — The  hysterical  patient  is  often  an 
easy  victim  to  hypnotism.  The  mental  state,  so  open  to  suggestion, 
is  peculiarly  "hypnoid,"  as  the  French  call  it.  This  subject  has  med- 
ico-legal importance,  and  has  already  figured  in  the  courts.^  ^  The 
most  noted  case  was  doubtless  that  of  Eyraud,  who  was  convicted  in 
Paris  of  murder.  His  accomplice,  a  woman  named  Bompard,  was 
defended  on  the  gTound  that  she  was  an  hysterical  pervert,  and  had 
succumbed  to  hypnotic  suggestion.  Such  a  defense  is  peculiarly 
open  to  abuse,  and  would  probably  be  received  with  great  prejudice, 
even  ridicule,  in  an  American  court;  nevertheless,  it  is  well  to  bear 
in  mind  that  patients  in  profound  hysterical  perversion  are  not  simu- 
lators, but  the  victims  of  a  genuine  malady.  Let  the  word  "hypno- 
tism" be  abolished  in  this  connection  if  it  carries  with  it  the  idea 
of  pretense;  there  will,  nevertheless,  remain  in  hysteria  a  state  of 
delusion,  of  weakness,  of  loss  of  control,  which  cannot  be  abolished 
from  the  domain  of  mental  pathology. 

"See  Lowell's  essay  on  "Witchcraft"  religion  and   society,  that  he  may  per- 

in     Among     My     Books,     p.     143;     also  suade   the   jury   of   Europe   to   bring  in 

Lecky's  chapter  on  "Witchcraft"  in  his  a  verdict  of  guilty."     In  the  hands  of 

History  of  Rationalism  in  Europe.  such  fanatics,  hysterical  perverts  would 

Speaking  of  Bodin,  who  wrote  an  old  be  as  clay  in  the  hands  of  the  potter; 
work  on  Demonomania,  Lowell  says  and  it  is  a  compensation  to  learn  from 
that  "he  loses  sight  of  humanity  Lowell  that  Bodin  himself  lived  to  be 
altogether  in  his  eagerness  to  make  out  accused  of  sorcery.  These  retaliations 
his  case,  and  display  his  learning  in  were  not  uncommon, 
tiie  canon  and  civil  law.  He  does  not  "  Tourette,  L'Hypnotisme  et  les  fitata 
scruple  to  exaggerate,  to  misquote,  to  Analogues  au  Point  de  Vue  Medico- 
charge  his  antagonists  with  atheism,  legal,  Paris,  1889. 
sorcery,   and   insidious   designs   against 


708  INSANITY— POKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  814 

814.  The  power  of  suggestion  is  a  form  of  undue  influence. — It  is  well 
to  recall  also  in  this  connection  that  the  English  law  has  always 
recognized  the  power  of  suggestion,  or  undue  influence,  in  certain  cir- 
cumstances. This  is  so  in  the  case  of  a  wife  who  acts  under  the  coer- 
cion of  her  husband.  In  some  cases,  says  Blackstone,^"*  the  command 
or  authority  of  a  husband,  either  expressed  or  implied,  will  privilege 
the  wife  from  punishment  even  in  capital  offenses.  It  is  difficult  to 
see  wherein  the  principle  of  law  that  excuses  a  wife,  in  her  perfect 
senses,  when  she  acts  at  the  criminal  suggestion  of  her  husband,  is 
more  reasonable  than  the  principle  which  recognizes  the  power  of  sug- 
gestion over  the  disordered  mind  of  an  hysterical  pervert.-'^  And 
the  old  common  law  may  have  had  reference  to  this  state,  for  Black- 
stone,  in  the  same  passage,  compares  the  English  doctrine,  which  is 
at  least  a  thousand  years  old,  with  the  law  among  some  of  the  north- 
ern nations  on  the  continent,  according  to  which  the  privilege  was  ex- 
tended to  any  woman  transgressing  in  concert  with  a  man.^^^ 

815.  Vulgar  errors  about  hysteria. — It  is  a  vulgar  error  to  confuse 
hysteria  with  fraud,  simulation,  and  pretense.  We  read  the  story  of 
the  heroine  of  the  Cock  Lane  ghost;  or  of  some  young  woman 
decked  in  a  bridal  gown,  who  lies  in  bed  and  fasts,  and  is  fed  all 
the  while  by  stealth;  or  of  another  vixen  who  gives  birth  to  frogs, 
and  we  speak  of  them  as  cases  of  hysteria ;  but  they  are  imposters,  not 
hysterics.  Hysteria  may  simulate  many  diseases,  but  it  may  be  sim- 
ulated in  turn.  There  is  no  reason  for  identifying  this  profoundly 
interesting  psychosis  with  the  machinations  of  humbugs  and  charla- 
tans. Besides,  the  simulation  of  hysteria  is  not  an  easy  feat.  The 
simulated  disease  bears  a  counterfeit  stamp,  and  this  can  be  detected 
by  an  expert.  Hysteria  is  a  genuine  malady,  often  imposing  great 
distress  upon  its  victim;  and,  as  Lowenfeld  has  said,  hysterical  per- 
sons often  fulfil  their  duties  well  as  daughters,  wives,  and  mothers. 
There  is  no  ground  for  charging  them  with  fraud,  merely  because  of 
the  bizarre  nature  of  their  malady,  when  that  malady  raises  a  medico- 
legal   question. 

816.  Hysteria  is  not  the  same  as  simulation. — This  criticism  applies 
especially  in  those  cases  in  which  a  bodily  injury  has  been  sustained, 
and  an  hysterical  paralysis,  or  other  hysterical  disorder,  has  resulted. 
Let  it  be  granted  that  such  disorder  is  purely  of  psychic  origin ;  this 

"4  Com.  28.  ^vith    the    legal    principle    of   husband's 

"See  Reg.  v.  Alison,  8  Car.  &  P.  418,  control. 

for  a  curious  instance  of  double  suicide  is^The  subject  of  "undue  induence" 

of  husband  and  wife,  in  which  the  wife  has    been    greatly     elaborated     by     the 

survived,  and  was  acquitted,  in  accord  courts.     See  §  1190i. 


§  816]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  709 

does  not  prove  that  it  is  unreal.  All  the  insanities  are  psychic,  yet 
no  one  will  disi^ute  their  genuineness.  An  injury  that  involves  the 
normal  action  of  the  mind,  and  entails  as  a  result  some  grave  physical 
defect,  such  as  a  paralysis  of  the  arm,  is  a  very  real  injury.  If  it  is 
thought  desirable  to  test  the  involuntary  nature  of  these  stigmata, 
let  the  sceptic  himself  endeavor  to  keep  his  arm  contractured  against 
his  chest  for  a  month,  or  to  walk  on  his  toes  for  an  equal  length  oi 
time,  or  to  present  an  anesthesia  of  his  body  which  can  deceive  ex- 
perts armed  with  ingenious  tests.^* 

Sir  Benjamin  Brodie,  an  eminent  English  surgeon,  who  described 
the  hysterical  affections  which  so  often  simulate  organic  diseases 
of  the  joints,  has  uttered  in  the  form  of  an  aphorism  the  truth  about 
hysteria :  it  is  not  that  the  muscles  do  not  obey  the  will,  but  the  will 
itself  does  not  act.^^     In  other  words,  hysteria  is  a  mental  affection. 

817.  Hysteria  is  not  moral  insanity. — Finally,  it  is  necessary  to  dis- 
tinguish hysteria  from  some  of  the  forms  of  degenerative  insanity ; 
such,  for  instance,  as  the  so-called  moral  insanity  and  paranoia.  The 
word  "hysteria"  has  been  used  indiscriminately,  even  by  alienists, 
for  all  odds  and  ends  of  peculiar  and  perverted  mental  phenomena. 
However  strange  the  case,  it  is  enough  to  call  it  hysterical,  and  all 
is  explained.  Hence  it  is  not  uncommon  to  see  the  stigmata  of  hys- 
teria confused  with  those  of  degeneracy,  or  vice  versa.  We  read  de- 
scriptions of  alleged  hysterics  whose  symptoms  have  been  the  insanity 
of  doubt,  or  morbid  scruples,  or  morbid  impulses,  such  as  mysophobia, 
agoraphobia,  pyromania,  or  kleptomania ;  but  these  are  not  instances 
of  genuine  hysteria,  but  of  degeneracy,  as  Gilles  de  la  Tourette  has 
forcefully  pointed  out.^^ 

IV.  The  insanity  of  chorea. 

818.  A  brief  description  of  St.  Vitus'  dance. — Chorea,  or  St.  Vitus' 
dance,  is  a  disease  of  the  nervous  system  which  is  characterized  by 
a  disorder  chiefly  of  the  motor,  or  neuro-muscular,  apparatus.  The 
patient  is  the  victim  of  disorderly  movements  of  the  muscles  of  the 
face,  limbs,  and  trunk,  which  he  is  quite  powerless  to  control.  These 
movements  are  not  only  involuntary,  but  also  wildly  inco-ordinate ; 

"Reference  is  made  to  the  following  Etat  Mental  des  Ilysteriques,  is  valuable 

works  on  hysteria:     Guinon,  Les  Apjents  in  a  medico-legal  study;   and  Cliarcot'a 

Provocateurs  de  I'Hysterie,  Paris,  1889;  writings,  and  those  of  the  French  school 

Gilles  de  la  Tourette,  Traite  de  I'Hys-  generally,  must  not  be  neglected. 

t§rie,  Paris,  1891 ;  and  the  author's  ar-  ''  Lectures     Illustrative     of     Certain 

tide    on    "Hysteria"    in    the    teat-book  Eocal  Nervous  Aflfections,  I^ndon,  1837. 

edited  by  Dercum.     The  work  by  Janet,  "  Op.  cit.  Chap.  XI. 


710  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§818 

iind.as  they  occur  in  the  face,  tongue,  neck,  trunk,  and  extremities, 
th6j  give  the  patient  a  peculiar  and  distraught  appearance.  These 
movements  are  persistent  during  waking  hours,  usually  cease  during 
sleep,  are  made  worse  by  voluntary  efforts,  and  are  often  associated 
with  or  followed  by  some  weakening  of  the  affected  muscles.-'*  A  true 
paralysis,  however,  is  rare  in  chorea.  The  disease  is  commonly  seen 
in  .childhood  and  adolescence,  but  cases  occasionally  occur  in  adult 
life ;  and  a  very  severe  type  is  sometimes  seen  in  pregTiant  women.^*^ 

Chorea  was  first  described  accurately  by  Sydenham^^  in  the  seven- 
teenth century,  and  since  his  time  it  has  been  widely  studied.  It 
is  often  associated  with  rheumatism ;  and  the  trend  of  opinion  to-day 
is  towards  regarding  it  as  one  of  the  infectious  diseases ;  but  no  dis- 
tinct microbe  has  yet  been  isolated.  From  the  medico-legal  stand- 
point, chorea  has  no  special  importance  except  as  it  may  cause  mental 
symptoms.  ^^ 

819.  The  mental  disorder  in  chorea. — The  mental  symptoms  seen  in 
chorea  are  numerous ;  but  they  are  mostly  included  in  the  forms 
known  as  confusional  insanity  and  delirium.  In  mild  grades  there 
may  be  merely  slight  disorders  in  the  intellectual  and  moral  faculties, 
shown  in  change  of  character,  irritability,  and  emotional  disturbance; 
especially  in  a  tendency  to  depression.  The  memory  is  impaired 
and  the  attention  is  fixed  with  difficulty.  Hallucinations  are  also 
noted,  especially  towards  night,  in  the  period  between  sleeping  and 
M'aking ;  during  the  daytime  they  occur  more  rarely ;  they  involve 
sight  and  licaring ;  especially  the  former.  These  hallucinations  may 
not  :be  associated  with  serious  derangement,  but,  on  the  other  hand, 
they  may  mark  the  onset  of  a  true  delirium.  In  severe  cases  such  a 
delirium  is  sometimes  seen,  and  may  be  a  gTave  complication. 
The  patient  passes  into  a  stage,  of  delirious  or  maniacal  excitement, 
with  all  that  that  term  implies,  and  such  as  has  been  described  else- 
where in  these  pages.  This  delirium,  associated  with  the  extreme  dis- 
order of  the  choreic  movements,  inability  to  take  food,  and  with  con- 
sequent anemia  and  exhaustion,  may  pass  into  a  profound  coma  and 
end  in  death.^^  In  some  cases  chronic  insanity  supervenes,  and  the 
patient  becomes  an  inmate  of  the  asylum.-^  These  grave  cases  are 
especially  dangerous  when  they  develop  during  pregnancy. 

"Camp.   Med.   Bull.   Univ.   of   Ponna.  euin's  Toxt-Book,  p.  250;  Digoy.  Th&ses 

May.  1904.  do  Paris,  1890. 

^  Llovd,   "The  Chorea   of   Pregnancy,"  "  JMarct?,      L':6tat     Mental      dans      la 

in  Hirnt's  System  of  Obstetrics.  Vol.  IT.  Clinr<5e,  Paris,  1S.59.  p.  19. 

p.  590.  =SSdnichardt.    AUg.    Zeit.    f.    Psych. 

"The    entire     Works,     etc.,     London,  1887;     Diller,    Am.    Joiirn.    Med.    Sci. 

170.3:     "Schedula  Monitoria,"  p.  552.  1892. 

*"  Sinkler,  "Chorea  Insaniens,"  in  Der- 


§  820]  INSANITIES  ASSOCIATED  WITH  GllEAT  NEUROSES.  711 

820.  Fatal  cases  may  occur. — Goodell-^  recorded  a  case  of  rapidly 
fatal  chorea  in  a  young  woman  who  was  illegitimately  jiregnant;  it 
required  the  united  aid  of  three  persons  to  control  the  patient  while 
the  obstetrician  gave  the  necessary  attentions.  Fortunately  these 
f ases  are  not  common,  for  in  the  report  of  the  collective  investigation 
by  the  British  Medical  Association  only  one  case  of  delirium  was 
found  in  four  hundred  and  thirty-nine  cases  of  chorea ;  but  all  these 
cases  did  not  occur  in  pregnancy ;  the  chorea  of  pregnancy  would  show 
a  much  larger  proportion  of  cases  with  mental  disorder.^^  In  the  cho- 
rea of  childhood,  cases  of  mania  or  delirium,  followed  by  death,  have 
also  been  seen.-'^ 

821.  Chronic  insanity  is  not  common  after  chorea. — I  have  seen  one 
case  in  the  Pennsylvania  Hospital  for  the  Insane,  in  a  woman  aged 
twenty-five  years,  in  whom  the  St.  Vitus'  dance  developed  soon  after 
the  birth  of  her  first  child.  The  first  symptom  of  insanity  occurred 
when  she  discovered  that  she  was  taking  arsenic  for  her  chorea ;  she 
immediately  conceived  the  delusion  that  her  husband  was  trying  to 
poison  her.  Other  delusions  followed,  as  that  her  children  had  been 
murdered  by  her  husband,  although  she  occasionally  saw  the  children, 
alive  and  well.  She  became  slightly  demented ;  her  memory  was  im- 
paired ;  she  was  confused  and  silly ;  laughed  impulsively  and  w^ithout 
cause,  and  shed  tears.  She  refused  food,  believing  it  to  be  poisoned. 
The  choreic  movements  had  continued  for  some  years;  the  patient 
required  to  be  supported  when  she  walked,  her  limbs  jerking  about 
so  much  that  locomotion  was  almost  impossible.  Her  speech  was  af- 
fected, and  she  could  not  write,  the  pencil  staggering  about  and  final- 
ly flying  from  her  grasp.  The  entire  muscular  system  of  the  head, 
neck,  trunk,  and  limbs  was  contorted  by  a  series  of  jerking  movements 
quite  beyond  her  control.  The  tongue  was  protruded  with  a  jerk, 
and  was  in  constant  irregular  movement.  The  limbs  twitched  about 
when  the  patient  slept.  This  case  showed  the  tendency,  sometimes 
seen  .n  chronic  insanity,  for  a  patient  to  develop  delusions  of  a  more 
or  Ifess  systematized  kind. 

V.  The  medico-legal  aspects  of  the  insanity  of  chorea. 

822.  The  mental  disorder  is  mild  in  most  cases. — Sydenham,  in  his 

-'  A^a.  Journ.  of  Obstetrics,  Vol.   III.  type,    and    the    exhaustion    was    rapid, 

p.  140.  Tlie    patient    had    been    married    seven 

-"B'-iidley      (Am.      Journ.      Insanity,  weeks.      On    autopsy    the    uterus    was 

April    1904,  p.  777)  reports  a  fatal  case  foinid  pregnant,  with  an  embryo  preb- 

of  chorea  insaniens  in  a  youngs  woman,  ably  ten  weeks  old. 

aged  nineteen  years,  of  only  a  few  days'  "  Tuckwell,     "Maniacal     Chorea,"     B. 

diiration.     The  disease  was  maniacal  in  and  F.  Med.  Chi.  Rev.  October.  18G7. 


712  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  822 

original  description,  likened  the  choreic  child  in  some  ways  to  an 
"ideot,"  but  he  had  in  mind  merely  a  superficial  likeness.  In  chorea 
there  is  often  seen  a  certain  weakness,  fatuity,  or  absence  of  mind, 
which  is  but  slight  in  the  majority  of  cases,  and  which  is  probably  a 
mere  secondary  effect  of  the  peculiarly  harassing  symptoms.  But  a 
state  of  mental  weakness  may  be  wrongly  ascribed  to  some  patients, 
and  for  the  following  reason :  the  constant  twitching  of  the  patient's 
muscles,  with  the  grotesque  gestures  and  odd  and  foolish  grimaces, 
quite  involuntary,  but  looking  like  purposive  acts,  gives  to  the  face 
and  deportment  a  semblance  of  imbecility  which  is  misleading. 

823.  Grave  cases  may  occur. — In  the  gTave  cases  of  delirium  and 
confusion  above  referred  to,  the  mental  derangement  is  a  most  serious 
complication,  and  entails  an  entire  loss  of  responsibility.  As  such  pa- 
tients, however,  are  peculiarly  helpless  from  their  physical  disorder, 
they  are  not  likely  to  commit  acts  of  violence,  and,  in  fact,  there  is 
no  case  of  which  I  have  knowledge  that  has  ever  been  the  subject 
of  medico-legal  inquiry.^^  If  such  case  should  occur,  it  would  have  to 
be  judged  as  a  case  of  delirium  or  confusional  insanity,  such  as  i? 
described  elsewhere  in  these  pages.^^ 

824.  Hereditary  chorea.— An  hereditary  form  of  chorea  is  met  with, 
called  Huntington's  chorea.^^  It  rarely  occurs  before  the  age  of 
thirty,  and  it  is  inherited  usually  from  an  immediate  and  direct  an- 
cestor. The  movements,  as  a  rule,  are  more  extreme,  more  rhythmi- 
cal, and  more  inco-ordinate  than  in  the  chorea  of  childhood.  Men- 
tal disorder  is  found  in  all  cases.  The  usual  form  is  melancholia,  with 
suicidal  impulses.  There  are  also  delusions  of  persecution ;  the  pa- 
tients are  suspicious,  unsocial,  even  violent.^^  Still  another  form  of 
chorea  is  associated  with  senile  dementia,  and  is  an  evidence  of  de- 
generative changes  in  the  brain.^^ 

*  Regal   (Ann.  d'Hyg.  Pub.  1873,  2  S.  '^Kraepclin,      L<?eture.s     on      Clinical 

XXXIV.    p.    204)     reported    a    case    of  Psychiatry,  translated  by  Johnstone,  p. 

chorea  that  was  referred  to  him  for  an  254;    Steinon,    Antheil    der    Psyche   am 

expert  opinion  by  the   French  court  at  Krankheitsbied  der  Chorea,  Strasbourg, 

Gaillac.     It  was  the  case  of  a  child  of  1S7.5;    Wells,    Journ.    Ment.    and    Nerv. 

ten   years   who   had   had   an   attack    of  Dis.  1891. 

ordinary    acute    chorea.      The    attempt  ^"  Huntington,    Med.    and    Surg.    Rep. 

was  made  to  prove  that  the  disease  had  April  15,  1872. 

been  caused  by  fright ;  and,  presumably,  "  Sinkler,     "Hereditary    Chorea,"     in 

to  ba.se  upon  this  alleged  fact  a  claim  Dercum's  Text-Book,  p.  252. 

for  damages.     The  case  did  not  involve  "-That  the  insanity  of  chorea  is  not 

a  question  of  insanity.  altogether  a  rare  aflection  is  shown  by 

In   fitate  v.   Alexander,  30   S.   C.   74,  the  long  bibliography  in  the  Index-Cata 

14  Am.   St   Rep.  879,  8   S.  E.  440,  the  Icgue,  Vol.  III.  p.   166.     Sinkler's  arti- 

]>risoner  was  alleged  to  have  had  chronic  cle  also   is   rich   in   literary   reference* 

chorea;    but    there    seems    to    be    some  See    also   Berkley,    Mental   Diseases,   p. 

doubt    whether    epilepsy    was    not    in-  569, 
tended. 


9  825]  INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  713 

VT.  The  mental  symptoms  of  neurasthenia. 

825.  Neurasthenia  is  a  term  introduced  by  Beard. — This  term^'  de- 
notes a  wide  range  of  symptoms  in  the  nervous  system.  Weakness  and 
irritability  are  its  commonest  expressions.  It  is  caused  by  exhaus- 
tion of  the  nerve-centers,  and  is  often  seen  in  persons  who  are  by 
heredity  predisposed  to  nervous  disorders.  The  term,  as  used  by 
many  authors,  includes  so  much  that  it  is  hard  to  limit  it.^^  It  ap- 
plies not  only  to  physical  disorders,  but  also  to  mental  derangements; 
and  as  these  latter  alone  interest  us  here,  this  article  will  be  limited 
to  them. 

826.  Fixed  ideas,  morbid  impulses,  or  obsessions. — The  mental  symp- 
toms of  neurasthenia  which  have  medico-legal  interest  are  those 
which  are  caused  by  fixed  ideas,  or  by  morbid  impulses  and  fears. 
This  is  a  broad  subject.  Fixed  and  morbid  ideas  are  common  in  many 
forms  of  insanity,  but  those  that  occur  in  neurasthenia  have  a  special 
character.  They  are  not,  properly  speaking,  delusions  or  hallucina- 
tions, but  are  best  described  as  obsessions. 

By  the  term  "obsession"^^  is  meant  a  morbid  and  fixed  idea,  which 
tends  to  control  the  patient's  conduct,  against  his  volition,  and  with- 
out involvement  of  his  intelligence.  Its  character  is  essentially  dom- 
ineering, and  it  usually  involves  the  emotions  secondarily.  It  dif- 
fers from  an  hallucination  in  the  fact  that  it  does  not  involve  the 
senses;  and  from  a  delusion  in  that  it  does  not  involve  the  intellect; 
and  from  both  in  that  it  does  not  involve  belief.^^ 

The  patient  himself  recognizes  its  morbid  character,  and  in  most 
instances  his  life  is  an  ineffectual  struggle  against  it.  According  to 
Magnan^'^  an  obsession  is  a  mode  of  cerebral  activity  in  which  an  idea 
forces  itself  involuntarily  into  consciousness.  For  instance,  a  man 
is  beset  with  the  idea  that  he  must  solve  some  metaphysical  or  math- 
ematical problem ;  or  with  a  morbid  fear  of  crossing  a  certain  bridge ; 
or  with  an  impulse  to  commit  a  criminal  act,  without  motive,  and 
against  which  his  whole  soul  revolts.  In  none  of  these  cases  is  the 
intelligence  seriously  disordered :  the  patient  recognizes  fully  the 
morbid  nature  of  the  besetment;  he  strives  to  cast  it  off;  but  his  ef- 
forts are  often  ineffectual  or  only  partly  effectual.  In  short,  his 
mind  is  dominated  by  a  fixed  idea  which,  to  use  metaphysical  terms, 

"  Boston  Med.  and  Surp:.  Jonrn.  1869.  donion.     Foster,  Encyc.  Med.  Dictionary. 

'*  Dercum,    "Neurasthenia,"    in    Text-  ^^  Sliaw,  "Obsessions,"  Journ.  of  Ment. 

Book  of  Nerv.  Dis.  p.  51.  Sci.  April,  1904,  p.  234. 

^*  The  term  "obsession"  was  originally  "  Ann.      Med.      Psych.      March-April, 

applied  to  one  who  was  possessed  of  a  1S96. 


714  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  825 

controls  his  will,  does  not  impair  his  intellect,  and  involves  his  emo- 
tions secondarily, 

827.  Varieties  of  obsessions. — There  are  many  kinds  of  obsessions, 
and  these  have  been  classified  in  various  ways.  The  following  are 
the  most  common :  1.  Obsessions  of  doubt:  ceaseless  attempts  to  solve 
some  problem,  often  trivial,  seldom  useful.  2.  Obsessions  of  fear: 
morbid  dread  of  all  kinds,  as  dread  of  public  places,  of  high  places, 
of  infection,  of  contamination,  of  sacrilege,  and  of  animals.  3.  Ob- 
sessions of  impulse :  morbid  besetments  to  commit  some  particular  act, 
as  to  count  objects,  to  touch  objects,  or,  in  graver  cases,  to  commit 
homicide  or  suicide.^^  The  above  list  practically  includes  all  va- 
rieties of  obsessions,  although  it  is  possible  to  engage  in  all  sorts 
of  distinctions  and  refinements,  according  to  the  subject-matter  of 
these  fixed  ideas.^®^ 

828.  The  insanity  of  doubt. — Patients  with  obsessions  of  doubt  are 
impelled  to  engage  in  the  solution  of  useless  problems.  These  prob- 
lems may  be  metaphysical,  arithmetical,  logical,  etc.  They  are  dis- 
tinguished especially  by  their  inutility.  In  other  words,  even  if 
solved  satisfactorily,  they  do  not  conduce  to  the  patient's  welfare  or 
to  the  advancement  of  science.  They  are  often  trivial ;  and  this  fact 
is  recognized  by  the  victim  himself,  and  forms  an  element  of  the  vex- 
ation which  the  patient  suffers  in  his  vain  attempts  to  free  himself 
from  them.  These  doubting  spells  are  paroxysmal,  and  the  patient 
may,  for  a  time,  be  entirely  absorbed  in  them;  he  cannot  disengage 
his  attention,  or  apply  his  mind  to  anything  useful.^^^^ 

Seglas^^  calls  attention  to  the  fact  that  it  is  not  strictly  correct 
to  say  that  in  such  cases  the  intelligence  is  not  involved ;  it  is  involved 
to  the  extent  of  being  absorbed  and  distracted.  The  patient,  in  severe 
paroxysms,  suffers  with  physic;^!  distress,  such  as  fulness  in  the  head 
and  the  state  known  as  cenesl-iosia,  or  involvement  of  the  general 
sensation  which  underlies  the  idea  of  personal  identity.  He  is, 
for  the  time,  confused  and  distraught.  A  patient  may  be  morbidly 
absorbed,  for  instance,  in  such  an  insoluble  problem  as  that  of  pre- 

**  Il^gis,   Mental   Medicine,   translated  able,   and  he   received   the  nickname  of 

by  Bannister,  p.  261.  '"the   man   with   the   pensile   idea."     He 

ss^Winslow  (Plea  of  Insanity,  p.  OG)  eventually  hanged  himself  with   one  of 

(]uot€s  from  Mr.  Sampson's  work  (Grim-  his  ropes.     The  ease,  however,  is  not  an 

inal  Jurisprudence)    the  case  of  a  gen-  instance  of  obsessions, 

tleman  who,  after  witnessing  an  cxecu-  3  82  Berger    (Arch    f.    Psych.    VI.    I.) 

tion  in  Newgate,  conceived  a  mania  for  has  given   tlie  name   "Griibclsucht,"   or 

collecting  the  ropes  with   which   crimi-  metaphysical  mania,    to    this    affection, 

iials  had  been  executed :  and  this  became  See  a  resumg  of  his  paper  by  Ireland  in 

such  a  craze  that  he  could  talk  of  little  Journ.  Ment.  Sci.  Jan.  187S. 

else,    and    was    always     exhibiting    his  ^  Les  IMaladies  Mentales,  Paris,  1895, 

trophies.     His    society    became    unbear-  Legons  III.  IV.  and  V. 


§  828]         INSANITIES  ASSOCIATED  WiTU  GREAT  NEUROSES.  715 

destination  and  free  will,  or  he  may  wrestle  with  some  self-imposed 
task  in  logic  or  arithmetic  which  does  not  admit  of  satisfactory  so- 
lution ;  every  attempt  fails,  and  throws  the  unfortunate  victim  intc) 
renewed  efforts  to  reach  a  conclusion.  He  becomes  a  metaphysical 
or  arithmetical  maniac,  popularly  so-called,  although  his  affection  is 
not  a  true  mania.  For  these  patients  a  syllogism  may  be  a  nightmare ; 
a  game  of  chance  may  be  a  spectfe  that  haunts  them  night  and  day. 
They  are  engaged  in  endless  ratiocination;  their  minds  revolve  about 
one  fixed  idea  until  they  are  incapable  of  the  ordinary  processes  of 
thought.     Such  are  the  morbid  effects  of  true  obsessions. 

This  mental  affection  has  been  called  by  the  French  the  folie  du 
doute,^^ — the  insanity  of  doubt;  and  it  was  first  described  by  Fal- 
ret.^*^'-^  To  this  class  belong  also  the  over-scrupulous, — those  who 
constantly  resolve  some  ethical  problem.  They  are  beset  with  the 
idea  that  they  are  eternally  doing  something  wrong.  Their  lives  are 
passed  in  interrogating  their  consciences.  The  scruples  are  often 
trivial  in  the  extreme.^** ^^^ 

829.  Morbid  fears  are  numerous. — The  obsessions  of  fear  are  al- 
most as  numerous  as  the  thoughts  in  the  human  mind.  There  is  no 
end  to  the  morbid  terrors  which  may  arise  to  plague. these  victims. 
Therefore  the  tendency  to  invent  a  new  term,  usually  from  the  Greek 
language,  for  each  of  these  phobias,  is  to  be  deplored.  It  will  not 
be  denied  by  any  careful  observer  that  these  neurasthenic  obsessions 
are  identical  in  their  essence  and  character,  although  they  may  change 
and  shift  about.  What  utility,  then,  is  there,  as  M.  Regis  asks,**  in 
creating  for  each  of  them  a  special  name  and  a  special  symptomatol- 
ogy, as  though  we  wished  to  erect  them  into  distinct  diseases  ?  Among 
the  common  forms  of  morbid  fears  are  agoraphobia,*^  or  fear  of  pub- 

"  Lloyd,  "Note  on  a  Case  of  Insanity  sorbed  in  her  obsessions,  and  had  finally 

of  Doubt."     ( Journ.    Nerv.    and    Ment.  to  be  taken  from  home.     In  such  a  case 

Dis.   Vol.  XIV.  Sept.-Oct.   1887.)      This  it  is  not  strictly  accurate  td  say  that 

patient,   a  -woman,   had  been   known   to  the  intellect  is  not  involved, 

get  in  and  out  of  bed  at  least  twenty  ^oJDes     Maladies     Mentales,     Paris, 

times   on    retiring   at   night   because    of  18G4.    Iji  Deiixi&me  Ja'c^oti,  p.  13G,  Falret 

some   morbid   impulse   which   made   her  r  eier  a  to  the  "lesions  des  penchants  J' 

feel    that    she    had    not    performed    the  4 o§ '•!  have  known  a  neurasthenic  ^e- 

act  aright,  and  that  unless  it  were  done  generate  who     .     .     .     would  only  lea've 

in  a  certain   precise  manner   it  would,  the  church  walking  backward,  so  as  not 

in   some  way,  be  the  cause  of  disaster  to  twxn  his  back  on  the  altar,  and  who, 

to  her,  involving  disease  or  her  death,  before  making  use  oi  the  cabinets   (wa- 

bef»re  morning.      She  would  ol)lige  her  ter-closets),    read    over     and     over     the 

husband  to  remain  with  her  while  dress-  pieces   of   paper   he   used  Avithout  being 

ing    vnitil    she    had    put    on    and    taken  able  to  assure  himself  that  he  did  not 

off,  innumerable  times,  one  of  her  skirts,  involuntarily  profane  any  sacred  word." 

from    a    similar    morbid    impulse.      Her  — Regis,  op.   cit.  p.  263. 

life  was  consumed  in  such  vain  and  in-  ''^  Op.  cit.  p.  250. 

tolerable   acts.      She    ceased    reading   or  *■  Legrand  du   Saulle,  Gaz.   des  Hopi- 

visiting,    became    more    and    more    ah-  taux,    1877   and   1888. 


716  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  82& 

lie  places ;  claustrophobia,  or  fear  of  closed  places ;  and  mysophobia, 
or  fear  of  contamination. 

830.  Mysophobia  is  a  type. — As  this  latter  is  one  of  the  worst  of 
these  obsessions,  and  most  serious  in  its  consequences,  it  may  be 
taken  here  as  a  type.  In  mysophobia  the  patient  is  beset  with  a  con- 
stant haunting  terror  of  contamination.  The  victim,  often  a  woman, 
sees  in  every  object  of  contact  a  possible  source  of  defilement.  In  time 
this  morbid  fear  comes  to  dominate  her  whole  life.  Her  time  is 
spent  in  avoiding  every  source  of  supposed  danger,  and  of  counteract- 
ing its  supposed  effects.  She  constantly  changes  her  clothing,  as  con- 
stantly washes  her  hands,  will  not  touch  a  doorknob,  will  not  venture 
upon  the  public  streets,  regards  her  food  with  apprehension,  and 
dreads  the  contact  of  her  family  and  her  friends.  The  emotional  dis- 
tress becomes  profound,  and  the  patient  may  fall  into  such  a  state 
of  agitation  and  exhaustion  as  to  require  constant  attention.  I  re- 
cently saw  a  lady,  the  victim  of  a  whole  series  of  such  obsessions,  who 
required  to  be  removed  to  an  asylum.  She  needed  the  attention  of  two 
trained  nurses,  and  when  the  physician  was  admitted  to  her  room,  she 
had  to  be  hastily  covered  with  a  sheet  for  decency's  sake,  as  she  was 
entirely  nude,  struggling  with  her  attendants  against  all  attempts  to 
put  clothing  on  her,  and  demanding  water  with  which  to  wash  away 
the  impurities  with  which  she  believed  she  was  infected.  This  was 
an  extreme  case,  and  it  illustrated  clearly  the  dominion  which  ob- 
sessions may  gain  over  the  mind.  In  such  a  case,  the  intelligence  is 
in  considerable  disorder  from  the  effects  of  the  morbid  fears,  and  the 
patient  is  practically  as  much  disturbed,  though  in  a  different  way, 
as  in  mania  or  agitated  melancholia.  But  the  obsessions,  it  should  be 
noted,  are  not  identical  with  delusions  of  suspicion:  the  patient 
does  not  accuse  anyone  of  attempting  to  poison  her  or  to  contaminate 
her.  In  milder  forms  the  patients  content  themselves  with  frequent 
visits  to  the  wash-basin,  and  they  acquire  curious  tricks,  and  resort 
to  odd  expedients  for  avoiding  contamination;  as,  for  instance,  al- 
ways using  a  piece  of  clean  paper  with  which  to  cover  the  doorknob. 
In  all  these  phobias,  of  whatever  kind,  there  is  emotional  disturbance, 
more  marked,  as  a  rule,  than  in  other  forms  of  obsession.  Thus,  the 
morbid  dread  of  crossing  a  bridge,  or  of  going  up  onto  high  places, 
is  accompanied  with  the  physical  signs  of  distress,  such  as  rapid  ac- 
tion of  the  heart,  increased  respiration,  and  the  usual  reactions  of 
fright. 

831.  A  true  form  of  impulsive  in&anity. — The  obsessions  of  impulse 
are  such  as  impel  the  patient  to  p(M'f(inii  certain  acts.     The  loss  of 


§  831]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  717 

self-control  here  is  especially  marked.  The  impulsive  acts  them- 
selves are  often  harmless,  trivial,  ridiculous.  Dr.  Samuel  Johnson 
was  the  victim  of  such  an  obsession:  he  had  to  touch  the  posts  as  he 
went  long  the  streets ;  if  he  missed  a  post,  he  was  not  satisfied  until  he 
went  back  and  touched  it."'^  The  morbid  impulse  which  some  per- 
sons feel  when  on  a  high  place  to  throw  themselves  off  is  another 
example.  This  becomes  so  urgent  in  some  persons  that  th(!y  will  not 
ascend  a  high  building.  Some  persons,  again,  must  always  enter  a 
room  with  the  right  foot  first;  others  must  always  count  objects, 
such  as  trees  in  a  yard,  the  books  on  a  table,  the  buttons  on  the  coats 
of  those  they  meet.     These  are  minor  examples. 

In  severe  cases  the  morbid  impulse  is  a  more  serious  affair.  The 
victims,  i^erfectly  innocent,  feel  impelled  to  do  or  say  something  that 
is  outrageous  or  even  criminal ;  they  utter  oaths  or  indecent  words, 
and  often  fall  into  paroxysms  of  excitement  in  vainly  trying  to  con- 
trol these  obsessions.  A  case  occurred  in  a  modest  and  virtuous 
woman,  who  would  suddenly  start  up,  ejaculate  some  indecent  words, 
and  then  collapse  in  shame  and  terror.  Some  of  these  poor  wretches, 
highly  religious,  are  tormented  with  impulses  to  do  sacrilegious  acts 
in  church ;  in  the  most  severe  cases  these  impulses  are  associated  with 
extraordinary  perversions.^^  These  involuntary  blasphemers  dis- 
play the  full  power  of  obsessions;  their  morbid  and  fixed  ideas  have 
such  control  over  their  minds  that  they  impel  them  to  violate  their 
most  sacred  and  instinctive  feelings;  and  this,  too,  it  must  be  noted, 
entirely  without  motive.  Thus,  one  of  these  patients  was  tormented 
with  an  impulse  to  use  filthy  exj^ressions  about  Christ.'*^ 

Such  is  the  tyranny  of  these  fixed  ideas  that  they  become  to  the 
victims  themselves  the  most  awful  monsters,  from  which  the  ob- 
sessed persons  struggle  in  vain  to  be  free.  In  some  cases,  as  de- 
scribed by  Gilles  de  la  Tourette,  the  patients  perform  certain  auto- 
matic acts,  the  so-called  "tics,"  in  response  to  their  obsessions.  These 
become  morbid  habits,  and  present  the  appearance  almost  of  a  physi- 
cal disease. 

832.  Criminal  impulses,  such  as  kleptomania  and  pyromania. — Again, 
there  are  obsessions  of  criminality.  These  are  morbid  impulses  to 
commit  crime.     Among  the  commonest  are  kleptomania,  or  the  im- 

*^i  Dr.    Johnson's   case    was    an    in-  debating  with  himsolf  wliat  he  would  do 

stance,  such  as  is  not  uncommon,  of  a  if  shut  up  in  a  high  tower  witli  a  baby, 
nian   of  great   intellectual    power   being        "  Raymond  and  Janet,  L<?s  Obsessions 

the  victim  of  liypocliondria  and  neuras-  et  la  Psychasthenic,  Vol.  II.  p.  477. 
thenia.     The  readers  of  Boswell's  "Life"        "  Church    and    Paterson,    Nerv.    aBd 

will  find  many  instances  to  confirm  this  Ment.  Dis.  p.  G94. 
view.     Boswell  once  set  the  poor  man  to 


718  INSANITY— I'ORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  832 

pulse  to  steal,  and  pyromania,  or  the  impulse  to  set  fire.  It  is  im- 
portant to  note  that  the  true  obsession  is  accompanied  with  resistance 
and  distress:  the  patient  does  not  steal  or  set  fire  from  a  criminal 
motive,  but  from  a  morbid  impulse,  which  is  fully  recognized  as  such, 
but  is  resisted  with  gTeat  difficulty  or  not  at  all.  This  is  a  character- 
istic of  all  obsessions :  they  excite  opposition  in  the  patient ;  they  are 
yielded  to,  as  it  were,  only  on  protest.  From  the  medico-legal  stand- 
point this  distinction  is  highly  important. 

833.  Suicidal  and  homicidal  impulses  take  the  form,  in  some  cases, 
of  genuine  obsessions.— These  have  the  same  characteristics :  they  are 
without  criminal  motive;  they  excite  the  most  active  terror  and  re- 
sistance; the  patients  flee  from  them,  as  it  were,  and  even  beg  to  be 
placed  under  restraint  so  as  not  to  be  able  to  yield  to  them.*^  Homi- 
cidal obsessions  have  been  especially  noted  in  women,  sometimes  to- 
wards their  owm  children.^^  In  fact,  the  object  of  the  homicidal 
impulse  is  usually  some  one  who  is  near  and  dear  to  the  patient,  and 
is  often  sl  child.  There  is  still  another  group,  consisting  of  the  per- 
verts whose  obsessions  are  of  a  sexual  nature.  These  have  been  de- 
scribed in  great  detail  in  a  well-known  work  by  Krafft-Ebing.^'^  Some 
writers  include  in  still  a  separate  class  those  patients  whose  malady 
consists  in  an  absence  of  will  power;  the  so-called  "aboulic"  cases. 
These  are  the  patients  who  think  they  cannot  do  things;  the  "will" 
is  paralyzed.  -  If  they  are  sitting,  they  cannot  rise;  if  they  are 
standing,  they  cannot  walk.  But,  in  fact,  such  patients  are  merely 
under  the  control  of  fixed  and  morbid  ideas,  or  obsessions ;  and  they 
do  not  differ  radically  from  the  impulsive  cases. 

834.  A  critical  analysis  of  obsessions. — If  now  we  come  to  analyze 
briefly  the  groundwork  of  obsessions,  we  find  much  in  common  among 
them.  These  common  characteristics  have  been  stated  in  regular  form 
in  the  report  adopted  by  the  International  Congress  of  Mental  Medi- 
cine, in  1889.  Obsessions,  according  to  that  report,  are  all  accom- 
panied with  consciousness  of  the  disease  on  the  part  of  the  patients. 
They  are  usually  hereditary.  They  are  periodical.  They  are  accom- 
panied with  distress  and  anxiety,  internal  conflict,  and  emotions  of 
various  kinds.  They  are  not  accompanied  with  hallucinations,  not 
do  they  change  into  delusions ;  but  they  may  be  complicated  with  oth- 
er forms  of  insanity,  and  ihoy  do  not  terminate  in  dementia. 

^Clouston,  Menial  Diseases,  pp.  244,  "  Psychopath ia  Sexualis,  translated 
245.  by  Chaddock,  Phila.  1892. 

"Lloyd,  "Puerperal  Insanity,"  in 
Hirst's  Syst.  of  Obstetrics,  Vol.  II.  p. 
587. 


§  835]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  719 

835.  The  intelligence  may  be  affected. — It  is  proper  to  add,  however, 
that  some  of  the  above  statements  are  considered  by  good  authorities 
to  be  too  absolute.  The  intelligence,  especially  the  self-consciousness, 
is,  according  to  Seglas,  not  always  unaffected.  The  extreme  disorder 
of  the  emotions,  the  self -concentration  upon  a  very  limited  range  of 
fixed  ideas,  is  hardly  compatible  with  a  full,  clear,  and  normal  action 
of  the  intellect  in  all  cases.  The  attention,  certainly,  is  so  engrossed 
that  it  cannot  be  diverted  into  normal  channels ;  the  emotions  also 
are  much  involved ;  but  the  memory  is  not  affected.  The  central  and 
essential  disorder  in  all  the  obsessions  is  the  loss  of  power  of  normal 
control  over  the  mental  processes ;  and  this  occurs  under  the  mastery 
of  fixed  ideas,  or  imperative  conceptions.  This  state  of  mind  is 
essentially  morbid. 

836.  The  pathological  nature  of  obsessions. — The  proper  place  of 
the  obsessions  in  mental  pathology  has  been  much  debated.  By  many 
authorities  they  are  regarded  as  among  the  stigmata  of  degeneration, 
and  as  allied  with  paranoia.  Thus  we  read  of  "rudimentary  para- 
noia" and  "abortive  monomania."  But  this  is  an  extreme  view,  for 
although  many  of  these  patients  are  undoubtedly  of  the  degenerative 
type,  not  a  few  of  them  are  merely  neurasthenic  in  the  sense  of  being 
temporarily  in  mental  ill-health.  Certainly  the  milder  forms  of  ob- 
sessions are  often  seen  in  persons  of  good  heredity  and  of  otherwise 
sound  mind.^^ 

837.  Their  resemblance  to  hallucinations. — Obsessions  have  been 
likened  to  hallucinations ;  for,  as  the  latter  are  due  to  a  morbid  action 
of  the  brain,  resulting  in  false  sensory  concepts,  so  the  former  are 
due  to  a  morbid  action  of  the  brain,  bringing  into  consciousness  false 
motor  concepts  ;'*^  both  are  alike  involuntary.  The  analogy  does  not 
hold  good  all  through,  however,  for  hallucinations  involve  belief, 
while  with  obsessions  it  is  just  the  contrary.  Still,  as  for  belief,  it 
must  be  granted  that  obsessions  control  conduct,  and  this  is  very  near 
to  controlling  belief, — a  fact  which  few  writers  seem  to  realize  in 
this  connection. 

Burton,  the  author  of  the  Anatomy  of  Melancholy,  is  said  to  have 
predicted  his  own  death  on  a  certain  day,  and  then  in  order  to  verify 
the  prediction,  to  have  killed  himself  on  that  date.     If  there  is  any 

"The  French  alienists  have  submit-  Legcns  Cliniqaes  sur  les  Maladies  Men- 
ted  the  whole  subject  of  obsessions  to  tales,  Paris,  1895;  R^'gis,  Mental  Medi- 
exact  analysis.  The  following  works  are  cine,  translated  by  Bannister,  Utica, 
valuable  for  reference:  Legrand  du  1894.  Raymond  and  Janet  report  236 
Saulle,  La  Folie  du  Doute,  Paris,  1875;  cases. 

Haymond  et  Janet,  Les  Obsessions  et  la  "Stearns,  Mental  Diseases,  p.  67. 
Psychasthenie,     Paris,     1903;     S#glas, 


720  INSANITY— FORMS  AND  MEDICOLEGAL  ASPECTS.  [§  837 

truth  in  this  storj,  it  probably  indicates  a  mind  obsessed.  Among 
these  morbid  fears  is  a  dread  of  dying  on  some  particular  day,  and 
an  impulse  to  suicide  is  not  uncommon.'*^ ''^ 

VIL  The  medico-legal  aspects  of  obsession's. 

838.  Obsessions  are  involuntary. — There  are  three  things  that  strike 
the  medical  jurist  when  he  makes  a  study  of  obsessions.  In  the  first 
place,  there  is  the  involuntariness  of  these  mental  states:  they  are 
above  and  outside  the  dominion  of  the  will,  except  as  they  excite  its 
opposition ;  they  rise  into  consciousness  quite  spontaneously ;  they 
cause  painful  emotions,  never  the  reverse ;  they  are  repelled  and  re- 
sisted by  the  patient  to  his  utmost  power;  and  they  overcome  resist- 
ance without  seriously  impairing  the  judgment. 

839.  They  are  without  motive. — In  the  second  place,  there  is  the 
absence  of  motive:  the  act  has  no  reference  to  anything  useful  or 
desirable  to  the  patient.  On  the  contrary,  as  already  said,  the  im- 
pulses are  always  annoying,  repulsive,  or  alarming;  their  morbid  na- 
ture is  fully  recognized  by  the  patient,  who  wishes  earnestly  to  be 
cured  of  them. 

840.  They  are  persistent. — In  the  third  place,  the  obsession  is  per- 
sistent: it  is  not  momentary,  not  the  outburst  of  an  instant,  as  in  the 
case  of  a  passion,  but  it  usually  pre-exists  for  long  periods,  and  it 
may  endure  for  even  a  life-time.  In  short,  it  is  not  terminated  by  the 
act,  although  it  may  be  temporarily  relieved  by  the  act;  but  it  re- 
curs, and  is  persistent. 

841.  Obsessions  are  not  ordinary  criminal  impulse s.^-From  this  brief 
analysis  it  appears  evident  that  obsessions  are  entirely  diiferent  from 
criminal  impulses;  there  is  no  deliberation,  no  intention,  no  passion, 
such  as  anger,  jealousy,  or  revenge,  to  act  as  an  impelling  force ;  in 
short,  there  is  no  motive.  On  the  other  hand,  there  is  resistance, 
aversion,  recognition  of  the  morbid  character  of  the  act,  and  loss  of 
power  of  control.  Moreover,  the  act  is  not  the  outcome  of  a  state  of 
things  outside  the  patient, — or  objective, — but  entirely  within  the 
patient, — or  subjective.  In  all  these  particulars  an  obsession  is  dis- 
tinct from  a  criminal  impulse. 

It  is  also  evident  that  the  doctrine  of  obsessions  gives  no  counte- 
nance to  the  defense  of  impulsive  insanity,  as  this  latter  is  often  pre- 
sented in  the  courts.    This  defense  is  usually  made  in  favor  of  some- 

<9^  A  recent  writer,   Dumaz,  has  at-    de  Jeanne  d'Arc."     Ann.       Med.-Psych- 
temptfd  to  show  that  Joan  of  Arc  wa.s    LXIL  t.  XIX.  Mai,  1904,  p.  20. 
tlie   vici-im  of  obsessions.     "Psychologie 


§  841]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  721 

one  who  has  killed  another  in  a  passion  of  revenge,  jealousy,  or  anger. 
The  motive  of  the  prisoner  is  evident;  the  occasion  ripe;  tho  oppor- 
tunity sought;  the  act  even  premeditated;  but  the  defense  is  based 
upon  an  alleged  disturbance  of  the  emotions,  purely  transitory,  which 
is  variously  called  impulsive,  emotional,  or  transitory  insanity.  But 
such  a  form  of  insanity,  even  if  it  exists,  has  no  resemblance  whatever 
to  the  insanity  of  obsessions,  as  a  simple  reference  to  the  foregoing 
analysis  will  demonstrate.  Unfortunately,  however,  it  is  from  just 
this  class  of  criminal  homicides,  who  are  miscalled  impulsive  luna- 
tics, that  the  term  "irresistible  impulse"  derives  all  its  opprobrium, 
and  that  the  courts  imbibe  their  prejudices.^*^ 

842.  These  cases  seldom  come  before  the  courts. — It  would  in  fact 
be  easy  to  demonstrate  that  the  courts  have  had  but  little  to  do  with 
cases  of  genuine  obsession,  and  that  their  decisions  on  "impulsive  in- 
sanity" usually  refer  to  other  kinds  of  cases;  but  from  these  deci- 
sions it  would  also  not  be  difficult  to  shoAv  that  there  is  a  wide  diver- 
sity of  opinion  among  the  judges  about  loss  of  self-control  as  a  test 
for  responsibility. 

843.  The  legal  prejudice  against  irresistible  impulses. — Irresistible 
impulse  is  no  excuse  for  crime,  according  to  a  large  number  of 
courts.^^  "It  will  be  a  bad  day  for  this  state,"  says  one  judge,^- 
"when  an  uncontrollable  impulse  shall  dictate  a  rule  of  action  in  our 
courts."  Baron  Parke^^  said  that  if  the  excuse  of  irresistible  impulse, 
coexisting  with  the  full  possession  of  the  reasoning  powers,  were  al- 
lowed as  a  defense,  it  might  be  urged  in  justification  of  every  case. 
Baron  Rolfe^^  said  that  the  object  of  the  law  is  to  compel  peo])le  to 
control  their  impulses.  A  New  York  judge'''*  said  that  the  doctrine  of 
"uncontrollable  impulse"  was  a  new  element  in  the  test  for  insanity, 
and  that  the  doctrine  that  a  criminal  act  may  be  excused  upon  the  no- 
tion of  an  irresistible  impulse,  when  the  offender  has  the  ability  to  dis- 

"  See    chapter    on    "Mania"    in    the  "People  v.  Carpenter,  102  N.  Y.  2.38, 

present  work,  p.  COT.    Accordinfr  to  Foss  G  N.  E.  584;  State  v.  Alexander,  30  S. 

(Judges  of  England),  in  the  olden  time,  C.  74.  14  Am.  St.  Rep.  879,  8  S.  E.  440; 

when   a  bishop   was   so   unfortunate   as  United   States   v.    Holmes,    1    Cliff.    98, 

to    have    a    son     (a    thing    which    occa-  P'ed.  Cas.  No.  15.382;  State  v.  Harrison, 

sionally     happened     with     those     holy  36  W.  Va.  729,  18  L.  R.  A.  224,  15  S.  E. 

celibates),     this     son     was     called     the  982. 

bishop's  nephew,  by  courtesy.    So  it  was  ''"State  v.  Pagels,  92  Mo.  300,  4  S.  W. 

with  Peter  de  Rivallis  and  his  reputed  931. 

father,  the  Bishop  of  Winchester.   Rival-  '^I^eg.  v.  Barton,  3  Cox,  C.  C.  275. 

lis  became  one  of  the  Barons  of  the  Ex-  "Rogers  v.  Alhint, 

chequer.      However,    it    is    not    well    to  '■■'Flanagan  v.  People,  52  N.  Y.  467,  11 

carry     this     principle    into     psycliintry.  Am.  Rep.  731. 
Things  should  be  called  by  their  proper 
names. 

Vol.  I.  Med.  Juu. — 40 


722  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§843 

cern  his  legal  and  moral  duty  in  respect  to  it,  has  no  place  in  the  law. 
He  held  that  "the  law  does  not  recognize  a  form  of  insanity  in  which 
the  capacity  of  distinguishing  right  from  wrong  exists  without  the 
power  of  choosing  between  them."  ^^  The  courts  very  properly  do 
not  sustain  the  doctrine  of  an  irresistible  impulse,  under  the  influ- 
ence of  which  a  person  committing  a  homicide  may  be  sane  the  in- 
stant before  he  struck  the  fatal  blow,  and  sane  the  instant  afterwards, 
but  entirely  non  compos  mentis  at  the  instant  of  doing  the  act.°^  Cases 
supporting  opinions  similar  to  the  above  could  be  marshaled  in  large 
numbers  ;^^  but  it  is  safe  to  say  that  none  of  the  above  cases  refers 
to  genuine  obsessions,  or  imperative  conceptions.  These  opinions, 
and  others  like  them,  have  been  inspired  simply  by  the  judicial  in- 
stinct to  reject  the  manufactured  defense  of  impulsive  insanity  as  a 
cloak  for  crime. 

844.  Irresistible  impulse  is  a  valid  defense. — On  the  other  hand  a 
very  large  number  of  legal  opinions  can  be  cited  in  which  loss  of 
control,  or  loss  of  will-power,  is  fully  recognized  as  a  valid  defense. 
Said  Lord  Denman  :^^  "If  some  controlling  disease  was,  in  truth, 
the  active  power  within  him,  which  he  could  not  resist,  then  he  will 
not  be  responsible."  Chief  Justice  Gibson^*^  described  perfectly  the 
power  of  an  obsession  when  he  spoke  of  an  "luiseen  ligament  pressing 
on  the  mind."  Sir  Fitzjames  Stephen^^  contended  that  loss  of  will- 
power is  an  important  factor  in  the  irresponsibility  of  the  insane, — 
an  opinion  which  has  direct  bearing  on  the  question  of  obsessions. 
Some  American  courts  have  held  that  there  is  no  responsibility  if  the 
mind  is  affected  with  insanity  to  such  a  degree  as  to  create  an  uncon- 
trollable impulse  to  do  the  act  by  overriding  the  reason  and  judg- 
ment "^^  In  a  noteworthy  opinion  Justice  Somerville^^  held  that  a 
man  is  not  responsible  if,  by  reason  of  duress  of  mental  disease,  he  has 
so  far  lost  power  to  choose  between  right  and  wrong  as  not  to  be  able 
to  avoid  doing  the  act,  so  that  his  free  agency  was  at  the  time  de- 
stroyed, and  at  the  same  time  the  crime  was  so  connected  with  such 
mental  disease,  in  the  relation  of  cause  and  effect,  as  to  have  been 
the  product  or  offspring  of  it  solely.  This  is  a  perfect  statement  of  an 
obsession,  although  it  was  not  given  in  that  kind  of  a  case. 

••  See  also  Willis  v.  People,  32  N.  Y.  "'Reg.  v.  Oxford,  9  Car.  &  P.  525. 

717.  '^Com.  V.  Mosler,  4  Pa.  264. 

'"State  V.   Soper,   148  Mo.  217.  49  S.  "2  Ilistorv  Crim.  Law,  pp.   170,  171. 

W.  1007;   Htatc  v.  Miller,  111  Mo.  .^42.  "-Hopps  v.  People,  31  111.  391,  83  Am. 

20   S.   W.  243;    Com.  v.   Wirehack,   190  Dec.  231;  Daceij  v.  People,  116  III.  555, 

Pa.   138,  70  Am.  St.  Rep.  625,  42  Atl.  6  N.  E.   105. 

542.  '"Parsons  v.  State,  81  Ala.  577,  60  Am. 

•'  16  Am.  &  Eng.  Enc.  Law,  p.  618.  Rep.  193,  2  So.  854. 


§  844]         INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  723 

In  Indiana  it  has  been  held  that  a  person  may  have  capacity  to 
know  right  from  wrong,  and  to  comprehend  the  nature  and  conse- 
<|uences  of  his  acts,  and  yet  not  be  criminally  responsible ;  for  if  tlie 
will-power  is  so  impaired  that  he  cannot  resist  the  impulse  to  com- 
mit a  crime,  he  is  not  of  sound  mind.^^  This  statement  clearly  in- 
(dudes  obsessions.  Justice  Braimon,  of  West  Virginia,^^  recognized 
that  a  knowledge  of  right  and  wrong  is  not  the  only  or  a  sufficient 
test,  but  that  there  must  be  also  the  power  to  choose;  and  he  points 
out  that  this  power  is  implied  in  the  words  "wilful,  deliberate,  and 
premeditated."  At  the  same  time  he  says  that  for  himself  he  cannot 
see  "how  a  person  who  rationally  comprehends  the  nature  and  qual- 
ity of  an  act,  and  knows  that  it  is  wrong  and  criminal,  can  act  through 
an  irresistible  innocent  impulse."  This  is  a  frank  and  praiseworthy 
confession  of  judicial  ignorance,  and  is  more  commendable  than  a 
<logmatic  statement  that  such  an  impulse  cannot  exist.  Alienists, 
who  have  direct  personal  knowledge  of  the  insane,  know  that  such 
i  npulses  can  exist,  and  that  they  exert  a  powerful  sway  over  the  mind, 
and  that  obsessions,  or  imperative  conceptions,  are  striking  exam- 
ples. 

It  has  practically  been  held  by  many  courts^'^  that  an  irresistible 
impulse  may  be  a  defense,  when  it  is  the  result  of  mental  disease  ex- 
isting to  so  high  a  degree  that,  for  the  time,  it  overwdielms  reason, 
judgment,  and  conscience;  but  such  defense  cannot  be  sustained  if 
the  defendant  knew  the  difference  between  right  and  wrong,  and  that 
his  act  was  morally  a  crime,  though  impelled  to  its  commission  by 
overmastering  anger,  revenge,  or  other  inordinate  passion.  This 
flraws  a  clear  distinction  between  an  obsession  and  a  criminal  emotion, 
and  is  an  admirable  statement  except  for  its  insistence  upon  the 
knowledge  of  right  and  wrong. 

845.  This  defense  must  be  closely  scrutinized. — In  Pennsylvania^^ 
an  irresistible  impulse  to  kill,  completely  subjugating  the  will  and 
intellect,  is  a  good  defense,  but  this  form  of  insanity,  because  of  its 
close  relation  to  vice,  must  be  severely  scrutinized ;  and  if  it  amounts 
to  less  than  an  absolute  dispossession  of  the  free  and  natural  agency 
of  the  mind,  or  arises  from  anger,  jealousy,  revenge,  or  mere  deprav- 

^Goodwm  V.  State,  96  Ind.  550;  Con-  resistible    impulse,"    with    citation    of 

way  V.  State,  118  Ind.  482,  21  N.  E.  285;  many  authorities.     It  is  especially  val- 

Plake  V.  State,  121  Ind.  435,  16  Am.  St.  uable  to  medical   experts  who  wish  to 

Rep.  408,  23  N.  E.  273.  obtain  a  grasp  of  this  subject  from  the 

'^State  V.  Harrison,  36  W.  Va.  729.  18  legal  standpoint. 

L.  R.  A.  224,  15  S.  E.  982.    This  opinion  «"  16  Am.  &  Eng.  Enc.  Law,  p.  618. 

by   Justice   Brannon   gives   a   very   full  "  Pepper  &  Lewis's  Digest,  p.  14,557. 
discussion  of  the  whole  subject  of  "ir- 


724  INSANITY— FORMS  AND  MEDICOLEGAL  ASPECTS.  [§  845 

ity,  it  will  not  avail.^*  This  definition  might  be  made  to  include  ob- 
sessions, althongh  its  framers  indubitably  did  not  intend  it  for  such, 
since  obsessions  do  not  '"subjugate  the  intellect,"  although  they  con- 
trol the  will. 

846.  This  subject  is  not  treated  uniformly  in  the  courts. — But  in 
none  of  the  cases  cited  above  was  the  subject  of  obsessions,  as  alien- 
ists understand  that  term,  under  advisement.  The  legal  authorities 
are  quoted  here  merely  to  show  that  the  subject  of  self-control,  as  af- 
fected by  disease,  and  as  a  factor  in  criminal  responsibility,  is  not 
treated  uniformly  by  the  courts.  Some  judges  maintain,  others  deny^ 
that  this  element  enters  into  the  legal  tests.^^  This  subject  has  direct 
bearing  on  obsessions,  because  the  most  important  factors  in  these 
perversions  are  their  absolute  involuntariness,  their  absence  of  mo- 
tive, and  their  dominion  over  the  will. 

847.  Irresistible  impulse  may  be  simulated. — The  truth  is  that  com 
paratively  few  of  these  cases  of  obsessions  come  before  the  courts. 
An  occasional  case  of  pyromania  or  kleptomania  is  heard  of  in  the 
newspapers,  but,  on  inquiry,  such  cases  are  usually  found  to  be  simu- 
lated. They  are  merely  common  criminals  whose  lawyers  have  sought 
to  shield  them  behind  the  defense  of  a  very  complex  and  little-under- 
stood psychosis.  There  is  all  the  more  reason  that  the  genuine  cases, 
when  they  do  occur,  should  be  treated  with  the  consideration  which 
they  deserve.^^^  There  is  no  more  real  insanity,  no  more  genuine 
mental  suffering,  than  that  which  is  caused  by  the  tyranny  of  an  im- 
perative conception. 

848.  Homicide  is  rare  as  a  result  of  obsessions. — Finally,  it  should 
be  well  understood  that  but  few  homicides  are  committed  by  these 
patients.  The  besetment  is  a  source  of  haunting  fear  to  the  patient, 
like  a  hypochondriacal  delusion,  but  in  most  cases  the  criminal  im- 
pulse is  successfully  resisted.  These  cases  come  for  adjudication 
more  often  to  the  hospitals  than  to  the  courts. 

849.  All  insane  impulses  are  not  obsessions. — Insane  impulses  may 
arise  from  delusions,  from  hallucinations,  from  maniacal  excitement, 

"Or/j/eifi  V.  Com.  7G  Pa.  414,  18  Am.  the   wife   of  an   oininent  London   physi- 

Rep.     420:      Com.     v.      V/inncmore,      1  cian,  Dr.  Rniiisl)ntham.    Slie  was  put  on 

Brf'wst.    (Pa.)    3.J-G;    Com.   v.    Fretli,    .3  trial,    but    tlie   jury    reached   no   conclu- 

Phila.   ]0');  ^ayrrs  v.  Com.  88  Pa.  291.  sion.     After    her    death,    "every    drawer 

Also  numerous  other  references  in  Pep-  and  cupboard  in  the  house  was  found  to 

per  and  Lewis,  op.  cit.  be   full   of  new  goods,   which   she   must 

"  See    chapter    on     "The    IM'Naghten  have   been   in   the   habit   of  abstracting 

Rules  in  America,"  p.  :).')4.  for     many     years."     Ballantine's     com- 

6'Ji  A  genuine  and  very  typical  case  of  ments  are  to  the  point,  and  worth  reaxi- 

kleptz-mania   is   narrated    by    Ballantine  ing. 
(Experiences  of  a  Barrister,  p.  211)    in 


5  849 j  INSANITIES  ASSOCIATED  WITH  GREAT  NEUROSES.  725 

from  melancholic  depression,  and  from  other  morbid  states  of  the 
mind  as  well  as  from  obsessions.  In  other  words,  these  imperative 
ideas  are  only  one  source,  and  not  the  only  source,  of  insane  im- 
pulses. This  distinction  should  be  borne  in  mind  when  the  attempt 
is  made  to  prove  that  any  or  every  impulsive  act  of  the  mind  is  neces- 
sarily an  evidence  of  a  morbid  condition,  and  always  the  same.  Im- 
pulses may  arise  in  normal  minds;  they  are  only  morbid  when  they 
spring  from  a  diseased  source.  In  the  case  of  a  young  mother  who 
threw  her  child  overboard  in  an  access  of  puerperal  insanity,  and 
was  acquitted  by  the  jury  without  their  leaving  their  seats,  the  im- 
pulse was  probably  not  due  to  an  imperative  idea,  but  to  some  delu- 
sional state."*' 

850.  Dogmatic  statements  on  this  subject. — Legal  writers  are  much 
too  dogmatic  in  their  discussions  of  such  subjects  as  insane  impulses. 
Sir  Fitzjames  Stephen,'^  a  very  careful  writer  in  the  main,  has  said: 
'^Knowledge  and  power  are  the  constituent  elements  of  all  voluntary 
action;  and  if  either  is  seriously  impaired,  the  other  is  disabled. 
It  is  as  true  that  a  man  who  cannot  control  himself  does  not  know 
the  nature  of  his  acts,  as  that  a  man  who  does  not  know  the  nature  of 
his  acts  is  incapable  of  self-control."  This  is  a  purely  academic  state- 
ment, cast  in  an  illusive  rhetorical  form,  and  is  not  warranted  by  daily 
experience  among  either  the  sane  or  insane.  It  is  a  matter  of  fre- 
quent observation  that  men  luay  lose  the  power  of  self-control  and  yet 
know  perfectly  what  they  are  about.  Grief  is  a  familiar  example. 
In  insanity  one  of  the  most  perfect  examples  is  seen  in  this  very  case 
of  obsessions. 

851.  Is  dipsomania  an  obsession? — Dipsomania,  or  the  impulse  to 
drink,  is  not  properly  an  obsession,  although  some  authors  describe  it 
as  such.  It  is  a  physical  craving,  not  a  mere  imperative  idea,  and  is 
described  appropriately  under  the  head  of  alcoholic  insanity.^^ 

852.  Sexual  perversions  in  this  connection. — Perversions  of  the  sex 
ual  instinct,  together  with  extraordinary  obsessions,  are  sometimes 
seen,  and  may  be  of  medico-legal  interest.  Such  cases  usually  occur 
in  degenerates ;  and  they  have  given  rise  to  a  somewhat  extended  and 
unsavory  literature,  which  is  represented  in  the  works  of  Krafft- 
Ebing^^  and  his  imitators. 

''"United  States  v.   Heicson,   Brunner,        "  Ps^'cliopathia  Sexualis;  also  Sugj^es- 

Col.  Cas.  532.  Fed.  Cas.  No.  15,360.  live  Therapeutics  in  Psychopathia  Sex- 

"Op.  cit.  Vol.  II.  pp.  170,  171.  ualis,    by    Schrenck-Notzing.     Translat- 

"  Kerr,  Inebriety,  or  Narcomania.  New  ed  by  Chaddock,  Phila.  1895. 
York.  3d  ed.  dd.  218.  219. 


CHAPTER  XLL 

EPILEPTIC  INSANITY. 

I.  The  medical  aspects  of  epileptic  insanity. 
853.  Definition  of  epilepsy. 
8.54.  A  disease  of  many  names. 

855.  The  epileptic  fit  is  of  several  grades. 

856.  The  physical  symptoms  of  epilepsy  described. 

857.  The  mental  symptoms. 

858.  The  symptoms  before  the  lit. 

859.  Epileptic  automatism. 

860.  Varieties  of  the  aura. 

86O5.  The  ocular  symptoms  in  epilepsy. 

861.  The  mental  derangement  during  the  fit. 

862.  Concealed,  or  masked,  epilepsy. 

863.  The  mental  symptoms  following  the  fit. 

864.  The  permanent  effects  of  epilepsy. 

865.  Tlie  epileptic  status  and  other  complication3. 

866.  The  causes  of  epilepsy. 

II.  The  medicolegal  aspects  of  epileptic  insanity. 

867.  Epilepsy  in  the  courts. 

868.  Opposing  views. 

869.  Criminal  epileptics  or  epileptic  criminals. 

870.  Some  conditions  of  irresponsibility. 

871.  States  of  mental  perversion. 

872.  Psycliical  epilepsy. 

873.  The  minor  attacks  not  always,  but  sometimes,  dangerous. 

874.  Consciousness  is  not  always  a  reliable  test. 

875.  The  legal  presumption  in  epilepsy. 

876.  Epilepsy  raises  no  "immediate"  presumption. 

877.  Why  the  defense  of  epilepsy  proves  weak. 

878.  Epilepsy  may  be  a  good  defense. 

879.  It  may  lower  the  grade  of  the  crime. 

880.  The  frequency  of  epilepsy  in  criminals. 

881.  The  courts  have  sustained  tlie  wills  of  epileptics. 
88I0.  The  marriage  of  epileptics. 

S82.  The  responsibility  of  epileptics  in  civil  matters. 

I.   The  MTsuiCAL  aspects  of  kpileptic  insanity. 

853.  Definition  of  epilepsy. —  Kpilepsy  may  be  defined  as  a  disease 

which  is  marked  by  .spasms,  oocurrins:  suddenly  and  in  paroxysms, 

72G 


§  853]  EPILEPTIC  INSANITY.  l-r. 

and  accom})ariied,  as  a  rule,  with  loss  of  consciousness  and  othci 
mental  symptoms.  The  spasms  of  epilepsy  are  its  most  dramatic  and 
conspicuous  symptoms.  They  dominate  the  scene,  and  to  most 
persons  they  seem  to  be  the  very  essence  of  the  disorder.  In  a  largo 
number  of  cases  this  appears  true.  The  spasms,  or  the  epileptic  fits, 
are  the  chief  and  almost  the  oaly  symptoms ;  and  in  such  cases  epi- 
lepsy appears  to  the  uninitiated  to  be  not  a  mental  disorder  so  mucli 
as  a  mere  nervous  affection. 

854.  A  disease  of  many  names.y2 — Epilepsy  has  been  called  since 
ancient  times  the  morbus  sacev, — -the  sacred  disease  ;  a  name  which  in- 
dicates the  awe  with  which  it  was  regarded,  and  its  association  with 
the  gods.  Hence,  also,  it  was  the  morbus  deificus,  because  it  in- 
creased the  sanctity  of  priests  and  especially  of  priestesses,  who  were 
much  given  to  fits.^  It  was  also  the  morbus  Herculeus;  possibly  be- 
cause Hercules  w^as  one  of  the  gods  who  had  it;  and  in  a  later  age  it 
was  called  the  morbus  dcemoniacus,  because  the  victim  was  believed 
to  be  possessed  of  a  demon.^^-^^  It  was  likewise  the  morbus  comiti- 
alis, — the  disease  of  the  assembly, — because  in  Rome,  when  a  man 
fell  in  a  fit  in  the  comitia,  the  business  was  at  once  suspended;  not 
from  humanity,  but  from  superstition;  for  the  Romans  looked 
upon  epilepsy  as  a  visitation  of  the  gods ;  and  in  Roman  law  it  was 

J  Spratling    (Epilepsy  and  Its  Treat-  lepsy  came  in   for  a  due  share  of  this 

ment,   1904)    gives  a  long  list  of  these  ritual.     Epilepsy,  in  fact,  lent  itself  in 

names.     Morbus    caducus     (the    falling  a  peculiar  way  to  this  cult:  the  violence 

sickness)  was  much  used  by  the  Romans  of   the   fit,   its   sudden   onset,   and   com- 

and  after  them  by  the  English.    Shakes-  plete  disappearance  after  a  few  minutes, 

peare  makes  Brutus  say  of  Caesar,  "He  all  encouraged    the    idea    that    it    was 

hath     the     falling     sickness."       (Julius  caused  by  a  demon,  and  gave  a  fine  op- 

Ccesar,  Act  I.  Sc.  II.)  portimity  for  the  display  of  the  powers 

'Cowers    (Epilepsy,  etc.  2d  ed.   1901,  of   the.  exorcist.     The     account    in     St. 

p.  xvii.)   quotes  from  an    old    document  Mark  is  too  plain  to  be  misinterpreted 

("Ancren  Ruele,"  circa  1200,  edited  by  by  even  the  most  careless  and  credulous 

Morton,  Camden  Soc,  1853)   the  follow-  reader. 

ing:  "Another  property  which  is  very  Payne,  in  a  recent  and  valuable  work, 
good  for  an  anchoress,  although  it  is  gives  some  of  the  formula!  which  were 
hated ;  that  is  the  falling  sickness.  For  used  in  Anglo-Saxon  times  to  drive  out 
it  is  veiy  necessary  for  an  anchoress  of  devil's.  Fnge  diabolits,  Christus  te  se- 
holy  and  highly  pious  life  to  have  the  guitur;  quando  natus  est  Christus,  fugit 
falling  sickness.  .  .  .  She  would  dolor.  This  sounds  like  a  priestly  con- 
otherwise  grow  presumptuous."  As  Gow-  ceit,  and  probably  was  such.  Here  is  a 
ers  says,  this  passage  shows  how  famil-  prescription  for  a  lunatic:  "In  case  a 
iar  the  name  was  one  hundred  and  fifty  man  be  month-sick  (lunatic),  take  skin 
years  after  the  Norman  conquest.  It  of  mere-swine  (porpoise),  make  it  into 
also  shows  the  religious  prejudices  in  a  whip;  swinge  him  therewith;  soon  he 
favor  of  epilepsy.  will    be    well.     Amen."   (English    Medi- 

ij  Gospel  of  Mark,  ix.   14-29.  cii^e   in   Anglo-Saxon   Times.     The   Fitz ' 

It  was  a  common  thing,  in   ignorant  Patrick  Lectures  for  1903.    Oxford,  1904, 

and  superstitious  times,  to  exorcise  dis-  p.  125  et  seq.) 
ease,  and  it  is  not  remarkable  that  epi- 


728  INSANITY— FORMS  AND  MEDICO-LEGAL  AbPECTS.  [§  854 

called  particularly  the  morbus  sonticus, — the  serious  disease, — or  one 
that  exempted  from  public  duties  and  from  responsibility.^ 

855.  The  epileptic  fit  is  of  several  grades. — There  is  the  grand  ma], 
or  the  severe  attack,  in  which  the  patient  falls  unconscious  and  con- 
vulsed. The  spasms  are  general  and  severe ;  the  tongue  may  be  bit- 
ten, froth  issues  from  the  mouth,  the  urine  may  be  passed,  injuries 
may  be  received,  and  the  victim  remains  for  a  long  time  in  a  deep 
sleep.  In  the  petit  mal,  or  slight  attack,  all  the  symptoms  are  less 
severe :  consciousness  may  be  obscured  but  for  a  moment,  the  spasms 
may  be  localized  and  mild,  or  even  absent,  and  automatic  actions  may 
be  performed.  All  grades  are  seen  between  the  grand  and  the  slight 
attacks.  In  'Macksonian"  epilepsy  the  fit  begins,  and  may  remain 
localized,  in  a  small  group  of  muscles;  it  is  also  called  "focal"  epi- 
lepsy. Masked  epilepsy  is  a  form  in  which  convulsions  are  absent,  or 
so  slight  as  to  be  unobserved,  and  mental  symptoms  alone  are  seen; 
so  also  in  psychic  epilepsy,  or  substitutional  attacks,  the  fit  is  entirely 
substituted  by  a  mental  afl^ection,  or  psychosis.  jSTocturnal  epilepsy 
is  that  form  which  occurs  only  during  sleep  ;  somnial  epilepsy  is  a  bet- 
ter term,  because  the  attacks  may  occur  even  in  the  daytime  during 
sleep ;  cases  have  been  loiown  to  preserve  this  type  for  many  years.  In 
procursive  epilepsy  the  patient  runs  for  some  distance  before  falling 
in  the  fit.  These  various  fonns  of  epilepsy  are  of  great  medico-legal 
importance,  because  questions  of  responsibility  often  turn  on  the  grav- 
ity or  character  of  the  attacks. 

It  thus  appears  thiit  ihe  symptoms  of  epilepsy  may  be  divided  into 
two  great  classes :  the  physical  and  the  mental. 

856.  The  physical  symptoms  of  epilepsy  described. — The  physical 
symptoms  are  sensory  and  motor.  The  former  occur  especially  at 
the  beginning  of  the  attack,  and  constitute  the  "aura."  This  consists 
usually  of  a  momentary  sensation ;  the  patient  feels  a  tingling  in 
the  fingers  or  some  other  parts,  or  an  odd  and  indescribable  sensation 
in  the  stomach ;  this  mounts  rapidly  towards  the  head,  and  when  it 
reaches  there  the  patient  loses  consciousness.  These  aurae  are  of 
great  variety  in  different  patients,  but  are  always  the  same  in  the 
same  individual. 

The  motor  symptoms  are  the  convulsions  proper.  In  the  grand 
attack,  as  the  aura  mounts  and  consciousness  is  lost,  suddenly  and  in 
a  moment  of  time  the  victim  utters  a  cry  and  falls  convulsed.     The 

•The  Twelve  Tables.  But  sontious 
was  not  confined  to  epilepsy:  it  might 
mean  any  grave  disease. 


^liciijbift  ia£ib£tui^ 


P.  in  a  grand  mal  seizure,  during  which  consciousness  was  partially  retained.     The  fit  is  more 
marked  on  the  left  than  on  the  right  side,  as  indicated  in  the  photograph  by  the  prom- 
inence of  the  muscles  in  the  left  arm,  where  the  contractions  are  tonic.    The 
convulsion  in  the  left  leg  is  clonic,  as  shown    by  the  blurred  outline  of 
the   left  knee.     This   patient  is  subject  to   classical   attacks  of 
Jacksonian  epilepsy,  affecting  the  left  arm  only.     He  is 
able   to   carry  on   a   conversation  while  such  at- 
tacks are  in  progress. 
(From  Spratling  on  Epilepsy.) 


5  S56]  EPILEPTIC  INSANITY.  72i) 

initial  spasms  are  tonic:  the  muscles  are  rigid,  the  hands  clenched, 
the  limbs  extended,  the  respiration  oppressed,  and  the  tongue  prob- 
ably caught  between  the  teeth.  This  stage  passes  quickly  into  one  of 
clonic  movements:  the  rigid  muscles  take  on  quick  and  jerking  mo- 
tions, which  spread  over  the  whole  body.  The  respiration  becomes 
labored ;  froth,  sometimes  mixed  with  blood,  issues  from  the  mouth ; 
the  urine  in  some  cases  is  passed  involuntarily;  and  the  patient  pre- 
sents a  terrifying  appearance. 

As  the  attack  subsides,  the  clonic  spasms  relax,  the  patient  heaves 
deep  sighs,  the  congestion  disappears  from  the  face,  and  a  coma  super- 
venes and  gradually  merges  into  a  deep  sleep.  In  some  cases  there 
may  be  a  temporary  paralysis  of  some  muscles  after  the  attack.  Au- 
tomatic movements,  as  running,  fighting,  spitting,  and  various  other 
acts,  are  seen  in  some  epileptics  just  before  the  attacks,  or  even  con- 
stituting part  of  the  attacks.  In  minor  attacks  the  convulsions  may 
be  limited  to  a  few  muscles,  and  may  even  escape  observation.  Many 
varieties  and  grades  are  seen. 

857.  The  mental  symptoms. — The  mental  symptoms  of  epilepsy  are 
of  the  very  first  importance.  It  is  too  much  the  custom,  unfortu- 
nately, to  regard  epilepsy  as  a  mere  nervous  disorder,  characterized 
only  by  a  fit.  Nothing  can  be  wider  from  the  truth  than  this.^  Ep- 
ilepsy, or  that  for  which  it  stands,  is  much  more  than  a  fit.  Its  essen- 
tial factor  is  a  disorder  of  the  brain,  probably  a  degenerative  process,^ 
which  involves  not  only  the  motor  and  sensory  organs,  but  also  the 
higher  intellectual  spheres  of  the  cortex.  Hence,  as  was  recognized 
long  ago,  epilepsy  has  important  relations  to  the  mental  health.^ 

The  mental  symptoms  of  epilepsy  may  conveniently  be  divided  into 
those  that  occur  before,  during,  and  after  the  seizure,  as  well  as  those 
that  substitute  or  take  the  place  of  the  fit,  and,  finally,  those  that  per- 
sist during  the  intervals  between  the  paroxysms. 

858.  The  symptoms  before  the  fit. — The  pre-paroxysmal  symptoms 
in  epilepsy  are  varied.  Change  of  character,  irritability,  moodiness, 
and  moral  perversions  may  occur,  and  very  often  the  approaching  fit 
can  be  foretold  by  those  who  know  the  patient.  A  type  of  explosive/ 
and  very  violent  mania  is  characteristic  of  epilepsy,  and  may  occur 
at  this  stage.  It  may  appear  just  before  the  fit,  suddenly  and  in 
great  violence,  or  a  more  gradual  type  may  begin  some  days  before  in 

'Falret,    Des    Maladies    Mentales,    p.  'Lloyd,   "Epilepsy,"   in   Starrs  Text- 

477.  Book  of  Diseases  of  Children,  2d  ed.  p, 

*  Bevan  Lewis,  ilental  Diseases,  2d  ed.  750. 
pp.  255  and  575. 


730  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  858 

an  insidious,  cumulative  way.^  In  these  gradual  cases  loss  of  self- 
control  is  a  marked  feature.  The  patient  becomes  talkative,  fault- 
finding, magnifies  trifles,  is  suspicious,  and  even  delusional ;  cannot 
sleep,  has  bad  dreams,  suffers  from  headache,  is  flushed  and  excited. 
The  delusions  are  of  the  persecutory  type :  the  patient  believes  that 
persons  have  designs  against  him.  There  may  also  be  hallucinations. 
In  some  cases  there  is  melancholic  depression ;  but  this  is  rare  before 
the  seizure. 

The  type  of  mental  disorder  in  this  stage  is  maniacal.  There  is 
exaltation,  with  a  tendency  to  incoherence ;  and  in  some  cases  there  is 
also  great  ill-humor,  with  combativeness.  There  may  also  be  reli- 
gious excitement :  the  patient  resorts  to  his  Bible  and  to  prayer,  but 
he  is  not  humble.  He  may  have  visions,  as  in  Clouston's  patient,  who 
saw  Jesus  Christ  and  the  prophets  as  a  prelude  to  the  grand  attack.' 
The  consciousness  is  more  or  less  affected  in  these  cases,  and  the  pa- 
tient may  have  but  little,  if  any,  memory  of  what  he  does.  As  a  rule, 
this  disordered  mental  state  subsides  after  the  fit.  The  patient  wakes 
from  the  terminal  sleep  quite  relieved,  and  with  slight  recollection 
of  what  has  preceded  the  paroxysm.  But  exceptions  to  this  rule  oc- 
cur, for  in  some  cases  a  stuporous  condition  lasts  for  a  day  or  two,  and 
the  patient  may  have  fragmentary  delusions.  In  fact,  these  persist- 
ing delusions  may  lead  to  overt  acts. 

859.  Epileptic  automatism. — A  very  characteristic  state  in  epilepsy 
is  automatism ;  and  this  may  be  seen  sometimes  before  the  seizure. 
The  patient  performs  unconsciously  certain  acts  which  have  all  the 
appearance  of  being  intentional.  In  procursive  epilepsy  the  patient 
runs  for  some  distance;^  some  epileptics  in  this  state  begin  to  undress 
themselves;  others  perform  quite  complex  actions,  and  these  are  usu- 
ally repeated  in  successive  fits. 

860.  Varieties  of  the  aura. — The  aura  is  not  always  sensory :  it  may 
be  mental.  The  patient  may  have  an  hallucination  as  an  aura:  he 
sees  or  hears  something  that  does  not  exist.  One  patient  always  saw 
an  odd-looking  little  old  woman,  advancing  to  strike  him ;  as  the  blow 
was  about  to  fall,  unconsciousness  set  in  and  the  convulsion  began. ^'^ 

*  Spratling,  op.  cit.  p.  445.  a  brown    dress,    iiia\-    be  recalled  here. 

^  Clouston,  ^Mental  Diseases,  p.  289.  (Epilepsy,  etc.,  2d  ed.  p.  78.)      Gowers, 

'Gould  and  Pyle   (Anomalies  and  Cii-  in  the  work  quoted,  describes  with  jjreat 

riosities   of   Medicine,    ]).   852)    refer   to  fullness  the  various    kinds    of    epileptic 

an  epileptic  Englisliman  wlio,  in  an  at-  aunr,    such    as     flashes     of     light,    bad 

tack  of  procursive  epilepsy,  ran  "from  smells,  noises   in   the  ears,   etc.     A   pa- 

Peterboro   to   Wittlessy"    (however    far  tient   of   Gregory's   always   saw   an   old 

that  may  be).     ,  Moman,  also,  but  she  was  dressed  in  red. 

8a  Gowers'  oft-quoted    case,    in    which  Benswanger.    Die    Epilepsie,    Nothnagel, 

the  patient  always  saw  an  old  woman  in  Sp.  Pract.  u.  Therap.  Bd.  XII. 


i  .800]  EriLEPTlC   INSANITY.  731 

Of  still  more  significance  is  the  pnrcl-y  psychic  aura;  in  this  form 
the  patient  has  some  association  of  ideas  rise  suddenly  in  his  mind, 
usually  of  a  disturbing  or  even  terrifying  nature.  Not  a  few  epilep- 
tics are  seen  to  exhilnt  the  signs  of  acute  terror  at  the  onset  of  a  fit. 

86OI/2.  The  ocular  symptoms  in  epilepsy.— The,  state  of  the  pupils 
during  the  epileptic  fit  is  a  subject  of  some  medico-legal  importance. 
Ft  is  commonly  said  that  the  pupils  dilate  and  are  immobile  to  light. 
Spratling-s*^  does  not  recall  a  single  instance  in  which  both  pupils 
were  not  more  or  less  dilated ;  in  some  cases  extremely  so.  Gowers^*" 
says  that  dilatation  is  present  during  the  tonic  stage  of  the  fit,  and  it 
is  rare  for  the  pupil  to  be  seen  in  any  other  condition  than  dilatation. 
But  loss  of  pupillary  reaction  is  not  invariable  in  fits  of  moderate  in- 
tensity. Onuf^*^  says  there  may  be  an  extreme  initial  contraction  of 
the  pupil ;  and  Gowers  concurs  in  this,  but  says  that  dilatation  soon 
■supervenes.  In  former  days,  the  immobility  of  the  pupil  was  con- 
sidered diagnostic  of  epilepsy,  and  served  to  distinguish  this  disease 
from  hysteria,  and  also  from  simulation.  But  some  doubt  has  been 
thrown  on  both  these  claims ;  and  yet  the  dilatation  and  immobility  of 
the  pupil  cannot  be  feigned  by  an  act  of  will ;  but  Voisin  suggests  that 
this  condition  can  be  secured  w4th  belladonna.  In  belladonna  poi- 
soning, however,  the  dilatation  of  the  pupil  persists  for  days,  and  this 
fact  should  serve  to  distinguish  it.  The  subject  was  ventilated  in 
court  in  the  Laros  Case.^^  (See  the  chapter  on  "Simulated  In- 
sanity," page  891,  post.)  Eeynolds**^  called  attention  to  the  os- 
cillation of  the  pupils  towards  the  end  of  the  fit.  The  eyeballs  are 
sometimes  extremely  deflected  towards  one  or  the  other  side. 

A  curious  phenomenon,  partaking  of  the  character  of  an  aura,  is 
the  symptom  known  as  micropsia  or  macropsia,  as  the  case  may  be. 
To  the  patient,  just  at  the  beginning  of  the  convulsion,  objects  seem 
to  approach  or  recede ;  hence  to  increase  or  diminish  in  size.^^ 

There  are  no  characteristic  changes  within  the  eye  as  revealed  by 
the  ophthalmoscope  during  or  just  after  the  fit.  ^^ 

861.  The  mental  derangement  during  the  fit. — The  paroxysmal  men- 
tal symptoms  are  extremely  varied.  The  most  common  is  loss  of 
consciousness;   this  is  so  common,   in  fact,   that  it  is  not  unusual 

«bOp.  cit.  p.  268.  sfEpilepsy,   1861,  p.   112. 

*c  Op.  cit.  p.  105.  8g  Veraguth,    "Ucber    Mikropsie    und 

8dN.  Y.  State  Med.  Journ.  1904.  IV.  INIakropsie,"    in    Deut.    Zeit.  f.  Nerven- 

pp.  71-74.  heilk.  Bd.  24,  5,  6. 

8e  Voii5in,  Les  Epilepsies,   1896;    Fere,        sh  Gowers,  Manual  of  Med.   Ophthal* 

Les  Kpilepsies  et  les  Epileptiques,  Paris,  mology,  4th  ed.   1904. 
1890;    Hoche,   Berl.   Augen.   Huschwald, 
1S02. 


732  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  861 

to  say  that  it  is  always  observed  in  some  degree ;  but  the  best  authori- 
ties now  agree  .that  consciousness  may  be  preserved,  in  part,  at 
least,  in  some  cases  of  epilepsy.  In  the  grand  mal,  however,  the  loss 
of  consciousness  is  profound ;  and  in  the  vast  majority  of  milder  cases 
the  consciousness  is  affected  in  some  degree.  There  may  be  confu- 
sion, loss  of  the  sense  of  personal  identity,^  or  merely  the  so-called 
"blanks"  which  are  seen  in  petit  mal;  but  in  some  degi*ec  or  form  it 
is  almost  sure  to  be  observed.  This  is  the  rule  in  epilepsy ;  hence,  the 
presumption  is  always  in  favor  of  it. 

862.  Concealed,  or  masked,  epilepsy. — It  is  in  the  paroxysmal  stage 
especially  that  we  have  some  of  the  most  puzzling  forms  of  mental 
disturbance.  Among  these  are  the  masked  cases,  in  which,  instead 
of  there  being  a  frank,  well  declared  fit,  the  chief  symptoms  are  men- 
tal, and  the  convulsive  symptoms  are  not  present,  or  are  so  slight  as  to 
be  unobserved.  In  such  cases  the  mental  symptoms  are  almost  as 
varied  as  the  patients  themselves,  but  the  epileptic  automatism  is 
especially  well  seen  in  some  of  them.  The  action  is  complex,  and 
has  all  the  appearance  of  being  deliberate.  Gow'ers^"  relates  in- 
stances of  such  patients  imdressing  themselves  at  inconvenient  times 
and  places ;  of  a  clerk  who  pocketed  what  did  not  belong  to  him ;  of  a 
cabman  who  drove  without  object  and  without  accident  through  the 
most  crowded  streets  of  London ;  and  of  a  woman  who  threw  her  baby 
downstairs.  In  these  cases  the  consciousness  is  obscured,  and  the  pa- 
tients have  no  recollection  afterward  of  what  they  did.  These  ac- 
tions are  by  no  means  always  of  a  criminal  cast:  the  vast  majority  of 
epileptic  automatons  are  quite  harmless. 

A  much  graver  type  is  the  maniacal.  This  resembles  closely  the 
epileptic  mania  already  described,  but,  when  it  occurs  as  a  substitute 
for  the  fit,  it  may  be  dangerous  in  the  extreme.  Such  patients  arc 
capable  of  deeds  of  resentment  and  of  great  violence.  This  is  the 
true  masked  epilepsy, — the  epilepsie  larvee  of  French  authors,  fol- 
lowing Morel  and  Falret.  It  were  better  for  these  patients  if  they 
had  a  downright  convulsive  attack ;  in  fact,  the  maniacal  excitement 
may  be  due  in  some  way  to  the  fact  that  the  convulsion  is  suppressed. 
Some  epileptics  declare  that  they  feel  better  when  they  are  having  an 
occasional  fit,  and  it  is  often  observed  that  after  a  full  and  frank  seiz- 
ure the  mind  is  clearer  and  more  vigorous.^  ^  Hence,  these  abortive 
attacks,  sliownng  themselves  in  mental  symptoms,  are,  in  every  sense, 

'Horjjin.  f/fipilcpsie.  p.  438.  "Spratliiig,  op.  cit. 

"Dis.   of   Xcivous   Svst.    2d   ed.   Vol. 
II.  p.  74(i. 


§  862]  EPILEPTIC  INSANITY.  733 

abnormal   and   irregular.      They   are   sometimes    called    "psychical 
equivalents." 

863.  The  mental  symptoms  following  the  fit. — The  post-paroxysmal 
mental  symptoms  are  usually  pronounced.  After  the  grand  mal  the 
patient  remains  in  a  coma,  with  stertorous  breathing ;  this  terminates 
in  a  deep  sleep,  from  which  the  patient  awakes,  ill  and  confused,  and 
usually  with  a  severe  headache.  This  stage  of  coma  and  sleep  varies 
greatly  in  different  patients.  In  some  cases  there  is  left  an  irritable 
and  confused  state,  with  a  tendency  to  impulsive  and  resentful  acts ; 
and  in  others  there  may  be  an  active  manifestation  of  maniacal  furor. 
Delusions  remain  sometimes  as  a  sort  of  residue  of  those  which  the 
patient  had  before  the  seizure,  and,  as  consciousness  and  self-control 
are  entirely  destroyed  for  the  time  by  the  fit,  this  mental  state  may  be 
violent  and  dangerous.  At  this  time,  also,  automatic  actions  occur. 
Dr.  Orange,  of  Broadmoor,  relates  the  case  of  a  woman  who  had  an 
attack  of  petit  mal  while  holding  her  child  on  one  arm  and  cutting 
bread ;  on  the  return  of  consciousness  she  proceeded  to  use  the  knife 
upon  her  child,  and  amputated  its  arm. 

864.  The  permanent  effects  of  epilepsy. — Long-continued  epilepsy 
has  an  injurious  permanent  effect  upon  the  mind  in  many  cases, 
but  there  is  a  surprising  lack  of  rule  in  this  respect.  It  is  not  all  epi- 
leptics who  suffer  mental  deterioration,  for  some  of  them  retain  a 
practically  normal  mind.  Degeneration  occurs  in  cases  especially  in 
which  the  disease  has  begun  early  in  life,  and  is  marked  by  frequent 
and  violent  seizures ;  but  even  here  exceptions  occur,  for  some  epilep- 
tics suffer  but  little  mental  change  even  from  severe  convulsions,  while 
others  are  impaired  in  mind  even  though  their  attacks  are  not  of  ex- 
ceptional frequency  and  violence.  There  is,  in  fact,  no  positive  law 
to  be  laid  do%vn.  Reynolds^  ^  found  mental  soundness  in  rather  more 
than  one  third  of  his  cases ;  while  in  little  less  than  two  thirds  there 
was  more  or  less  deterioration :  a  rather  high  rate.  The  more  common 
effects  are  weakening  of  the  mind,  loss  of  self-control,  impairment 
of  memory,  and  even  more  pronounced  ihsanity,  such  as  mania,  mel- 
ancholia, and  delusions.  Some  epileptics  become  suicidal,  especially 
in  the  depression  following  the  fit.  Epilepsy  is  also  associated 
with  idiocy  and  imbecility.     It  may  terminate  in  dementia. ^^ 

'^System  of  Medicine,  Vol.  I.  p.  774.  "Ireland  (Blot  upon  the  Brain,  2d  ed. 
Consult,  also.  Fere  (Les  Epilepsies  et  Paper  II.)  discusses  the  historical  evi- 
Les  Epileptiques,  Paris.  1890).  Fere  dence  of  the  alleged  epilepsy  of  Mo- 
gives  in  detail  the  physical  and  mental  hammed,  Julius  Caesar,  and  Napoleon 
stigmata  of  epileptics.  Such  marks  are  Bonaparte.  The  historian,  Gibbon,  in 
ten  times  more  frequent  than  in  healthy  his  Decline  and  Fall,  calls  Mohammed's 
persons.  epilepsy    a    "calumny"    of    the    Greeks. 


734  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  865 

865.  The  epileptic  status  and  other  complications. — A  very  grave 
complication  is  the  epileptic  status.  In  this  condition  the  patient 
passes  rapidly  from  one  convulsion  into  another.  He  is  comatose, 
with  high  temperature,  weak  pulse,  and  stertorous  respiration.  In 
this  state  he  may  die.^^^  A  patient  of  the  author's  had  more  than 
one  hundred  fits  in  twenty-four  hours,  but  recovered. ^^^^  There  are 
certain  other  complications;  and  death  has  resulted  from  asphyxia, 
due  to  spasm  of  the  chest  muscles,  or  even  from  rupture  of  the 
heart.-''*  Attacks  resembling  angina  pectoris,  also  peculiar  spasmodic 
affections  of  the  laiynx,  are  sometimes  epileptic  in  character.  ISToc- 
turnal  incontinence  of  urine,  especially  if  persisting  after  early 
childhood,  may  excite  suspicion.  Trousseau^  ^  reported  the  case  of 
a  French  nobleman  who  had  this  symptom,  also  dislocation  of  the 
shoulder  during  sleep,  leading  to  a  correct  diagnosis  of  epilepsy. 
]^octurnal  epilepsy  may,  indeed,  remain  a  practically  concealed  dis- 
ease for  many  years;  even  if  known  to  the  family,  it  may  be  unknown 
to  the  world  at  large.  I  have  known  a  case  to  preserve  this  type  for 
more  than  twenty  years. 

866.  The  causes  of  epilepsy. — Among  the  chief  causes  of  epilepsy 
are  heredity,  the  infectious  diseases,  alcoholism,  and  injuries  to  the 
brain.     Many  cases  occur  in  which  a  cause  cannot  be  demonstrated. 

Great  ingenuity  and  vast  medical  knowl-  The  only  authentic  statement  which 
edge  have  been  expended  in  the  dis-  might  lead  us  to  believe  that  Napoleon 
cussion.  Sprenger,  who  wrote  a  life  of  ever  had  an  epileptic  fit  is  in  TalK- 
the  prophet,  reproduces  the  traditions,  rand's  Avritings  (Memoires.  Paris,  1891, 
Much  reliance  has  been  placed  upon  the  p.  295).  It  is  not  decisive, 
well-known  fact  that  epileptics  some-  Lord  Byron,  in  a  letter  written  short- 
times  have  religious  delusions,  halluci-  ly  before  his  death,  tells  of  some  kind 
nations,  and  exaltation.  But  there  of  seizure  he  himself  had  in  Greece, 
seems  to  be  not  much  satisfactory  proof  after  he  had  been  drinking  to  excess, 
that  Mohammed  was  epileptic;  his  at-  It  might  have  been  epileptic.  Life  and 
tacks  seem  rather  to  have  been  instances  Letters  of  Lord  Byron,  published  by 
of  mere  religious  exaltation.  The  point  Murray, 
cannot  be  settled.  J  3^  See  a  recent  paper  by  Clark  and 

What  we  know  about  Casar's  attacks  Prout  in  Am.  Journ.  of  Insanitj^,  Vols, 

rests  upon  a  passage  in  Suetonius   (XII.  LX.  and  LXI. 

Cffisares,  Cap.  4.5)    which   indicates  that         i3g  In  another  patient  of  the  author's, . 

this  nervous  disorder,  whatever  it  was,  seen   in   the   Philadelphia   Hospital,   the 

appeared  only  toward  the  end  of  his  life,  epneptic  status  lasted  four  days,  during 

"It  is  said  that  he  was  tall,  of  a  fair  wliicli  time  the  patient,  a  girl  aged  nine- 
complexion,  round-limbed,  rather  full-  teen  years,  had  one  hundred  and  twenty- 
faced,  with  eyes  black  and  piercing;  and  nine  fits.  Just  before  her  death  her 
that  he  enjoyed  excellent  health,  except  temperature  rose  to  the  extraordinary 
towards,  the  close  of  his  life,  when  he  heiglit  of  108^*^  by  the  rectum, 
was  subject  to  sudden  fainting-fils  and        "Lloyd,  op.  cit. 

disturbance  in  his  sleep.     lie  wasi  like-        "Quoted  by  Legrand  du  Saulle,  Mfid. 

wi.se  twice  seized  with  tlic  falling  sick-  Legale,  p.  80i. 
ness,  while   engaged    in    active  service." 
(Tiiomson's  transialion,  Bolin's  Classic, 
Lib.  p.  :50.) 


§  867]  EPILEPTIC  INSANITY.  735 

II,   The  medico-legal  aspects  of  epileptic  insanity. 

867.  Epilepsy  in  the  courts. — Epilepsy,  as  a  cause  of  mental  un- 
soundness, sometimes  comes  before  the  courts.  In  such  a  protean  dis- 
ease, one  in  which  the  mental  symptoms  are  seen  in  such  profusion 
and  variety,  it  is  small  wonder  that  a  great  variety  of  opinions  should 
arise.^^^  The  special  difficulty  in  these  cases,  however,  comes  from 
the  fact  that  the  epileptic  seizure  is  usually  explosive  in  type,  and  that 
it  usually  subsides  rapidly,  leaving  the  patient  in  a  practically  nor- 
mal state.  This  explosive  attack,  when  it  leads  to  crime,  raises  nice 
questions  as  to  the  state  of  the  consciousness,  and  consequently  of  the 
patient's  will-power,  and  his  ability  to  form  a  criminal  intent.-*^^^ 

868.  Opposing  views. — There  are  two  extreme  views  held  of  epi- 
lepsy.-^^  On  the  one  hand  not  a  few  physicians  seem  to  hold  that  if 
a  patient  has  ever  had  a  genuine  epileptic  seizure,  he  is  necessarily  of 
impaired  mind.  For  them,  the  slightest  indication,  even  at  a  remote 
])eriod,  that  a  prisoner  had  had  a  fit,  is  enough  to  raise  a  presumption 
that  he  is  irresponsible.  This  is  not  a  scientific  view,  and  it  is  not  a 
legal  presumption. 

On  the  other  hand,  there  are  some  persons,  especially  members  of 
tlie  bench  and  bar,  who  do  not  seem  able  to  grasp  the  idea  that  because 
a  man  has  epileptic  fits  occasionally  he  may  become  thereby  of  un- 
sound mind.  This  prejudice  is  aroused  in  part  by  the  fact  that  the 
defense  of  epileptic  insanity  has  been  grossly  abused  in  some  of  our 
American  courts.  It  is  also  due  to  the  fact  that  the  mental  symptoms 
in  epilepsy  are  not  matters  of  common  observation,  and  sometimes  re- 
quire very  exact  study  to  demonstrate  them.  Between  these  two  ex- 
treme views  the  truth  lies  somewhere. 

869.  Criminal  epileptics  or  epileptic  criminals. — Epileptics  have  been 
tried  and  hanged  for  murder.  The  most  noteworthy  cases  were  those 
of  Bowler,^ ^  in  England,  and  of  Winnemore,^^  in  Philadelphia. 
These  patients  enjoy  no  exemption,  therefore,  in  the  eyes  of  the  law ; 
but  in  the  eyes  of  science  the  execution  of  a  confirmed  epileptic  must 
always  be  an  abhorrent  spectacle,  unless  it  be  proved  conclusively  that 
the  condemned  man's  crime  could  have  had  no  relation  with  his  dis- 
ease.    Therefore,  it  is  incumbent  upon  us  to  consider  carefully  what 

15^  See   a    polemical   paper   on   "True  "  Spitzka,  Insanity,  chapter  on  "Epi- 

and  False  Experts"  in  the  Am.  Journ.  leptic  Insanity." 

of  Ins.  July,  1878,  with  references  to  the  "  1    Collinson,   Lunacy,    673,   note, 

cases  of  Montgomery  and  M'Farland.  ^^Com.  v.  Winnemore,  1  Brewst.  (Pa.) 

153  Chapin,  "The  Consideration  of  the  356. 
Epileptic  by   the   Courts,"   in  Medicine, 
Feb.   1904. 


736  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  869 

are  the  mental  states  in  epilepsy  that  can  absolve  from  guilt,  and  what 
are  the  presumptions  in  law  and  in  science. 

870.  Some  conditions  of  irresponsibility. — It  will  scarcely  be  denied 
that  the  violent  maniacal  furor  which  may  precede,  or  substitute,  or 
follow,  the  fit,  is  conclusive  proof  of  irresponsibility.  Epileptic  in- 
sanity, according  to  the  best  of  authority,  can  take  the  form  of  a  more 
acute  maniacal  condition  than  almost  any  other  insanity,  with  the  ex- 
ception of  mania  from  alcohol.  "There  is  no  other  form  of  insanity 
outside  of  asylums,"  says  Clouston,^^  "so  frequently  the  cause  of  mur- 
ders." No  maniacs  show  such  blind,  uncalculating  violence  and  fre- 
quent fury  as  the  epileptic.  "He  is  one  of  the  most  dangerous 
subjects,"  says  Bevan  Lewis,^^  "we  have  to  deal  with  in  our  asylums." 
In  this  state  consciousness  is  entirely  obscured,  as  a  rule,  and  the  pa- 
tient has  no  recollection  afterwards  of  what  he  did  during  the  fury. 
These  two  elements,  unconsciousness  and  automatism,  are  such  com- 
mon features  in  epilepsy  that  they  should  be  thought  of  in  any  kind 
of  paroxysm.  This  applies,  therefore,  to  the  outburst  of  mania  or 
fury. 

It  is  just  this  element  of  automatism,  however,  that  may  give  the 
acts  of  an  epileptic  the  appearance  of  deliberation  which  is  so  mislead- 
ing. It  is  needless  to  say  that  the  extreme  fury  of  an  epileptic 
maniac,  with  its  appearance  of  impulsiveness,  would  not  fall  within 
the  provision  of  such  a  law  as  the  Xew  York  Penal  Code,^^  which  says 
that  a  morbid  impulse  to  commit  a  criminal  act,  in  a  person  who  is 
capable  of  knowing  that  the  act  is  wrong,  is  no  excuse.  The  epileptic 
maniac  certainly  cannot  distinguish  right  from  wrong,  or  know  the 
nature  of  his  acts  in  any  respect.  It  is  also  necessary  to  remember 
that  such  attacks  can  be  substitutional,  and  therefore  it  is  not  requi- 
site that  they  should  be  attended  with  a  fit  proper, 

871.  States  of  mental  perversion. — The  irritability,  exaltation,  and 
loss  of  self-control,  both  before  and  after  the  fit,  are  marked  charac- 
teristics in  epilepsy,  and  are  a  part  of  the  mental  perversion.  In  this 
stage  no  genuine  epileptic  can  be  accounted  responsible.  If,  to  use  the 
language  of  Chief  Justice  Gibson^-  in  another  kind  of  case,  "an  un- 
seen ligament  is  pressing  on  his  mind,"  or,  according  to  Lord  Den- 
man,^"^  "some  controlling  disease  was,  in  truth,  the  active  power  with- 
in him,  which  he  could  not  resist,"  then  he  is  not  responsible.     In 

"Op.  cit.  p.  288.  to  have  been  habitual,  or,  at  least,  to 

"Op.  cit.  2d  ed.  p.  268.  have  evinced  itself  in  more  than  a  single 

"  Penal  Code,  §  2.3.  instance."    This  applies  clearly  to  symp- 

'^Com.   V.   M osier,  4   Pa.   264.     Judge  tonis  of  epilepsy. 

Gibson  added :      "It  ought  to  be  shown  ""Reg.  v.  Oxford,  9  Car.  &  P.  525. 


§871]  EPILEPTIC  INSANITY.  737 

this  statx?,  consciousness  is  not  necessarily  lost,  and  ine  patient  is  not 
necessarily  under  the  influence  of  delusions,  but  he  is  in  a  state  of 
diminished  self-control  which  is  just  as  truly  a  part  of  his  disease  as 
is  the  convulsion  itself.  It  would  be  monstrous  to  attempt  to  draw  a 
sharp  line  of  demarcation  between  the  disordered  intelligence  which 
heralds  the  approach  of  a  fit  and  the  fit  itself.  !N^o  mortal  power  can 
do  this.  Therefore  the  attempt,  such  as  was  made  in  the  Case  of 
Laros,^*^  on  the  part  of  some  medical  witnesses,  to  lay  down  hard  and 
fast  rules  as  to  just  how  many  days  before  and  after  a  fit  an  epileptic 
may  be  deemed  irresponsible,  must  be  futile.  There  is  no  possible 
rule  on  such  a  subject.  Each  case  must  be  judged  by  itself.  During 
this  stage,  however  long  it  may  last,  the  epileptic  patient  is  peculiarly 
liable  to  impulses. 

872.  Psychical  epilepsy. — In  the  condition  known  as  psychical  epi- 
lepsy, a  trance-like  or  automatic  mental  state  supervenes  upon,  or  may 
even  substitute,  a  fit ;  and  during  this  state  the  patient  is  unconscious. 
He  is  like  a  somnambulist.  He  may  go  about  doing  things  even  in 
his  accustomed  way,  but  with  no  more  consciousness  than  a  machine ; 
and  after  the  attack  ends  he  has  no  recollection  of  it.  Crimes  may 
be  committed,  such  as  theft,  arson,  rape,  and  homicide.-^  This  men- 
tal state  is  not  easy  to  prove  before  a  court  and  jury,  and  a  prejudice 
exists  against  it,  for  the  idea  has  undoubtedly  been  seized  upon  by  in- 
genious lawyers  for  manufacturing  a  defense  in  desperate  cases.  In 
order  to  constitute  a  good  defense  it  must  be  proved  to  have  occurred 
in  a  patient  who  is,  without  doubt,  a  genuine  epileptic.  In  the  Laros 
Case  this  defense  broke  down,  in  part  at  least,  because  the  proof  that 
the  prisoner  had  ever  had  epileptic  fits  was  inconclusive. 

Medical  jurists  will  be  in  error,  however,  if  they  suppose  that  even 
in  a  case  of  undisputed  epilepsy  the  courts  will  allow  a  presumption 
in  favor  of  such  an  obscure  condition  as  psychical  epilepsy.  The  bur- 
den of  proof  will  be  on  the  defense,  and  this  fact  may  as  Avell  be  rec- 
ognized. In  favor  of  psychical  epilepsy  would  be  such  facts  as  that 
it  had  occurred  before  in  the  patient,  that  he  was  subject  to  convul- 
sions, that  his  act  was  without  motive,  and  that  the  attendant  circum- 
stances showed  that  he  was  in  an  automatic  state.^® 

**  Trial  of  Allen  C.  Laros,  etc.,  Easton,  which  a  defense  could  be  set  up.     There 

Pa.,  1877.  was  little,  if  any,  evidence  to  support  it, 

^  Spratling,  op.  cit.  p.  445.  and    the    prisoner    was    convicted    and 

■"Hall  V.  Com.  22  W.  N.  C.  25,  12  Atl.  hanged.     These  facts  do  not  appear  in 

163.     In  this  case  a  defense  of  epileptic  the  report  of  the  case,  but  the  present 

insanity  was  attempted,  against  expert  writer  knows,  for   it  was  he  who  gave 

advice;  the  counsel  for  the  prisoner  in-  the  aforesaid  advice.     See  also  Com.  v. 

siating  that  it  was  the  only  ground  upon  Hillman,  189  Pa.  548. 

Vot-.  I.  Med.  Jur. — 47. 


73S  INSAiVlTY— lORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  873 

873.  The  minor  attacks  not  always,  but  sometimes,  dangerous. — The 
minor  attacks  of  epileptic  automatism,  such  as  occur  in  petit  mal,  or 
even  in  some  of  the  more  severe  cases,  are  not  so  dangerous  as  the 
maniacal  fury.  Most  of  these  automatic  acts  are  entirely  harmless, 
siich.  as  undressing,  running  long  distances,  etc. ;  but  they  are  often 
accompanied  with,  or  followed  by,  states  of  great  irritability,  because 
of  which  the  patient  may  do  acts  of  violence,  especially  if  he  be  op- 
posed or  controlled.  I  know  of  a  case  of  an  insane  man  who,  in  one 
of  his  epileptic  spells,  ran  more  than  a  mile  in  the  country,  and  when 
brought  back  was  in  a  maniacal  and  dangerous  mood.  Here,  again, 
impulsiveness  and  unconsciousness  are  chief  traits.  A  particularly 
dangerous  temper  may  develop  in  patients  who  are  subject  to  a  series 
of  attacks;  between  these  rapidly  recurring  fits  the  mind  may  be 
much  impaired,  and  the  patient  may  become  very  irritable  and  im- 
pulsive. 

874.  Consciousness  is  not  always  a  reliable  test. — The  whole  prob- 
lem of  responsibility  in  an  ei^ileptic  cannot  be  reduced  to  the  question 
whether  the  patient  is  conscious.  Undoubtedly  most  epileptics  are 
unconscious  during  their  spells ;  absolutely  so  in  grand  mal,  partially 
so,  at  least,  in  the  minor  attacks.  But  the  intervals  between  fits  must 
not  be  ignored,  and  those  permanent  mental  changes  which  so  fre- 
(juently  occur  must  be  considered.  An  epileptic  who  is. weakened  in 
his  mind,  who  has  loss  of  memory,  who  has  loss  of  will-power  or  self- 
control,  or  who  is  suffering  with  a  melancholic  depression,  any  or  all 
as  permanent  effects  of  his  distressing  malady,  is  not  a  responsible 
being  in  the  contemplation  of  any  just  and  rational  system  of  law. 
To  such  an  unfortunate  applies  particularly  the  dictum  of  Lord 
Chancellor  Lyndhurst,^^  that  if  a  man's  mind  is  impaired  in  part,  he 
is  of  unsound  mind. 

875.  The  legal  presumption  in  epilepsy. — To  what  extent  will  epi- 
lepsy raise  a  presumption  of  mental  unsoundness  ?  It  is  difficult  to 
answer  this  question,  but  it  is  within  the  limits  of  prudence  to  say 
that  in  the  past  it  does  not  seem  to  have  acted  to  raise  any  presump- 
tion whatever  in  law.  In  view  of  the  fact  that  lucid  intervals  are  so 
readily  presumed  in  English  law,  it  is  not  likely  that  any  court  will 
hesitate  to  assume  that  an  epileptic  is  sane  until  he  is  proved  to  be  the 
contrary.  In  a  disease  in  which,  as  a  rule,  very  prolonged  periods 
of  norniai  health  occur,  this  attitude  of  the  law  may  be  counted  on. 
It  is  an  attitude  which  is  consistent  with  tradition  and  with  what  the 

"Dew  V.  Clarke,  5  Ruas.  Ch.   166,  8 
L.  .J.  Ch.  180. 


§  875J  EPILEPTIC  INSANITY.  739 

lawyers  would  probably  hold  to  be  sound  practice.  And,  indeed, 
it  is  difficult,  even  for  a  medical  expert,  to  say  why  such  a  rule  should 
not  stand.  It  practically  does  not  militate  against  the  patient  so 
much  as  is  supposed,  for  it  is  perfectly  consistent  with  the  admission 
of  all  proof  in  his  favor.^^ 

A  presumption  in  law  is  nothing  but  an  hypothesis,  based  upon 
probability ;  it  is  always  open  to  assault,  and  the  burden  of  proof  can 
be  shifted,  if  the  prisoner  has  a  good  case.^^  It  is,  moreover,  in  the 
case  of  epilepsy  not  a  scientific  statement  to  claim  that  a  crime  must 
necessarily  be  the  result  of  the  disease.  This  may  be  a  presumption 
in  science,  but,  as  in  the  case  of  every  presumption,  it  may  be  over- 
throwm  by  proof.  Therefore,  it  seems  that  the  statements  of  some 
scientists  on  the  subject  of  epilepsy  are  extreme.  Murder  by  an  epi- 
leptic, says  Clouston,^*^  should  usually  be  looked  upon  as  being  as 
much  a  symptom  of  his  disease  as  larceny  by  a  general  paretic.  This 
is  too  ultra  a  statement  with  which  to  go  into  a  court  of  justice. 
Marce  has  given  a  more  temperate  statement,  when  he  says  that  all 
epilepsy  warrants,  upon  the  event  of  a  criminal  act,  the  suspicion  of 
mental  disorder;  and  this  suspicion  is  increased  in  the  absence  of  a 
motive.^*^^  But  a  suspicion  is  not  enough  in  law  either  to  convict  or 
acquit:  it  must  be  supplemented  with  proof. 

876.  Epilepsy  raises  no  "immediate"  presumption. — "The  proof  of 
epilepsy,"  said  Chief  Justice  Agnew,^^  "furnishes  no  immediate 
presumption  of  insanity."  By  the  word  ''immediate"  he  seems  to 
imply  that  epilepsy  may  raise  a  remote  presumption.    But  it  has  been 

°*  This    logical    process    is    well    illus-  mother,    four    brothers    and    sisters,    a 

trated  in  the  charge  of  Judge  Meyers  to  young  grandchild  of  his  parents,  and  a 

the  jury  in  the  case  of  Com.  v.  Laros,  hired    man.      Three    of    the    victims — 

op.  cit.  father,    mother,    and    hired    man — died. 

^Wari7ig  v.  Waring,  6  Moore,  P.  C.  C.  There  was  no  adequate  motive  for  such 
341,  12  Jur.  947.  See  this  case  for  a  a  monstrous  crime,  iniless  it  was  the  de- 
statement  by  Lord  Brougham  about  pre-  sire  to  obtain  a  small  amount  of  money, 
sumption  and  the  shifting  of  the  onus  and  detection  was  inevKable.  The  de- 
probandi  in  .cases  of  lunacy.  fense   was    based    on    the   allegation    of 

^^  Op.  cit.  p.  288.  epileptic  insanity,  and  t]ie  trial  brought 

3  0-J  Quoted  in  the  Laros  Case,  report-  out  a  great  amount  of  expert  testimony, 

ed  by  Edgar,  p.  1G9.  The  report  is  too  voluminous  even   for 

^^Laros  v.  Com.  84  Pa.  209.    The  Laros  satisfactory     condensation     here.       The 

Case  is  one  of  the  causes  celebres,  and  prisoner  was  found  guilty,  and  appealed 

was   tried   at   Easton,    Pennsylvania,    in  to    the    supreme    court,    which    decided 

1876.     Laros,  a  young  man,  aged  about  against  him;  but  he  eventually  escaped 

tMenty-two  years,  was  a  school  teacher,  the   gallov.'s.      Trial    of   Allen    C.    Laros 

temperate,    industrious,    moral,    and    a  at   Easton,   Pa.,   August,    1876,   for   the 

member   of   the   church.     On   the   even-  Murder  of  Plis  Father,  Martin  Laros,  by 

ing  of  May  31st,   1876,  he  put  a  large  Poison,    and    His    Defense,    based    upon 

quantity     of     arsenic,     which     he     had  the  Allegation  of  Epileptic  Insanity,  by 

bought  openly  in  Easton,  into  the  fam-  F.  W.  Edgar,  of  the  Northampton  Coun- 

ily  colTee  pot,  and  poisoned  his  father,  ty  Bar,  Easton,  1877. 


740  INSANITY— IrORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  876 

held  in  distinct  language  that  evidence  to  support  a  plea  of  insanity  is 
insufficient  when  it  merely  shows  that  the  prisoner  was  an  epilepti(i., 
and  that  epilepsy  weakens  the  intellectual  powers,  and,  in  some  cases, 
produces  total  insanity ;  but  fails  to  show  that  the  prisoner  was  in  any 
way  affected  by  the  disease  on  the  day  of  the  killing.^^  Therefore, 
in  such  a  case  it  was  held  that  a  witness  was  incompetent  to  express  an 
opinion  as  to  the  prisoner's  mental  condition  on  the  day  of  the  crime, 
because  he  had  not  seen  him  for  four  months,  and  had  not  seen  him  in 
a  fit  for  seven  months. 

Thus  particular  is  the  law  as  to  the  mental  state  at  the  exact  mo- 
ment of  the  act :  it  does  not  avail  to  prove  the  prisoner's  mental  state 
at  a  remote  period.  In  cases  of  epilepsy  this  seems  a  rule  liable  to 
abuse,  for  this  disease  acts  in  paroxysms,  often  far  apart,  and  these 
paroxysms  usually  resemble  each  other ;  therefore  it  would  seem  that 
one  familiar  with  many  of  these  attacks  would  know  something  about 
all  of  them.  Nevertheless,  the  rule  of  law  has  some  reason  in  it,  for 
a  person  who  had  not  seen  the  prisoner  for  some  months  is  hardly 
competent  to  testify  that  at  the  moment  of  killing  he  was  in  an  epilep- 
tic condition. 

But  the  law  is  not  always  consistent  with  itself  in  this  matter  of 
epilepsy.  Judge  Brewster  quoted  approvingly  the  statement^"  that 
it  is  unjust  to  hold  an  epileptic  fully  responsible  immediately  before 
or  immediately  after  the  fit.  This  is  practically  admitting  a  pre- 
sumption of  insanity.^*  As  to  the  value  of  preponderating  evidence, 
which  may  be  a  question  of  immense  importance  in  epilepsy,  it  has 
been  held  by  the  supreme  court  of  Pennsylvania  that  the  evidence  of 
insanity  need  not  be  "clearly"  preponderating,  but  only  "fairly"  pre- 
ponderating.^^ This  in  effect  acquits  the  prisoner,  if  a  reasonable 
doubt  is  raised  in  his  favor;  and  although  the  heinous  nature  of  an 
epileptic's  crime  is,  in  itself,  no  proof  of  insanity,  it  may  lend  weight 
to  other  proof.^^ 

877.  Why  the  defense  of  epilepsy  proves  weak. — As  a  defense,  the 

'^Com  V.  Buccieri,  153  Pa.  535,  26  Atl.  Tutius  semper  est  errare  in  acquitando, 

228.     Tlie  prisoner,  while  a  patient  in  a  quam  in  pnniendo,  ex  parte  misericordice 

hospitiil,  murdered  a  sister  of  charity,  quam  ex  parte  justitice;  and  in  the  nrxt 

who  was  acting  as  a  nurse.     The  dee'd  breath  refused  the  prisoner  a  n'^w  trial, 

was  most  brutal  and  unprovoked.     Tlie  and  sentenced  him  to  be  hanj^ed! 

evidence  of  epilepsy,  as  given  in  the  re-  ^Coyle  v.  Com.  100  Pa.  579,  45  Am. 

port,   is  not  satisfactory  from  either  a  Rep.  3!)7.     Judgment  was  reversed  and 

legal  or  scientific  standpoint.  a  new  trial  ordered  in  this  case,  because 

*•  1   Wliarton  &  Stille,  Med.  Jur.  4th  the  court  below   had   charged   that   the 

ed.  §  144.  proof  of  insanity  must  be  "clearly'   pre- 

**  Judge    Brewster    (Com.    v.    Winne-  pondcrating.     It  should  have  been  "fair- 
more,  l^Brewst.  [Pa.]  356)   also  quoted  ly"  preponderating. 
the    ''beautiful    maxim    of    the    law:"  ^^Laros  v.  Com.  84  Pa.  210. 


§  877]  EPILEPTIC  JNSANlTi.  741 

allegation  of  epilepsy  has  proved  weak  in  many  of  the  recorded  cases, 
and  for  the  simple  reason  that  it  was  based  on  insufficient  proof.^'^  It 
is  a  strong  defense  in  an  undoubted  case,  bnt  a  broken  reed  when 
based  on  nothing  more  than  a  few  doubtful  fits  at  some  periods  more 
or  less  remote.  In  one  case  the  "fits"  were  merely  those  of  St.  Vitus' 
Dance,^^ — a  disease,  however,  which  may  affect  the  mind.  In  the 
case  of  a  Texas  horse  thief,  who  alleged  epilepsy  as  a  defense  for  his 
having  mounted  another  man's  horse  and  ridden  away,  the  court 
held^^  that  a  defense  of  insanity,  supported  only  by  evidence  that  the 
defendant  was  subject  to  epileptic  fits,  and  that  his  mother  had  been 
temporarily  deranged,  is  not  established  when  the  other  evidence 
clearly  shows  that  he  knew  he  was  committing  a  wrong.  It  has  been 
held  proper  to  attempt  to  prove  hereditary  epilepsy  by  proving  that 
the  father  was  subject  to  the  disease ;  but  this  fact  does  not  prove  the 
prisoner  insane,  especially  when  it  is  not  satisfactorily  proved  that  he 
himself  had  ever  had  a  fit.^*'  But  in  one  case  of  assault  with  intent 
to  kill,  in  which  it  was  practically  admitted  that  the  prisoner  was  an 
epileptic,  the  supreme  court  refused  to  interfere,  even  though  the  ap- 
peal was  based  on  the  allegation  that  the  state  prison  was  not  a  proper 
place  for  such  a  patient,  the  court  deciding  that  there  was  no  othe/ 
place  for  him.^^ 

878.  Epilepsy  may  be  a  good  defense. — Epileptic  insanity  is  not  in- 
compatible with  both  crime  and  genius,  as  was  illustrated  in  the  ease 
of  Charles  Cawley,  of  Pittsburg.  This  youth  killed  his  mother,  three 
sisters,  and  a  brother,  and  was  acquitted  in  December,  1903,  after  a 
merely  formal  trial.  The  defense  was  epileptic  insanity,  aggravated 
by  overworking  to  perfect  a  patent.  While  in  jail,  awaiting  trial, 
the  prisoner  received  his  patent  from  the  government. 

879.  It  may  lower  the  grade  of  the  crime. — Epilepsy,  according  to 
Mr.  Wharton,"*^  may  be  put  in  evidence  to  lower  the  grade  of 
the  offense,  though  it  does  not  amount  to  insanity.  In  saying  this, 
Wharton  claims  that  he  does  but  follow  the  authorities  which  declare 
that  nervous  diseases  and  drunkenness,  though  no  defense  to  crime, 
may  be  used  to  show  that  an  assault  was  not  deliberate.  This  is 
hardly  consistent  with  the  legal  principle  that  insanity  docs  not  oper- 
ate to  lower  the  grade  of  crime, — that  a  man  is  either  sane  or  insane, 

"Hall  V.  Com.  22  W.  N.  C.  25,  12  Atl.  not  quoted  in  the  text  as  an  instance  of 

163.  "procursive"  epilepsy. 

^State  V.  Alexander.  .30  S.  C.  74,  14        '"Walsh  v.  P€ople,''sS  N.  Y.  4G8. 
Am.  St.  Rep.  879,  8  S.  E.  440.  *^Foqarty  v.  f^tate,  80  Ga.  450,  5  S.  E. 

^"Lovegrove  v.    State,    31    Tex.    Crim.  782. 
Rep.   491,  21   S.  W.   191.     This  case  is        "  1  Wliart.  Crim.  Law.  §  24. 


742  IXSAXITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  STS 

responsible  or  not  responsible.^'"'  Sir  Joseph  Jekyll,  in  the  Duchess 
of  Cleveland's  Case,  said :  "The  law  will  not  measure  the  sizes  of 
men's  capacities,  so  they  be  compos  mentis/'  It  is  difficult  to  see 
why  an  exception  should  be  made  in  the  case  of  epileptic  insanity. 

880.  The  frequency  of  epilepsy  in  criminals. — Epilepsy  is  not  so  fre- 
quent in  criminal  lunacy  as  might  be  supposed.  Out  of  a  population 
of  640  criminal  lunatics  at  Broadmoor,  not  more  than  28  were  epilep- 
tic.^^ But  probably  not  all  these  cases  were  homicidal,  for  it  must 
not  be  ignored  that  epilepsy  is  sometimes  the  cause  or  accompaniment 
of  moral  degeneracy  that  may  lead  to  a  variety  of  crimes  other  than 
homicide."*^^ 

Lombroso  has  pointed  out  an  anthropological  resemblance  between 
epileptics  and  criminals.  According  to  Ferri  the  districts  in  Italy 
which  furnish  the  greatest  quota  of  criminals  supply  also  the  greatest 
number  of  epileptics.^^ 

881.  The  courts  have  sustained  the  wills  of  epileptics. — There  is  no 
inherent  reason  why  the  wills  of  epileptics  should  not  be  sustained. 
Certainly^  no  alienist  could  be  found  to  claim,  as  a  universal  princi- 
ple, that  epileptics  are  incapable  of  making  their  wills.  In  individ- 
ual cases  it  is  a  matter  of  proof,  if  a  contestant  asserts  that  the  tes- 
tator was  not  competent.^^^  The  legal  presumption  here,  too,  would 
be  in  favor  of  capacity,  although  there  are  exceptions  to  this  rule  in 
.some  jurisdictions.^^  The  proof  necessary  to  overcome  this  presump- 
tion would  have  to  do  w'ith  such  unsoundness  of  mind  as  might  result 
from  the  epileptic  attacks  ;  but  it  goes  almost  without  saying  that  such 
unsoundness  of  mind  would  have  to  be  shown  to  have  been  present  at 
the  time  of  the  making  of  the  will.     The  mere  fact  that  a  testator  had 

"  For  an  exceptional  case,  see  Corn.  v.  in    Turin    prison    O.GO    per    cent    were 

Lynch,  2-5  Pittsb.  L.  J.  193   (1878).  epileptics,  and  of  3.358  female  criminals 

"Nicolson,  ''Criminal  Lunacy  in  Eng-  0.22  per  cent  were  so  afflicted.     In  Ger- 

land,"  in   Allbutt's   Syst.   of   Med.   Vol.  many,  in  1881,  22  per  cent  of  epileptic.'? 

IX.  p.  438.  were  discovered  among  65  male  lunatics. 

4  4i  Caligula,     the     Roman     Emperor,  Tliese  figures  are  quoted  here  for  what 

was    an    epileptic    imbecile,  and  one  of  tliey  are  Morth.    The  former  seem  very 

the     most  atrocious  of  the  various  de-  low.  and  the  latter  extraordinarily  high, 

generates   who   sat   upon   the   throne  of  Ciark  foimd  crime  to  prevail  among  II 

the    Cicsars.     "He    was    crazy   both    in  per  cent  of  epileptics. 

body  and  mind,"  says  Suetonius    (Lives  i^^Re  Lewis,   51    Wis.    101.   7   N.   W. 

of  the  Twehe  Caesars,  liohn's   Library,  829;    Brown    v.    Torre;/,  24  Barb.  583; 

p.  285).  "being  subject,  when  a  boy,  to  Foot  v.  Stanton,  1  Deane  &  S.  Eccl.  Rep. 

the  falling  sickness."     The  graphic  ac-  19. 

count  of  this  imperial  monster  by  Sue-  ^'^Delafield  v.  Parish,  25  N.  Y.  9.   This 

tonius   is   a   contribution   to   the   litera-  was   a   leading  will   case,   in   which   the 

ture  of  moral  imbecilitj'.  principle  was  laid  down  that  the  onus 

"Dr:ihm.H      (The     Criminal,     p.     IIS)  p?-oJ;ancZi  as  to  mental  capacity  is  on  the 

states  that  among  23,333  male  criminals  proponent  of  <^he  will 


§  881]  EPILEPTIC  INSANITY.  743 

had  an  occasional  epileptic  attack  would  not  avail  in  any  court  to  over- 
throw a  testament,  nor  should  it  do  so.^^  A  will  has  even  been  sus- 
tained in  a  case  in  which  the  lucid  interval  was  short,  between  two  at- 
tacks of  e])ileptic  mania,  the  latter  of  which  ended  in  death.*^ 

8811/2-  The  marriage  of  epileptics. — By  the  common  law'***^  lunatics 
were  not  capable  of  contracting  marriage,  and  this  law  would  evi- 
dently apply  to  an  epileptic,  if  it  were  clear  that  he  was  non  compos 
at  the  time  of  the  contract.  But  in  one  instance,  at  least,  modern 
statute  law  has  gone  much  farther,  for,  by  the  law  of  New  Jersey j**^^ 
it  is  unlawful  for  any  person  who  has  been  confined  in  any  public 
asylum  or  institution  as  an  epileptic  or  insane  or  feeble-minded  pa- 
tient to  marry  without  a  certificate  from  two  regularly  licensed  phy- 
sicians of  the  state  that  such  person  has  been  completely  cured  of 
such  insanity,  epilepsy,  or  feeble  mind,  and  that  there  is  no  probabil- 
ity tjiat  such  person  will  transmit  any  such  defects  or  disabilities  to 
the  issue  of  such  marriage.  Any  person  of  sound  mind  who  shall 
marry  with  any  such  epileptic,  insane,  or  feeble-minded  person,  with 
knowledge  of  his  or  her  disability,  or  who  shall  advise,  aid,  or  as- 
sist in  procuring  any  marriage  contrary  to  the  provision  of  this  act, 
shall  be  guilty  of  a  misdemeanor. 

It  is  to  be  noted  that  this  law  applies  only  to  epileptics  who  have 
been  legally  declared  to  be  such  by  being  confined  in  an  asylum,  and 
is  an  instance  of  the  extreme  solicitude  of  the  New  Jersey  law  for  the 
welfare  of  posterity.'* ^'^ 

882.  The  responsibility  of  epileptics  in  civil  matters. — Cases  have 
been  reported  of  patients  who  had  signed  legal  papers,  other  than 
wills,  while  in  a  state  of  epileptic  confusion  or  automatism.  As  ex- 
plained already,  this  state  of  automatism  may  closely  simulate  a  state 
of  perfect  consciousness,  but  the  patient  may,  nevertheless,  be  entirely 
oblivious  of  himself  and  his  surroundings,  and  have  no  recollection 
afterwards  of  what  occurred.-  It  might  be  difficult  to  prove  such  a 
case,  but,  on  the  other  hand,  it  w^ould  not  do  for  courts  to  ignore  the 
possibility  of  such  an  imposition  on  a  person  in  a  state  of  irresponsi- 
bility.^'^ 

*' Some  courts,  however,  take  very  ex-  "/I'e  Ross,  12  N.  Y.  Week.  Dig.  34. 
treme  gromid  in  this   matter   of   "legal  ^sai  Blackstone,  Com.  438. 
presumption"    in    cases    of   mental    dis-  48b  Laws  of  1904,  chap.   137. 
ease, — ground  which  cannot  be  defended  *sclt  has  been  seriously  recommend- 
by   science.      See  an   opinion  by   Sir  J.  ed  that  those  epileptics  and  other  imbe- 
NichoU   (Brogden  v.  Brown,  2  Addams,  ciles    who    are    incorrigible     evil    doers 
Eccl.    Rep.    441),    in    which    "lucid    in-  should  be  castrated.     See  Barr,  Mental 
tervals"    are    "presumed"    to    occur    in  Defectives,  p.   189. 

febrile   delirium   long   enough   to   let   a  *"  "We  have  recorded  in  Brain  the  case 

man  make  his  will!  of  a  patient  in  Bethlem,  who,  while  in 


744 


IXSAN1TY--F01LM.S  AND  MEDICO-LEGAL  ASPECTS. 


[§  882 


The  subject  of  epileptic  insanity  is  one  of  peculiar  difficulty  for 
the  medical  jurist,  and  this  difficulty  is  not  diminished  by  the  fact 
that  this  defense  has  been  unjustly  urged  in  not  a  few  cases.  This 
fact,  however,  does  not  absolve  either  courts  or  experts  from  the  duty 
of  recognizing,  on  the  one  hand,  that  epilepsy  in  a  criminal  may  indi- 
cate a  high  degree  of  irresponsibility,  and  on  the  other,  that  the  de- 
fense must  be  based  on  something  more  than  mere  presumption.  It 
is  to  be  hoped  that  the  case  of  Bowler  will  never  be  duplicated, — a 
case  of  which  Baron  Alderson,^"  years  afterwards,  said  in  open  court : 
"Bowler  was  executed,  and  very  barbarous  it  was."^^ 


our  presence,  had  a  slight  fit  of  uncon- 
sciousness, followed  by  a  period  of  au- 
tomatism, during  which  he  performed 
complicated  movements,  adapting  him- 
self properly  to  his  surroundings,  and 
yet,  at  the  end  of  some  time,  on  his  re- 
covery, was  completely  without  knowl- 
edge of  any  of  the  acts  which  he  had  so 
carefully  performed.  In  this  case  it  was 
said  that  his  relations  had  been  able 
to  get  him  to  sign  cheques,  and  do  other 
things  with  his  property,  while  he  was 
unconscious." — Savage,  in  Tuke's  Dic- 
tionary, Vol.  I.  p.  454. 

^Reg.  v.  Oxford,  9  Car  &  P.  533. 

^'Reference  may  be  made  to  the  fol- 
lowing works:  Clymer,  The  Legitimate 
Influence  of  Epilepsy  on  Criminal  Re- 
sponsibility, 1874;  Echeverria,  on  Epi- 
lepsy, 1870;  Legrand  du  Saulle,  fitude 
M^dico-legale      aur      les      ^pileptiques, 


1877;  Delasiauve,  Traits  de  I'fipilepsie; 
Fere,  Les  Epilepsies  et  les  fipileptiques, 
Paris,  IS'JO;  Discussion  sur  la  Responsa- 
bilite  des  Actes  commis  par  les  fipilep- 
tiques.  Bull,  de  la  Soc.  M6d.  L^g.  1875- 
76;  Hammond,  "Case  of  Montgomery," 
Journ.  Psych.  Med.  1872,  Vol.  VI.  p.  02; 
Echeverria,  "Case  of  Montgomery," 
Am.  Journ.  Insan.  1872-73,  Vol.  XXIX. 
p.  341 ;  Kiernan,  "Medico-legal  Relations 
of  Epilepsy,"  Chicago  Med.  Rev.  1882, 
Vol.LXL;  Ordronaux,"Case  of  Jeniseh," 
Am.  Journ.  Insan.  Vol.  XXXI,  p.  430; 
Spratling,  Epilepsy,  p.  477 ;  Wise,  "Case 
of  R.  B."  Am.  Journ.  Insan.  Vol.  XLV. 
p.  360;  Smith,  "Report  of  a  Case," 
Journ.  Ment.  Sci.  July,  1901.  See  also 
the  Index-Catalogue,  "Jurisprudence  of 
Epilepsy,"  Vol.  IV.  p.  290,  for  a  very 
full  bibliography. 


CHAPTER  XLIL 

GENERAL  PARESIS. 

I.  The  MEnicAL  aspects  of  geneual  paresis. 

883.  Many  synonyms. 

884.  Importance  of  the  affection. 

885.  The  history  of  general  paresis. 

886.  It  is  an  extensive  subject. 

887.  The  underlying  process. 

888.  Syphilis  and  general  paresis. 

889.  Tlie  course  of  the  disease. 

890.  The  four  stages  of  general  paresia. 

891.  The  prodromal  stage. 

892.  The  second  stage. 

893.  The  delusions  of  grandeur. 

894.  Tlie  sense  of  well-being. 

895.  The  physical  changes. 

896.  The  third  stage. 

897.  The  fourth  stage. 

898.  Sex  and  race. 

899.  Varieties  and  complications. 

900.  Locomotor  ataxia  and  general  paresis. 

901.  The  pathology  and  morbid  anatomy, 

902.  Remissions  in  this  disease. 

II.  The  meoico-legal  aspects  of  general  paresis. 

903.  In  conflict  with  the  law. 

904.  Crimes  inspired  by  delusions  of  grandeur. 

905.  Thefts  by  general  paretics. 

906.  Extravagance. 

907.  Stealing  as  a  morbid  act. 

908.  Cases  in  which  a  doubt  arises. 

909.  The  case  of  Cochran. 

910.  Other  crimes  committed  by  general  paretics. 

911.  Imprudent  marriages. 

912.  The  question  of  testamentary  capacity. 

913.  Acts  of  violence. 

914.  The  case  of  Sheriff  Rowan,  and  the  question  of  civic  capacity. 

I.  The  medical  aspects  of  geneeal.  paresis. 

883.  Many  synonyms. — This  disease  has  many  names,   and   does 

much  harm  under  all  of  them.     The  name  we  have  chosen  is  the 

745 


746  INSANITY— FOilMS  AND  MEDICO-LEGAL  ASPECTS.  [§  883 

shortest  and  most  familiar ;  but  general  paresis  is  also  known  as  "gen- 
eral paralysis  of  the  insane,"  or  "progressive  paralysis  of  the  insane," 
or  "paralytic  dementia,"  or  "dementia  paralytica." 

884.  Importance  of  the  affection. — General  paresis  has  been  called 
one  of  the  "white  man's  burdens."  It  has  also  been  called  the 
scourge  of  civilized  man;  but  such  terms  are  extravagances,  for  the 
disease  is  not  confined  to  the  white  races,  nor  is  it  widespread  enougli 
to  merit  such  high-sounding  names.  Equally  extravagant  is  it  to  say 
that  it  is  the  product  of  "civilization  and  syphilization,"  as'  Krafft- 
Ebing  is  credited  with  having  done,  l^o  one  is  able  to  demonstrate 
that  it  did  not  exist  before  the  present  era,  or  that  it  is  invariably 
caused  by  syphilis.  ISTevertheless,  general  paresis  has  an  interesting 
history,  for  this  history  shows  the  disease  emerging,  as  it  were,  from 
the  obscurity  of  the  past,  and  gaining  a  place  in  pathology,  all  within 
one  hundred  years.  This  history  also  shows  that  the  science  of  psy- 
chiatry had  advanced  so  far  that  it  could  make  of  this  novel  affection 
an  example  of  the  brilliant  work  it  can  do  in  demonstrating  the  mor- 
bid anatomy  of  a  mental  disease.  General  paresis,  indeed,  is  pne  of 
the  few  insanities  which,  so  far,  have  a  distinct  morbid  anatomy. 
Moreover,  general  paresis  often  has  a  rather  dramatic  course,  in  per- 
sons in  whom  it  was  least  expected,  and  amid  circumstances  which  are 
of  gi'eat  interest  to  a  wdde  circle  of  friends  and  acquaintances.  In 
other  words,  it  is  sometimes  not  a  little  sensational,  and  has  wide  civic 
and  medico-legal  relations.  Therefore,  in  view  of  all  these  facts, 
general  paresis  is  a  disease  which  usually  excites  great  interest  in  the 
laity ;  and  well  it  may. 

885.  The  history  of  general  paresis. — There  can  be  no  doubt  that  we 
owe  to  the  French  alienists  of  the  first  half  of  the  19th  century  the 
earliest  recognition  and  description  of  general  paresis,^  although  the 
English  physician,  Haslam,^  gave,  in  brief  space,  a  lifelike  picture  of 
it  in  one  patient  a  little  before  their  time ;  but  the  pupils  of  the  dis- 
tinguished Esquirol,  particularly  Georget,  Bayle,  Delaye,  and  Cal- 
meil,  gave  the  disease  a  distinct  place  in  psychiatry.^  Calmeil,  in- 
deed, has  been  called  the  "discoverer"  of  general  paresis ;  he  regarded 
the  disease  as  a  special  form  of  paralysis,  superimposed  upon  a  form 
of  insanity. 

It  is  a  curious  fact,  indeed,  that  the  early  observers  seemed  to  feel 
impelled  to  dissociate  the  paralysis  from  the  insanity;  they  had  not 

'  Cliase,  (jonornl  Paresis,  Phila.  1902,  '  R<?gis.  Mental  Medicine,  translated 
p.  18.  by  Bannister,  p.  414. 

=  ()M  Madness,  London,  1809. 


§  885]  GENERAL  PARESIS.  747 

then  come  to  the  point  where  they  conhl  recognize  that  tlic  same  mor- 
bid process  in  the  brain  could  cause  both  paralysis  and  insanity ;  but 
Bayle  was  one  of  the  first  to  see  this  truth,  and  after  his  time  the  dis- 
ease came  slowly  to  be  recognized  as  a  conjoint  paralytic  and  mentaj 
disorder.  This  fact,  indeed,  is  one  of  the  most  interesting  things 
about  general  paresis,  and  one  of  the  most  instructive  to  a  layman,  for 
it  shows  how  the  insanity  is  just  as  much  a  material  affection  as  is  the 
paralysis. 

886.  It  is  an  extensive  subject. — General  paresis  is  far  too  extensive 
a  subject  to  be  treated  in  detail  in  these  pages,  nor  is  it  needful  here 
to  go  into  a  minute  description  of  its  anatomy.  As  the  disease  has 
some  important  medico-legal  relations,  its  chief  symptoms  and  course 
will  briefly  be  described  with  special  reference  to  that  fact. 

887.  The  underlying  process. — The  disease  is  really  a  widespread 
destructive  process  in  the  tissues  of  the  brain.  This  process  follows 
a  rather  definite  course,  and  leaves  organic  changes  which  can  be  rec- 
ognized post  mortem  even  hj  the  naked  cye."^^  The  cause,  or  causes,  of 
this  destruction,  is  still  a  matter  of  debate ;  but  the  best  opinion  in- 
clines to  see  in  it  the  action  of  syphilis  and  alcohol,  combined  with 
over-strain  in  the  complex  struggle  for  existence. 

888.  Syphilis  and  general  paresis. — Statistics  differ  as  to  the  part 
played  by  syphilis.  Savage^ '^^  believes  that  in  at  least  70  per  cent 
of  the  cases  syphilis  may  be  recognized.  Berkley*  could  not  find 
more  than  50  per  cent  of  his  cases  with  a  history  of  syphilis,  but 
some  German  observers  do  not  hesitate  to  claim  that  the  disease  is 
invariably  syphilitic.  This  claim  does  not  hold  good  in  America, 
at  least.'*^  In  France  there  has  been  a  tendency  to  hold  alcohol  even 
more  responsible  than  syphilis.  Over-exertion  is  a  factor  in  some 
cases,  especially  when  combined  with  dissipation;  while  heredity, 
traumatism,  and  sunstroke  have  been  observed.  The  discussion  does 
not  further  concern  us  here.^"'^^ 

3-^"From  the  anatomical  point  of  view  Jonathan  HutchinsoHj  Syphilis,  p.  204; 

this    disease    has    been    regarded    as    a  Houghberg,  Neurolog.  Centralblat,  1894, 

chronic  meningitis    (Meyer),  a  cerebral  p.   27!);   Dercum,    Nervous    Diseases,  by 

atrophy    (Erlenmeyer),     a    general    in-  American  Authors,    1895,    p.    670;   and 

Hammation  of    the    brain    cortex    (Par-  Mott.  Arch,  of  Neurology,  Vol.  I. 
chappe),  or  a  chronic  diffuse  inflanima-        ■»-!  Lalanne    (.Journ.   de  MeCt.   de  Bor- 

tion  of  the  brain  and  membranes  (Cal-  dcaux.  20  iJec.   1903)    reports  a  case  of 

meil)." — Ki'afft-Ebing,    Traite    Clinique  juvenile  general  paresis,    in    Avhich    the 

de  Psychiatrie,  Traduit  par  Laurent,  p.  post-mortem    findings   were   typical.     It 

663.  occurred  in  a  child  who  liad  hereditary 

3§  "General  Paralysis  of  the  Insane,"  syphilis, 

in  Allbutt's  Syst.  of  Med.  Vol.  VIII.  p.  "  ^::t  Tomes  (Brit.  Med.  Journ.  Sept.  22, 

692.  '  1900)    has  dealt  with  tlie  subject  of  in- 

*  Mental    Diseases,    p.    175.      See   also  sanity  in  lead-workers.     Of  3,500  insane 


748  INSANITY— FORMS  AND  MEUICO-LEGAL  ASPECTS.  [§  88!) 

889.  The  course  of  the  disease.— However  caused,  this  destructive 
process  follows,  as  a  rule,  a  definite  course,  which  permits  us  to  note 
certain  stages  in  the  disease,  and  the  symi^toms  are  both  mental  and 
physical.  We  may  thus  define  general  paresis  as  a  progressive  and 
destructive  disease  of  the  brain,  extending  to  the  spinal  cord  and  the 
nerve-trunks;  it  is  marked  by  dementia,  on  the  one  hand,  and  by 
paresis,  on  the  other ;  on  the  mental  side  there  is  weakening  of  all  the 
faculties,  with  the  formation  of  expansive  delusions,  and  episodes  of 
mania  and  melancholia,  progressive  and  irreparable ;  on  the  physical 
side  there  is  widespread  impairment,  shown  in  a  weakened  or  ataxic 
gait,  stammering  or  involved  speech,  tremor,  changes  in  the  optic 
nerves  and  pupils,  trophic  changes,  as  in  the  joints,^  and  epileptic  and 
apoplectic  seizures. 

890.  The  four  stages  of  general  paresis. — It  is  customary  to  divide 
general  paresis  into  stages,  for  convenience  of  description;  but  cases 
vary,  and  all  of  them  do  not  conform  to  one  classical  type.  The  stages 
commonly  observed  are  four :  First,  a  prodromal  stage ;  second,  an 
acute  stage;  third,  a  chronic  stage;  fourth,  a  terminal  stage. 

891.  The  prodromal  stage. — For  the  medical  jurist  the  prodromal 
stage  of  general  paresis  is  far  the  most  important.  This  is  the  period 
before  the  disease  has  become  well  recognized,  and  during  which  the 
patient  is  peculiarly  apt  to  break  the  law.  It  might  well  be  called 
the  medico-legal  stage.  General  paresis  often  begins  insidiously,  and 
among  its  earliest  symptoms  are  perversions  of  the  moral  faculties. 
These  lead  to  all  sorts  of  lapses,  some  trivial,  but  some  quite  other- 
wise. 

At  first  there  is  change  of  character  and  disposition.  The  patient 
may  have  spells  of  despondency,  then  elation.  He  does  odd  and  un- 
usual things.  He  becomes  inattentive  to  business,  and  unreliable. 
He  is  forgetful,  extravagant  with  money,  ordering  and  buying  things 
which  he  does  not  need  and  cannot  pay  for.  His  morals  suffer;  he 
may  indulge  in  drink  and  in  sexual  excesses,  and  men  of  good  char- 
acter sometimes  compromise  themselves.  He  may  be  restless  and  ir- 
regular in  his  habits ;  insomnious,  but  occasionally  an  abnormal  som- 

in  Claybury  asyhini   133    had    been    ex-  pseudo-paresis    caused    by   alcohol     and 

posed  to  lead  poisoning.     Of  these   133  morpliin.     See   §  930.     Also  Baillargor, 

patients  31  hafl  symptoms  like  tlioso  of  Ann.  Med.-Psych.  1S9G.  and  Journ.  Ment. 

general  paresis.     Oliver    ("Lead  Poison-  Sci.  1896,  pp.  303,  ()46. 

ing,"  in  Allbutt's  Syst.  of  Med.  Vol.  II.)  °  Lloyd,      "Artliropathy     in     General 

says  there    is    a    pseudo-general  paresis  Paresis,"  in  the  Journ.  Nerv.  and  Ment. 

caused  by  lead,  in  which  the  prognosis  Dis.    Vol.    XVIII.    p.    83;    also    in    the 

is    not    always    unfavorable.      See    also  Pliiladelpliia  Hospital  Reports,  Vol.  IL 

Dangerous  Trades,  edited  by  Oliver,  1902,  1893,  p.  104- 
(.[..  308.  309.     This  is  somewhat  like  the 


General  paresis,  with  deformities  (dithiopdtihej)  ol  tlic  knee  luints 


§  891]  GENERAL  PARESIS.  749 

nolence  is  seen.  A  patient  whom  I  once  saw,  a  prominent  railroad 
official,  wonld  drop  off  asleep  in  his  office  at  all  hours  of  the  day ;  this 
was  the  first  symptom  noted  in  him.  In  some  cases  the  patients 
start  off  aimlessly  on  a  journey,  without  enough  money  I  once  saw 
a  patient  with  this  tendency,  and  warned  his  friends  not  to  let  him 
out  of  their  sight;  but  that  very  day  he  disappeared,  and  was  heard 
from  ten  days  later  in  Liverpool.  It  required  the  services  of  the 
American  consul  and  two  trained  attendants  to  have  him  brought 
back  to  his  home,  at  great  expense. 

The  mental  faculties  are  variously  impaired:  the  judgment  is 
weakened,  the  common  sense  lost,  the  logical  processes  curiously  at 
fault.  The  patient  has  queer  and  absurd  impulses  and  propensities : 
he  becomes  boastful,  indifferent  to  appearances ;  frequents  low  re- 
sorts ;  follows  after  strange  women ;  and  is  easily  influenced  by 
sharpers  and  designing  people.  If  he  is  in  official  life,  he  may  do 
things  which  are  technically  illegal ;  in  business  affairs  he  may  make 
grave  mistakes ;  in  his  personal  affairs  he  may  squander  much  money, 
engaging  in  wild  speculations  or  involving  himself  in  contracts  and 
(obligations  which  imperil  his  estate.  He  may  even  default,  embezzle, 
or  steal  outright. 

The  emotions,  or  affections,  are  impaired,  and  the  patient  loses 
his  normal  fondness  and  care  for  his  wife  and  children.  A  close 
observer  may  sometimes  detect  the  beginning  of  delusions,  such  as 
mark  especially  the  second  stage.  Inattention  and  loss  of  initiative 
are  seen :  the  patient  takes  up  with  new  projects,  and  then  soon  aban- 
dons and  forgets  them.  Occasionally,  in  the  very  early  stage,  he  is 
conscious  of  feeling  ill ;  he  recognizes  that  something  is  going  wrong 
with  him.  An  incident  is  told  of  a  physician  who,  in  this  stage, 
made  a  correct  diagnosis  of  his  own  case ;  but  this  degree  of  self- 
consciousness  is  soon  lost,  and  gives  place  to  a  sense  of  indifference, 
or  to  a  feeling  of  abnormal  well-being  or  mild  exaltation.  Things 
are  usually  all  right  with  the  general  paretic,  he  is  optimistic,  and 
a  good  fellow  all  round.  In  a  word,  the  prodromal  stage  is  one 
of  beginning  perversion  of  the  mental  and  moral  faculties.  This  is 
often  associated  with  slight  physical  changes,  as  a  tendency  to  tire 
easily. 

892.  The  second  stage. — In  the  second  stage  the  disease  is  unmis- 
takable. On  the  mental  side  there  is  exaltation  and  a  tendency  to 
form  expansive  delusions,  and  with  these  there  is  a  very  evident  in- 
creasing weakness  of  the  mental  faculties.  The  patient,  in  fact,  is 
in  a  maniacal  state ;  but  this  differs  from  ordinary  mania  in  the  fact- 


750  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  892 

that  the  mental  state  is  one  of  weakness,  and  in  the  peculiar  character 
of  the  delusions.  These  delusions  of  the  general  paretic  have  a  char- 
acter of  their  own;  they  are  called  delusions  of  grandeur,  and  they 
well  deserve  this  term.  They  are  puerile  and  extravagant,  utterly 
unreal  and  improbable,  without  limit,  and  easily  suggested  and 
adopted-  They  show  clearly  that  the  logical  processes  and  the  sense 
of  reality  are  profoundly  disturbed. 

893.  The  delusions  of  grandeur. — These  grandiose  delusions  are 
often  described  in  detail  by  medical  writers,  and  sometimes  with  an 
exuberance  which  leads  the  reader  to  suspect  that  the  imagination  of 
the  writer  as  well  as  of  the  patient  has  gone  a  little  beyond  bounds. 
To  describe  them,  in  fact,  is  to  engage  in  puerilities.  The  one  gen- 
eral term  by  which  they  can  be  described  is  extravagance.  The  pa- 
retic patient  has  vast  sums  of  money,  great  physical  prowess,  wide 
influence,  broad  domains,  and  lucrative  patents;  and  the  use  he  will 
make  of  these  things  is  generally  silly.  He  will  charter  an  ocean 
steamer  for  his  friends ;  he  will  have  a  four-in-hand  for  his  doctor ; 
he  will  have  diamond  buttons  on  the  coats  of  his  servants;  he  will, 
as  a  rule,  have  more  than  one  wife,  and  his  sexual  capacity  will  be 
equal  to  the  occasion ;  he  will  bestow  untold  benefits  upon  mankind ; 
he  v^ill  even  regenerate  the  world  in  a  senseless  sort  of  way.  In  all 
these  deliria  it  is  hard  to  find  any  idea  of  a  sense  of  proportion ;  any 
notion  of  a  rational,  practical,  or  useful  scheme.  Moreover,  this 
nonsense  is  very  changeable ;  the  dreams  of  El  Dorado  are  veritable 
castles  in. the  clouds:  they  change  with  every  breeze.  This  is  char- 
acteristic of  these  expansive  delusions;  they  can  even  be  sug- 
gested to  the  patient,  and  he  will  adopt  them  for  his  own.  In  other 
words,  they  are  neither  well-systematized  nor  firmly  fixed.^^ 

6a  The  histories  of  some  of  these  cases  other  notables,  offering    to    make    their 

are  written  all  over  with  dollar  marks,  fortunes,  and  inviting  them  to  dinner: 

A  patient  of  Hammond's    (Insanity,  p.  he  offered  to  buy  the  asylum  for  £100,- 

601)   issued  a  prospectus  for  a  company  000;   later  he  ofl'cred  £1,000,000  for  it; 

that  was  to  monopolize  the  manufacture  moreover,   he   would  have   Dr.   Clouston 

of  india-rubber  rattles;   he  was  himself  made  a  baronet,  and  would  dress  him  in 

to  take  all  the  stock,  valued  at  $1,000,-  a  uniform  of  cloth  of  gold.     A  patient 

000,000.     A   patient   of  Dercum's    (Ner-  of   Sankey's    (INIental   Disea.ses.   p.   315) 

vous  Diseases  by  American  Authors,  p.  had  a  scheme  to  cut  a  canal  from  the 

077)    estimated  liis  wealth  at  .$150,000,-  west   of   England   to   the   mouth   of  the 

000,  $.50,000,000  of  which  he  had  made  in  Severn ;  also  to  build  towns  and  a  cathe- 

as    many    minutes.       Clouston    (Mental  dral.      (See    Chase,    op.    cit.    for    many 

Diseases,   p.    370)    had     a    patient    who  other  examples.) 

boasted  that  he  could  lift  1.000  pounds,  A  patient  of  the  writer's  had  extraor- 

that    he   was   the   best   rider,    swimmei,  dinary   delusions   about  the   size  of  his 

and  iumper  in  the  world;  he  wanted  to  virile    member;    in    fact,    it    is    not   un- 

buy  every  horse  he  saw,  off"ering  £100,  common    for     paretics    to   boast     about 

and  then  a  second  £100,  if  the  first  was  their    sexual    prowess, — a  subject  which 

refused.     He    wrote    to    the  Queen  and  has  some  medico-legal  significance. 


5  S'J41  GENERAL  PARESIS.  751 

894.  The  sense  of  well-being. — With  this  delusional  state  there  is  a 
sense  of  well-being.  But  not  all  paretics  are  quite  so  extravagant  in 
their  delusions.  There  is  sometimes  little  more  than  a  tendency  to 
boast,  and  to  talce  up  for  a  while  Avith  childish  fancies.  Moreover, 
in  this  stage  some  patients  may  have  s])ells  of  acute  delirium,  or  even 
of  acute  melancholia;^'^  but  the  expansive  ideation  is  almost  sure  to 
come  again  to  the  surface,  with  its  attendant  mental  weakness.  These 
patients  may  do  impulsive  things;  they  are  occasionally  violent; 
they  are  often  indecent,  their  minds  running  on  sexual  subjects ;  they 
are  much  given  to  purloining  odds  and  ends  of  things  that  strike 
their  fancy.  It  is  almost  needless  to  say  that  by  this  stage  the  patient 
has  become  quite  forgetful,  inattentive  to  affairs,  unconventional, 
indifferent,  and  partly  imbecile. 

895.  The  physical  changes. — On  the  physical  side  the  advance  of 
the  disease  is  very  marked.  The  patient  has  tremor  of  many  of  his 
muscles,  in  the  face,  lips,  tongue,  hands,  and  elsewhere.  His  speech 
begins  to  be  affected ;  it  is  drawling,  stammering,  or  staccato,  as  the 
case  may  be ;  he  drops  words,  or  runs  them  together.  His  handwrit- 
ing reveals  both  the  mental  and  physical  changes, — the  want  of  co-or- 
dination, tlie  tremor,  the  tendency  to  drop  w^ords  or  letters.  The  gait 
is  involved:  it  may  be  weakened  and  slightly  inco-ordinate,  with  in- 
crease in  the  knee-jerks.  The  pupils  may  fail  to  react  to  light,  or 
they  may  be  unusually  contracted,  or  one  may  be  larger  than  the 
other.  Sometimes  they  are  irregular  in  shape;  and  these  various 
conditions  may  change  from  day  to  day.  Occasionally  there  is  found 
inflammation  or  atrophy  of  the  optic  nerves.  In  a  word,  the  general 
paretic,  in  the  second  stage,  is  in  the  acute  period  of  a  destructive 
<iisease  of  his  brain,  the  prevailing  tone  being  exaltation  with  weak- 
ness. 

896.  The  third  stage.— In  the  third  stage  the  disease  assumes  a 
more  chronic  aspect,  and  it  is  in  this  stage,  especially,  that  certain 
grave  crises  assert  themselves.  These  are  epileptic  and  apoplectic  at- 
tacks. The  line  of  demarcation  between  the  second  and  third  stages 
is  not  marked ;  the  transition  is  usually  gradual ;  but  in  some  cases 

sbSpitzka,  Insanity.    1883,    pp.    199-  but  when   it   is   depressive   in   type  tlie 
200.     Savage   (op.  cit.  p.  703)   says  that  French  call  it  "micromania." 
he  has  met  with  melancholic  general  pa- 
retics  "who    thought    that    millions   of  I   know  moro  than  Apollo; 
devils  were  torturing  them     .     .     .    and  For  oft  when  he  lies  sleeping 
more  than  one  patient  who  supposed  his  At' mol-tal^wa^rs^."^ 
bowels   to  be  obstructed  by  millions  of  And  the  rounded  welkin  weeping, 
tons   of   feces."     Whether    depressed    or  —Tom  o' Bedlam's  Song. 
elated,  these  patients  think  in  terms  of 
millions.     It  is  a  true  "megalomania." 


752  INSAiSlTY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  896 

a  violent  epileptic  seizure  may  occur,  and  this  maj  serve  to  mark  the 
transition.  After  such  a  fit  the  patient  is  perceptibly  worse;  his 
mental  state  is  still  further  lowered,  and  so  it  is  after  each  fit.  These 
epileptic  attacks  are  sometimes  of  long  duration.  I  have  known  a 
patient  to  continue  in  an  epileptic  condition  for  several  days,  the 
convulsive  movements  being  slight,  and  consciousness  not  entirely 
abolished.^'^ 

So  also  of  the  apoplectic  attacks:  the  patient  may  lie  for  a  long 
time  in  a  comatose  state,  apparently  in  great  danger  of  death;  but 
he  rallies  and  partially  recovers  from  it,  although  it  leaves  its  per- 
manent effects  upon  him.  The  mental  state  thus  deteriorates  more 
and  more ;  the  expansive  delusions  are  not  so  marked ;  and  dementia 
is  progressive.  The  physical  symptoms  also  increase:  the  patient 
is  more  paralytic;  his  speech  becomes  more  difficult  and  defective, 
and  his  sentences  are  short  and  incoherent.  It  must  be  recalled,  how- 
ever, that  in  some  cases  the  epileptic  and  apoplectic  crises  occur 
earlier  in  the  disease.  Violent  maniacal  episodes  also  occiu".  After 
an  apoplectic  attack  the  patient  may  be  left  for  a  time  partially 
hoiiii])legic,  or  paralyzed  on  one  side. 

897.  The  fourth  stage. — This  is  the  condition  of  advanced  dementia 
with  paresis.  This  stage  is  terminal:  the  morbid  process  in  the  brain 
has  done  its  work.  Almost  all  signs  of  mentality  are  extinguished, 
and  the  patient  merely  vegetates — bedridden,  paralyzed,  helpless — 
until  death  ends  the  scene.  The  end  may  come  in  an  epileptic  or 
iiI)oplectic  attack,  or  more  gradually,  by  exhaustion. 

898.  Sex  and  race. — It  may  be  noted  briefly  that  general  paresis  is 
not  nearly  so  common  in  women  as  in  men,  nor  in  the  negTO  as  in  the 
white  races;''  but  the  rate  is  increasing  among  negroes.  A  few  in- 
stances have  been  noted  of  the  curious  coincidence  of  the  disease 
appearing  in  both  husband  and  wife, — the  so-called  "conjugal"  par- 
esis.    It,  of  course,  suggests  a  syphilitic  infection.'^ 

899.  Varieties  and  complications. — The  above  passages  are  not  meant 
for  a  description  so  much  as  for  a  mere  statement  of  general  paresis. 
The  disease  is  too  complex,  and  its  symptoms  too  multiform,  to  admit 
of  brief  description.     Moreover,  various  combinations  of  symptoms 

5c  "I  have  seen  a  patient  convulsed  report  of  five  instances  of  conjugnl  gen- 
while  at  the  same  time  he  was  conscious,  eral  paresis.  Syphilis  was  not  made  out 
and  was  swearing  at  his  disorderly  in  all  these  cases.  Alcohol  figured  in 
limbs." — Savage,  op.  cit.  p.  707.  some.  In  the  case  of  one  of  the  men,  a 
'Chase,  op.  cit.  p.  210.  twin  brother  also  had  died  of  general 
'Phelps,  Am.  Journ.  Ins.  Vol.  LTIT.  paresis.  Tuke  also  refers  to  a  case  of 
p.  59.  See  also  Keraval  and  Raviart  general  paralysis  in  twins.  See  §  1130. 
(Arch,  de  Neurolog.    June,  1902)   for  a 


7  Sno]  GENERAL  PARESIS  753 

occur,  constituting  different  types  of  the  disease ;  but  these  are  of  in- 
terest to  the  pathologist  rather  than  to  the  medical  jurist.  In  these 
pages  it  is  only  possible  to  give  a  sketch,  upon  which,  however,  may 
be  outlined  the  medico-legal  features  of  these  unfortunate  cases. 

900.  Locomotor  ataxia  and  general  paresis. — It  is  well  known  to 
pathologists  that  these  two  diseases  have  a  relationship  to  each  other. 
Thus,  in  some  cases,  a  patient  with  locomotor  ataxia  will,  later  in  his 
disease,  begin  to  present  the  symptoms  of  general  paresis.  Obscure 
mental  symptoms  in  such  a  patient  should  always  raise  a  suspicion. 
On  the  other  hand,  in  general  paresis  the  symptoms  of  locomotor 
ataxia  may  coexist,  or  may  arise  later  in  the  disease  as  a  complication. 
Syphilis  is  the  most  common  cause  in  these  cases.^ 

901.  The  pathology  and  morbid  anatomy. — It  is  essential,  however, 
in  order  to  have  an  intelligent  idea  of  this  disease,  to  bear  constantly 
in  mind  that  it  is  due  to  a  destructive  process  in  the  tissues  of  the 
brain.  This  process  is  inflammatory  in  character ;  it  begins  in  the 
small  blood  vessels  of  the  membranes  of  the  brain,  leading  to  conges- 
tion, obstruction  to  the  circulation  of  the  blood,  and  to  the  outflowing 
stream  of  lymph ;  morbid  increase  of  the  growth  of  the  supporting 
tissues,  causing  a  hardening  rather  than  a  softening  of  the  brain ; 
thickening  of  the  membranes ;  minute  hemorrhages ;  extravasation  of 
fluids,  and  impaired  nutrition  of  the  nerve  cells  in  the  brain  cortex.'* 

All  this  seems  to  be  the  result  of  some  invading  poison  or  infection 
of  the  central  nervous  system.  In  the  first  stage  of  invasion  the  nu- 
trition of  the  brain  suffers  slightly,  and  we  see  the  prodromal  effects 
as  described  in  a  preceding  page.  As  the  congestion  and  irritation 
increase,  we  see  the  second  stage,  characterized  by  exaltation  with 
expansive  delusions.  When  the  morbid  process  advances  to  the  de- 
struction of  brain  tissue,  we  see  the  third  stage,  with  its  advanced  de- 
mentia and  its  epilej)tic  and  apoplectic  attacks ;  and,  finally,  in  the 
fourth  stage,  we  see,  in  the  failing  and  dying  man,  the  evidence  of 
such  a  widespread  destruction  of  brain  tissue  as  is  incompatible  with 
life. 

902.  Remissions  in  this  disease. — Eemarkable  remissions  occur  in 
some  cases  of  general  paresis ;  the  patient  may  even  seem  entirely  to 
recover;  but  the  appearance  is  only  too  likely  to  be  deceptive.  This 
affection  is  one  of  the  most  obstinately  fatal  of  diseases.     The  impor- 

*  An    instructive    discussion    on    this        '  Bovan  Lewis,  Mental  Disea-ses,  2(1  ed. 
suhieet    took    place    before    the    Loudon    p.  .548  et  infra. 
Pathological    Society,   in    189'J.      British 
Medical   Journal.   Nov.   25   and   Dec.   9, 
1809. 

Vol.  L  Med.  Jur.— 48. 


rs-i  INSANITY— lOlLMS  AND  MEDICO-LEGAL  ASPECTS.  [§  902 

tance  of  these  remissions  is  somewhat  exaggerated.     In  most  cases, 
if  they  even  occur  at  all,  they  are  short  and  imperfect.^** 

II.  The  medico-legal  aspects  of  general  paresis. 

903.  In  conflict  with  the  law. — From  the  foregoing  description  it 
is  evident  that  the  general  paretic  is  liable,  in  some  stages  of  his 
career,  to  come  in  conflict  with  the  law.  The  stages  of  moral  per- 
version are  conspicuously  the  early  stages.  In  these  periods  the 
patient  shows  a  weakening  of  his  moral  perceptions,  and,  in  the  pro- 
dromal period  especially,  before  his  disease  is  recognized  or  even  sus- 
pected, he  may  undergo  arrest,  trial,  and  imprisonment.  In  some 
cases,  in  fact,  a  criminal  offense  is  the  first  indication  of  general 
paresis.  It  is  a  symptom  of  his  disease,  but  it  may  not  be  recognized 
as  such  until  some  time  after  the  unfortunate  patient  has  been  incar- 
cerated. The  moral  lapse  sometimes  seems  to  be  due  to  a  fault  of 
memory,^  ^ — an  absent-mindedness, — a  mere  disregard  for  the  pro- 
prieties, and  an  inability  to  perceive  the  moral  quality  of  an  act.  It 
thus  happens  that  very  few  general  paretics  figure  among  the  con- 
firmed criminal  lunatics.  Their  condition  is  recognized  sooner  or 
later,  and  they  do  not  tarry  in  jail.  In  Broadmoor  Asylum  for 
Criminal  Insane,  in  England,  there  do  not  appear  to  have  been  many 
of  this  class,  according  to  ISTicholson,^^  who,  in  a  recent  paper  on  the 
subject  of  criminal  lunacy  in  that  prison,  does  not  even  mention  gen- 
eral paresis.^^ 

"  KrafTt-Ebing     (Traite    Cliniqiie    de  Tliis  paper  is  based  on  an   analysis  of 

Psychiatrie,    traduit    par    Laurent,     p.  the  cases  in  Broadmoor  Criminal  Luna- 

675)    says  that  remissions  may  be  long  tic  Asylum.     Since  the  opening  of  that 

extended,    in    the    early    stages    of    the  asylum,  forty-one  years  ago,  (12  cases  of 

disease  especially,  and  can  be  mistaken  general  paresis  have  been  admitted, — 54 

for  intermissions  and  for  cures;  but  he  men    and    8    women. — being   3    per    cent 

warns  the  reader  that,  nevertheless,  in  of  men  and  one  half  of  one  per  cent  ot 

the  most  promising  remissions,  there  re-  women   in  the   total   number   of  admis- 

mains  a  trace  of  mental  weakness,  with  sions.     The  report  of  the  lunacy  com- 

all  sorts  of  anomalies  of  character.    See,  missioners  of  Great  Britain  for  1899  and 

also,  Mickle's  article  in  Tuke's  Diction  1900  shows  that  the  proportion  among 

ary   of    Psychological    Medicine,   Vol.    I.  the  noncriminal  insane  is  10.7  per  cent 

pp'.  531,  532;  and  Percy  Smith,  British  of  men  and  2.2  per  cent  of  women.    The 

Medical  .Journal,  .Tan.  4,  1890   (for  long  crimes  committed  by  these  general  paret- 

and  marked  remissions).     For  cases  of  ics  were  as  follows:    Against  the  person, 

alleged  cure,   see   KrafTt-Ebing,   op.   cit.  16    (including   9   murders)  ;    sexual,   4; 

pp.  685,  686.  against  property   (including  both  thefts 

"Chase,  op.  cit.  p.  110.  and  arson),  42.'    The  diagnosis  in  some 

"  Criminal     Lunacj'    in    England,    in  of  these  cases,  however,  is  open  to  ques- 

AUbutt's  Syst.  of  Med.  Vol.  IX.  p.  438.  tion,  as  some  of  them  seem  to  have  been 

"  A  more  recent  and  a  more  carefvil  cases  of  paranoia  and  of  alcoholic  in- 
paper  by  Baker  ("General  Paresis  and  sanity.  Sullivan,  of  Pentonville  Prison, 
Crime,""in  .Journ.  Ment.  Sci..  July,  1904,  has  also  recently  written  a  paper  on 
p.  437)  tells  a  somewhat  difTerent  8tor3\  this  subject. 


§  904]  GENERAL  PARESIS.  755 

904.  Crimes  inspired  by  delusions  of  grandeur. — The  delinquencies 
of  the  general  paretic  are  not  so  much  from  design  as  from  mere  im- 
pulse. They  may  be  inspired,  however,  in  some  rare  cases  by  the 
grandiose  delusions;  and  when  this  happens  in  the  first  stage,  before 
rhe  mental  changes  are  well  marked,  the  deed  may  have  a  very  bad 
look.  Thus,  a  railroad  official,  well  known  for  business  rectitude  and 
ability,  went  to  a  small  town  in  western  Virginia,  where  he  was 
known,  and  bought  up  property,  announcing  that  the  railroad  was  to 
be  extended  through  the  place,  and  the  property  woiild  be  in  demand 
for  a  depot  and  offices.  A  syndicate  of  citizens  was  at  once  formed, 
who  entered  into  the  speculation,  bought  back  the  land,  and  allowed 
the  man  to  reap  a  large  profit,  which  he  squandered  in  a  few  days. 
The  story  was  a  myth, — the  project  of  an  insane  brain, — and  the  pro- 
jector was  soon  landed  in  an  asylum. ^^  Chase  relates  the  case  of  a 
I'eput-able  plumber,  in  the  early  stages  of  paresis,  who  was  arrested 
for  fraudulently  tapping  a  city  gas-main,  without  a  permit. 

905.  Thefts  by  general  paretics. — The  commonest  oifenses  of  these 
patients  are  thefts,  often  of  trivial  objects,  taken  without  much  de- 
sign, and  without  attempt  at  concealment.  They  can  hardly  be  called 
thefts  in  fact.  One  case  is  told  of  a  gentleman  who  filled  his  pockets 
with  silver  spoons  at  a  table  where  he  was  an  invited  guest ;  he  had 
also  appropriated  the  silver  sugar-bowl.  These  patients  exhibit  no 
mortification  when  detected;  in  some  cases,  indeed,  the  emotion  is 
<me  of  indignation.  Brierre  de  Boismont  told  the  story,  often  quoted, 
of  an  old  government  officer  who  stole  articles  at  public  sales  which 
he  attended  in  an  official  capacity.  JTe  denounced  the  agents  of  his 
arrest  as  "imbeciles,"  who  did  not  know  that  he  was  but  following  a 
time-honored  custom,  and  he  exhibited  articles  of  value  which  he  still 
had  in  his  pockets.  He  was  discovered  to  be  in  paresis,  and  died  of 
the  disease  a  few  months  later. 

This  tendency  to  pilfer  is  sometimes  shown  openly,  as  in  the  case 
of  a  man  who  broke  into  a  shop  window,  took  a  handful  of  cigars, 
and  then  sat  on  the  curbstone  to  smoke  them,  although  he  had  plenty 
of  money  with  which  to  buy  what  he  wanted.^  ^  Sometimes  this  pil- 
fering is  a  mere  impulse  or  instinct,  shown  in  the  most  absurd  ways. 
These  patients  will  pick  up  almost  anything,  and  forget  that  they 
have  taken  it.  Clouston  tells  of  a  paretic  whom  he  found  trying  to 
stuff  the  coal-scuttle  into  the  backside  of  his  trousers. 

906.  Extravagance. — This  tendency  to  steal,  or  to  acquire  things 
anyhow,  is  perhaps  not  unassociated  with  the  morbid  impulse  to  buy 

"Berkley,  op.  cit.  p.  173.  ''Stearns,  Mental  Diseases,  p.  478. 


756  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  906 

what  he  does  not  need  and  often  cannot  pay  for,  so  common  in  pa- 
retics. These  impulses  arise  from  the  same  confused  instinct  to 
acquire.  Thus,  one  patient  went  from  store  to  store  ordering  pianos, 
and  sent  home  so  many  that  the  vans  almost  filled  the  street  in  front 
of  his  house.  Another  sent  home  a  wagon-load  of  snow-shovels.  Such 
stories  could  he  greatly  multiplied.^ ''''^^ 

907.  Stealing  as  a  morbid  act. — The  instinct  of  the  general  paretic 
to  steal  is  a  purely  morbid  phenomenon.  It  is  an  instance  of  a  gen- 
uine kleptomania,  using  that  term  in  its  only  legitimate  sense,  as 
indicating  an  insane  propensity.  This  impulse  is  not  uncommon  in 
several  forms  of  insanity,  especially  in  those  forms  which  are  caused 
by  gross  lesions  of  the  brain,  as  in  senile  dementia,  idiocy,  and  im- 
becility, and  injuries  to  the  brain.  It  is  not  a  criminal  impulse,  and 
is  to  be  distinguished  even  from  that  tendency  to  steal  which  is  seen 
in  some  moral  perverts.  The  general  paretic,  like  the  senile  dement, 
simply  appropriates;  he  does  not  truly  steal.  His  instinct  is  more 
like  the  hoarding  instinct  in  some  animals,^""  and  it  is  usually  with- 
out a  rational  motive,  as  is  shown  by  the  fact  that  these  patients  often 
take  articles  of  no  value.  This  tendency  to  steal  was  shown  by  a  man 
after  a  sunstroke,  the  patient  eventually  dying  in  an  apoplectic  seiz- 
ure.^ ^  In  another  patient  a  severe  blow  on  the  head  was  followed  by 
insanity  with  delusions  and  a  tendency  to  secrete  trifling  objects  about 
the  house,  and  to  fill  the  pockets  with  coke.^^  A  sailor,  six  years  be- 
fore he  became  a  general  paretic,  developed  a  tendency  to  hoar(] 
things,  although  he  had  no  delusions  of  grandeur.'^  Hollander  has 
collected  a  long  list  of  such  cases  from  the  literature,  and  they  include 
cases  of  brain-injury,  epilepsy,  mania,  senile  decay,  and  other  forms 
of  insanity. 

908.  Cases  in  which  a  doubt  arises. — The  only  doubt  that  can  arise 
in  these  cases  of  general  paresis  is  when  the  stealing  is  done  very  early 
in  the  disease.  It  is  necessary,  also,  to  guard  against  simulated  cases; 
;hat  is,  where  a  defense  is  set  up  in  some  desperate  case,  based  on  the 

i5i  In  Lincoln  v.  Buclcmastcr,  32  Vt.  the    liability  of    general    paretics.     See 

G52,  an  insane  man,  who  was  probably  a  also  'Niell  v.  Morley,  9  Vos.  Jr.  478,  in 

general  paretic,  purchased  a  large  num-  which    a    contrary    opinion    was  given, 

ber  of  horses   at  exorbitant   rates,   and  The   subject   has   been   discussed   in   the 

without  previous  experience  as  a  horse-  chapter  on  "Contracts  and  Torts  of  the 

dealer.     The  court  decided  in  his  favor,  Insane,"  in  the  present  work, 

and  held  that  a  lunatic  may  sometimes  ""Hollander,  Mental  Functions  of  the 

be  incapable  of  contracting  even   if  his  Brain,  p.   198. 

infirmity  is    not    known    to    the    other  "Meyer,   Arch.   f.   Psych.,    1872,   Vol, 

party.     This  was  contrary  to  the  view  III. 

taken  by  many  courts  with  reference  to  "Mickle.  Journ.  Ment.  Sci.  Oct.  1885. 

the  contracts  of  the  insane,  and  was  a  "JlcLeod,  Journ.  Ment.  Sci.  Vol.  VIL 
most   important  decision   as  bearing   on 


i  1)08]  GENERAL  PARESIS.  757 

allegation  of  beginning  paresis.  As  a  rule,  these  cases  are  easily 
unmasked.  General  jDaresis  is  not  an  easy  disease  to  simulate,  and 
it  is  steadily  progressive,  so  that  by  the  time  the  case  comes  to  trial 
there  ought  to  be  but  little  difficulty  in  determining  whether  it  is  a 
real  case. 

909.  The  case  of  Cochran. — In  the  case  of  Cochran,  an  old  employee 
of  the  United  States  21int  in  Philadelphia,  a  question  was  raised  of 
a  possible  beginning  general  paresis,  or  else  of  senile  dementia.  The 
prisoner  was  an  old  man,  and  had  been  employed  at  the  mint  for 
forty-three  years.  He  had  been  custodian  of  the  vaults,  and  during 
his  long  term  of  service  it  was  estimated  that  he  had  been  responsible 
for  the  safe  keeping  of  one  thousand  million  dollars.  He  was  so  well- 
informed  that  he  was  considered  the  encyclopedia  of  the  mint,  and 
his  integrity  had  never  been  suspected.  He  had  once  assisted  in 
detecting  a  fellow-official,  who  had  been  robbing  the  institution,  and 
he  always  seemed  afterwards  to  have  a  griev^ance  against  the  goverii- 
iiient  for  not  rewarding  him  and  increasing  his  salary.  He  would 
say  that  the  government  owed  him  money  for  saving  so  much  money 
for  it.  This  was  the  only  approach  to  anything  like  a  delusion,  and 
it  was  not  an  expansive  one.  After  his  long  and  faithful  service 
Oochran  was  detected  in  having  abstracted  gold  bars,  worth  many 
thousands  of  dollars,  from  the  vaults,  and  in  having  secreted  these 
bars  in  his  house,  a  suburban  place,  where  he  had  fitted  up  a  little 
furnace  for  melting  his  booty.  The  thefts  had  been  going  on  for  only 
about  three  years.  The  cry  was  raised  at  once  that  the  man  would 
be  found  to  be  insane,  and  this  cry  was  re-echoed  by  physicians  in 
several  parts  of  the  country,  who  had  never  seen  him.  But  the  ex- 
pert examination,  conducted  for  the  government  by  Dr.  Chapin  and 
the  writer,  proved  quite  negative.  The  prisoner's  memory  was  good, 
his  ideas  coherent,  he  had  no  delusions  of  any  kind,  there  was  no 
tremor,  no  speech  defects,  no  fault  in  gait,  no  pupillary  changes,  nor 
any  history  of  a  mental  crisis,  such  as  mania  or  melancholia,  nor  of 
any  epileptic  or  apoplectic  attacks.  It  was  found,  moreover,  that  he 
had  had  a  clear  motive  for  taking  the  gold,  as  he  was  being  pressed 
for  debt,  and  he  had  shown  the  greatest  cunning  and  design  in  dis- 
posing of  it.  The  only  conclusion  possible  was  that  he  was  not  insane, 
and  on  this  report  an.d  the  evidence  he  was  tried  and  convicted.' '^^- 

910.  Other  crimes  committed  by  general  paretics. — General  paretics 
have  been  arrested  for  other  faults  than  stealing.     Baker-"  reported 

in  In  the  United  States  District  -•"Journ.  Mcnt.  Sci.  Vol.  XXXV.  p.  50 
Court  at  Philadelphia,  Nov.  22,  1893. 


758  IXSANlTi'— lORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  910 

the  case  of  a  laborer,  aged  forty  years,  who  was  tried  for  arson,  in 
setting  fire  to  a  stack  of  straw.  A  woman,  of  previously  excellent 
character,  turned  her  house  into  a  scene  of  drinking  and  immorality, 
neglected  her  children,  and  ordered  large  quantities  of  furniture. 
She  was  arrested  for  pulling  up  plants  in  a  nursery.^^  But  among 
the  commonest  delinquencies  of  these  patients  are  such  as  are  con- 
nected with  the  sexual  impulse.  I  knew  of  a  man,  prominent  in  his 
locality,  who,  in  the  early  period  of  his  disease,  stood  in  front  of  his 
house  in  the  middle  of  the  day,  and  solicited  school-girls  on  their  way 
to  and  from  school.  Chase,  in  his  excellent  book,  refers  to  a  sedate 
married  man  who  was  arrested,  some  time  before  he  was  adjudged 
insane,  for  an  indecent  assault  on  a  colored  woman,  and  was  emulged 
of  a  large  sum  of  money ;  also  a  professional  man,  who  was  arrested 
for  indecent  exposure,  and  fined  by  the  court,  then  left  the  court-room 
and  repeated  the  offense.^^ 

911.  Imprudent  marriages. — Among  the  most  serious  consequences 
of  these  sexual  aberrations  are  imprudent  marriages.  A  physician, 
whose  case  is  referred  to  by  Stearns,  married  a  mulatto  woman  two 
or  three  years  before  his  friends  had  him  placed  under  restraint.  I 
was  once  consulted  "in  the  case  of  a  wealthy  manufacturer  who,  when 
in  an  advanced  stage  of  general  paresis,  fell  into  the  toils  of  an  ad- 
venturess, a  woman  of  more  than  doubtful  character,  and  was  misled 
into  marriage  with  her.  This  man  was  so  far  advanced  in  his  disease 
that  he  could  scarcely  walk  or  talk ;  he  was  far  gone  in  dementia,  and 
was  totally  irresponsible  for  his  acts.  Yet  the  clergyman  who  per- 
formed the  ceremony  said  he  had  observed  nothing  wrong  in  the 
bridegroom — which  might  readily  have  been  so,  for  clergymen  are 
but  poor  observers  at  such  times.  Such  cases  have  grave  medico-legal 
aspects.  The  greatest  injustice  can  thus  be  done  not  only  to  the 
])atient,  but  to  his  family,  and  especially  to  children  by  a  former 
wife.  From  the  medical  standpoint  there  can  be  no  question  that 
such  a  marriage,  when  accomplished  by  design  on  the  part  of  a  per- 
son who  had  good  reason  to  know  the  patient's  infirmity,  should  not 
1)0  sustained  by  the  courts. 

912.  The  question  of  testamentary  capacity. — The  same  may  be  said 
of  wills  and  contracts.  The  question  of  testamentary  capacity  is  in- 
volved in  the  case  of  any  paretic  who  makes  a  Avill.  Such  a  patient, 
when  his  disease  is  once  declared,  has  not  a  sound  and  disposing  mind, 
if  by  that  expression  is  meant  the  ability  "to  understand  substan- 
tially the  state  of  his  family  and  his  affairs;  the  disposition  of  his 

'  Sankey,  Mental  Diseases,  p.  31G.  -' Stoarns,  Mental  Diseases,  p.  478. 


§  912]  GENEEAL  PARESIS.  7o!) 

property  as  made  by  the  will;  and  to  intend  to  make  such  disposi- 
tion." These  patients  are  peculiarly  liable  to  yield  to  undue  in- 
fluence.^^ Nothing  can  exceed  their  pliability;  and  they  have  an 
impaired  memory,  a  confused  understanding,  and  practically  no 
foresight.  It  is  difficult  to  see  how  any  form  of  lunacy  can  more 
disqualify  a  person  for  such  a  purpose  than  can  general  paresis.  The 
great  difficulty,  as  in  all  these  Cases,  occurs  in  the  early  stages,  when 
the  patient's  real  condition  is  not  yet  fully  apparent  to  his  friends. 

The  law  will  presume  every  man  to  have  testamentary  capacity 
until  tlie  contrary  be  proven.  Even  the  fact  that  a  man  has  died  of 
insanity  a  short  time  after  making  his  will  does  not  necessarily  prove, 
in  the  eyes  of  the  law,  that  he  did  not  have  capacity  at  the  moment  of 
signing  the  testament.  This  has  been  held  in  various  forms  of  in- 
sanity,'"* and  would  doubtless  be  held  by  most  courts  in  a  case  of 
paresis.  The  very  elastic  theory  of  the  law  about  lucid  intervals 
would  be  quite  capable  of  embracing  these  cases.  It  must  therefore 
be  a  question  of  direct  proof  in  every  individual  case,  and  this  proof 
doubtless  must  be  submitted  to  a  jury.  It  will  not  do  to  rely  upon 
the  fact  that  the  testator  died  of  paresis  some  months,  or  perhaps 
even  years,  after  signing  his  will.  It  must  be  proved  that  at  the 
moment  of  his  signing  he  was  so  affected  with  the  disease  that  he  was 
not  capable.  In  the  Kiedaisch  Case^^  the  patient  was  in  an  asylum 
in  1886 ;  was  taken  out  in  1887 ;  married  in  1888,  and  made  a  will 
shortly  afterwards;  was  in  the  asylum  again  in  1889,  and  died  in 
1890.  The  will  was  sustained.  But  the  remission  of  a  general  pa- 
retic is  by  no  means  always  a  "lucid  interval."  A  degree  of  mental 
enfeeblement  persists  in  such  remissions.    (See  §  902,  and  footnote.) 

913.  Acts  of  violence. — General  paretics  are  capable  of  acts  of  great 
violence.  These  acts  may  be  done  impulsively  and  without  adequate 
motive.  Chase  refers  to  a  case  reported  by  Campbell  Clark  of  a  man 
who  passed  a  prostitute  in  a  public  park  and,  with  a  weapon  in  his 
hand,  killed  her  on  a  siidden  impulse.  When  questioned  about  the 
act  some  weeks  later,  he  replied,  with  a  self-complacent  smile,  "Yes, 
I  killed  three  hundred  of  them."  This  tendency  to  boast  of  cruel 
deeds  is  quite  characteristic  of  some  paretics,  although  in  most  cases 
the  deeds  are,  of  course,  quite  imaginary.  The  imagination  seems 
to  revel  in  blood,  but  the  semi-imbecile  patient's  visage  and  manner 
are  not  always  ferocious  in  accord  with  the  words.     By  reason  of 

=*  Chase,  op.  cit.  p.  44.  109;   Chamiers  v.  The  Queen's  Proctor, 

^*Re  Ross,    12   N.   Y.   Week.   Dig.   ,34;    2  Curt.  Eccl.  Rep.  415. 
Burrows  v.  Burrows,  1  Hagg.  Eccl.  Rep.        ^^2  Connoly,  438,  13  N.  Y.  Supp.  255. 


7G0  IX;SAX1TY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  913 

their  compliant  disposition  these  patients  can  be  led  into  crime,  as  in 
the  case  of  the  Austrian  nobleman,  Chorinski,  who  was  instigated  by 
his  mistress  to  kill  his  wife,  and  died  some  time  later  of  paresis."^ 
Criminal  negligence,  or  malpractice,  has  been  charged  against  physi- 
cians suffering  with  paresis,  as  in  the  case,  quoted  in  some  books,  of 
a  Russian  doctor  who  was  sent  to  Siberia  for  giving  a  fatal  dose  of 
tartar  emetic.  Instead  of  giving  one  sixteenth  of  a  grain,  he  gave 
sixteen  grains,— a  mistake  easy  to  understand  in  a  paretic. 

914.  The  case  of  Sheriflf  Rowan,  and  the  question  of  civic  capacity. — 
Cases  of  general  paresis  may  involve  grave  questions  of  civic  capac- 
ity. One  of  the  most  noteworthy  of  such  cases  was  that  of  Sheriff 
Rowan,  of  Philadelphia,  in  1886  and  1887. 

Ellwood  Rowan  had  been  elected  sheriff  of  Philadelphia  after  a 
close  and  exciting  canvass,  during  which  he  had  been  under  great 
mental  strain.  After  his  election  and  induction  into  office  he  began 
to  present  the  symptoms  of  general  paresis.  His  condition  soon  be- 
came such  that  the  gi-avest  questions  arose  about  his  capacity  to  dis- 
charge the  duties  of  his  highly  responsible  office.  When  it  became 
no  longer  possible  to  ignore  his  mental  state,  Mr.  Rowan  was  removed 
to  an  asylum.  As  he  w-as  still  sheriff  of  the  county,  although  legally 
declared  insane  under  certification,  his  case  was  referred  to  the  legis- 
lature of  the  state,  and  a  commission  was  appointed  by  that  body  to 
take  testimony.  The  certificate  of  insanity  had  been  signed  by  Dr. 
Richardson  and  the  writer.  Sheriff  Rowan  at  that  time  was  in  the 
acute  stage  of  his  disease.  He  had  expansive  delusions  of  an  extreme 
type.  He  believed  that  he  owned  a  city  of  4,000,000  inhabitants  in 
South  Jersey,  as  well  as  all  the  railroads  in  Pennsylvania  and  Xew 
York.  He  acted  accordingly.  When  his  family  physician,  in  order 
to  test  him,  asked  him  for  a  check,  he  immediately  wrote  one,  in  a 
scrawling  hand,  for  ten  thousand  dollars.  His  speech  and  facial 
muscles  were  beginning  to  be  affected ;  he  could  scarcely  write  his  full 
name  legibly,  and  could  not  read  aloud  intelligibly.  His  mental 
faculties  were  weakening,  and  he  was  incapable  of  attending  to  the 
smallest  details  of  business.  The  case  gave  rise  to  some  discussion  as 
to  the  legal  mode  of  procedure  in  such  an  emergency.  The  sheriff  of 
Philadelphia,  in  his  official  capacity,  gives  title  every  year  to 
many  thousands  of  dollars  worth  of  real  estate ;  he  is  responsible  for 
drawing  the  juries,  upon  whose  proper  selection  the  trial  of  all  cases 
in  the  courts  depends ;  and  he  has  other  imjDortant  functions.     The 

"Spitzka.  Insanity,  p.  188. 


§  914] 


GENERAL  PARESIS. 


761 


commission  took  much  testimony,  and  finally  reported  to  the  legis- 
lature that  Mr.  Rowan  was  insane  and  incapacitated ;  and  he  was 
accordingly  ren^oved  from  office  by  due  process  of  law.  The  disease 
advanced  steadily,  and  the  patient  died  after  a  comparatively  short 
course.  In  this  case  some  attempt  was  made  by  counsel  to  show  that 
a  remission  might  occur,  and  allow  the  sheriff  to  resume  his  office, 
but  the  attempt  failed.^'^ 

This  case  of  Sheriff  Rowan  is  probably  the  only  such  case  on  record, 
and  forms  a  valuable  precedent  for  any  similar  cases  that  may  occur 
in  the  future."''^  It  is  noteworthy  that  the  legislature  moved  prompt- 
ly to  protect  the  public,  and  that  no  hair-splitting  about  ''lucid  inter- 
vals" and  "remissions"  was  allowed  to  influence  the  result.^^ 


'-'Legislative  Record,  Session  of  1887, 
No.  4L  p.  314. 

2Vi  It  is  a  far  cry  from  a  sherift'  to  a 
king,  but  it  may  be  proper  to  recall  here 
the  case  of  George  III.,  who,  however, 
did  not  have  general  paresis.  He  was 
practically  deposed  by  Parliament  on 
account  of  insanity.  During  his  mental 
illness  in  1788  the  King's  case  was  re- 
ported to  Parliament,  and  a  committee 
from  each  house  was  appointed  to  exam- 
ine the  attending  physicians.  Commit- 
tees were  also  appointed  to  examine  the 
law  and  precedents.  But  the  King  re- 
covered, and  the  matter  was  dropped. 
In  1810  lie  had  another  attack,  and,  the 
facts  being  reported  by  a  joint  commit- 
tee, tlie  Prince  of  Wales  was  appointed 
Regent.  Pope  (Law  of  Lunacy,  2d  ed. 
p.  372)  gives  an  account  of  the  case,  and 
says  it  was  somewhat  parallel  to  the 
case  of  an  infant  monarch,  for  which 
precedents  of  procedure  were  more  nu- 
merous. He  also  says  that  the  only 
other  case  of  insanity  in  an  English 
king  was  in  Henry  VI. 

According  to  Pope  (p.  372)  it  seems 
that  ministerial  acts  done  by  a  judge 
who  was  in  a  state  of  lunacy  have  been 


held   good.     Pope   refers   to   several   old 
authorities. 

^  The  following  references  are  of 
special  value  to  the  medical  jurist: 
Brierve  de  Boismont,  Etudes  Medico- 
legales  sur  la  Perversion  des  Facultes 
Morales  et  Aflfectives  dans  la  Period 
Prodromique  de  la  Paralysie  Generale, 
Paris,  1800;  Mickle,  General  Paralysis 
of  the  Insane,  2d  ed.  London,  1886; 
Hammond,  Remarks  on  Paralytic  Insan- 
ity .  .  .  with  Special  Reference  to 
the  Case  of  Abraham  Gosling,  7  Med. 
Gaz.  280 ;  the  Ferrin  Case,  quoted  by 
Spitzka,  Insanity,  1883,  p.  202,  footnote'; 
Mendel,  Die  Progressive  Paralvse  der 
Irren,  Berlin,  1880;  Chase,  General 
Paresis,  1902;  Voisin,  Traite  de  la  Par- 
alysie Generale  des  Alienes,  Paris,  1879 ; 
Tuke,  Dictionary  of  Psychological  Medi- 
cine, article  on  "General  Paralysis  of  the 
Insane,"  by  Mickle;  Savage  and  Goodall, 
"General  Paralysis  of  the  Insane,"  in 
Allbutt's  Syst.  of  Med.  Vol.  VIII.  p.  690 
(with  many  references  to  recent  litera- 
ture) ;  Mickle,  "Critical  Digest  on  Gen- 
eral Paralysis,"  in  Brain,  Spring  No. 
1894. 


CHAPTER  XLIII. 

SYPHILITIC  INSANITY. 

I.  The  medicai.  aspects  of  syphilitic  insanity. 

915.  The  destructive  action  of  syphilis. 

916.  Its  wide  extent  in  the  nervous  system. 

917.  The  mental  symptoms. 

918.  Syphilitic  dementia. 

919.  The  resemblance  between  syphilitic  insanity  and  general  paresis. 
II.  The  medico-legal  aspects  of  syphilitic  insanity. 

920.  These  are  such  as  arise  from  dementia  under  all  circumstances. 

I.   The  medical  aspects  of  syphilitic  insa^'ity. 

915.  The  destructive  action  of  syphilis. —  The  poison  of  syphilis 
sometimes  acts  with  destructive  energy  upon  the  brain  tissue.  It 
causes  an  inflammation,  beginning  in  the  coats  of  the  small  blood 
vessels,  and  extending  to  the  contiguous  structures ;  as,  for  instance, 
the  membranes,  the  cojinective  tissue,  the  supporting  tissue,  or  neu- 
roglia, and  finally  to  the  essential  nervous  tissue,  or  the  nerve  cells 
themselves  and  their  prolongations.  It  produces  in  time  an  exuda- 
tion or  deposit  of  a  gummatous  material,  and  this,  by  its  inju- 
rious pressure,  and  interference  with  the  functions  and  nutrition  of 
the  brain  elements,  still  further  causes  morbid  phenomena.-^ 

916.  Its  wide  extent  in  the  nervous  system. — This  destructive  action 
of  the  syphilitic  poison  may  occur  in  all  parts  of  the  nervous  system, 
both  in  the  brain  and  spinal  cord,  and  it  thus  causes  many  and  va- 
rious symptoms.  These  symptoms,  therefore,  are  by  no  means  always 
mental.  They  may,  for  instance,  consist  of  various  kinds  of  pa- 
ralyses, neuralgias,  and  interference  with  sensation,  according  to  the 
location  and  extent  of  the  lesions.  There  may  thus  be  tumors  of  the 
brain,  affections  of  various  nerves,  as  the  optic  nerves,  meningitis, 
and  widespread  diseases  of  the  spinal  cord ;  and  these  may  be  asso- 
ciated in  various  ways.  In  fact,  it  is  uncommon  for  purely  mental 
symptoms  alone  to  result;  such  mental  symptoms  are  generally  asso- 

'  Dercum,  Text-Book  of  Nervous  Dis-  Nervous  System,  translated  by  Mayer, 
eases,  by  American  Authors,  Phila.  1895,  1900,  p.  597;  Berkley,  Ment.  Diseases, 
p.    699;     Oppenheim,    Diseases    of    the    p.  87. 

762 


A  case  of  syphilitic  insanity,  with  paralysis  of  the  muscles 
of  the  right  eye. 


§  916]  SYPHILITIC  INSANITY.  703 

ciated  with  the  symptoms  of  organic  changes  in  the  brain.  In  otlier 
words,  syphilis  of  the  brain  is  an  organic  disease  not  limited  to  the 
purely  mental  sphere.^ 

917.  The  mental  symptoms. — As  we  are  concerned  in  these  pages 
with  mental  diseases  only,  we  shall  merely  point  out  briefly  the  re- 
sults of  syphilitic  infection  of  the  brain.^'* 

Headache  is  an  almost  constant  symptom.  It  may  be  so  acute  and 
constant  as  to  interfere  with  the  patient's  sleep ;  in  fact,  nocturnal 
headache  of  a  peculiarly  intense  kind  is  often  observed  in  brain 
>yphilis. 

Insomnia,  or  its  opposite,  somnolence,  is  also  observed.  The  in- 
somnia, as  just  stated,  may  be  an  accompaniment,  or  result,  of  the 
headache.  A  morbid  somnolence  is,  if  anything,  more  common  :^ 
the  patient  sleeps  all  night,  and  dozes  all  day,  and  seems  almost  like 
a  person  under  the  influence  of  some  drug.  In  some  of  these  cases 
there  is  naturally  more  or  less  confusion  and  stupor.  The  patient 
is  not  himself,  and  cannot  always  be  roused,  or  kept  roused,  to  attend 
to  his  ordinary  avocations.  He  acts  mechanically  or  almost  auto- 
matically.^^ 

Inflammation  of  the  optic  nerves  is  common  in  these  cases,  and  in 
some  of  them  the  small  muscles  moving  the  eye-balls  are  paralyzed, — ■ 
a  condition  known  as  "ophthalmoplegia."^  The  pupil  is  variously 
affected. 

918.  Syphilitic  dementia. — When  the  syphilitic  inflammation  is 
diffused  over  a  large  surface  of  the  brain  cortex,  a  condition  known 
as  syphilitic  dementia  results.^  The  patient  is  changed  in  character, 
apathetic,   dull,  morose,   inattentive,   and  irritable.      In  some  cases 

-  Heubner,    in    Zeimssen's    Cyclopedia,  And  let  the  unscarred  braggarts  of  the  war 

Vol    XII  Derive  some  pain  from  you.     Plague  all  ; 

„:  r.1    .'  1         J         •..   J  J.1         1  Tnat  your  activity  may  defeat  and  quell 

2^  Shakespeare  has  described  the  phy-  The  source  of  all  erection, 
sical  rather  than  the  mental  symptoms  — Timon  of  Athens,  Act  iv.  Sc.  iii. 

of  syphilis;  but  he  should  never  be  quot- 
ed on  the  subject  without  apologies  to        '  Krafft-Ebing,     Traite     Clinique     de 

the  legal  and  clerical  professions:  Psychiatrie,  traduit  par  Laurent,  p.  702. 

3i  The   patient   behaves   like   "a   rest- 
Consumptions  sow  less  nocturnal  automaton  ratlier  than  a 
shin^?'"''"        °'''° '  '*'                        '^  man."— H.  C.    Wood,    quoted    by    Osier, 
And  mar  men's  spurring.   Crack  the  lawyer's  Practice   of  Medicine,    1892,    p.    173. 

voice,  .  .  ,  ^  See  papers  by  the  autlior  in  Annals 

1  hat  he  may  never  more  false  title  plead,      .  pf  Onlit  n  nmlnav     Tth     ISOS-    Pliilndpl- 

Nor    sound   his    quillets   shrilly:    hoar    the  cr  upntnaiinoiog\,  Jan.    ISJS,   i  iniaaei- 

fiamen.  phia  Medical  Journal.  June  3,  1890:  and 

That  scolds  against  the  quality  of  flesh.  University    Medical    Magazine,    October, 

"nose?'""''""   ^"^^«1^:   ^°«'°  ^"^   ^^^  1899;   also  Jonathan  Hutchinson,  Syph- 

Down   with   it  flat;   take  the  bridge  quite  iHs,  p.   197,  et  infra. 

away  '•  Drysdale,    Sypliilitic    Insanity,   Brit. 

Of  him  that,  his  particular  to  foresee,  a ,r  j     jonrn     abstracted    in    7   Afpd     Onz 

Smells  from  the  general  weal  :  make  curl'd-  -iviea.^ourn.  aostractea  in   /   i\iea.  L»az. 

pate  ruffians  bald  ;  P-  548. 


764  INSANITY— iORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  91& 

there  iiiaj  be  melancholic  depression;"'^  but,  as  a  rule,  there  is  not 
much  emotional  disturbance ;  the  tendency  is  simply  to  a  weakening 
of  the  mental  faculties.  Memory  is  impaired,  and  the  intelligence 
affected.  The  patient  is  no  longer  able  to  attend  to  business.  lie  is 
a  sick  man,  with  a  meningitis  and  inflammation  of  his  brain  tissues. 
In  some  cases  there  are  delusions,  either  of  a  depressive  and  perse- 
cutory kind,  or  of  the  expansive  type,  as  seen  in  general  paresis. 

919.  The  resemblance  between  syphilitic  insanity  and  general  par- 
esis.— Syphilitic  insanity,  in  fact,  has  very  close  analogies  with  gen- 
eral paresis,  and  some  authorities  regard  the  former  as  merely  a 
variety  of  the  latter;  but  while  there  are  close  resemblances,  there 
are  also  some  possible  distinctions.  For  instance,  in  syphilitic  in- 
sanity there  is  not  the  same  tendency  to  the  formation  of  expansive 
delusions.  But  the  radical  distinctions  are  two  in  number.  In  the 
first  place,  syphilitic  dementia  does  not  have  the  same  characteristic- 
evolution  and  course  that  are  seen  in  general  paresis;  and,  in  the 
second  place,  the  prognosis  is  more  favorable  in  the  former  than  in 
the  latter  disease.  Under  active  antisyphilitic  treatment  the  de- 
mentia may  entirely  disappear," — a  result  which  is  practically  un- 
known in  a  pure  case  of  general  paresis.  I  once  had  under  my  care 
a  business  man  in  whom  a  very  threatening  syphilitic  dementia  had 
occurred.  He  was  incapacitated  for  business,  his  mental  faculties- 
being  much  weakened  and  clouded ;  yet  he  entirely  recovered  under 
treatment,  and  has  now  for  some  years  been  actively  and  successfully 
engaged  in  his  work.  Still,  it  would  not  do  to  say  that  such  a  favor- 
able result  is  attainable  in  all  cases.  !Not  a  few  cases  are  fatal ;  espe- 
cially if  there  are  gross  lesions  of  the  brain. 

In  brain  syphilis,  or  syphilitic  dementia,  we  are  more  apt  to  see 
localized  palsies,  as  of  some  of  the  eye  muscles,  and  the  intense  head- 
ache, than  in  general  paresis.'''  ^Nevertheless,  the  diagnosis  betAveen 
the  two  conditions  is  often  difficult,  or  even  impossible.  The  two 
conditions  are  allied,  and  doubtless  often  identical,  or  the  one 
shades  into  the  other,  as  should  be  expected  if  general  paresis  is  so 
often  a  syphilitic  disease  as  statistics  tend  to  show.* 

5J  Fournier  (International  Clinics,  Lewis  (Text-Book  of  ilental  Diseases, 
Vol.  III.  14th  Sor.  1904)  refers  to  eigh-  2cl  ed.),  w'lo  has  written  the  most  ex- 
teen  cases  of  suicide  due  to  syphilis  in  haustive  account  of  mental  patliolog>' 
his  own  practice.  Self-destruction  may  and  morbid  anatomy  in  the  English  lan- 
bc  due  to  a  feeling  of  despair  of  recov-  guage.  does  not  give  a  separate  descrip- 
ery,  or  to  the  melancholic  depression.  tion    of   brain   syphilis.     He   apparently 

"Dana.    Text-Book    of    Nervous    Dis-  includes  all  syphilitic  lesions  in  his  ac- 

eases,  4th  ed.  New  York,  1897,  p.  462.  count  of  general  paralysis  of  the  insane. 

'  Savage,  Insanity,  p.  341.  The  word  "syphilis"  does  not  even  find  a 

•It  is  a  remarkable  fact  that  Bevan  place  in  his  index.     As  a   contrast,  ee* 


$  <)20]  SYJ'HILITIC   LWSANITY.  TO.") 

II.   The  medico-legal  aspects  of  syphilitic  insanity. 

920.  These  are  such  as  arise  from  dementia  under  all  circumstances. 

—  In  well  marked  cases  the  patients  are  clearly  incapacitated  bv 
reason  of  their  stuporous  and  confused  condition,  their  enfeebled 
mental  faculties,  their  inability  to  concentrate  the  attention,  and 
Their  physical  suffering.  The  question  of  responsibility  is  ouo  to  be 
decided  in  each  case  by  the  individual  symptoms.  Criminal  com- 
])lications  are  not  so  likely  to  occur  as  are  questions  of  capacity  in 
t'ivil  matters.'' 


Berkley's  work.  Mental  Diseases,  p.  210; 
also.  Tiike's  Dictionary  of  Psychologi- 
cal Medicine,  Vol.  IT.  "p.  1252. 

'  As  an  instance  of  the  virulence  of  the 
sj'philitic  poison,  one  of  the  author's 
cases  is  in  evidence.  A  young  man  had 
acquired  syphilis  before  his  marriage, 
and  after  that  event  he  developed  syph- 
ilitic dementia.  He  continued  in  this 
state  for  some  years,  spending  a  part 
of   the    time    in    an    asylum.      He    had 


fortunately  had  no  children,  but  after 
his  discharge  from  the  asylum,  some- 
what improved,  his  wife  conceived  and 
bore  a  well-developed  infant.  This  child, 
soon  after  birth,  developed  hereditarj' 
sj'philis,  and  the  wife,  who  had  not  be- 
fore been  infected,  soon  had  an  unmis- 
takable syphilitic  skin  disease.  She 
had  apparently  contracted  this  disease 
through  her  own  infant. 


CHAPTEK  XLIV. 

ALCOHOLIC  INSANITY. 

I.  The  medical  aspects  of  alcoholic  insanity. 
92L  The  poisonous  effects  of  alcohol. 

922.  These  effects  are  acute  and  chronic. 

923.  Simple  acute  poisoning. 

924.  Delirium  tremens. 

925.  The  sub-acute  insanity  of  some  habitual  drinkers. 

926.  Alcoholic  melancholia. 

927.  Mania  a  potu. 

928.  The  chronic  effects. 

929.  Chronic  alcoholic  insanity. 

930.  Alcoholic  general  paresis. 

931.  Epilepsy  in  alcoholism. 

932.  Dipsomania. 

933.  Alcoholic  dementia. 

934.  The  pathology  and  morbid  anatomy  of  chronic  alcoholism. 
IL  The  medico-legal  aspects  of  alcoholic  insanity. 

935.  Drunkenness. 

936.  Is  drunkenness  a  crime? 

937.  The  proper  medico-legal  question  is  Avhether  drunkenness  is  an  excuse 

for  crime. 

938.  Under  the  common  law. 

939.  How  the  law  has  been  modified. 

940.  The  difference  in  law  between  acute  and  chronic  alcoholism- 

941.  The  courts  recognize  chronic  alcoholism  as  a  disease. 

942.  The  full  significance  of  the  principle. 

943.  Drunkenness  and  irresponsibility. 

944.  Drunkenness  destroys  responsibility  in  fact  if  not  in  law. 

945.  The  motive  of  the  law  in  holding  the  drunkard  accountable. 

946.  A  modification  of  the  old  common-law  doctrine. 

947.  The  rulings  in  American  courts. 

948.  Drunkenness  may  reduce  the  grade  of  crime. 

949.  A  departure  from  tlie  old  ma.xim. 

950.  Degrees  of  drunkenness. 

951.  Drunkenness  as  affecting  civil  capacity. 

952.  Testamentary  capacity  during  drunkenness. 
952^.  The  commitment  of  chronic  inebriates. 

I.  The  medical  aspects  of  alcoholic  insanity. 

921.  The  poisonous  effects  of  alcohol. — Alcohol  is  an  active  poison 

:o  the  nervous  system,  and  when  used  habitually  and  in  excess  it  is 

766 


§  921]  ALCOHOLIC  INSANITY.  767 

almost  sure,  soon  or  late,  to  lay  its  victim  low.  In  modern  life  the 
ravages  of  alcohol  are  greater  than  was  the  case  among  the  ancients, 
for  the  reason  that  strong  alcoholic  drinks  are  now  distilled  and  mar- 
keted at  a  low  price.  Magnus  Huss^  was  one  oi  ine  nrst  to  treat  this 
subject  in  detail.  He  described  the  Swedish  dram-arinkers,  some  of 
whom  consumed  as  much  as  twenty  glasses  of  raw  brandy  every  day.^ 
Since  Huss  wrote  his  book  there  has  grown  up  an  immense  literature 
on  this  subject,  for  alcohol  is  fully  recognized  to-day,  both  by  pathol- 
ogists and  by  jurists,  as  supplying  one  of  the  great  problems  of 
civilization.^  As  a  factor  in  crime  it  is  not  less  important  than  as  a 
factor  in  disease."* 

922.  These  effects  are  acute  and  chronic. — The  effects  of  alcohol  on 
the  nervous  system  may  be  described  as  "acute"  and  "chronic," — a 
distinction  which  has  special  importance  from  a  medico-legal  stand- 
point. 

923.  Simple  acute  poisoning. — First  among  the  acute  effects  is  the 
simple  acute  poisoning,  or  the  ordinary  intoxication.  This  is  too  well 
known  to  require  minute  description.  In  the  first  stage  there  is  exal- 
tation, not  unlike  a  mild  mania ;  the  ideas  are  accelerated  and  slightly 
incoherent ;  the  sense  of  well-being  is  increased ;  the  emotions  stimu- 
lated ;  and  there  is  motor  excitement  and  a  tendency  to  talk.  In  the 
second  stage  these  symptoms  are  increased  to  the  extent  that  the 
victim  loses  self-control  and  self-consciousness ;  the  ideas  are  much 
confused,  memory  impaired,  and  violent  and  impulsive  acts  are  more 
common.  In  the  third  stage  a  condition  of  stupor,  or  profound 
sleep,  passing  even  into  a  temporary  coma,  supervenes;  and  the  at- 
tack ends  after  some  hours,  when  the  person  awakes,  with  a  sense  of 
malaise^,  nausea,  headache,  and  a  dry  mouth  and  throat.  A  period  of 
depression  results,  lasting  for  some  hours  or  days. 

924.  Delirium  tremens. — A  much  graver  affection  is  acute  delirium, 
— the  so-called  delirium  tremens.  This  occurs  in  persons  who  have 
been  drinking  to  excess  for  a  period  of  some  days  or  weeks ;  it  is  the 
climax,  as  it  were,  of  a  protracted  acute  poisoning.  It  is  seldom  seen 
after  a  single  short  debauch,  although  exceptions  to  this  rule  occur 
in  persons  wdio  are  highly  susceptible.  In  delirium  tremens  the  im- 
mediate effects  of  the  alcoholic  poisoning  may  pass  away,  but  there  is 
left  such  a  profound  disorder  of  the  nutrition  of  the  brain  that  a  de- 
lirious state  continues,  and  is  kept  up  for  days  and  even  weeks  without 

'  Alcoholismus   Clironicus,   Stockholm,  '  The  Index  Catalogue  contains  eleven 

ISol.  large,  closely-printed  pages,  of  two  col- 

-  Bevan  Lewis,  ]\Iental  Diseases,  2d  ed.  umns  each,  of  references. 

p.  345.  "Drahms,  The  Criminal,  1900. 


76S  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  924 

the  ingestion  of  more  alcohol.  Therefore,  delirium  tremens  and  some 
allied  states  stand  for  more  than  mere  continued  alcoholic  poisoning. 
They  represent  a  state  of  malnutrition  of  the  brain,  which  is  a  veri- 
table disease,  and  one  which,  although  started  by  alcohol,  does  not 
depend  on  the  continued  use  of  alcohol  for  its  further  duration. 

This  is  shown  in  the  form  called  delirium  potu  suspenso,''  in  which 
the  delirium  breaks  out  only  after  the  alcohol  has  been  withdrawn. 
Some  days  may  elapse  after  the  last  drink,  and  the  patient  may  seem 
to  have  almost  recovered  from  his  debauch,  when  the  delirium  super- 
venes. This  is  sometimes  seen  in  surgical  cases,  in  which  the  patient, 
having  received  an  injury,  such  as  a  broken  bone,  is  denied  his  alco- 
hol, does  well  for  a  few  days,  and  then  suddenly  develops  delirium 
tremens.  The  same  is  sometimes  seen  in  pneumonia  and  other  acute 
diseases. 

In  delirium  tremens  the  mental  functions  are  in  entire  disorder : 
the  ideas  are  wandering  and  incoherent ;  the  attention  cannot  be  fixed, 
except,  perhaps,  for  a  moment;  disturbing  and  terrifying  delusions 
occur ;  there  is  loss  of  the  sense  of  personal  identity,  and  of  the  iden- 
tity of  persons,  time,  and  place ;  memory  is  effaced ;  hallucinations 
are  common,  especially  hallucinations  of  sight,  such  as  of  repulsive 
objects,  snakes,  bats,  etc. ;  there  is  great  motor  unrest,  the  patient 
needing  to  be  restrained;  insomnia  is  present,  and  refusal  of  food. 
In  these  cases  there  is  marked  physical  prostration,  and  a  very  com- 
mon symptom  is  a  tremor  of  the  muscles,  from  which  the  disease  de- 
rives its  name.  In  the  worst  cases  a  typhoid  state,  with  fever  and  a 
dry,  brown  tongue,  sets  in.  Delirium  tremens  is  always  a  severe,  and 
sometimes  a  fatal,  affection.  Complete  recovery,  however,  is  pos- 
sible, but  repeated  attacks  tend  to  cause  permanent  injury  to  the 
brain. 

925.  The  sub-acute  insanity  of  some  habitual  drinkers. — This  is  a 
sort  of  semi-delirium ;  it  stops  a  little  short  of  an  acute  delirium 
tremens,  and  is  kept  going  for  days  and  even  weeks  by  the  continued 
abuse  of  the  poison.-  The  victim  is  able  to  be  about ;  indeed,  his  fre- 
quent visits  to  the  dram-shop  are  what  keep  adding  fuel  to  the  fire. 
Lasegue*^  has  well  described  this  psychosis.  The  patient  is  in  a  kind 
of  dream-like  state ;  his  days  and  his  nights  are  alike  a  nightmare ; 
-he  passes  from  sleep  to  waking  and  from  waking  to  sleep  in  a  state 
that  is  not  very  different  whether  he  sleeps  or  wakes.  He  is  the  prey 
of  hallucinations  and  delusions,  confused  in  understanding  and  mem- 

•  R^gis,  Mental  Medicine,  translated  "  De  I'AIcoolisme  Subaigu,  Arch.  G6n. 
by  Bannister,  p.  488.  de  Med.  1869,  p.  1513. 


*  925]  ALCOHOLIC  INSANITY.  7G9 

ory,  unfit  to  apply  his  mind,  sometimes  irritable  and  impulsive,  eat- 
ing little,  and  always  on  the  verge  of  collapsing  in  a  veritable  de- 
lirium. This  is  a  condition  in  which  many  chronic  sots  pass  days  at 
a  time.  It  may  present  episodes  of  maniacal  excitement,  in  which 
the  patient  is  furious  and  dangerous ;  and,  what  is  not  uncommon, 
it  may  merge  into  a  state  of  profound  melancholia,  in  which  the 
patient  commits  suicide. 

926.  Alcoholic  melancholia. — A  pronounced  melancholia  is  indeed 
not  uncommon  in  inebriates,  and  may  occur  in  various  stages  of  alco- 
holism. It  follows  especially  after  the  excesses  of  the  periodical 
drinker.  A  stuporous  or  atonic  kind  is  seen  also  in  chronic 
drunkards.  It  may  begin  brusquely,  follow  an  acute  course,  and  be 
characterized  by  hallucinations,  apathy,  attempts  at  suicide,  and 
sometimes  a  prompt  recovery,  leaving  on  the  patient's  mind  the  im- 
pression of  a  bad  dream.'^ 

927.  Mania  a  potu. — Attacks  of  mania,  or  fury,  are  seen  in  many 
inebriates.  In  some  highly  neurotic  persons  a  little  alcohol  will  cause 
undue  excitement ;  what  would  be  in  most  persons  hilarity  and  mere 
tipsiness,  becomes  in  them  a  raving  fury.  They  smash,  break,  fight, 
and  even  commit  murder.  But  in  steady  drinkers,  also,  a  maniacal 
outburst  may  occur,  and  this  differs  clinically  from  a  delirium.  The 
patients  are  excited,  combative,  noisy,  impulsive,  and  violent.  They 
are  not  merely  intoxicated  in  the  ordinary  sense,  for  the  maniacal 
attack  may  continue  for  days  after  the  alcohol  is  withheld.  This  is 
the  disease  which  many  writers  call  mania  a  potu  as  distinct  from 
delirium  tremens.*  The  distinction  is  a  valid  one,  for  the  two  con- 
ditions are  not  exactly  alike,  and  they  may  have  different  medico- 
legal relations. 

928.  The  chronic  effects. — The  chronic  effects  of  alcohol  on  the 
nervous  system  are  multiform,  but  they  all  indicate  a  downward 
course.  There  is,  in  the  first  place,  the  chronic  deterioration  of  char- 
acter so  common  in  the  inebriate.  The  moral  as  well  as  the  mental 
qualities  of  the  man  suffer:  the  finer  edge  is  taken  off.  Alcohol  has 
been  called  the  father  of  lies ;  it  is  also  the  father  of  deceit,  of  cruelty, 
of  indifference,  of  dishonesty,  and  of  countless  moral  perversions. 
The  mental  faculties  become  slowly  and  surely  impaired.  The  man 
is  unfitted  for  work  or  for  business ;  he  is  inattentive,  unreliable,  with 
his  memory  impaired,  his  judgment  weakened,  and  his  intellect 
clouded.     He  becomes  irritable  and  brutish, — a  mere  vagabond  or 

'  Krafft-Ebing,     Traits     Clinique     de        '  Kerr,  Inebriety  or  Narcomania,  New 
Psychiatrie,  traduit  par  Laurent,  p.  627.    York,  p.  66. 
Vol.  I.  Med,  Jub. — 49. 


770  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  928 

loafer.     Upon  this  state  of  moral  and  mental  deterioration  there  are 
engrafted,  in  time,  genuine  forms  of  alienation. 

929.  Chronic  alcoholic  insanity. — The  most  common  of  these  is 
chronic  alcoholic  insanity.  In  this  disease  hallucinations  and  delu- 
sions occur.  The  former  are  seen  especially  in  every  renewed  de- 
bauch. The  patient  sees  disgusting  and  revolting  objects,  or  hears 
threatening  or  insulting  voices.  The  delusions  of  the  chronic  in- 
ebriate are  usually  of  the  persecutory  or  depressive  type.  He  be- 
comes suspicious ;  he  believes  that  people  are  in  league  against 
him,  or  that  he  is  being  poisoned.  A  very  common  form 
is  the  delusion  of  marital  infidelity :  he  suspects  and  ac- 
cuses his  wife.^^  He  may  also  have  hypochondriacal  ideas, 
as  that  he  is  diseased,  or  that  his  organs  are  changed,  or  that 
he  harbors  insects  or  vermin  or  strange  animals  within  him.  There 
are  progressive  loss  of  self-control  and  progressive  weakening  of  the 
mental  faculties.  This  is  often  shown  in  a  strange  lack  of  what  we 
may  call  initiative,  or  resolution.  The  patient  talks  constantly  of  his 
wrongs  and  oppressions,  but  takes  no  step  to  correct  them.  Clouston 
had  for  a  patient  of  this  kind  an  able  lawyer,  who  declaimed  daily 
against  the  outrage  of  his  being  kept  in  an  asylum,  threatened  to 
write  to  the  lunacy  commissioners,  and  was  invited  regularly  to  do 
so,  but  never  wrote  them  a  line.  The  inebriate  who  accuses  his  wife 
of  being  faithless  to  him  may  continue  to  live  and  sleep  with  her  as 
though  all  were  well.  This  lack  of  harmony  between  the  ideas  and 
the  acts,  between  the  delusions  and  the  conduct,  shows  the  breaking 
up  of  the  normal  associations  in  the  mind.  In  other  cases,  however, 
the  condition  is  the  reverse  of  this:  under  the  influence  of  persecu- 
tory delusions  the  patient  may  become  dangerous.  He  may  also  de- 
velop, in  time,  expansive  delusions, — the  so-called  alcoholic  par- 
anoia,®— and  come  to  believe  himself  some  great  and  injured  per- 
sonage. Such  patients  may  become  most  irascible,  and  commit  acts 
of  extraordinary  brutality. 

930.  Alcoholic  general  paresis. — A  form  of  chronic  insanity  in  in- 
ebriates is  the  pseudo-paresis,  described  by  ISTasse,  Moreau,  and  others, 
and  observed  by  many.^°  This  form  resembles  very  closely  general 
paresis,  or  dementia  paralytica,  but  differs  from  it  in  the  important 

8^  "Whatever  may  be  the  explanation  cases  this  false  belief  holds  first  place." 

of  thiSj  and  not  a  few  explanations  have  — Mills.    (Unpublished  paper.) 
Ijeen  .attempted,    as,    for   instance,   that        For  an  extraordinary  case  of  this  de- 

which  would  refer  the  frequency  of  this  hision,  in  quaint  old  English,  see  Hale, 

(lolu^;ion  to  the  failing  sexual  power  of  P.  C.  Am.  ed.  p.  709. 
the   individual,   it  is   true   that  in   both        '  Krafft-Ebing,  op.  cit.  p.  637. 
the  chronic  and  in  the  acute  or  subacute        "  Regis,  op.  cit.  p.  497. 


§  930]  ALCOHOLIC  INSANITY.  771 

particular  tliat  the  patient  may  entirely  recover.  There  is  the  sanic 
tendency  to  the  formation  of  grandiose  delusions,  with  defects  in 
speech  and  gait,  muscular  unsteadiness,  mental  weakness,  inequality 
of  the  pupils,  and,  possibly,  even  some  epileptic  seizures.  I  saw  such 
a  case  in  a  physician,  the  victim  of  both  alcohol  and  morphin,  in 
whom  the  prospect  seemed  very  dubious,  and  yet  recovery  took  place 
after  a  few  weeks  of  wise  treatment  in  a  hospital  for  the  insane. 

931.  Epilepsy  in  alcoholism. — Epileptic  fits  are  sometimes  observed 
after  a  debauch,  even  in  inebriates  who  have  not  shown  any  mental 
changes  as  yet  during  their  sober  intervals.  In  a  man  nearly  seventy 
years  of  age,  now  under  my  care,  a  series  of  epileptic  fits  is  almost 
sure  to  occur  after  a  period  of  steady  but  not  very  excessive  drinkingJ 
This  patient  has  no  failure  of  mental  power,  except  such  slight 
changes  as  may  be  ascribed  merely  to  his  years.  As  a  rule,  however, 
the  onset  of  epilepsy  in  a  chronic  drinker  is  a  sign  of  mental  failure. 

932.  Dipsomania. — This  is  the  term  used  for  the  periodical  craving 
for  drink  which  assails  some  persons  with  the  force  of  an  overpower- 
ing impulse.^ '^''^  It  is  a  much-abused  term,  but  it  has  a  legitimate 
meaning.  This  morbid  craving  is  seen  especially  in  neurotic  per- 
sons,— in  those  who  are  predisposed  by  heredity  to  nervous  disor- 
ders. Spitzka^^  says  with  truth  that  it  is  sometimes  allied  with  pe- 
riodical insanity,  especially  mania.  In  its  periodical  and  explosive 
character,  and  its  complete  subversion  of  the  will,  dipsomania  has 
some  resemblance  to  the  obsessions  described  elsewhere,  but  it  differs 
from  them  in  being  not  a  mere  mental  disorder,  but  rather  a  physi-  . 
cal  craving,  or  appetite.  It  leads  sometimes  to  prolonged  drinking 
spells,  during  which  the  victim  may  suffer  with  some  of  the  acute  and 
chronic  effects  of  alcoholism.  The  real  dipsomaniac  comes,  as  a  rule, 
of  neurotic  stock,  in  which  parents  or  near  relatives  have  shown  in- 
sanity, epilepsy,  inebriety,  or  other  nervous  disorders.  His  tendency 
to  drink  to  excess  usually  begins  early  in  life,  and  is  periodical.  The 
paroxysm  is  of  sudden  onset,  and  when  it  is  once  started  nothing 
serves  to  stop  it  until  it  has  exhausted  itself  and  its  victim.  It  is 
peculiarly  unrestrained  by  any  consideration  of  family  or  friends  or 
self.    After  it  ends  there  may  be  a  period  of  melancholia.^" 

lO^Magnan,   "Lemons    sur    la    Dipso-  mania,  the  Disease  of  Inebriety,"  Twen- 

manie,"  in  Progres  M^dicale,  1884.  tietli  Century  Practice,  Vol.  III.  p.  115; 

"Insanity,  pp.  2G9-271.  Wilson,  "Dipsomania."  in  Pepper's  Sys- 

^- Morel,    Traite   des    Degen^rescences,  tern  of  Medicine,  Vol.  V.  p.  635;   Kier- 

Paris,  1857;  Mercier,  "Vice,  Crime,  and  nan,   with   an   account    of    the     (yBrien 

Insanity,"    in    Allbutt's    Syst.   of   Med.  Case,  in    the    Journ.    of    Inebriety,  Oct. 

Vol.    IX;    Magnan,    Alcoholism,    trans-  1896. 
Iflted  by  Greenfield,  1876;  Kerr,  "Narco- 


772  INSANll'Y— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  933 

933.  Alcoholic  dementia. — Finally  dementia  sets  in  after  chronic 
alcoholic  insanity.  The  patient  is  permanently  impaired  in  memory, 
in  understanding,  in  the  emotions  and  affections,  and  shows  also  evi- 
dences of  physical  disease.  The  liver  and  kidneys  especially  suffer, 
the  arteries  are  hardened,  the  heart  muscle  degenei'ated,  and  death 
often  ensues  from  an  epileptiform  or  apoplectiform  attack.  This  last 
scene  is  the  triumph  of  the  degeneration  of  tissue. 

934.  The  pathology  and  morbid  anatomy  of  chronic  alcoholism. — 
These  have  been  studied  with  care.  Changes  are  found  in  many  tis- 
sues of  the  body,  especially  in  the  coats  of  the  blood  vessels,  causing 
thickening  and  hardening,  in  the  brain  membranes,  in  the  support- 
ing tissue  of  the  brain,  or  neuroglia,  and  in  the  kidneys,  liver,  and 
heart.  Berkley^  ^  has  found  microscopic  changes  in  the  nerve  cells 
in  the  brain,  indicating  a  destructive  process.  Bevan  Lewis^^  has 
also  found  widespread  changes  in  the  blood  vessels,  membranes,  and 
nerve  cells  of  the  brain  and  other  parts  of  the  nervous  system,  and 
has  described  these  with  great  accuracy  and  minuteness  in  his  text- 
book. The  evidence  is  abundant  and  clear  that  alcohol  acts  as  a  de- 
structive agent  on  the  cerebral  tissues,  and  therefore  that  chronic  al- 
coholism becomes  a  distinct  organic  disease.  x\lcohol  can  also  cause 
an  active  inflammation  of  the  nerves  of  the  extremities,  as  seen  in 
the  disease  known  as  multiple  neuritis,  which  is  sometimes  associ- 
ated with  a  wandering  delirium.^ ^^ 

II.  The   medico-legal   aspects   of   alcoholic   insanity. 

935.  Drunkenness. — It  has  been  said  that  drunkenness  is  regarded 
by  the  church  as  a  sin,  by  the  world  as  a  vice,  by  the  law  as  a  crime, 
and  by  science  as  a  disease.  This  imposing  statement  is  not  altogether 
true,  for  drunkenness  in  itself,  according  to  some  authorities,  is  not 
a  crime  in  law,^^  nor  is  it  necessarily  a  disease  in  fact.  Neverthe- 
less, as  productive  both  of  crime  and  disease,  it  is  of  unsurpassed  im- 
portance in  the  medical  jurisprudence  of  insanity. 

936.  Is  drunkenness  a  crime? — As  to  drunkenness  being  or  not  be- 
ing a  crime  in  law,  this  is  not  the  place  for  an  extended  discussion. 
Certainly  many  legal  authorities  refer  to  it  as  such.     Blackstone^® 

"A     Treatise     on     Mental     Diseases,  den   Alcoliolismns,"    1904.       This    is    a 

1900.  p.  263.  collection  of  references  to  the  whole  lit- 

"A  Text-Book  on  Mental  Diseases,  2d  erature  of  alcoholism;  a  complete  bibli- 

ed.   p.   .581.  ography  to  date. 

14*  A  recent  important  work  is  "Bib-  "Clark.  Analysis  of  Criminal  Liabil- 

iiographie  der  Gesammten  Wissenschafft-  ity,  p.  29. 

lichten  Litteratur  iiber  den  Alcohol  und  "4  Com.  26. 


§  936]  ALCOHOLIC  INSANITY.  773 

is  an  example;  and  Lord  Mansfield^'  distinctly  said  that  drunkenness 
is  itself  a  crime.^^     But  this  is  not  a  medico-legal  question. 

937.  The  proper  medico -legal  question  is  whether  drunkenness  is 
an  excuse  for  crime. — It  has  usually  not  been  so  held.  By  the  law 
of  Pittacus/^  intended  to  restrain  the  drunkenness  of  the  ancient 
Lesbians,  this  vice  was  held  to  aggravate  the  crime,  and  a  double 
penalty  was  inflicted, — a  difficult  thing  to  do  in  the  case  of  capital 
punishment.  But  the  Roman  law,  as  Blackstone  tells  us,  was  more 
lenient:  per  vinum  delapsis  capitalis  poena  remittUur.  This  law 
seems  to  have  applied  especially  to  soldiers,  in  whose  cases  there  may 
have  been  special  reasons  for  indulgence.^^  Still,  these  two  ancient 
codes,  one  of  the  Greeks,  the  other  of  the  Romans,  represent  the 
opposing  views  of  this  subject,  and  may  serve  as  a  text.  It  will  be 
the  object  of  the  following  pages  to  show  that  in  Anglo-American  law 
the  tendency  has  distinctly  been  to  recede  from  the  former  position, 
if  not  to  assume  the  latter.  If  this  has  not  been  so  in  theory,  it  has 
at  least  been  so  in  practice,  and  especially  in  America.  Tho  theories 
of  the  law  change  slowly;  the  courts  adhere  tenaciously  to  ancient 
maxims;  but,  even  in  theory,  there  is  perceptible  a  modification  of 
the  old  common  law  that  drunkenness  is  no  excuse  for  crime. 

938.  Under  the  common  law. — There  can  be  no  doubt  that,  accord- 
ing to  the  common  law,  drunkenness  does  not  act  to  mitigate  the  of- 
fense. The  authorities  are  well-known  and  often  quoted.  Coke^* 
says:  "As  for  a  drunkard,  who  is  voluntarius  doemon,  he  hath  .  .  . 
no  privilege  thereby,  but  what  hurt  or  ill  soever  he  doth,  his  drunken- 
ness doth  aggravate  it."  This  statement  is  almost  as  extreme  as  that 
of  Pittacus :  drunkenness  not  only  does  not  excuse,  but  it  even  aggra- 
vates. It  is  doubtful  whether  English  practice  has  often  taken  this 
extreme  course.  The  courts  have  been  content  to  deny  the  excuse, 
but  they  have  not  added  to  the  penalty;  although  that  may  have  been 
because  many  of  these  offenses  have  been  capital ;  for  it  is  impossi- 
ble to  hang  a  man  more  than  once.  Hale,^^  in  a  long  definition,  says 
that  the  drunkard  has  "no  privilege  by  this  voluntary  contracted 
madness,  but  shall  have  the  same  judgment  as  if  he  were  in  his  right 
senses."  Here,  it  will  be  observed.  Hale  does  not  follow  Coke,  for 
according  to  him  the  vice  does  not  aggravate  the  crime;  the  penalty 

"Chamberlain    v.    Evans,    H.    of    L.  '"Anthon,    Classical    Dictionary,    art. 

1767.  "Pittacus." 

^*By  the  statutes  4   Jac.   I.   chap.   5,  ^"Mcllraith,  Law  Relating  to  Drunk- 

and   21    Jac.    I.    chap.    7,    §§    1,    3,    the  enness,  etc.,  p.  11. 

drunkard  was  put  in  the  stocks   for  a  "1  Litt.  247. 

few    hours, — presumably    to    giv(>    him  "  1  P.  C.  p.  32. 
time  to  get  sober. 


774  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  938 

is  the  same  as  tlioiigli  the  man  were  sober.  Hawkins^'  follows  Hale 
in  this  as  in  other  things,  and  says  that  "he  who  is  guilty  of  any  crime 
whatever  through  his  volimtary  drunkenness  shall  be  punished  for 
it  as  much  as  if  he  had  been  sober."  Blackstone-^  merely  follows 
Coke,  and  says  that  drunkenness  aggravates  the  crime.^^  These 
are  the  standard  authorities  on  this  subject  in  the  common  law,  and 
they  are  not  strictly  in  accord,  for  two  of  them.  Coke  and  Blackstone, 
follow  the  ancient  rule  of  Pittacus,  and  tell  us  that  drunkenness  ag- 
gravates the  crime,  while  Hale  and  Hawkins  say  that  it  is  merely  no 
excuse.  This  distinction  is  not  unimportant  in  a  medico-legal  sense. 
•It  shows  an  advance  from  an  extreme  to  a  more  moderate  view. 

939.  How  the  law  has  been  modified. — The  dictum  that  drunken- 
ness is  no  excuse  for  crime  has  been  modified  in  two  ways.  In  the 
first  place,  it  has  been  allowed  that,  although  the  primary  drunkenness 
is  no  excuse,  yet  the  secondary,  or  chronic,  effects  of  drunkenness  may 
constitute  the  grounds  for  a  valid  defense.  In  the  second  place,  it 
has  been  held  that  primary  drunkenness  can  affect  the  intent  to  com- 
mit crime.  These  two  postulates  cover  slightly  different  grounds,  and 
will  be  considered  here  apart  and  in  turn. 

940.  The  difference  in  law  between  acute  and  chronic  alcoholism. — 
As  to  the  first  of  these,  Sir  Matthew  Hale  himself  saw  that  there 
was  a  difference  between  acute  intoxication  and  chronic  alcoholism, 
for  he  said  that,  although  frenzy  occasioned  immediately  by  drunken- 
ness excuse  not  in  criminals,  "yet,  if  by  one  or  more  such  practices 
an  habitual  or  fixed  phrenzy  be  caused,  though  this  madness  was 
contracted  by  the  vice  and  will  of  the  party,  yet  this  habitual  and 
fixed  phrenzy  thereby  caused  puts  the  man  into  the  same  condition 
in  relation  to  crimes  as  if  the  same  were  contracted  involuntarily  at 
first."  '^^  Although  not  expressed  in  such  nervous  language  as  Coke's, 
the  meaning  of  this  passage  is  plain.  In  chronic  cases  the  alcoholism 
becomes  practically  a  disease,  and  is  regarded  as  such  by  the  law; 
and  the  legal  principle  that  drunkenness  is  no  excuse  has  given  way 
to  the  idea  that  mental  disease  caused  by  drunkenness  is  in  the  same 
list  as  all  other  mental  diseases  whatever,  and  exempts  from  punish- 
ment. This  is  a  thoroughly  scientific  conception,  and  reflects  great 
credit  on  Lord  Chief  Justice  Hale.  It  is  the  first  indication  in  Eng- 
lish law,  so  far  as  appears,  that  alcoholism  was  to  he  regarded  in  time 
in  its  true  light,  as  a  condition  of  disease. 

»  P.  C.  Chap.  L   §  G.  ''"  1  P   C.  loc.  ni.  p.  32. 

"4  Com.  2.5,  26. 

'^'Nam    omne    crimen    ebrietas    et    in- 
cendit  et  detegit. 


§  941]  ALCOHOLIC  INSANITY.  775 

941.  The  courts  recognize  chronic  alcoholism  as  a  disease. — IMore- 
over,  this  opinion  of  Hale's  has  been  widely  followed  in  the  courts. 
It  would  be  easier  to  multiply  cases  than  to  find  space  for  them  in 
these  pages.  In  1825  Justice  Holroyd-"^  charged  that  drunkenness 
is  not  insanity,  "unless  the  derangement  which  it  causes  becomes  fixed 
and  continued  by  the  drunkenness  being  habitual,  and  thereby  ren- 
dering the  party  incapable  of  distinguishing  between  right  and 
wrong."  This  recognizes  habitual  drunkenness  as  a  cause  of  insan- 
ity, and  thereby  an  excuse  for  crime.  In  the  Scotch  case  of  Alexan- 
der Milne,  the  Lord  Justice-Clerk  told  the  jury:  "If  the  mind  is 
diseased,  the  man  is  insane;  and  if  the  mind  is  diseased,  it  is  no 
matter  what  has  caused  it,  so  that  the  insanity  is  actually  produced 
and  present  at  the  time."  ^^  In  America  it  has  been  held  in  case 
after  case  that  when  inebriety  develops  into  a  fixed  and  well-defined 
mental  disease,  this  relieves  from  responsibility  in  criminal  cases, 
and  such  cases  will  be  regarded  and  treated  as  cases  of  insanity.^® 
Justice  Story ,^*^  of  the  United  States  Supreme  Court,  told  the  jury 
that,  if  the  crime  had  been  committed  while  the  prisoner  was  intoxi- 
cated, he  would  be  liable  for  murder ;  but  the  accused  was  acquitted 
on  the  ground  that  he  had  delirium  tremens.  Sir  Fitzjames  Ste- 
phen^^  told  a  jury  that  "drunkenness  is  one  thing,  and  the  diseases 
to  which  drunkenness  leads  are  different  things;"  and  he  defined 
at  length  the  condition  known  as  delirium  tremens,  and  pointed  out 
how  it  would  absolve  from  crime.  In  a  recent  American  case  Judge 
HirzeP-  charged  the  jury  that  it  was  immaterial  what  caused  mental 
derangement,  whether  the  same  was  brought  on  by  hereditary  dis- 
ease, or  was  the  result  of  the  excessive  use  of  alcohol,  or  of  any  dis- 
ease or  other  cause,  or  combination  of  causes.  It  is  needless  to  mul- 
tiply examples.-^^ 

942.  The  full  significance  of  the  principle. — So  well  established  is 
this  principle  in  the  law  that  it  would  probably  be  difficult  to  find 
many  cases  in  which  a  contrary  opinion  had  been  given  by  the  courts. 

"Rennie^s  Case,  I  Lewin,  C.  C.  76.  "  The    followinj?    cases    are    quoted : 

» Edin.  Med.  Journ.  1865,  Vol.  XI.  p.  Real  v.   People,   55   Barb.   551 ;    Macon- 

18.  iiehct/  V.  State,  5  Ohio  St.  77;  Carter  v. 

=«  Clark  Bell.   Proceedings  of  the   So-  State,    12   Tex.   500,   62   Am.   Dee.   539; 

ciety  for  the  Study  of  Inebriety,  No.  16,  Lanergan  v.  People,  6  Park.  Crim.  Rep. 

April.    1888    (with  references).  209;    O'Brien  v.   People,  48   Barb.   274; 

^"United  States  v.  Drew,  5  Mason,  28,  People   v.    Williams,   43   Cal.   344.     See 

Fed.  Cas.  No.  14,093.  §§  222-220,  ante,  for  a  full  discussion  of 

^'  Reg.  V.  Davis,   quoted  by  Mcllraith,  the  effect  upon  responsibility  for  crime 

Law  Relating  to  Drunkenness,  p.  12.  of  insanity  produced  by  intoxication. 

^■State  V.   Duestrow,   137   Mo.   69.   38 
S.  W.  554,  39  S.  W.  266. 


77G  IXSANITY— FOllMS  ANJ)  MEDICO-LEGAL  ASPECTS.  [§  942 

Let  US  examine  briefly,  therefore,  into  the  full  significance  of  the 
principle.  Justice  Stephen,  as  we  have  seen,  tells  us  that  there  is  a 
difference  between  drunkenness  and  the  disease  to  which  drunken- 
ness leads.  So  there  may  be,  but  it  is  merely  a  difference  of  degree, 
not  of  kind.  The  man  who  drinks  for  a  day  and  gets  drunk  is  not 
separable  by  any  hard  and  fast  line  from  the  man  who  drinks  for  a 
week  and  gets  delirium  tremens.  There  is  a  practical  difference 
which  no  one  will  deny,  but  it  is  still  only  a  difference  in  degree.  In 
delirium  tremens  the  action  of  the  poison  has  been  longer  continued, 
and  it  has  set  going  certain  morbid  changes  in  the  brain  cells  which 
require  a  longer  time  for  repair  than  after  an  ordinary  spree ;  but 
this  fact  only  shows  that  in  the  one  case  there  is,  if  anything,  a  great- 
er moral  fault  than  in  the  other ;  for  it  would  seem  that  the  man  who 
drinks  ten  times  as  much  as  another  man  ought  not  to  be  held  more 
innocent  than  the  latter,  if  the  legal  maxim  is  true  that  drunkenness 
is  no  excuse  for  crime.  He  who  is  ten  times  more  drunk  cannot,  in 
reason,  according  to  that  rule  of  law,  be  ten  times  more  innocent. 

This  is  probably  the  only  instance  in  law  in  which  the  more  a  man 
breaks  the  law  the  more  innocent  he  becomes.  It  is  an  example  of 
a  legal  maxim  being  proved  false  by  the  very  condition  Avhich  ought 
to  prove  it  true.  If  drunkenness  is  no  excuse  for  crime,  it  contains 
no  element  whatever  of  mitigation  that  can  be  developed  by  the  in- 
crease of  the  drunkenness  which  contains  it  not. 

943.  Drunkenness  and  irresponsibility. — The  truth  is  that  drunken- 
ness contains  all  the  elements  that  go  to  make  irresponsibility.  This 
is  the  scientific  view,  and  the  common-sense  view,  and,  in  some  cir- 
cumstances, as  will  be  shown,  it  is  the  legal  view  also.  The  capacity 
to  form  a  criminal  intent  requires  two  things,  at  least:  First,  the 
knowledge  that  an  act  is  wrong;  and,  second,  the  power  to  choose.^* 
]^ow  these  two  elements  of  responsibility  are  impaired,  or  even  de- 
stroyed, in  drunkenness,  although,  as  drunkenness  is  a  variable  state, 
they  are  not  impaired  always  to  the  same  degree.  This  subject  is 
placed  in  a  clear  light  if  we  take  the  case  of  intoxication  from  some 
other  poison  than  alcohol.  In  the  delirium  of  fever  there  is  a  condi- 
tion analogous  to  alcoholic  intoxication,  and  yet  no  one  would  ques- 
tion for  a  moment  that  even  in  mild  forms  of  febrile  delirium  the 
moral  accountability  is  lost.  Moreover,  the  law  fully  recognizes 
this  fact  in  alcoholic  intoxication  itself ;  for  it  provides  that  when  the 

**  Clark,  An  Analysis  of  Criminal  Lia-  sis  in  this  work  must  be  convinced  that 
bility.  1880.  Any  roader  who  attempts  it  is  not  in  the  capacity  of  a  drunken 
to  follow  the  learned  and  subtle  analy-    man  to  have  a  criminal  intent. 


§  943]  ALCOHOLIC  INSANITY.  777 

intoxication  is  involimtarv,  the  person  is  exempt.  All  the  old  author- 
ities— Coke,  Hale,  Hawkins,  Blackstone — are  careful  to  state  that 
the  drunkenness  must  be  voluntary  in  order  to  be  no  excuse  for 
crime.  If  a  person  be  made  drunk  against  his  will,  he  suffers  no  pen- 
alty for  breaking  the  law  while  in  this  state.^^  What  is  this  but  a 
clear  acknowledgment  that  a  drunken  person  is  not  accountable  ? 

Hale^^  says:  "If  a  person,  by  the  unskilfulness  of  his  physician, 
or  by  the  contrivance  of  his  enemies,  eat  or  drink  such  a  thing  as 
causeth  a  temporary  or  permanent  phrenzy,  as  aconitum  or  nux 
vomica,  this  puts  him  into  the  same  condition  in  reference  to  crimes 
as  any  other  phrenzy,  and  equally  excuseth  him."  From  this  it  is 
clear  that  the  law  recognizes  that  acute  poisoning  takes  away  a  per- 
son's liability  for  crime.  Now,  as  alcohol  causes  an  acute  poisoning, 
it  must  also  take  away  such  liability ;  and  to  this  proposition  the  law 
assents,  provided  the  alcohol  is  administered  against  the  person's  will ; 
but  alcohol  acts  in  the  same  way,  whether  it  is  given  with  or  against 
the  consent. 

944.  Drunkenness  destroys  responsibility  in  fact  if  not  in  law. — The 
proof  that  acute  drunkenness  destroys  the  two  elements  necessary  to 
form  a  criminal  intent  is  not  hard  to  see.  The  incoherence  of  ideas, 
the  confusion  of  mind,  the  disordered  emotions,  the  moral  obliquity, 
the  loss  of  identity  of  person,  time,  and  place,  the  obliteration  of 
memory,  the  loss  of  self-control,  the  delusions,  the  involvement  of 
the  senses,  the  excitement,  or  at  times  the  stupor, — all  these  are  ^the 
symptoms  of  acute  poisoning  by  alcohol ;  and  they  are  destructive 
of  the  legal  elements  of  responsibility.'^^^ 

945.  The  motive  of  the  law  in  holding  the  drunkard  accountable. — 
It  must  be  apparent,  therefore,  that  the  motive  of  the  law  in  declar- 
ing that  drunkenness  is  no  excuse  for  crime  is  not  based  upon  the 
exact  state  of  facts,  but  upon  some  legal  exigency.  As  this  principle 
is  so  widely  accepted  in  various  codes,  there  must  be  some  universal 
reason  for  it,  and  it  will  not  do  hastily  to  criticize  what  has  been  in- 
spired by  the  wisdom  and  justice  of  the  ages.  In  the  final  analysis 
this  principle  seems  to  be  based  on  the  opinion  that  an  inebiuate  is 
not  merely  to  be  held  accountable  for  his  primary  offense,  which 
is  the  drunkenness,  but  also  for  the  results  that  flow  from  it.  It  is 
thus  a  purely  ethical  principle,  and  one  which  is  assumed  to  cover 

**  Balfour  Brovvn,  Med.  Jurisp.  Ins.  p.  does  not  act  in  this  way.     It  is  a  poison 

312.  to  the  spinal  cord  largely. 

'"Op.  cit.  p.  32.     Sir  Matthew  Hale  is  36^  Winslow    (Plea  of   Insanity)    has 

not    to    be    criticized    for    calling    mix  some  good   illustrative  cases,   pp.  68  et 

vomica  a  brain  intoxicant,  nor  does  it  seq. 
impair    his    argument;    but    this    drug 


778  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  946 

a  wider  ground  than  is  occupied  by  the  mere  material  facts  of  intoxi- 
cation. Whether  this  is  always  wise  or  justifiable  is  another  question. 
Paley,  the  moral  philosopher,  thought  not,  and  the  rulings  of  many 
courts  could  be  cited  to  show  that  there  is  often  a  doubt  about  it, 
even  in  the  judicial  mind.^'^ 

946.  A  modification  of  the  old  common-law  doctrine. — This  brings 
us  to  the  second  postulate ;  which  is,  that  there  has  been  a  tendency  in 
the  courts  to  recognize  that  drunkenness  does  affect  a  person's  re- 
sponsibility. It  is  remarkable,  however,  that  the  courts  almost  uni- 
versally profess  to  adhere  to  the  old  principle,  even  while,  in  the 
same  breath, some  of  them  point  out  in  what  way?  it  fails  to  hold  good. 
In  the  first  place,  it  has  been  widely  held  that  drunkenness  can  be 
urged  to  show  a  want  of  criminal  intent.  Justice  Wightman^^  said 
that  "the  mere  fact  of  drunkenness  ...  is  a  material  fact  in 
order  to  arrive  at  a  conclusion  whether  or  no  the  prisoner  really  in- 
tended to  destroy  his  life."  As  affecting  malice,  drunkenness  can  be 
taken  into  account.  ^^  As  affecting  premeditation,  the  fact  of  intoxi- 
cation was  held  to  be  a  circumstance  proper  to  be  considered,*"  but 
this  has  been  denied  in  another  English  case.*^  In  one  case  it  was 
even  held  that  the  prisoner  could  be  found  guilty  of  the  offense,  but 
not  of  the  intent,  if  he  were  so  drunk  as  not  to  have  control  over  his 
faculties.*^  As  affecting  apprehension,  if  a  drunken  man  thinks  he  is 
attacked  and  in  danger,  even  though  he  be  in  error,  his  intoxication 
is  a  factor  to  be  considered;*^  but  it  was  held  by  Baron  Alderson** 
that  the  kind  of  weapon  he  uses  is  an  indication  of  whether  or  no  a 
drunken  man  has  malice,  for,  if  he  merely  uses  a  stick,  he  is  not  so 
guilty  as  if  he  uses  a  more  dangerous  implement.  This  is  making  a 
fine  distinction  in  the  case  of  a  man  who  is  too  drunk  to  know  fully 
what  he  is  doing. 

947.  The  rulings  in  American  courts. — It  has  been  decided  in  not  a 
few  American  courts  that  in  cases  in  which  a  specific  intent  is  es- 
sential to  constitute  a  crime,  intoxication  is  a  matter  for  considera- 
tion, and  is  competent  evidence  on  the  question  whether  the  defendant 
was  capable  of  forming  such  an  intent  or  purpose  at  the  time  the 

"Archbold   (Crim.  Pr.  &  PI.  19th  cd.  "ffe^.  v.  Doody,  6  Cox.  C.  C.  4G3. 

Loud.  p.   19):     "It  has  been  said  tliat  ^''Rex  v.    Thomas,    7    Car.   &   P.    817, 

upon  an  indictment  for  murdei-;,  the  in-  also  Pearson's  Case,  2  Lewin,  C.  C.  144. 

toxication    of    the    defendant    may    be  *''liex  v.  Grindley,  cited  in  1  Russell, 

taken   into  consideration,   as  a   circuin-  Crimes,  6th  ed.  p.  144. 

stance  to  show  that  the  act  was  not  pro-  "/?ea;  v.  Carroll,  7  Car.  &  P.  145. 

meditated."    Rex  v.  Grindley,  1  Russtll.  *-]{cg.  v.   Cruse,   8   Car.   &   P.   541,   2 

Crimes,  8;  Rex  v.  Thomas/l  Car.  &  V.  "Sioody,  C.  C.  53. 

817;   Rex  v.  Meakin,  7   Car.  &  P.  297.  *^Rennie's  Case,  1  Lewin.  C.  C.  76. 

But  see  Rex  v.  Carroll,  7  Car.  &  P.  145.  *^Rex  v.  Meakin.  7  Car.  &  P.  9.^1.    . 


§  947] 


ALCOHOLIC  INSANITY. 


779 


act  was  done.*^  Drunkenness  as  a  matter  of  fact  is  a  proper  subject 
for  the  consideration  of  the  jury  when  it  affects  intent.  Still  more 
remarkable  is  the  dictum  that  if  deliberation  and  premeditation  ard 
necessary  to  constitute  crime,  and  drunkenness  excludes  them,  thni 
the  crime  charged  is  not  excused  by  the  drunkenness,  but  is  regarded 
by  the  law  as  not  in  fact  committed.  This  is  an  attempt  to  save  an 
old  principle,  but  looks  too  much  like  a  quibble.  It  says,  in  effect; 
not  that  the  drunkard  is  excused,  but  that  if  he  were  so  drunk  as  not 
to  be  able  to  form  a  criminal  intent,  he  could  not  have  committed  a 
crime  at  all.  The  act  would  thus  be  nothing  more  than  in  the  na- 
ture of  an  accident.^^^ 

948.  Drunkenness  may  reduce  the  grade  of  crime. — Again,  evidence 
of  intoxication  may  operate  to  reduce  the  grade  of  the  crime,  and 
has  thus  operated  in  numerous  cases.  Thus,  the  jury,  in  many  of 
our  American  states,  may  consider  the  evidence  of  intoxication  as  a 
circumstance  to  show  that  the  act  was  not  premeditated,  and  to  rebut 
the  idea  that  it  was  done  in  the  cool  and  deliberate  state  of  mind  nec- 
essary to  constitute  murder  in  the  first  degree.  If  the  evidence  shows 
that  at  the  time  of  committing  the  act  the  accused  was  so  intoxicated 
that  his  faculties  were  prostrated  and  he  was  rendered  incapable  of 


"  For  a  full  discussion  of  this  question 
see  §§  227-243,  ante.  See  also  Mcllraith, 
Law  Relating  to  Drunkenness,  for  a  full 
discussion  of  the  English  cases;  Kerr, 
Inebriety,  or  Narcomania,  also,  for  much 
learning  and  compilation  on  this  sub- 
ject; and  Bishop,  Crim.  Law,  chap,  xxvii. 

4  5^  Some  of  these  rulings  have  been 
embodied  in  statute;  as,  for  instance,  in 
New  York:  "Whenever  th«  actual  exist- 
ence of  any  particular  purpose,  motive, 
or  intent  is  a  necessary  element  to  con- 
stitute a  particular  species  or  degree  of 
crime,  the  jury  may  take  into  considera- 
tion the  fact  that  the  accused  was  intox- 
icated at  the  time,  in  determining  the 
purpose,  motive,  or  intent  with  which 
he  committed  the  act."  N.  Y.  Penal 
Code,  §  22,  edited  by  Parker. 

In  a  ca-se  of  burglary  it  is  not  error 
to  instruct  the  jury  that  they  may  take 
into  consideration  the  intoxication  of 
the  defendant,  in  determining  the  intent 
with  which  he  entered  the  building.  Peo- 
ple v.  Burns,  2  N.  Y.  Crim.  Rep.  415. 

Parker,  the  editor  of  the  N.  Y.  Penal 
Code,  gives  the  following  references  to 
cases  in  which  intoxication  was  consid- 
ered by  the  jury  in  determining  intent: 
O'Brien  v.  People,  48  Barb.  274;  People 
v.  Conroy,  .33  Hun,  119;  People  v.  Bxirns, 


2  N.  Y.  Crim.  Rep.  415;  People  v.  Fish, 
125  N.  Y.  136,  26  N.  E.  319;  People  v. 
Leonardi,  143  N.  Y.  360,  38  N.  E.  372: 
People  V.  Corey,  148  N.  Y.  476,  42  N.  E. 
1066;  People  v.  Martin,  33  App.  Div. 
282,  53  N.  Y.  Supp.  745. 

But,  as  showing  how  contradictory 
the  law  is  on  this  subject,  this  same  New 
York  code,  in  the  same  section,  pre- 
scribes that,  "no  act  committed  by  a  per- 
son while  in  a  state  of  intoxication  shall 
be  deemed  less  criminal  by  reason  of  his 
having  been  in  such  condition;"  and  the 
following  references  are  given:  People 
V.  Pcarce.  2  Edm.  Sel.  Cas.  76;  People 
v.  Jones,  2  Edm.  Sel.  Cas.  86;  People  v. 
Batting,  49  How.  Pr.  392;  People  v. 
Eastwood,  14  N.  Y.  562;  People  v.  Rog- 
ers, 18  N.  Y.  9:  Kenny  v.  People,  31  N. 
Y.  330;  Friery  v.  People,  64  Barb.  319; 
Lanergan  v.  People,  6  Park.  Crim.  Rep. 
209;  People  v.  Porter,  2  Park.  Crim. 
Rep.  14. 

It  is  difficult,  from  a  scientific  stand- 
point, to  conceive  how  two  statements 
can  be  more  contradictory.  It  amounts 
to  saying  that,  although  drunkenness  is 
no  excuse  for  crime,  nevertheless  it  may 
affect  the  intent  to  commit  crime,  and 
therefore  excuse! 


780  INSANITY- FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  948 

forming  a  specific  intent  to  take  life,  his  offense  may  be  lessened  to 
murder  in  the  second  degree;  and,  in  the  absence  of  any  intent  to 
kill,  to  manslaughter  in  some  of  its  grades."**^ 

949.  A  departure  from  the  old  maxim. — A  careful  study  of  the  cases, 
both  in  England  and  America,  as  collected  by  such  writers  as  Mcll- 
raith,  Kerr,  Bishop,  and  the  various  encyclopedias,  shows  conclusive- 
ly that,  although  there  is  not  unanimity  among  the  judges,  there  is  a 
wide  departure,  on  the  whole,  from  the  old  legal  maxim  that  dru'nk- 
enness  is  no  excuse  for  crime.  The  language  of  the  bench  is  often 
guarded,  and  the  old  maxim  is  invariably  produced,  but  the  fact  that 
the  old  principle  no  longer  satisfies  the  judicial  conscience  in  all 
cases  is  as  clear  as  the  English  language,  somewhat  veiled  and  mysti- 
fied, can  make  it. 

950.  Degrees  of  drunkenness. — There  are  many  degrees  of  drunk 
enness,  from  a  mild  exhilaration  to  a  profound  intoxication;  and  of 
course  not  all  of  these  will  affect  equally  a  man's  capacity  to  form 
a  criminal  intent.^^^-  This  is  a  question  for  the  jury  in  individual 
cases.  So,  also,  of  the  various  forms  of  alcoholic  insanity :  the  courts 
will  judge  these  cases  according  to  the  rules  applicable  to  other  forms 
of  mental  disease. 

951.  Drunkenness  as  affecting  civil  capacity. — In  civil  cases  the 
English  law  takes  a  much  more  indulgent  view  of  drunkenness  than 
in  criminal  cases.  This  is  exactly  in  accord  with  its  position  ii. 
reference  to  insanity  in  general.  A  state  of  mind  which  will  not  ex 
cuse  a  man  for  crime  will  absolve  him  from  some  of  his  contracts. 
This  attitude  of  the  English  law  is  another  conclusive  proof  that,  un- 
der some  circumstances,  it  does  fully  recognize  that  drunkenness  de- 
stroys  a  person's  responsibility.  A  drunkard  who  might  be  hanged 
as  a  responsible  being  for  homicide  will  yet  be  released  from  the  con- 
tracts into  which  he  has  entered  while  drunk.  "It  is  the  state  and 
condition  of  the  mind  itself  that  the  law  will  notice,  and  not  the 
causes  that  produced  it."  ^'^  This  was  said  in  a  civil,  not  a  criminal, 
case.  Drunkenness  as  an  element  of  incapacity  to  do  a  legal  act  is 
part  of  English  law,^^  The  principle  is  the  same  in  all  civil  cases ; 
namely,  that  the  party  was,  at  the  time  of  entering  into  the  legal  act, 
incapable  of  giving  that  free  and  voluntary  assent  which  the  law 
requires. 

But  these  cases  have  often  turned  on  the  question  of  fraud  instead 

"Ante,  §§  232,  234.  Co.  24  Vt.  420. 

46^  fSce  a7ite,  §§  233,  235.  "  Mcllraith,  op.  cit. 

"Bliss  V.  Connecticut  &  P.  Rivers  R. 


§  951J  ALCOHOLIC  INSANITY.  781 

of  incapacity,  and  this  because  the  English  hiw  fonnerly  denied  a 
man's  right  to  stultify  himself  by  alleging  his  own  disability.*"  This, 
however,  no  longer  holds,  for,  as  Baron  Pollock""^  has  said :  "The 
rule,  as  above  laid  down  by  Littleton  and  Coke,  has,  no  doubt,  in  mod- 
ern times  been  relaxed,  and  unsoundness  of  mind  (as  also  intoxica- 
tion) would  now  be  a  good  defense  to  an  action  upon  a  contract,  if 
it  could  be  shown  that  the  defendant  was  not  of  capacity  to  contract, 
and  the  plaintiff  knew  it."  According  to  Pothier,^^  the  essence  of  a 
contract  consisting  in  consent,  it  follows  that  a  person  must  be  capa- 
ble of  giving  his  consent,  and  consequently  must  have  the  use  of  his 
reason  in  order  to  be  able  to  contract.  Baron  Aldersom'"  said  of  a 
drunkard  signing  a  contract:  "It  is  just  the  same  as  if  the  defend- 
ant had  written  his  name  upon  the  bill  in  his  sleep,  in  a  state  of 
somnambulism."  Lord  Ellenborough^^  said  of  an  intoxicated  person, 
"He  had  not  an  agreeing  mind."  ^* 

It  is  needless  here  to  multiply  cases;  the  authorities  are  readily  ac- 
cessible,^*^- and  we  are  only  interested  in  the  principle  involved; 
but  it  must  strike  the  medical  reader,  at  least,  as  inconsistent  to  hold 
the  drunkard  responsible  for  his  acts,  and  yet  to  release  him  from 
his  contracts. 

952.  Testamentary  capacity  during  drunkenness. — What  has  been 
said  of  capacity  in  civil  cases  in  general  applies  equally  in  the  case 
of  testamentary  capacity.  If  a  man  is  so  drunk  as  not  to  know  what 
lie  is  doing,  he  is  not  competent  to  make  a  will ;  but  here  nice  ques- 
tions arise  as  to  the  degree  of  drunkenness  necessary  to  incapacitate. 
Whether  intoxication  did  or  did  not  exist  in  the  requisite  degree  to 
vitiate  the  act  must  depend  in  each  case  upon  a  due  considera- 
tion of  all  the  circumstances  of  that  case  in  particular.^^  In  view  of 
the  unwillingness  of  courts  to  set  aside  wills,  it  might  be  expected  that 
even  a  considerable  degree  of  drunkenness  would  not  be  allowed  to 
incapacitate.  It  seems  to  be  held  that  a  man  may  be  moderately 
drunk,  yet  capable.     Opinions  on  this  subject  may  differ. ^^ 

*^Co.  Litt.  Lib.  III.  Cliap.  VI.  §  405.  """He  that  is  overcome  by  drink,  dur- 

""Molton  V.  Camroux,  2  Excli.  501,  18  ing   liis   drunkenness   is   compared   to  a 

L.  J.  Exch.  N.  S.  68,  12  Jur.  800.  madman,  and  therefore  if  he  make  his 

'*'  On  Obligations,  quoted  by  Mcllraith.  testament   at  that   time,   it   is   void   in 

'--Gore  V.  (llhson,   13  Mees.  &  W.  624,  law;    wliich    is  to  be   understood,   when 

14  L.  J.  Exch.  N.  S.  151,  9  Jur.  140.  he    is    so   excessively    drunk   that    he    ia 

^"^Pitt  V.  fimith,  3  Campb.  33,   13  Re-  utterly  deprived   of  the  use  of  his  rea- 

vised  Rep.  741.  son    and    imderstanding;    otherwise,    al- 

"  See  also  the  American  case  of  Bar-  beit  his  understanding  is  obscured  and 

rett   V.   Buxton,  2   Aik.    (Vt.)    167,    16  his  memory  troubled,  yet  he  may  make 

Am.  Dec.  691.  liis     testament     being    in     that     state." 

54^  See  ante,  §§  20-24.  Swinburne,  p.  2,   §   6;   quoted  by  Kerr» 

"See  ante,  §§  91-94.  op.  cit.  p.  386. 


782 


INSANITY— FORMS  AND  JIEDICO-LEGAL  ASPECTS. 


[§  952^ 


952V^.  The  commitment  of  chronic  inebriates. — The  fact  that  the 
law  has  been  gradually  adopting  the  scientific  view  of  alcoholism  as  a 
disease  is  shown  in  the  provision  made  in  some  states  for  the  com- 
mitment of  inebriates  to  asylums  or  hospitals.  These  persons  are 
practically  placed  on  the  same  ground  as  the  insane,  and  are  de- 
prived of  their  liberty  for  their  own  good  and  the  good  of  so- 
ciety. Until  this  view  is  universally  adopted,  and  such  measures 
are  enforced  in  every  civilized  country,  it  will  be  a  hopeless  task  to 
combat  the  ravages  of  alcohol.  The  chronic  inebriate  is  no  more 
entitled  to  his  liberty,  which  he  abuses,  than  is  an  insane  man ;  for 
in  fact,  he  often  is  insane,  or  is  always  in  jeopardy  of  becoming  so. 
In  Pennsylvania  a  comprehensive  act  has  been  passed  by  the  legisla- 
ture, providing  for  the  commitment  of  the  chronic  drunkard  and  the 
narcomaniac.^^ 


"  Act  of  Assembly,  approved  April  16, 
1903,  P.  L.  153. 

An  Act  to  Authorize  and  Provide  for 
the  Commitment  of  Persons  Habitually 
Addicted  to  the  Use  of  Alcoholic  Drink 
or  Intoxicating  Drugs  to  a  Proper  Hos- 
pital or  Asylum  for  Restraint,  Care, 
and  Treatment. 

Sec.  1.  Be  it  enacted,  etc.,  That  from 
and  after  the  passage  of  this  act,  it 
shall  be  lawful  for  any  person  so  habit- 
ually addicted  to  the  use  of  alcoholic 
drink,  absinthe,  opium,  morphin.  chlor- 
al, or  other  intoxicating  liquor  or  drug 
as  to  be  a  proper  subject  for  restraint, 
care,  and  treatment  in  a  hospital  or 
asylum,  or  for  at  least  two  persons,  be- 
ing the  wife,  husband,  parent,  child, 
children,  or  next  friends  of  such  person, 
to  apply  by  petition  to  the  court  of 
quarter  sessions,  or  to  any  magistrate 
or  justice  of  the  peace  of  the  proper 
county,  setting  forth  the  facts,  upon 
oath,  and  requesting  the  commitment  of 
such  person  to  a  proper  hospital  or  asy- 
lum for  restraint,  care,  and  treatment; 
and  such  petition  shall  be  accompanied 
by  the  affidavits  of  at  least  two  physi- 
cians, based  on  examination  by  them  of 
the  alleged  drunkard,  setting  forth  the 
condition  of  such  person,  and  stating 
that,  in  their  opinion,  restraint,  care, 
and  treatment  in  a  hospital  or  .asylum 
will  be  a  benefit  to  such  person.  Where- 
upon the  said  court,  magistrate,  or  jus- 


tice shall  issue  a  warrant  to  bring  be- 
fore them,  on  a  day  certain,  the  peti- 
tioner, both  physicians,  and  the  alleged 
drunkard;'  and  a  hearing  shall  then  be 
had,  and  if  the  facts  set  forth  in  the 
petition  and  affidavits  are  proved  to 
the  .satisfaction  of  the  judge,  magis- 
trate, or  justice,  it  shall  be  the  duty  of 
the  court  to  commit  such  alleged  drunk- 
ard to  a  proper  hospital  or  asylum,  foi 
re.straint,  care,  and  treatment,  until, 
upon  further  hearing,  the  said  court, 
magistrate,  or  justice  shall  be  satisfied 
that  such  restraint,  care,  and  treatment 
are  no  longer  beneficial  to  the  person 
committed  as  aforesaid.  Provided,  that 
such  restraint  shall  not  be  continued  in 
any  case  for  a  longer  period  than  one 
year.  And  provided,  that  no  person  shall 
be  committed  under  the  provisions  of 
this  act,  or  be  admitted  into  any  hos- 
pital or  asylum,  until  payment  has  been 
made  or  security  has  been  given  to  the 
managers  of  the  hospital  or  asylum,  sat- 
isfactory to  them,  to  pay  the  proper 
charges  for  the  board,  care,  and  treat- 
ment of  the  alleged  drunkard,  and  also 
to  indemnify  the  said  managers  from  all 
cost  and  expense.  And  provided,  that 
all  commitments  under  this  act  shall  be 
reviewable  by  proceedings  under  writ  of 
habeas  corpus,  which  may  be  sued  out, 
at  any  time,  by  any  person  restrained 
hereby,  or  by  any  one  acting  for  or  on 
behalf  of  such  person. 


CHAPTER  XLV. 

ACUTE  DELIRIUM- 

I.  The  medical  aspects  oy  acute  delibium. 

953.  A  statement  of  the  disease. 

954.  Its  history. 

955.  A  severe  affection. 

956.  A  rapidly  fatal  disease  in  some  cases. 

957.  The  cases  vary. 

958.  Post-febrile  cases. 

959.  A  fatal  case. 

960.  A  second  fatal  case. 

961.  A  post-maniacal  case. 

962.  Meningitis  present. 

963.  No  one  theory  for  the  disease. 

964.  Infection  is  probably  a  cause. 

965.  The  action  of  microbes. 

966.  Uniform  results  not  obtained. 

II.  The  medico-legal  aspects  of  acute  delibium. 

967.  The  question  of  capacity  not  likely  to  arise. 

968.  Many  grades  of  the  affection. 

I.  The  medical  aspects  of  acute  delirium. 

953.  A  statement  of  the  disease. — There  is  seen  occasionally  a  form 
of  mental  disease  which  resembles  closely  the  delirium  of  fever ;  such 
delirium,  for  instance,  as  occurs  in  typhoid  fever,  pneumonia,  and 
other  acute  infectious  diseases.  In  this  form,  however,  there  is  no 
such  definite  disease  to  which  the  delirium  can  be  traced.  In  other 
words,  the  delirium  exists,  as  it  were,  of  and  by  itself ;  it  constitutes 
the  whole  of  the  clinical  picture ;  although  exceptions  occur,  of  which 
due  notice  must  be  taken.  As,  however,  an  active  delirium  is  a 
common  symptom  in  a  gi'eat  variety  of  diseases,  and  can  therefore 
be  due  to  a  great  variety  of  causes,  so  the  mental  disease  here  de- 
scribed as  "acute  delirium"  is  presumably  not  always  due  to  one  and 
the  same  cause.  The  evidence  accumulates,  indeed,  that  acute  de- 
lirium is  always  a  symptom  of  some  profound  disorder  of  the  sys- 
tem ;  and  probably,  in  most  cases,  of  some  form  of  infection, — an  in- 
fection, however,  which  need  not  always  be  the  same. 

783 


784  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  954 

954.  Its  history. — Acute  delirium  was  first  described  as  a  distinct 
disease  by  Dr.  Luther  Bell,^  an  American  physician ;  and  from  him 
it  is  often  called  "Bell's  mania."  Because  of  its  resemblance  to  the 
active  delirium  seen  in  typhus  fever,  it  was  soon  afterwards  named 
"typhomania ;"  but  this  name  must  not  be  taken  to  indicate  that  there 
Ic  H.  necessary  connection  between  this  disease  and  typhus  or  other 
fever.  The  affection  is  also  called  "delirium  grave,"  and  sometimes 
■'acute  delirious  mania." 

955.  A  severe  affection.— Under  this  multiplicity  of  terms  a  form 
of  serious  brain  affection,  characterized  especially  by  delirium  and 
rapid  exhaustion,  tending  to  death,  has  been  described  by  various 
authors.  Some  writers,  with  their  passion  for  clinical  differentiation, 
have  probably  included  kindred  cases  of  a  mild  type  under  such  ti- 
tles as  "stuporous  insanity"  and  "confusional  insanity."  The  type 
of  the  disease  is  well  exhibited  in  the  delirium  which  attends  typhoid 
fever  and  other  infectious  diseases,  and  the  morbid  process  is  prob- 
ably not  dissimilar.  This  disease,  or,  properly,  class  of  diseases,  has 
also  been  described  under  special  names,  according  to  its  causation. 
Thus,  puerperal  mania,  post-febrile  insanity,  post-operative  insanity, 
septicemia,  exhaustion  from  over-work,  and  poisoning  from  sewer-gas 
and  other  agents,  have  all  included  cases  of  this  acute  delirious  con- 
dition. Cases  of  delirium  tremens  have  sometimes  been  confused 
with  it." 

956.  A  rapidly  fatal  disease  in  some  cases. — Some  authors  include  in 
'"delirium  grave"  only  rapidly  fatal  cases,  while  they  include  less 
severe,  long-continued,  and  curable  cases  under  the  term  "acute  de- 
lirious mania."  These  mere  clinical  distinctions  are  too  often  arbi- 
trary, and  are  entirely  uninstructive  as  to  the  exact  causation,  I  have 
seen  one  case  which  proved  fatal  in  less  than  three  days,  while  an- 
other, differing  only  in  severity,  extended  over  several  weeks,  and  the 
patient  recovered.  In  both  these  cases  the  condition  was  a  typical 
delirium,  with  impaired  secretions,  brown  tongue,  rapid  pulse,  vari- 
able temperature,  and  exhaustion,  witli  emaciation.  There  is  no 
sufficient  reason  to  place  these  cases  in  separate  classes,  with  distinc- 
tive names,  simply  because  one  patient  died  and  the  other  lived.  So, 
again,  the  type  of  the  delirium  may  vary  as  well  as  its  severity.  One 
case  may  be  of  a  low,  muttering  form,  tending  to  stupor,  coma,  and 
fleath,  as  lias  been  reported  after  some  of  the  exanthematous  diseases, 
such  as  scarlatina  and  small-pox ;  another  may  be  of  an  extremely  vio- 

'  At  tlie  meetinj^  of  the  Association  of  'Sop  Hic  author's  paper  on  "Acuto 
Supprintondents  of  American  Asylums,  Delirium. — Prohahly  an  Infectious  Pro- 
in  1849.  "  cess,"  in  the  Medical  News,  Vol.  LVIIL 


§  9.56]  ACUTE  DELIRIUM.  785 

lent  type,  with  gi'eat  motor  disturbance ;  another  may  exhibit  a  con- 
fusion of  intellect,  with  active  hallucinations,  and  persist  for  weeks, 
with  final  recovery,  as  is  seen  frequently  after  childbirth.  These 
latter  cases  fall  properly  under  the  term  "confusional  insanity,"  de- 
scribed elsewhere  in  these  pages.  In  fact,  these  various  grades  merge 
into  each  other,  and  there  does  not  seem  to  be  sufficient  ground  yet 
for  a  classification  which  shall  be  final,  especially  as  the  active  cause 
is  still  practically  unknown. 

957.  The  cases  vary. — The  symptomatology  of  these  cases  varies, 
but  presents  a  suflicient  number  of  resemblances  to  constitute  a  sim- 
ple, broad  class.  The  mental  symptom  is  usually  a  wandering  de- 
lirium; or,  in  grave  cases,  an  active,  combative,  or  furious  maniacal 
excitement.  In  milder  cases  the  attention  may  be  momentarily  ar- 
rested, and  a  question  or  two  answered;  but  the  mind  soon  lapses  in- 
to more  or  less  complete  object-unconsciousness.  Subject-conscious- 
ness is  much  confused,  and  is  apt  to  be  dominated  by  visual  and  aural 
hallucinations.  From  this  stage  all  grades  of  delirium  up  to  complete 
stupor  and  coma  are  observed.  The  physical  state  accompanying  the 
delirium  is  usually  that  which  is  spoken  of  as  "typhoid,"  and  grows 
more  marked  the  longer  the  acute  stage  lasts.  The  tongue  becomes 
dry  and  brown,  and  sordes  form.  The  pulse  is  rapid  and  compress- 
ible. There  are  muscular  unsteadiness,  tremor,  and  inco-ordination. 
The  temperature  occasionally  rises,  but  not  in  all  cases,  and  in  my 
experience  pursues  no  regular  course.  The  gastrointestinal  tract  is 
not  always  involved,  except  that  there  is  aversion  to  food.  In  puer- 
peral cases  of  this  type  there  may  be  foul  lochia  and  tenderness  on 
pressure  over  the  uterus,  but  these  sjanptoms  are  not  constant.  In 
two  well-marked  cases  of  delirium  following  childbirth  I  could  dis- 
(;over  no  focus  of  septic  infection,  although  I  searched  for  it.  In 
one  puerperal  case,  seen  in  the  Pennsylvania  Hospital  for  the  In- 
sane, the  patient's  active  delirium  was  accompanied  with  anemia, 
emaciation,  and  a  browai,  dry  tongue.  She  had  at  first  fleeting  de- 
lusional ideas,  and  rapidly  became  immodest,  restless,  and  hard  to 
control.  She  talked  incoherently,  but  later  had  a  fixed,  staring  gaze, 
with  dilated  pupils,  and  would  not  respond  to  questions.  There  was 
no  abnormal  sorenei;s,  and  no  fever.  The  blood  count  showed  that  the 
red  corpuscles  were  reduced  20  per  cent.  It  is  usual  to  call  such 
cases  merely  examples  of  "puerperal  insanity;"  yet  their  likeness  to 

p.  122,  from  wliich  a  part  of  this  chap- 
ter is  abstracted. 

Vol.  I.  Med.  Jm.— 50. 


786  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  957 

acute  delirium,  especially  when  they  are  severe,  is  too  great  to  be  ig- 
nored. Such  cases  sometimes  run  a  rapid  "typhoid"  course,  and  the 
patients  die;  but  in  the  main  the  prognosis  in  puerperal  cases  is 
good. 

958.  Post-febrile  cases. — In  some  cases  happening  after  acute  fe- 
vers, such  as  typhoid  fever  or  smallpox,  the  post-febrile  insanity,  as 
explained  elsewhere,  is  practically  continuous  with  the  delirium  so 
commonly  seen  in  these  diseases.  As  the  primary  disease  subsides, 
it  is  found  that  the  brain  cells  have  not  recovered  from  the  toxemia, 
and  a  psychosis  results  which  may  pursue  a  variable  course,  usually 
as  a  confusional  insanity,  but  sometimes  as  a  more  pronounced  de- 
lirious mania.  These  cases  are  of  special  interest,  because  it  is  not 
to  be  doubted  that  they  are  due  to  infection;  hence  in  them  the  ac- 
tion of  a  blood  poison  on  the  brain  may  be  observed,  and  important 
hints  and  analogies  supplied  for  the  understanding  of  similar  cases 
in  which  infection  can  only  be  surmised,  not  demonstrated. 

959.  A  fatal  case. — The  rapidly  fatal  case  which  I  once  saw  was  as 
follows :  A.  B.,  a  man  aged  thirty-nine  years,  of  fine  physique  and 
in  robust  health,  was  seized  with  acute  delirium  on  a  Saturday,  at 
midnight,  and  died  on  the  following  Tuesday  morning,  having  lived 
less  than  sixty  hours  after  the  onset.  He  was  at  first  acutely  maniacal, 
with  what  seemed  like  hysteroidal  symptoms,  but  his  attention  wa& 
held  with  difficulty,  and  but  for  a  moment.  There  w^as  great  motor 
disorder,  so  that  the  patient  had  literally  to  be  held  in  bed.  He 
struggled,  resisted,  spoke  not  a  word,  had  staring  eyes,  refused  food, 
and  seemed  at  times  rather  emotional  and  histrionic.  His  pulse  at 
first  was  strong  and  good.  His  temperature  varied,  without  regularity, 
and  once  rose  to  103° ;  it  was  sometimes  normal.  His  urine  was  not 
albuminous,  nor  did  it  contain  other  evidence  of  disease  of  the  kid- 
neys. He  sank  rapidly,  as  though  under  the  influence  of  some  bale- 
ful intoxicant;  became  comatose,  and  died.  In  this  case  there  was 
no  history  of  alcoholism,  syphilis,  lead  poisoning,  malaria,  or  any 
infectious  disease.  The  delirium  struck  the  man  down  in  the  midst 
of  perfect  health,  and  killed  him  rapidly.  The  autopsy  revealed  to 
the  naked  eye  nothing  but  congestion  of  the  membranes  of  the  brain, 
and  white  streaks  along  the  course  of  the  small  blood  vessels  (in  what 
are  called  the  perivascular  sheaths),  M-hich  probably  indicated  the 
action  of  some  infectious  organism. 

This  was  a  typical  case  of  acute  delirium,  or  "delirium  grave." 
It  came  without  warning  and  without  apparent  cause;  its  onset  was 
abrupt,  or  explosive ;  its  symptoms  were  violent;  its  tendency  from  the 
first  was  towards  death ;  and  it  proved  rapidly  fataL 


§  9G01  ACUTE  DELIRIUM.  787 

960.  A  second  fatal  case. — In  a  second  case  the  progress  was  noi 
quite  so  rapid,  but  the  result  was  likewise  fatal.  C.  D.,  a  man  aged 
forty-three  years,  lay  for  more  than  two  weeks  in  a  stuporous  de- 
lirium. He  was  aroused  witli  difficulty.  His  tongue  was  dry,  brown, 
and  hard,  and  his  pulse  feeble ;  but  there  were  no  other  symptoms  to 
guide  in  forming  a  diagnosis.  The  patient's  temperature  seldom,  if 
ever,  rose  above  normal.  His  urine  was  frequently  examined  with 
all  tests,  and  with  negative  results.  Alcohol  and  lead  were  not  factors 
in  the  case.  Syphilis  was  excluded  as  well  as  it  usually  can  be,  and 
the  post-mortem  lesions  did  not  indicate  this  infection.  The  general 
appearance  of  the  patient  was  somewhat  like  that  of  a  man  profound- 
ly ill  with  typhoid  fever;  but  the  afebrile  temperature,  the  absence 
of  abdominal  symptoms  and  eruption,  negatived  such  a  diagnosis. 
There  was  no  history  or  appearance  of  injury  to  the  head.  The  man 
i^'adually  failed  and  died.  At  the  autopsy  a  thrombus,  or  coagulum, 
was  found  in  the  longitudinal  sinus  of  the  brain,  but  there  was  noth- 
ing to  indicate  a  primary  cause  for  the  death. 

961.  A  post-maniacal  case. — In  another  case,  in  the  Philadelphia 
Hospital,  an  active  delirium  came  on  in  a  patient  who  had  been  for 
a  year  in  a  simple  maniacal  exaltation.  Such  a  complication  is  noted 
by  various  authors,^  especially  in  general  paresis.  It  may  be  called 
a  delirium  grafted  on  a  mania ;  or  an  episode  in  the  course  of  a  mor- 
bid process,  like  general  paralysis  of  the  insane. 

962.  Meningitis  present. — The  symptoms  of  meningitis,  or  menin- 
geal irritation,  are  seen  in  some  of  these  acutely  delirious  cases.  They 
belong  to  the  class  described  by  the  old  Greek  physicians  as  an  in- 
flammation of  the  brain,  or  a  phrensy. 

E.  F.,  a  woman  aged  twenty-one  years,  was  admitted  into  the  Penn- 
sylvania Hospital  for  the  Insane.  She  was  reported  to  have  had  a 
mild  febrile  attack  of  some  obscure  kind  two  months  before,  and  this 
attack  had  left  her  in  an  impaired  mental  state,  marked  by  agitation, 
confusion,  insomnia,  and  emotional  disturbance.  She  grew  worse, 
and  was  admitted  to  the  hospital  with  a  diagnosis  of  acute  delirious 
mania.  When  I  saw  her  she  was  in  a  typical  delirious  state.  She 
was  incoherent,  inattentive,  muttering,  and  expressing  what  seemed 
to  be  fragmentary  delusional  ideas.  She  evidently  had  hallucina- 
tions. The  prevailing  tone  was  apprehension  and  distress.  She  was 
restless,  and  was  kept  in  bed  with  difficulty.  Her  tongue  was  coated, 
bowels  constipated,  pulse  105,  and  temperature  99%°.     The  pupils 

■  Krafft-Ebing,     Traits     Clinique     de 
Psychiatrie,  traduit  par  Laurent,  p.  652, 


788  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  962 

wero  dilated,  A  marked  symptom  was  the  muscular  spasticity,  with 
con^^lsive  movements  of  the  hands  and  arms,  and  much  exagger-. 
ated  patellar  reflexes.  The  urine  was  normal.  During  the  last  week 
of  the  patient's  life  the  temperature  rose  steadily  day  by  day,  until 
just  before  her  death,  when  it  was  104%°.  The  loss  of  object-con- 
sciousness in  this  case  was  almost  complete.  An  autopsy  was  re- 
fused. 

963.  No  one  theory  for  the  disease. — In  such  a  group  of  cases  as 
here  presented  no  one  theory  will  cover  all.  No  one  special  materies 
morhi  can  explain  cases  so  widely  separated  as  a  delirium  happening 
after  a  mild  fever,  another  occurring  in  a  robust  man,  without  appar- 
ent cause,  and  still  another  developing  in  a  woman  after  childbirth. 
When  we  add  still  others,  occurring  after  surgical  operations,  or  sun- 
stroke, or  acute  alcoholism,  and  still  other  causes,  and  cases,  even, 
in  which  no  cause  is  apparent,  it  becomes  evident  that  we  are  then 
confronted  with  a  complex  problem  in  mental  pathology.  Many  of 
the  causes  put  down  in  the  text-books  are  quite  inadequate  to  account 
for  the  delirium  in  the  vast  majority  of  cases.  Such  causes  are  ane- 
mia, exhaustion,  and  mental  and  moral  shock  or  strain ;  such  as  gi'ief , 
fright,  worry,  etc.  These  may  be  contributing  causes,  and  in  the 
case  of  blood  impoverishment  we  have  probably  an  important  predis- 
posing cause ;  but  we  want  something  more  definite  than  worry  to  ex- 
plain the  death  of  a  strong  man  in  less  than  three  days, — something 
more  tangible  than  mere  emotional  disturbance  to  explain  an  acute 
delirious  mania,  with  symptoms  of  meningitis,  in  a  vigorous  young 
woman. 

964.  Infection  is  probably  a  cause. — In  the  post-febrile  and  puer- 
peral cases  an  infectious  poison — a  microbe — is  probably  the  cause. 
Clark'*  gives  details  of  forty  patients  with  puerperal  insanity,  of 
whom  nearly  50  per  cent  had  septicemia  or  some  inflammation  about 
the  uterus.  Clouston's  puerperal  cases  showed  a  much  higher  range 
of  temperature  than  any  other  class  of  cases ;  an  "alarming  result," 
as  he  thinks,  of  septic  disorder.^  Since  the  time  of  Hippocrates  this 
septic  delirium  follomng  childbirth  has  been  noted.  The  father  of 
medicine  himself  reported- a  fatal  case  following  a  delivery  of  twins, 
in  which  case  there  were  suppressed  lochia,  chills,  insomnia,  inco 
herence,  convulsions,  suppression  of  urine,  coma,  and  death.  Guis- 
lain^  distinguished  what  he  called  puerperal  meningitis,  characterized 
by  sweats,  fever,  abdominal  pain,  and  coma, — evidently  a  septic  de- 
Mourn.  Mont.  Sci.  July,  1887.  'Lecons  Orales,  Vol.  I.  p.  35C 

'  Mi.-ntal  Diseases,  p.  3.57. 


§  9G4]  ACUTE  DELIRIUM.  789 

lirium.  With  an  increasing  knowledge  of  septic  disorders  in  child- 
bed we  shall  probably  hear  more,  in  time  to  come,  of  sepsis  as  a  cause 
of  insanity  in  the  puerperinm. 

965.  The  action  of  microbes. — The  drift  of  modern  pathology  is  un 
doubtedly  towards  the  opinion  that  acnte  delirium,  arising  from  so 
many  and  such  varied  causes,  is  due  to  microbian  infection.  From 
this  point  of  view  the  affection  is  a  symptom  rather  than  a  distinct  dis- 
ease. It  is  not  one,  but  many ;  and  may  be  caused  by  a  variety  of 
infecting  organisms,  just  as  the  symptom  "fever''  may  be.  Kraepe- 
lin,  a  leading  German  authority,  does  not  recognize  it  as  a  disease 
properly  so-called ;  but,  in  the  present  state  of  our  knowledge,  such 
an  opinion  is  ultra  scientific.  We  must,  for  the  present,  keep  our  lists 
open  for  an  affection  which  is  capable  of  arising  in  a  night,  and  de- 
stroying life  in  a  few  days.  Even  though  we  do  not  detect  the  active 
cause  in  every  case,  we  see  before  us  a  clearly  defined  picture  of  dis- 
ease.'  It  is  only  a  clinical,  or  bedside,  picture,  to  be  sure;  but  it  is 
too  individualistic  for  us  to  dismiss  it  as  a  mere  "symptom-complex." 

966.  Uniform  results  not  obtained. — Bacteriological  studies  have  not 
led  to  uniform  results  in  the  matter  of  acute  delirium.  The  Italians 
have  been  especially  active  in  these  studies,  and  have  reported  finding 
various  forms  of  bacteria  and  micrococci  in  the  blood  of  these  pa- 
tients. Berkley^  has  indicated  the  truth  when  he  says  that  in  a  mal- 
ady which  may  be  caused  by  so  many  agents,  a  sole  cause  is  not  to 
be  expected.  To  show  how  diflicult  the  problem  is,  we  may  recall 
that  a  deep-seated  pneumonia,  undetected,  has  caused  a  delirium  like 
the  form  here  described ;  so  has  the  sepsis  of  childbed ;  and  so  have 
the  poisons  of  typhoid  fever,  typhus  fever,  tuberculosis,  dysentery, 
measles,  and  acute  rheumatism.  Syphilis  and  alcohol  may  cause  ex- 
plosive types  of  delirium,  and  lead  poisoning  and  uremia  may  do 
the  same.  To  distinguish  and  eliminate  all  these  possibilities  is  the 
problem  set  before  the  diagnostician ;  but,  after  all  is  done,  there  un- 
doi^btedly  will  remain  a  small  proportion  of  cases  in  which  none  of 
these,  or  any  other,  causes  can  be  found,  and  these  rare  cases  will 
still  merit  and  receive  the  name  of  ""icute  delirium,"  or  "Bell's 
mania."  ^ 

'Treatise  on  Mental  Diseases,  p.  330.  "It   is   too   late;    the  life  of  all   his  blood 

Thi<5  wnrl-  pontnins   a    review  of  the  re-  ^^  touched  corniptiblv  ;  and  his  pure  hrain. 

inis\\ork  contains  a^  review  ox  x.ne  n  ^yhicli  some  suppose  the  soul's  frail  dwell- 
cent  literature  of  acute  delirium.  ing  house. 

"Shakespeare    described     mental     dis-  Doth,  by  the  idle  comments  that  it  makes, 

ease  with  great  accuracy;  and  the  words  Foretell  the  endins  of  mortality." 
he  put  into  the  mouth  of  Prince  Henry  -I^'°S  .Tohn,  Act  V.  Sc.  VII. 

are  marvelously  realistic,  for  they  even 
contain  a  reference  to  blood  poisoning: 


790  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  967 

II.  The  medico-legal  aspects  of  acute  delirium. 

967.  The  question  of  capacity  not  likely  to  arise. — In  such  an  acute 
condition,  overwhelming  the  mental  faculties,  and  rendering  the  pa- 
tient absolutely  helpless  and  irresponsible,  medico-legal  complications 
are  not  likely  to  occur.  No  question  of  capacity  can  arise.  The  fact, 
however,  may  be  noted,  in  closing,  that  in  some  cases,  very  acute  in 
type,  remissions  occur,  and  these  may  present  the  appearance  of  lu- 
cid intervals.  The  patient  may  seem  about  to  recover ;  the  mind  tem- 
porarily clears;  questions  may  be  asked  and  answered;  but  too  often 
these  appearances  are  deceptive,  and  the  patient  relapses  into  another 
delirious  paroxysm.  Such  remissions  are  too  transient  and  imper- 
fect to  admit  of  a  doubt  that  the  patient  is  not  even  temporarily  re- 
stored. 

968.  Many  grades  of  the  affection. — These  cases  of  acute  deliriun) 
present  many  grades,  as  already  said,  and  they  merge  gradually  into 
milder  types  which  are  described  under  the  head  of  "confusional  in- 
sanity." Reference  may  be  made  to  that  chapter  for  a  further  dis- 
cussion of  the  medico-legal  aspects. 


CHAPTEK  XLVI. 

SENILE  INSANITY. 

I.  Medical  aspects  of  senile  insanity, 

969.  The  law  of  old  age. 

970.  The  causes  of  senile  insanity. 

971.  Weakness  is  the  characteristic  of  old  age. 

972.  Old  age  as  a  cause  of  insanity. 

973.  Senile  melancholia. 

974.  Mania  in  old  age. 

975.  Senile  dementia. 

976.  Delusions  in  the  aged. 

'  977.  Accidents  and  episodes. 

978.  Alcoholism  and  drug  habits  in  old  age. 

979.  The  completeness  of  the  destruction. 

980.  Stages  and  varieties. 

II.  The  medico-legal  aspects  of  senile  insanitt. 

981.  Senile  dementia  and  the  law. 

982.  A  senile  dement  not  a  lunatic. 

983.  A  senile  dement  is  non  compos  mentis. 

984.  The  scientific  conception  of  senile  insanity. 
98.5.  The  law  now  takes  the  scientific  view. 

986.  Criminal  acts  by  senile  patients. 

987.  Senile  insanity  in  civil  cases. 

988.  How  differences  of  opinion  arise. 

989.  The  presumption  of  sanity  in  senile  cases. 

990.  Lucid  intervals  in  senile  insanity. 

991.  The  definition  of  a  "sound  and  disposing  mind." 

992.  In  respect  to  testamentary  capacity,  the  mind  of  a  senile  dement  may 

be  impaired  in  several  ways. 

993.  Undue  influence. 

994.  Tliere  can  bo  no  uniform  test  for  senile  insanity. 

995.  Contracts  and  legal  papers  other  than  wills. 

996.  DifTeront  kinds  of  capacity. 

997.  A  favorite  rule. 

I.  Medical  aspects  of  senile  insanity. 

969.  The  law  of  old  age. — It  is  a  universal  physiological  law  that 
men  and  women  decay  wath  old  age.^     This  law  needs  no  argument 

'  "For  there  is  a  character  of  mind  "Exact  statistics  might  show  that 
which  belongs  to  old  age." — Maudsley,  senile  dementia  exists  to  such  an  extent 
Responsibility  in  Mental  Disease,  p.  259.    as  to  show  a  large  proportion   for  the 

791 


792  IXSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  969 

to  prove  it.  It  is  patent  to  all,  and  recognized  everywhere.  But  tbe 
reasons  for  this  law  are  not  so  clear :  the  fact  is  accepted,  but  few  per- 
sons stop  to  consider  why  it  should  be  so.  The  pathologist,  however, 
is  never  satisfied  with  the  mere  statement  of  a  fact :  he  must  seek  for 
the  causes  of  it. 

970.  The  causes  of  senile  insanity. — Now  the  causes  of  mental  de- 
cay in  old  age  are  not  far  to  seek.  Among  them  are  the  degenerative 
changes  which  occur  in  the  brain  tissues  in  advancing  life.  The  com- 
monest of  these  changes  are  found  in  the  blood  vessels.  The  coat? 
of  the  blood  vessels  tend  to  become  thickened  and  hardened  in  old  age, 
and  these  impaired  vessels  are  no  longer  competent  to  supply  a  nor- 
mal blood  current  to  the  nerve  cells.  It  is  rare,  indeed,  after  sixty 
years  of  age,  for  the  brain  not  to  reveal  some  of  these  changes.  The 
degeneration  is  called  ''atheroma ;"  and  few  persons  escape  it.  There- 
is  a  wise  saying  that  "a  man's  life  is  only  as  long  as  the  life  of  his 
blood  vessels;"  and  the  pathology  of  old  age  is  a  constant  proof  of  the 
truth  of  this  maxim.  This  is  the  period  in  which,  especially,  we  sec 
apoplexy,  hemiplegia,  second  childhood,  and  accidents  to  the  hearl 
and  tissues  generally.  These  accidents  are,  as  a  rule,  the  evidence 
of  weakened  blood  vessels. 

971.  Weakness  is  the  characteristic  of  old  age. — It  follows  that  the 
mental  decay  in  old  age  is  characterized  by  weakness.  There  is  fail- 
ure of  memory,  loss  of  interest,  inability  to  apply  the  mind,  a  tenden- 
cy to  tire,  lack  of  energy,  of  aggressiveness  and  of  progressiveness, 
and  changes  in  the  tastes  and  affections.  It  is  needless  to  say  that 
these  are  variable  factors :  not  all  persons  grow  old  with  equal  rapid- 
ity, and  not  all  the  symptoms  of  senility  appear  in  just  the  same  way 
in  any  two  persons. 

972.  Old  age  as  a  cause  of  insanity. — That  old  age  is  an  important 
factor  in  the  causation  of  insanity  cannot  be  gainsaid.  Statistics  as 
well  as  common  observation  prove  it.  Clouston,-  in  his  large  expe- 
rience at  the  Royal  Edinburgh  Asylum,  found  that  in  nine  years 
(1874-1882),  of  the  3,145  patients  observed,  304,  or  almost  10  per 
cent,  were  over  sixty  years  of  age ;  but  of  these  only  203  patients  were 
classed  as  true  senile  cases.     Still,  this  is  a  large  proportion. 

In  any  given  case,  old  age  may  not  be  the  only  factor.  There  may 
be  contributing  causes,  such  as  heredity,  alcoholism,  syphilis,  and 
emotional  disturbances,  such  as  grief,  loss,  and  anxiety.  Some  persona 

last  years  of  life." — Griesinjjer,  Mental        *  Mental  Diseases,  p.  396. 
Patliologj'  and  Therapeutics,  Eng.  Trans, 
p.  102. 


972] 


SENILE  INSANITY. 


703 


are  born  to  groAv  old  quickly :  they  have  a  bad  heredity.  They  do  not 
exemplify  the  rule  of  Dr.  Oliver  Wendell  Holmes,  who  said  that 
"it  is  better  to  be  fifty  years  young  than  fifty  years  old."  ^  Again, 
the  chronic  tippler  anticipates  the  flight  of  years :  he  hardens  his  blood 
vessels  with  alcohol  even  before  their  allotted  time ;  so,  too,  with  syph- 
ilis; and  a  profound  moral  or  emotional  shock  also  may  prove  disas- 
trous even  in  well-preserved  old  age.^ 

973.  Senile  melancholia. — A  type  of  melancholia  is  not  uncommon 
in  the  aged.  It  is  apt  to  be  periodical  or  remittent,  and  is  not  quite 
so  acute  and  painful  as  in  earlier  life.  The  painful  depression  is 
often  the  result  of  the  sense  of  loss  of  power,  loss  of  interest,  and  of 
joy  in  living,  that  is  not  uncommon  in  elderly  persons.  This  is  so 
especially  in  those  persons  who  live  a  sedentary  life ;  who  have  fallen 
out  of  the  race,  and  have  lost  their  grip  on  life.  There  comes  a  sense 
of  ennui,  of  tccdium  vitce,  very  painful  to  see  and  very  hard  to 
bear.-*^ 

This  is  not  altogether  a  delusional  condition ;  there  is  often,  indeed, 
a  substratum  of  fact  for  this  unhappiness.  It  is  not  pleasant  to  some 
persons  to  grow  old, — to  feel  the  sense  of  personal  decay,  of  loss  of 
those  things  which  have  made  life  worth  living.''     The  mild  melan- 


'  Autocrat  of  the  Bi-eakfast  Table.  Dr. 
Holmes  said  that  there  was  one  mark 
of  age  whicli  struck  him  more  than  any 
of  the  physical  ones, — the  formation  or 
liabits.  In  other  words,  the  mental 
siji-ns  of  old  age  may  be  as  well  marked, 
if  not  better  marked,  than  the  bodily 
signs.  It  is  always  a  good  sign  when 
an  old  man  retains  some  mental  elasti- 
city; when  he  is  able,  for  instance,  to 
take  up  with  new  ideas  and  even  with 
new  oeciipitions.  This  truth  was  well 
known  to  the  ancients,  for  Cicero,  in  his 
De  Senectute,  refers  to  it,  and  tells  us 
of  Cato,  who  learned  Greek  when  he 
was  old;  and  it  is  said  that  he  even 
wished  to  learn  tlie  fiddle,  after  the 
example  of  Socrates.  Solon  learned 
sometliing  new  every  day  in  his  old  age, 
and  Cyrus  pointed  with  pride  to  tlie 
trees  he  had  planted  with  his  o\\ti  hand. 

^Savage  (Insanity,  p.  202)  relates  a 
typical  case  in  an  old  man  past  eighty, 
who  lost  his  wife  just  after  their  golden 
wedding. 

4'VnI've  seen  sae  monie  chanpefu'    years, 
On  earth  I  am  a  stranger  grown  : 
I  wander  in  the  ways  of  men. 

Alike   unknowing  and   unknown ; 
Unheard,   unpitiod,   unrelipved. 

I  bear  alane  my  lade  of  care  ; 
For  silent,   low,  on   beds  of  dust. 
Lie  a'  that  would  my  sorrows  share. 
— Burns,    Lament   for   Glencairn. 


*  The  pleasures  of  growing  old  are 
sung  by  some  of  the  poets.  Browning 
says : 

"Grow  old  along  with  me,  the  best  is  yet 
to  be  ; 
The  last,  for  which  the  first  hath  been." 

But  Browning  is  reported  to  have  said 
of  one  of  his  own  poems,  "The  poem  had 
a  meaning  when  I  wrote  it,  but  wiiat  it 
was  I  cannot  now  say."  (London 
Truth.) 

George  Eliot,  in  several  of  her  writ- 
ings, expatiates  on  the  advantages  of 
increasing  years;  but  the  general  ver- 
dict is  against  her.  Such  philosophical 
reflections  are  only  a  way  of  making  the 
best  of  a  bad  situation.  Montaigne,  in 
his  essay  ''Of  Age,"'  tells  us  with  cynical 
frankness:  " 'Tis  possible  that,  with 
those  who  make  the  best  use  of  their 
time,  knowledge  and  experience  may  in- 
crease with  their  years;  but  vivacity, 
promptitude,  steadiness,  and  other 
pieces  of  us,  of  much  greater  import- 
ance, and  much  more  essentially  our 
own,  languish  and  decay."  This  is  the 
universal  experience,  and  it  is  also  the 
teaching  of  pathology. 


794  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  973 

cholia  of  old  age  is  one  of  the  most  logical  of  the  insanities.  With 
advancing  years,  however,  and  with  repeated  attacks,  the  failure  of 
the  mental  faculties  becomes  more  evident,  until  these  patients  pass 
into  a  hopeless  terminal  stage  of  dementia.  Melancholia  in  old  age 
is  not  an  uncommon  cause  of  suicide;  in  fact,  many  of  the  suicides  in 
elderly  people  are  due  to  this  mental  state.^  Such  patients  very  often 
are  not  i-adically  insane,  and  do  not  find  their  way  into  the  asylums. 

974.  Mania  in  old  age. — This  is  not  so  common  as  melancholia,  un- 
less it  is  induced  by  bad  habits,  as  a  too  free  use  of  alcohol.  It  may 
occur,  also,  as  an  episode  in  the  progressive  dementia  of  the  aged, 
and  is  then  usually  marked,  not  by  a  gay  exaltation,  but  by  anxiety 
and  distress.  Insomnia  may  be  a  troublesome  symptom,  as  well  as 
refusal  of  food.  The  condition  is  often  associated  with  delusional 
ideas,  to  be  referred  to  later. 

975.  Senile  dementia. — The  characteristic  insanity  of  old  age  is  the 
"senile  dementia,"  so  often  witnessed,  and  usually  called  "childish- 
ness." This  begins,  as  a  rule,  so  gradually  that  its  boundary  line 
cannot  be  fixed.  It  is  marked  by  progressive  decay  of  the  mental  fac- 
ulties, of  which  memory  is  one  of  the  first  to  fail;  and  the  loss  of 
memory  is  at  first  more  marked  for  recent  than  for  remote  events.'^ 
The  instincts  and  afi^ections  change,  the  tastes  alter,  and  the  sense 
of  delicacy  often  suffers.  In  the  purely  intellectual  sphere,  we  ob- 
serve an  impaired  judgment  and  a  weakened  power  of  attention. 
There  is  apathy,  indifterence  to  current  events,  and  a  disposition  to 
be  interested  in  trifles.  The  emotions  become  unstable.  Some  of 
these  patients  are  irritable,  easily  excited,  prone  to  weep  easily  and 
without  much  apparent  cause.  On  the  other  hand,  a  common  type  is 
seen  in  a  mildly  apathetic  and  placid  temper, — one  which  is  not 
often  ruffled,  because  interest  in  life  is  narrowed  down  to  a  small  cir- 
cle of  immediate  wants  and  childish  ideas. 

976.  Delusions  in  the  aged. — A  not  unusual  form  of  senile  dementia 
is  a  type  of  delusional  insanity.^  In  advanced  cases,  especially,  in 
which  all  the  mental  and  moral  faculties  are  more  or  less  clouded, 
delusions  are  observed.  These  delusions  are  usually  of  a  depressive 
or  persecutory  kind ;  a  common  one  is  the  idea  of  loss  of  property,  or 
of  being  robbed;  also  dread  of  poverty,  of  going  to  the  alms-house, 
etc.  These  delusions  may  be  associated  with  secretiveness,  and  a 
tendency  to  hoard  trifles.    Just  as  in  general  paresis,  so  in  senile  de- 

•Bevan    Lewis    (Mental  Diseases,    p.  '  Mercier,  Psychology,  p.  420. 

439)    says  that  a  strongly  marked  sui-  *  Ritti,  Les  Psychoses  de  la  Vieillesse, 

oidal  tendency  appears  in  79  per  cent  1897. 
of  snch  cases. 


§  976]  SENILE  INSANITY.  795 

rnentia,  we  see  patients  taking  any  and  everything,  without  the  slight- 
est appreciation  of  meum  and  tuiim,  and  hiding  things  away,  only  to 
forget  them.  The  penchant  for  hiding,  indeed,  is  rather  more  com- 
mon in  the  latter  patients,  and  the  objects  are  often  quite  valueless. 
Confusion  of  identity  of  persons  and  places  is  often  present;  the 
initient  may  even  lose  the  sense  of  personal  identity,  and  very  often 
the  nearest  relatives,  such  as  sons  and  daughters,  are  confused  with 
each  other  or  with  strangers.  Delusions  of  a  fragmentary  kind  are 
often  the  source  of  great  annoyance  to  the  patients ;  they  fret  and 
worry  over  trifling  and  imaginary  evils,  as  in  the  case  of  an  old  lady, 
eighty-four  years  old,  who,  day  after  day,  gave  her  family  and  her- 
self no  peace  for  w^orrying  about  an  imaginary  pair  of  old  shoes  that 
had  been  sent  to  some  imaginary  cobbler.  This  was  a  type  of  many 
senile  delusions, — trifling  and  annoying.  Delusions  of  poisoning  also 
may  occur;  and  of  relatives  being  murdered,  although  the  murdered 
person  may  be  seen  daily.  Thus  is  shown  the  widespread  breaking 
<lown  of  the  logical  processes  and  of  the  normal  association  of  ideas. 
With  it  all  is  observed  the  weakness  of  all  the  mental  faculties, — the 
genuine  dementia. 

977.  Accidents  and  episodes. — In  some  senile  dements,  in  whom  the 
disease  of  the  blood  vessels  is  extreme,  various  accidents  and  episodes 
occur.  Paralytic  strokes  are  the  commonest.  These  are  usually  one- 
sided,— the  so-called  "hemiplegia," — involving  the  tongue,  face,  arm, 
and  leg.  They  are  caused  by  hemorrhage  in  the  brain,  or  by  the  stop- 
page of  a  blood  vessel.  A  not  unusual  accident,  and  one  of  great  med- 
ico-legal imi^ortance,  is  aphasia,  or  the  loss  of  the  faculty  of  speech. 
Because  of  its  special  importance,  this  affection  will  be  considered  in 
a  chapter  apart.  In  some  cases  epileptic  seizures  occur,  and  these 
are  caused,  doubtless,  by  the  destructive  changes  in  the  brain  ;^  and, 
as  already  said,  attacks  of  maniacal  excitement  are  sometimes  seen. 

978.  Alcoholism  and  drug  habits  in  old  age. — Senile  insanity  may 
be  complicated  with  alcoholism,  or  with  the  effects  of  some  drug  addic- 
tion. In  some  old  persons,  in  both  the  sexes,  the  insidious  habit  of 
drinking  to  excess,  or  of  taking  some  opiate,  may  be  formed.  It  is 
quit©  remarkable  how,  in  persons  of  previously  temperate  lives,  such 
evil  habits  may  creep  on  in  the  weakness  of  old  age.  I  knew  of  one 
old  gentleman  who  had  acquired  the  habit  of  drinking  nearly  four 

•  Spratlin<;    (Epilepsy,   p.   32)    classes  until  after  the  sixtieth,  year.     He  refers 

as  senile  epileptics  those  whose  epilepsy  to  a  case  in  which  the  first  fit  occurred 

is  due  to  changes,  mostly  in  the  arterial  in  the  eighty-ninth  year;   successive  fits 

system,    which    may   become    prominent  occurred  until  the  patient's  death,  when 

after  the  fortieth,  but  are  not  common  he  was  nearly  ninety-three. 


7UG  INSANITY— I'ORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  978 

quarts  of  whisky  a  week  before  his  family  awoke  to  a  realization  <5f 
the  facts;  by  that  time  the  patient  was  in  a  sad  state  of  chronic  al- 
coholism. In  the  case  of  an  old  lady,  who  was  an  earnest  advocate 
of  temperance,  the  habit  of  using  opium  to  excess  by  suppositories 
was  gradually  formed  without  the  slightest  idea  of  any  inconsistency. 
As  Bevan  Lewis  has  well  said,  the  excessive  use  of  alcohol  lends  a 
frightful  impetus  to  the  retrograde  changes  which  naturally  occur  in 
the  brains  of  old  people.-'^  Chronic  inebriety  is  said  to  be  not  so  com- 
mon in  old  as  in  younger  persons,  and  this  claim  seems  to  be  sup- 
ported by  statistics;  but  the  compilers  of  such  tables  are  sometimes 
strangely  oblivious  of  the  fact  that  there  are  fewer  people  living  after 
the  age  of  sixty  than  before  it.  We  should  therefore  not  expect  a? 
many  old  men  to  figure  in  our  inebriate  asylums  as  we  should  expect 
younger  men.  The  chronic  inebriate  generally  drinks  himself  off 
before  the  age  of  sixty :  he  does  not  wait  to  grow  old.^^ 

979.  The  completeness  of  the  destruction. — In  advanced  senile  de 
mentia  the  brain  is  well  nigh  stripped  of  its  functions.  Nothing  can 
exceed  the  completeness  with  which  this  reduction  is  sometimes  ef- 
fected in  old  age,  unless  it  be  in  general  paresis ;  and,  in  fact,  the 
terminal  stages  in  the  two  conditions  are  not  unlike.  The  patient's 
mind  is  indeed  "sans  everything." 

980.  Stages  and  varieties. — The  mental  changes  in  old  age  arc 
marked  especially  by  weakness, — by  failure  of  the  mental  facul- 
ties; but  varieties  occur,  just  as  in  all  forms  of  insanity:  there 
is  no  one  constant  type.  Shakespeare,  in  King  Lear,  has  given  us  a 
graphic  picture  of  senile  insanity  of  a  maniacal  and  delusional  form, 
but  he  has  not  exhausted  the  subject  of  dotage. ^^^'^  All  gTades  of  men- 

"  Acconliiiif  to  Bevan  Lewis  (op.  cit.  n^  It  is  curiously  significant  of 
p.  444)  of  2G1  male  senile  cases  of  in-  Shakespeare's  genius  that  his  insane 
sanity,  as  many  as  75  (about  28.7  per  characters  have  been  analyzed  by  scien- 
cent)  were  proved  to  have  been  of  in-  tific  alienists  \vith  as  mudi  care  as 
temperate  habits  for  some  years  prior  though  they  presented  the  clinical  pic- 
to  their  attack  of  insanity,  and  he  tures  of  genuine  cases  of  insanity, 
thinks  even  this  percentage  is  far  below  Prominent  among  such  writers  have  been 
the  actual  truth.  Alcohol  gives  a  spe-  Bucknill  (]\Iad  Folk  of  Shakespeare, 
cial  direction  to  the  morbid  tendency,  London,  1807)  and  Brigham  ("Shakes- 
being  especially  productive  of  attacks  of  peare's  Illustrations  of  Insanity,"  in 
mania  and  melancholia,  as  well  as  of  Am.  Journ.  of  Insanity,  July,  1844). 
the  degeneration  of  the  arterial  system.  Bucknill's  diagnosis  of  Lear's  case  is 

"Thus  Kerr    (Inebriety,  p.  124)    pub-  "intellectual  mania  which  resulted  from 

lishes  a  table,  based  on  American  cases,  the  combined   influence  of  physical   and 

which    shows    that    of    GOO    inebriates  moral  shock;"  and  again,  "the  result  of 

under    treatment,    only    22    were    above  passion   exaggerated    by   long    habitude 

sixty  years  old.     This  is  not  surprising,  and  by  the  malign  influence  of  extreme 

neither   does    it   disprove    the    fact   that  age." 

chronic  alcoholism   is  a  graver   compli-  Brigham   says:     "Lear's  is  a  genuine 

cation  in  old  age  than  in  earlier  life.  case  of  insanity  from  the  beginning  to 


§  9S0]  SENILE  INSANITY.  797 

tal  decay  are  observed,  and  to  this  fact  is  largely  due  the  difficulties 
that  surround  this  subject  in  its  medico-legal  aspects.  There  are  few 
■old  people,  indeed,  who,  soon  or  late,  do  not  show  some  mental  deteri- 
oration, but  not  all  old  people  are  senile  dements.^  ^'^^ 

After  death,  gross  changes  are  usually  found  in  the  brains  of  these 
patients;  such  as  arterial  disease  and  areas  of  softening.  Robert- 
son,^- pathologist  to  the  Royal  Edinl)urgh  Asylum,  found  such 
changes  in  the  majority  of  his  cases. 

II.  The   medico-legal  AsrECxs   of  senile  insanity. 

981.  Senile  dementia  and  the  law. — Senile  dementia  has  had  a  re- 
markable history  in  the  English  law.  A  long  time  elapsed  before  this 
affection  was  judicially  recognized  as  a  real  insanity,  and  the  preju- 
dice against  this  view  of  it  still  survives. -^^  It  was  in  favor  of  senile 
dementia,  in  fact,  that  the  distinction  was  originally  made  between  a 
non  compos  mentis  and  a  lunatic. 

This  history  has  already  been  discussed  in  these  pages  under  the 
definition  of  "Non  Compos  Mentis."  (Page  482.)  It  is  there  shown 
that  the  ancient  writ  de  lunatico  inquirendo  was  judged  not  to  in- 
clude persons  who  were  merely  of  weak  minds,  and  therefore  it 
could  not  include  a  person  who  was  merely  failing  from  old  age,  un- 
less his  weak-mindedness  w'as  called  by  another  name.  Lord  Hard- 
wicke,^'*  in  1744,  quashed  an  inquisition  in  the  case  of  a  senile  de- 
ment, because  in  the  finding  it  was  not  stated  in  express  words  tbat 
the  party  was  non  compos  mentis.  The  Lord  Chancellor  evidently 
did  not  like  the  word  "lunatic"  in  this  connection,  for  he  said  it  was 
"a  technical  word,  coined  in  more  ignorant  times,  as  imagining  these 
persons  were  affected  by  the  moon ;  but  discovered  by  philosophy, 

the  end;  such  as  we  often  see  in  aged  See  Rolfe's  Edition  of  King  Lear  for 
persons."  numerous  notes  on  the  old  king's  mad- 
Nothing  more  true  to  nature  was  ever  ness. 
written  by  the  great  bard  than  tlie  nf  Pickett,  "Senile  Dementia:  A 
words  he  put  into  the  mouth  of  the  Clinical  Study  of  Two  Hundred  Cases, 
aged  king,  when  he  feels  the  onset  of  im-  with  Particular  Reference  to  Tj-pes  of 
pending  alienation:  the  Disease,"  in  the  Journ.  Neiv.  and 
*'0    let    me    not    be    mad,    not   mad,    sweet  Ment.  Dis.,  Feb.  1904. 

Heaven!''  "Edinburgh     Medical     Journal,   Jan- 

And  when  all  was  over,  no  more  pa-  u^i-y    isoG 

thetic  lines  were  ever   spoken  over  the  „  J     mt  '                    t^            or  n      n^n 

,„,,,,                      i.     1  1             XI  In  Thompson  v.  Kyner,  65  Pa.  368, 

dead  body  of  a  worn-out  old  man  than  x   j      t^         I  i  i  i.\      •            tixT-               i. 

ou   I                        A     •   i.       Au               iu       «  Judee  Rowe  told  the  lury:      We  are  not 

Shakespeare    put    into    the    mouth    of  "       j     •      ai  •      •         a-     a-            -au 

T^     .  _  ^            *^  concerned,    in    this    investigation,    with 

questions  of  insanity  properly  so-called." 
"O  let  him  pass!      He  hates  him  rpt  „      „,  _„.  _«  spnile  dpmpntia 

That   would  upon   the  rack   of  tills   tough    ^"^  ^^^^  ^^^^  °"®  °'  senue  aementia. 

OA    A  u^?""'^   a  .  ..  "^«  P<^rte  Barnsley,  3  Atk.  168. 

Stretch  him  out  longer."  *^  ^ 


798  INSANITY— FORMS  AND  MEDICOLEGAL  ASPECTS.  [§  981 

and  ingenious  men,  that  it  is  certainly  owing  to  a  defect  of  the  or- 
gans of  the  body." 

982.  A  senile  dement  not  a  lunatic. — This  opinion  of  Lord  Hard- 
wicke's  was  illuminating,  although  it  did  not  clear  up  the  whole  sub- 
ject. What  it  did,  however,  was  to  emphasize  the  fact  that  "lunatic" 
was  a  bad  term  with  which  to  describe  a  weak-minded  person,  and 
that  non  compos  mentis  was  a  good  one.  It  seemed  to  draw  a  distinc- 
tion between  the  two  conditions,  and  to  include  weak-minded  persons 
under  the  term  non  compos  mentis  as  implying  that  they  had  merely 
a  defect  of  the  organs  of  the  body.-^^  This  evidently  included  cases 
of  senility,  and  was  so  construed  later  in  the  courts. 

But  Lord  Hardwick  said  it  would  require  an  act  of  Parliament 
to  change  the  law  before  the  old  writ  de  lunatico  could  include  per- 
sons of  merely  "weak  mind."  From  all  this  it  is  evident  that  the 
court  of  chancery  was  struggling  in  a  confusion  caused  by  the  terms 
"lunatic,"  "non  compos  mentis/'  and  persons  of  "weak  mind;"and 
that  that  court  only  got  far  enough  to  recognize  that  weak-minded  per- 
sons, such  an  senile  dements,  like  Barnsley,  could  be  included  under 
the  tenn  non  compos  mentis,  but  not  under  the  term  "lunatic"  Thi?' 
was  at  least  some  progi*ess,  for  it  indirectly  recognized  that  senile  de- 
mentia is  an  organic  disease  of  the  brain ;  therefore,  a  form  of  in- 
sanity. 

983.  A  senile  dement  is  "non  compos  mentis." — Lord  Eldon^®  said 
it  was  necessary  that  the  jury  should  find  in  express  words  that  the 
paVty  was  non  compos  mentis  when  said  party  was  represented  as 
not  being  idiot  or  lunatic,  but  merely  of  unsound  mind.  Here  again 
the  distinction  was  made  in  favor  of  a  person  who  was  merely  of 
"weak  mind,"  and  not  a  "lunatic."  The  convenient  and  venerable 
term,  non  compos  mentis,  derived  from  Justinian,^ '^  and  of  an  an- 
cient and  legal  flavor,  was  to  be  used  for  such  a  person,  and  was  evi- 
dently understood  not  to  work  to  his  prejudice  as  would  the  term 
"lunatic."  From  these  two  opinions,  by  Lord  Hardwicke  and  Lord 
Eldon,  this  subject  seems  to  have  taken  a  shape  which  it  long  retained 
in  English,  and  also  in  American,  law;  and  the  effects  of  which  are 
still  apparent. 

Lord  Chancellor  Erskine^^  also  recognized  the  prejudice  against 
calling  all  persons  of  imsound  mind  "lunatics."  "A  man  may  have 
passed  a  great  and  illustrious  life,"  said  he,  "and  by  the  course  of 

"  Earnsley   was   merely  broken   down  "Tie  Portsmouth. 

witli  old  ape,  and  did  not  seem  a  proper  "  Institutes,  Lib.  ii.,  Title  XII.,  §   I. 

person   to   be  described   as  a  "lunatic."  ^'Fx  parte  Cranmer,  12  Ves.  Jr.  445. 
^r;  page  488,   ante. 


§  983]  SENILE  INSANITY.  799 

nature  his  faculties  may  decay,  so  that  he  may  not  be  fit  either  to 
govern  himself  or  his  affairs.  It  is  unseemly  that  he  should  be  put 
upon  the  footing  of  a  lunatic."^''  All  of  which  goes  to  prove  clearly 
tbat  the  stumbling-block  in  the  way  of  a  scientific  conception  of  se- 
nile dementia  was  the  artificial  term  ''lunatic,"  and  that  a  way  out 
of  the  difficulty  was  to  call  the  patient  no7i  compos  mentis.-^ 

984.  The  scientific  conception  of  senile  insanity. — But  the  scientific 
conception  of  insanity  Avas  destined  in  time  to  break  through  the  ar- 
tificial distinctions  of  the  courts.  Insanity,  which  is  etymologically 
the  same  as  "unsound  mind,"  means,  in  science,  all  forms  of  mental 
derangement  which  are  caused  by  disease  or  disorder  of  the  brain ; 
and  in  this  sense  it  includes  senile  dementia  as  well  as  mania,  melan- 
cholia, or  any  other  mental  disease  wdiatever.  This  fact,  now  so 
thoroughly  established,  was  finally  accepted  in  English  law,  and  by 
the  statute  25  &  26  Vict.  chap.  54  (1862)  it  was  declared  that  the 
old  legal  term  "lunatic"  "shall  mean  and  include  every  person  certi- 
fied by  two  medical  persons  to  be  a  lunatic,  an  insane  person,  an 
idiot,  or  a  person  of  unsound  mind."  In  other  words,  all  distinctions 
between  these  various  terms  Avere  swept  away.  This  comprehensive 
definition  is  now  practically  adopted  in  most  of  our  American  states,-^ 
the  only  distinction  being  in  respect  to  idiocy,  which,  in  some  of 
them,  is  considered  a  condition  apart.  Therefore,  senile  dementia  is 
now  legally  recognized  as  one  of  the  insanities ;  and  so  it  ought  to  be. 

985.  The  law  now  takes  the  scientific  view. — By  the  law  as  it  now 
stands  it  is  proper  to  certify  a  senile  dement  as  an  insane  person, 
and  this  is  constantly  done  in  England  and  in  our  American  states. 

This  being  so,  it  follows,  of  course,  that  patients  with  any  form  of 
senile  insanity,  such  as  those  described  above,  are  to  be  judged  by 
the  same  rules  of  evidence  that  apply  to  insanity  in  general  in  the 
trial  of  medico-legal  questions. 

986.  Criminal  acts  by  senile  patients. — Senile  patients  are  not  often 
guilty  of  criminal  acts.  In  some  cases,  however,  there  may  be  sui- 
cidal and  homicidal  impulses.  In  fact,  in  senile  melancholia,  suicide, 
as  already  said,  is  not  uncommon ;   but  homicide  is  rare.      These 

^'American    courts    liave    followed    the  that  the  King  or  any  person  is  affocted 

English  chancery  closely  in  this  matter,  with   insanity,   is  considered  a  criminal 

See  the  Case  of  Beaumont,  1  Whart.  52,  and  indictable  act,  since  it  imputes  to 

29  Am.  Dec.  33,  in  which  also  the  inqui-  the  party  a  malady  generally  ind>icing 

sitjon  was  quashed   because  the  finding  mankind  to  slum  his  society,  though,  as 

did    not    expressly    declare    that    Beau-  no  one  is  of  perfectly  sound   mind  but 

mont,  a  .senile  dement,  was  no7i  compos  the  Deity,  it  is  not  libellous  to  say  that 

mentis.  a  man  is  not  of  sound  mind." 

""Chitty,    for    instance,    says:      "The  "See  chapter  on  Non  Compos  Mentis, 

malicious,     untrue,     written     assertion  page  482,  ante. 


.SOO  INSANITY— FOEMS  AND  MEDICO-LEGAL  ASPECTS.  [§  986 

patients  are  too  weak,  both  mentally  and  physically,  as  a  rule,  to  at- 
tempt to  kill.  Yet  a  blind  homicidal  impulse  is  sometimes  shown  in 
excited  cases,  the  patient  evidently  having  little  conscious  design, 
and  soon  forgetting  all  about  it.-^  It  is  well,  however,  to  be  on  guard 
against  the  violent  impulses  of  some  of  these  dotards.  I  recently 
saw  an  old  gentleman,  eighty-two  years  old,  much  excited  and  quite 
aphasic,  who  was  striking  right  and  left  at  all  persons  who  approached 
him.     Little  injury  is  likely  to  be  done,  however,  by  such  a  patient. 

987.  Senile  insanity  in  civil  cases. — It  is  in  civil  cases  that  senile 
dementia  figures  most  frequently  in  the  courts.  Probably  the  great 
majority  of  contests  over  mils  have  turned  upon  the  capacity  of  these 
patients.^^  This  is  doubtless  a  hard  question  in  most  cases,  whether 
it  be  viewed  from  a  legal  or  a  medical  standpoint;  and  the  two  points 
of  view  should  be  practically  the  same,  for  there  cannot  be  one  kind 
of  insanity  in  law  and  another  kind  in  science.  "That  cannot  be 
a  fact  in  law,"  said  Justice  Doe,^'*  "which  is  not  a  fact  in  science; 
that  cannot  be  health  in  law,  which  is  disease  in  fact." 

988.  How  differences  of  opinion  arise. — Differences  of  opinion  in 
these  cases  often  arise  from  the  fact  that  the  courts  do  not  recognize 
the  medical  idea  of  a  disease,  and  the  physicians  do  not  subscribe  to 
the  legal  idea  of  capacity.  It  has  been  held  in  many  cases  that  some 
degree  of  mental  impairment  does  not  necessarily  entail  incapacity 
to  make  a  will.  There  has  been  much  diversity  of  opinion  on  this 
point,  however,  and  the  subject  is  confusing  to  a  medical  expert 
who  attempts  to  follow  the  conflicting  opinions  of  the  courts.^^ 

"  Clouston,  op.  cit.  p.  398.  345,  56  Am.  Dec.  423),  commenting  on 

^It    is    notewoithy    that,    imder    the  that  doctrine,   seems  to  uphold   it.  and 

English    law,   the    subscribing  witnesses  yet  he  says  that,  by  law,  persons  of  "un- 

may    afterwards    be    admitted    to   prove  sound  mind"  are  not  permitted  to  make 

the   testator   was   insane   when   he   exe-  wills,    and    then    proceeds   to    show,    by 

cuted  his  will   (2  Bl.  Com.  378,  footnote  florid    figures    and    rhetorical    illustra- 

hy  Ciiristian).     This  would  seem  to  add  tions,  how  the  very  thing  can  be  done, 

to  the  facility  with  wliich  such  instru-  Chief  Justice  Thompson  (Thompson  v. 

raents  could  be  contested.  Kyncr,  65  Pa.  308)    said:      "What  con- 

•*Boardman    v.    Woodmav,    47    N.    H.  stitutes  the  want  of  a  sound  disposing 

120.  mind    and    memory    is    incapable    of    a 

•^  The  language  of  many  judges  in  de-  definition    suited    to    all    cases.      Every 

fining    testamentary    capacity    in    aged  case  is,  to  a  great  extent,  to  be  tested 

persons  is  hopelessly  involved  and   con-  by  its  own  facts,  circumstances,  and  sur- 

tradictory,    if    analyzed    by   a    scientific  roundings.     We  can  do  little  more  than 

rule.     A    study    of    the    recorded    cases,  generalize    in    regard    to    the    subject." 

ante.  §§  123-127,  must  convince  any  im-  Tliis  is  practically  a  condemnation  of  all 

partial  scientist  of  this  fact.  tests  and  definitions. 

In  Potts  V.  House,  6  Ga.  324,  50  Am.  Justice  Pedfield  {Converse  v.  Con- 
Bee.  329,  the  doctrine  was  stated  tliat  verse,  21  Vt.  168,  52  Am.  Dec.  58)  said: 
"a.  mere  glimmering  of  reason"  is  "Every  man  will  have  his  own  mode  of 
Ruflficient  to  sustain  a  will.  Judge  expressing  the  thing;"  and  he  undoubt- 
Lumpkin    [Terry  v.  Bufjington,    11   Ga.  ediy  stated  the  truth 


§  988]  SENILE  INSANITY.  801 

Sir  Fitzjames  Steplicn,^^  a  recent  writer,  says:  "It  undoubtedly 
is  .  .  .  the  law,  that  the  mere  existence  of  an  insane  delusion 
which  does  not  in  fact  influence  particular  parts  of  the  conduct 
has  no  effect  upon  their  legal  character.  The  cases-^  re- 
ferred to  .  .  .  establish  this  proposition  as  regards  contracts 
and  wiUs."  And  yet,  according  to  Shelf ord,^^  the  law  recognizes 
partial  insanity,  and  in  civil  cases  this  partial  insanity  (as  "delu- 
sion"), if  existing  at  the  time  the  act  was  done,  invalidates  the  act, 
though  not  directly  connected  with  the  act  itself.^^  This  is  in  direct 
contradiction  to  what  Stephen  claims  is  now  the  English  law;  but  as 
this  subject  is  discussed  more  at  length  in  the  chapter  on  "Wills" 
in  the  present  work  (p.  908),  it  wall  not  be  pursued  further  here. 

989.  The  presumption  of  sanity  in  senile  cases. — The  presumption 
of  the  law  is  in  favor  of  the  capacity  of  a  testator.  All  persons  of  the 
age  of  discretion  are  presumed  to  be  sane.  The  only  exception  to 
this  rule,  according  to  one  authority,'*^  is  in  a  few  jurisdictions  where 
the  statutes  have  cast  upon  the  proponent  of  a  will  the  burden  of 
showing  testamentary  capacity.  But  this  presumption  of  sanity  is 
often  carried  to  a  gi-eat  extreme  in  law,  as,  for  instance,  where  a  man 
signs  a  will  in  what  is  presumed  to  be  a  lucid  interval  of  exceedingly 
short  duration, — say  only  a  few  hours.^^  Here  there  is  the  presump- 
tion (or  assumption)  that  a  man  was  sane  long  enough  to  make  a  will, 
although  insane  immediately  before  and  after.  This  is  not  more  log- 
ical than  the  defense  of  transitory  homicidal  mania  in  criminal  cases, 
in  which  a  man  is  claimed  to  have  been  insane  only  long  enough  to 
pull  a  trigger,  although  perfectly  sane  just  before  and  just  after.^^ 
The  two  kinds  of  cases  are  not  dissimilar,  and  the  psychology  of  the 
one  is  about  as  bad  as  the  psychology  of  the  other.  These  abrupt 
transitions  from  health  to  disease,  from  sanity  to  insanity,  and  vice 
vei'sa,  are  rare  indeed  in  fact,  and  do  not  warrant  a  presumption  in 
their  favor  one  way  or  the  other."^^ 

"2  History  Crim.  Law,  p.   162.     See  G04.     Tlie  subject  is?  discussed  in  Dela- 

his  Digest  also.  field  v.  Parish,  25  N.  Y.  27. 

-'He   refers  to  BanJcs  v.   Goodfellow,  ^^  Shelf  or  d  (op.  cit.  p.  66)   cites  a  case 

L.  R.  5  Q.  B.  549,  39  L.  J.  Q.  B.  N.  S.  in   which   the  will   was   dated   and   exe- 

237,   22  L.   T.   N.   S.   813,  and  Smee  v.  cuted   on   the   15th   of   November,    1839. 

Smee,   L.   R.   5   Prob.   Div.  84,  49   L.   J.  The  testator  was  laboring  under  certain 

Pro!).   N.   S.   8,   28   Week.   Rep.   703,    44  delusions    on    the    three    daj-s    previous, 

J.  P.  220.  and     destroyed     himself     on     the     IGth, 

^  Lunatics,  p.  66.  while    insane.      Yet    the    will    was    sus- 

-^  See  Erskine's  statement  of  the  dis-  tained.     Chambers  v.  The  Queen's  Proc- 

tinction     between     civil     and     criminal  tor,  2  Curt.  Eccl.  Rep.  415. 

cases,   in    his    speech    for  Hadfield,   27  '"Com.  v.   Wireback,   190   Pa.   138,   70 

Howell,  State  Trials,  1281.  Am.  St.  Rep.  025,  42  Atl.  542. 

"•16  Am.  &  Eng.  Enc.  Law,  2d  ed.  p.  ^  In  Weaver  v.  Weaver,  28  Pittab.  L. 
Vol.  I.  Med.  Jub. — 51. 


S02  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.  [§  990 

990.  Lucid  intervals  in  senile  insanity. — The  doctrine  of  ''lucid  in- 
tervals," as  bearing  on  testamentary  capacity,  seems  to  have  been  de- 
rived from  the  Roman,  or  civil,  law,  for  therein  it  was  laid  down,  in 
the  Institutes  of  Justinian,^^  that  "madmen,  if  they  make  a  will  in 
that  period  in  which  their  madness  intermits,  seem  to  be  legal  testa- 
tors." But  this  subject  is  discussed  more  in  detail  in  §§  131-133, 
and  in  the  chapter  on  "Lucid  Inter\^als,"  in  the  present  work  (page 
496).  Extreme  old  age,  with  its  attendant  physical  and  intellectual 
weakness,  does  not  of  itself  incapacitate  the  testator,  and  therefore 
it  raises  no  presumption  of  his  not  having  a  disposing  mind.^"* 

It  follows  that  in  this  kind  of  insanity,  as  in  all  others,  the  exact 
subject  of  inquiry  is  the  state  of  mind  at  the  time  of  signing  and  ex- 
ecuting the  will.  The  fact  that  the  testator  was  old,  and  had  shown 
mental  weakness  at  other  times,  before  and  after,  is  not  enough,  al- 
though in  some  courts  such  evidence  might  be  admitted  as  supple- 
mentary.^® 

991.  The  definition  of  a  "sound  and  disposing  mind." — A  sound  and 
disposing  mind  is  defined  to  consist  in  a  man's  ability  "to  understand 
substantially  the  state  of  his  family  and  his  affairs;  the  disposition 
of  his  property,  as  made  by  his  will ;  and  to  intend  to  make  such  dis- 
position."^'^ It  is  important  that  medical  experts  should  try  to  un- 
derstand clearly  what  the  law  means  by  testamentary  capacity. 
Evidently  the  law  requires  very  little,  especially  as  at  present  admin- 
istered. The  amount  of  intelligence  requisite  for  a  man  to  know 
what  he  wants  to  do  with  his  property,  or  to  understand  satisfactorily 
the  state  of  his  family  and  his  affairs,  is  not  gi-eat.  Such  an  amount 
of  knowledge  is  presumably  not  inconsistent  with  the  existence  of 
great  feebleness  of  mind,  considerable  loss  of  memory,  and  even  with 
some  insane  delusions.  In  old  age  all  these  conditions  may  exist,  and 
yet  a  man  may  know  enough,  in  the  eyes  of  the  law,  to  be  able  to  make 
a  will.  The  expert  may  indeed  recognize  that  this  position  of  the 
law  is  largely  one  of  presumption, — largely  theoretical, — and  yet  he 
must  also  see  that  such  a  presumption  is  deemed  to  be  necessary  in 

J.  367,  N.  S.  it  was  claimed  that  a  man  tion  of  incapacity.   Broume  v.  Molliston, 

who   gave   a  note  was   sane   on   "every  3  Whart.  129.     Also  Underhill  on  Wills, 

other   day."     The  court   held   that   the  §  117. 

note  was  given  on  one  of  the  sane  days.  '"TJwwpson  v.  Kyner,  65  Pa.  368,  p. 

This  was  mere  presumption.  377 :    "An  abnormal  condition  of  mind  is 

"Lib.  11.  Title    XII.    §    1.       "Furiosi  never  presumed  when  a  testator  makes 

autem,  si  per  id  tempus  fecerint  testa-  his  will,  unless  a  previous  aberration  be 

mentum,  quo  furor  eorum  intcrmissum  shown  of  such  a  nature  as  may  admit 

est,  jure  testati  esse  videntur."  of  a  presumption  of  recurring  unsound- 

^  25  Am.   &   Eng.   Enc.   Law,   p.   970,  ness  at  any  time." 

on  "Testamentary  Capacity,"  with  many  "  Chase,  General  Paresis,  p.  44. 
references.     Old  age  raises  no  presump- 


§  991]  SENILE  INSANITY.  803 

order  to  guard  the  right  of  citizens  to  make  their  wills, — a  right 
which,  if  not  a  natural  one,^^  is  yet  most  jealously  claimed  by  all 
men.^^ 

992.  In  respect  to  testamentary  capacity,  the  mind  of  a  senile  de- 
ment may  be  impaired  in  several  ways. — The  memory  of  the  senile  de- 
ment may  be  so  affected  as  to  disable  him  from  understanding  the 
state  of  his  family  and  his  affairs.  This  may  be  shown,  among  other 
ways,  in  his  confusing  the  identity  of  persons  and  places. ^^  His 
knowledge  of  events  and  circumstances  may  be  so  clouded  as  also  to 
impair  his  capacity.  He  may  be  confused,  or  excited,  or  stuporous. 
He  may  have  delusions  which  influence  his  feelings  against  his  family. 
His  judgment  may  be  involved  so  as  to  impair  his  business  sagacity 
in  disposing  of  property.  And  finally,  he  may  be  under  undue  influ- 
imce.'*^ 

993.  Undue  influence. — Senile  patients,  particularly  men,  are  some- 
times subject  to  curious  erotic  impulses,  and  these  expose  them  to  the 
risk  of  making  bad  marriages.  They  are  easily  led,  also,  in  other 
ways,  and  this  is  more  easily  appreciated  when  seen  in  the  daily  life 
than  described  in  court  after  the  patient's  death.'*^  The  vacillation, 
loss  of  will  power,  and  erotic  propensities,  says  one  authority,^ ^  render 
these  patients  an  easy  prey  to  designing  persons.  Thus,  marriages  are 
brought  about,  papers  signed  which  lead  to  vexatious  litigation,  or 
wills  and  codicils  are  written.     To  protect  innocent  persons,  heirs, 

"  One  of  the  state  senators  who  voted  who.  at  tlie  time  of  making  his  will,  has 

to  sustain  the  will  of  the  idiot  Lispen-  an  understanding  of  the  nature  of  the 

ard    (Steioart   v.   lAspenard,    26    Wend,  business  in  which  he  is  engaged,  a  recol- 

256)    claimed  that  the  right  to  make  a  lection  of  the  property  he  means  to  dis- 

will  is  a  "natural"  right.     This  distinc-  pose  of,  of  the  persons  who  have  a  claim 

tion  is,  perhaps,  merely  an  academic  one,  upon  his  bounty,    and    the    manner    in 

but   in   that   case   it  helped   to   disclose  which  it  is  to  be  distributed,  has  suffi- 

the  mental  bias  as  well  as  the  critical  cient  mental  capacity  to  execute  a  will." 
acumen  of  the  senatorial  court.  It  does  not  seem  to  have  occurred  to 

^"Troplong     (Traite     des     Donations,  the  writer  who  framed  that  test    (and 

preface)    says:     '"Un    peuple    n'est    pas  the   same   is  true  of  all   tests)    that  it 

libre.  s'll  n'a  pas  le  droit  de  tester,  et  is   a   problem   of  the  greatest  dilTiculty 

la    liberte    du    testament    est    la    plus  in   most  cases  to   determine   those  nice 

grande  preuve  de  la  libertfi  civile."  questions.     It   is   practically   equivalent 

"Stearns    (Mental   Diseases,   p.   311)  to  asking,   "Is  the  testator  sane,  or   is 

tells  of  a  patient  who  received  a  visit  he  not?"     And    so,    after    all,  in  every 

from  his  son,  a  resident  of  Washington,  case  the  qiiery  comes  back  to  the  simple 

The  father  asked  the  son  where  he  was  formula,    "Is   the   person   of   sound   and 

from:        "From     Washington,     father."  disposing  mind?" 

"Washington,"    repeated    the   father,  "I        ""Undue   inlluence,  which   is     .     .     . 

have    a    son    there.     I  wonder  whether  a     concession     of     capacity,     althougli 

you  know  him."  weak."     Thompson  v.  Kyner,  65  Pa.  368. 

"  The   definition   of  testamentary   ea-        "  Chapin,  Compendium  of  Insanity,  p. 

pacity,  as  given  in  25  Am.  &  Eng.  Enc.  155. 
Law,  p.  970,  is  as  follows:     "A  person 


804  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.  [§  993 

etc.,  is  as  important  in  these  cases  as  to  protect  the  presumptive  right 
of  a  senile  dement  to  make  a  will.     (See  §  1190,  post.) 

994.  There  can  be  no  uniform  test  for  senile  insanity. — These  are  all 
questions  of  fact  for  a  jury  in  each  individual  ease.  There  can  obvi- 
ously be  no  uniform  rule  by  which  to  test  these  patients.  The  ques- 
tion whether  a  testator  has  a  mental  disease  that  affects  his  or  her  ca- 
pacity has  been  held  to  be  a  question  of  fact  for  the  jury,  and  not  a 
question  of  law  for  the  court.^*  According  to  this  view,  even  in  re- 
spect to  a  legal  definition  of  testamentary  capacity,  such  as  is  quoted 
above,  it  becomes,  after  all,  a  question  for  the  jury  whether  the  tes- 
tator had  such  a  degree  of  mental  impairment  as  incapacitated 
him.^^^ 

995.  Contracts  and  legal  papers  other  than  wills. — What  is  said  else- 
where about  contracts  and  legal  papers  other  than  wills  applies  to 
cases  of  senile  insanity  as  well  as  to  all  other  forms  of  mental  impair- 
ment. "A  person  not  under  the  guidance  of  reason  (whether  from 
insanity,  idiocy,  or  extreme  inebriety)  appears  to  be  absolutely  in- 
capable, while  that  condition  lasts,  of  entering  into  a  valid  con- 
tract."*^ It  will  be  a  question  of  fact  in  any  given  case  whether  the 
impairment  of  mind  by  reason  of  old  age  is  sufficient  to  fall  within 
this  definition. 

996.  Different  kinds  of  capacity. — But  it  has  generally  been  held 
that  a  man  may  not  have  a  sufficient  capacity  to  execute  a  valid  con- 
tract (as  signing  a  deed),  and  yet  be  capable  of  making  a  will.  This 
rule,  though  generally  accepted,  is  denied  by  some  authorities,  which 
hold  that  the  degree  of  capacity  requisite  is  the  same  in  both  cases.*" 
Chief  Justice  Thompson*^  said  that,  as  a  general  proposition,  less 
capacity  is  required  to  make  a  valid  will  than  to  transact  ordinary 
business.  So  far  as  aged  persons  are  concerned  this  is  an  important 
distinction,  and  seems  based  on  the  idea  that  a  contract  implies  the 
action  of  opposing  minds,  which  fact  might  put  a  feeble-minded  old 

'  **Boardman  v.  TVoodman,  47  N.  H.  Collins  v.  Townley,  21  N.  J.  Eq.  353 
120.  In  this  case  Justice  Doo,  in  a  just-  (ninety-ei-jht  years  old)  ;  Re  Gray,  1 
]y  celebrated  opinion,  held  that  "the  Silv.  Sup.  Ct.  l^p.  338,  5  N.  Y.  Supp. 
tests  and  svmptoms  of  this  disease  [in-  404  (ninety  years  old)  ;  Re  Totten,  21 
sanitv]  are' no  more  matters  of  law  than  N.  Y.  S.  R.  950,  3  N.  Y.  Supp.  153 
are  tlie  tests  or  symptoms  of  any  other  (eighty-nine  years  old)  ;  Re  Boule,  1 
disease."  See  page  568,  footnote,  in  the  Connoly,  18,  3  N.  Y.  Supp.  259  (ninety- 
present  work.  two  years  old). 

44iThe   following   cases   are   of   some        "2   Stephen,   Com.   on   Laws  of  Eng. 

special   interest  because  of  the  extreme  p.  70,   11th  ed. 

age  of  the  testator:  Pooler  v.  Christman,       "As  to  contractual  capacity  as  a  test 

145    111.    405,    34    N.    E.    57     (testator  for  testamentary  capacity,  see  onte,  §  64. 
eighty-six  years  old)  ;  Minor  v.  Thomas,       *^Thompson  v.  Kyner,  65  Pa.  368 
12    B.  Moil.   106     (ninety    years    old)  ; 


§  996] 


SENILE  INSANITY. 


805 


person  at  a  disadvantage,  whereas  in  making  a  will  there  is  more  free- 
dom of  mind,  and  not  so  much  distraction.  But  there  is  no  unanim- 
ity among  jurists  on  this  subject  In  Maryland,  for  instance,  the 
statute  provides  that  the  inquiry  as  to  capacity  of  a  testator  must  al- 
ways be  whether  he  was  capable  of  executing  a  valid  deed  or  con- 
tract.'*® This  difference  shows  how  unsettled  legal  opinion  is  on  the 
subject  of  testamentary  capacity  in  old  age,  as  well  as  in  other  con- 
ditions.^^ 

997.  A  favorite  rule. — The  courts,  in  fact,  give  themselves  the 
widest  latitude  in  deciding  on  testamentary  capacity;  and  this,  in- 
deed, is  better  than  adhering  to  any  formal  definition.  A  rule  which 
seems  to  have  great  sway  is  based  on  the  reasonableness  of  the  will  it- 
self. This  is  no  doubt  often,  but  not  necessarily  always,  a  safe  rule ; 
at  any  rate,  it  is  a  favorite  one.^^ 


*•  Code  of  Maryland,  art.  93,  §  300. 

^Tyson  v.  Tyson,  37  Md.  567. 

"The  written  law  of  this  state  fur- 
nishes the  rule  by  which  the  capacity 
of  a  testator  is  to  be  measured ;  and  the 
inquiry  must  always  be  whether,  at  the 
time  of  executing  or  acknowledging  the 
will  and  testament,  he  was  capable  of 
executing  a  valid  deed  or  contract." 

See,  also,  Davis  v.  Calvert.  5  Gill  & 
J.  300,  25  Am.  Dec.  282:  "He  who  is 
not  competent  to  execute  a  valid  deed  or 
contract  is,  under  the  testamentary  sys- 
tem of  this  state,  incompetent  to  make 
a  valid  will  or  testament."  This  was 
an  act  of  1798. 

Judge  Redfield  said,  in  Converse  v. 
Converse,  21  Vt.  168,  52  Am.  Dec.  58: 
"I  have  myself  usually  told  a  jury 
.  .  .  that  less  mind  is  ordinarily 
requisite  to  make  a  will  than  a  con- 
tract of  sale  understandingly,  for  the 
reason  that  in  contracts  of  sale  there 


are  usually  two  parties,  and  some  de- 
gree of  antagonism  between  their  inter- 
ests and  efforts,  so  that  here  mind  is 
opposed  to  mind,  and  consequently  it  is 
somewhat  more  difficult  to  sec  clearly 
the  just  bearing  of  all  the  relations  pre- 
sented than  under  the  common  circum- 
stances of  making  a  will,  where  one  is 
left  free  to  act  upon  his  own  perceptions 
merely.  But  this  is  not  always  the  case 
in  making  a  will.  One  may  be  beset  by 
an  army  of  harpies,  in  the  shape  of 
hungry  expectants  for  property,  alto- 
gether more  perplexing  than  the  ordi- 
nary circumstances  attending  a  disposi- 
tion of  property  by  sale." 

"  In  deciding  the  question  of  capacity, 
in  case  of  doubt,  "the  reasonable  or  un- 
reasonable disposition  of  his  estate 
should  have  much  weight  in  the  deci- 
sion of  the  question." — Ga.  Code,  1873, 
§  2408. 


CHAPTER  XLVIL 

APHASIA. 

I.  The  medical  aspects  of  aphasia. 

998.  Definition  of  the  term. 

999.  The  function  of  speech  analyzed. 

1000.  Historical  data. 

1001.  Various  forms  of  aphasia. 

1002.  The  function  of  hearing  in  the  acquisition  of  language. 

1003.  The  function  of  speaking. 

1004.  The  function  of  seeing  in  the  acquisition  of  language. 

1005.  Tlie  function  of  writing. 

1006.  The  fourfold  faculty  of  language. 

1007.  The  principal  varieties  of  aphasia. 
1007a.  Motor  aphasia. 

1007b.  Auditory  aphasia,  or  word-deafness. 

1007c.  Visual  aphasia,  or  word-blindness. 

1007d.  Agraphia.  ' 

1008.  The  facts  needful  for  the  medical  jurist. 

1009.  The  dependence  of  thought  upon  language. 

1010.  Words  as  symbols  of  things. 

101 1.  The  diseases  which  cause  aphasia. 
II.  The  medico-legal  aspects  of  aphasia. 

1012.  Testamentary  capacity  in  cases  of  aphasia. 

1013.  The  impairment  in  motor  aphasia. 

1014.  The  impairment  in  auditory  aphasia. 

1015.  The  impairment  in  verbal  blindness,  or  visual  aphasia. 

1016.  Tlie  impairment  in  agraphia. 

1017.  The  frequency  of  these  cases  in  the  courts. 

1018.  The  Parish  will  case  and  the  onus  probandi. 

1019.  The  issue  briefly  stated. 

I.   The  medical  aspects  of  aphasia. 

998.  Definition  of  the  term. — Aphasia  is  a  general  term  for  disor- 
ders of  speech  depending  on  lesions  of  the  brain.  It  is  to  be  distin- 
■  guished  from  paralysis  or  other  disorders  of  the  muscles  of  speech, 
such  as  of  the  tongue,  lips,  and  pharynx.  Such  localized  paralyses  in 
these  muscles  may  and  do  interfere  with  the  utterance  of  speech, 
but  they  do  not  constitute  aphasia  proper.  Aphasia,  in  short,  is  a 
]»iir('  brain  disorder.     It  is  located  in  those  portions  of  the  cerebrum 

806 


5  998]  .  APHASIA.  807 

which  have  to  do  with  the  mental  evolution  and  control  of  speech; 
not  with  its  mere  muscidar  expression.^ 

999.  The  function  of  speech  analyzed. — This  fact  can  best  be  under- 
stood if  the  function  of  speech  be  analyzed.  For  instance,  in  order 
to  frame  a  sentence  there  must  be  a  mental  concept :  the  person  must 
have  in  the  mind  the  idea  which  he  wishes  to  express  in  words.  This 
is  entirely  antecedent  to,  and  independent  of,  the  muscular  act  of 
talking.  This  mental  concept  is  next  transformed,  as  it  were,  into 
speech.  This  is  a  complex  act,  involving  the  idea  which  is  to  be  ex- 
pressed, the  words  which  are  to  express  it,  and  the  proper  action 
of  the  muscles  of  speech,  which  are  to  be  the  medium  of  expression. 
These  muscular  actions,  as  everyone  can  readily  see,  are  not  sim- 
ple, but  highly  complex;  and  are  the  results  of  long  education  of 
certain  centers  in  the  brain,  which  preside  over  them.  Finally,  the 
muscles  of  speech  must  be  fully  under  the  patient's  control.  Hence, 
speech  consists  of  three  elements :  First,  the  purely  mental  con- 
cept; second,  the  co-ordinate  action  of  certain  educated  centers  nec- 
essary to  express  ideas  in  words;  third,  the  action  of  the  muscles 
themselves.  It  is  mainly  in  the  second  of  these  elements  that  dis- 
ease causes  aphasia. 

This  is  shown  in  the  simplest  form  of  aphasia  by  the  following 
facts :  First,  the  purely  mental  concept  is  not  involved,  for  the  pa- 
tient knows  what  he  wants  to  say,  but  cannot  say  it.  Second,  the  co- 
ordinating center  is  involved,  for  the  patient  cannot  frame  his  ideas 
in  words.  Third,  the  muscles  themselves  are  not  paralyzed,  for  they 
react  freely  to  the  patient's  will.^ 

'  Speech  is  a  product  of  evolution,  in-  borne  in  mind  in  the  above  discussion, 

terwoven  with  every  activity  of  human  and  accordingly  the  chapter  is  narrowed 

thought.     It  cannot  be  controlled  by  act  down  to  little  more  than  a  statement  of 

of   legislature   or    the    decree    of   court,  the  legal  capacity  of  aphasic   patients. 

If  it  is  impaired,  the  whole  mental  fab-  Great  treatises  are  written  now-a-days 

ric    must    suffer.     When    the    Emperor  on  aphasia ;  some  of  them  of  the  highest 

Tiberius  had  made  a  grammatical  error,  scientilic  merit.     No  subject   in  neuro- 

and  was  reproved  for   it  by  Marcellus,  pathology    has    been    more    elaborated 

another    grammarian,    of    the    name    of  within  the  past  forty  years.     See  Mills, 

Capito,    remarked    that    what    the    Em-  The  Nervous  System   and  its   Diseases, 

peror  said  was  good  Latin,  or,  if  it  were  chapter  on  "Aphasia,"  p.  628. 

not,  it  soon  would  be.    Marcellus,  more  "The  faculty  of  speech,"  says  Collins 

of   a  grammarian   than   a   courtier,   re-  (The  Faculty  of  Speech,  p.  1),  "distin- 

plied:      "Capito   is   a   liar;    for,   Caesar,  guishes    the    human    being    from   even 

thou  canst  give  the  Roman  citizenship  those  animals  which  stand  next  to  him 

to  men,  but  not  to  words."— Max  Mul-  in   biological    relationship.     Man   is,   in 

ler.  Science  of  Language,  1st  ser.  p.  47.  consequence,  inclined  to  reflect  upon  its 

=  Aphasia  is  a  complicated  and  techni-  possession,  and  to  speculate  concerning 

cal   subject,   and   can   only   be   discussed  its  nature  and  origin."       And    he    has 

in  bare  outline  in  these  pages.     For  the  never   speculated   concerning  its  nature 

medical  jurist  the  main  qiiestion  is  the  and  origin  so  much  as  he  is  now  specu- 

ability  of  the   patient  to  make  himself  lating  concerning  its  diseases, 
understood.     This    point    is    constantly 


808  INSANITY— fOR^IS  AND  MEDICO-LEGAL  ASPECTS.         [§  1000 

1000.  Historical  data. — The  history  of  aphasia  will  forever  be  as- 
sociated with  the  name  of  Broca,^  a  French  physician,  who,  in  1861, 
reported  two  cases  which  demonstrated  that  this  defect  was  caused  by 
a  local  lesion  in  the  posterior  part  of  the  third  frontal  convolution  in 
the  left  hemisphere  of  the  brain.  The  importance  of  this  claim  was 
twofold :  it  pointed  to  a  strictly  local  disease  as  the  cause  of  aphasia, 
and  it  placed  this  disease  in  the  left  half  of  the  brain.  The  accuracy 
of  Broca's  view  has  never  been  disproved,  although  these  elementary 
facts  have  been  greatly  supplemented,  and  the  subject  greatly  en- 
larged since,  his  time.  A  host  of  writers  have  illuminated  this  sub- 
ject, among  whose  names  shine  conspicuously  those  of  Trousseau, 
Charcot,  and  Dejerine,  in  France;  Wernicke,  Kussmaul,  and  Simon, 
in  Germany;  Hughlings  Jackson,  Broadbent,  Gowers,  and  Bastian, 
in  England ;  and  Mills,  Bigelow^,  and  others  in  America.  But  the 
two  cardinal  facts  of  aphasia  are  still  those  which  were  pointed  out 
by  Broca;  namely,  aphasia  depends  upon  a  local  lesion,  and  this  is 
situated  (in  the  vast  majority  of  cases)  in  the  left  half  of  the  brain. 

1001.  Various  forms  of  aphasia. — But  in  time  it  was  found  that 
there  are  varieties  of  aphasia,  and  that  these  depend  on  the  elements 
of  speech  affected;  i.  e.,  whether  the  sensory  or  motor  elements  are 
involved.  Let  us  analyze  a  little  farther.  Speech  is  not  simple,  but 
fourfold.  Therefore  it  requires  more  than  a  simple  mechanism  in 
the  brain  to  serve  as  its  instrument. 

1002.  The  function  of  hearing  in  the  acquisition  of  language. — 
WTien  a  child  learns  language  at  its  mother's  knee,  it  learns  it  by  ear ; 
hence,  the  hearing  for  speech  is  the  first  faculty  trained,  and  the 
primary  speech  center  in  the  brain  is  the  auditory  center.  This  is  a 
matter  of  common  observation ;  and  further,  that  a  person  never,  or, 
at  least,  very  seldom,  gains  such  control  of  any  lang-uage  as  of  his 
mother-tongue.  A  genuine  command  of  language  is  only  gained  by 
the  sense  of  hearing.  If  a  language  is  acquired  by  eye  (as  the  dead 
languages,  or  even  living  foreign  languages,  such  as  French  and  Ger- 
man), the  mind  has  not  the  same  hold  upon  it  as  though  it  were  ac- 
quired by  ear.  It  cannot  be  spoken,  and  it  is  sooner  forgotten.  Let 
any  good  Latin  scholar  attempt  to  converse  in  Latin,  and  he  %vill  ap- 
preciate this  fact.* 

•Bulletin     de     la     Soc.     Anatomique,  ments,  that  he  determined  to  train  his 

August,  1861,  p.  330;  and  ihid.  Novera-  ear;  and,  shutting  himself  in  his  room, 

ber,   1861,  p.  398.  he   used    to   declaim   Greek   to   himself. 

*  Professor     Blakie,     a     distinguished  His  method    was    a    scientific   one,   al- 

Greek   scholar,   was   so  annoyed   by  his  though  he  might  not  have  been  able  to 

Greek  slipping  from  him  at  critical  mo-  explain  the  reasons  for  it. 


The  speech  centers  in  the  human  brain.     (After  Mills). 


§   1003]  APHASIA.  809 

1003.  The  function  of  speaking. — When  the  child  learns  its  mother- 
tongue  by  hearing,  its  next  step  is  to  attempt  to  speak  it.  It  puts  in 
operation  its  motor  apparatus.  This  is  quite  distinct  from  the  audi- 
tory apparatus,  and  is  dependent  on  a  different  set  of  nerve  cells  in 
the  brain,  called  a  motor  center.  To  attain  this  power,  and  to  use  it 
correctly,  is  a  matter  of  prolonged  practice,  or  education :  a  fact  which 
is  evident  to  all.  Here,  then,  is  a  second  element  of  speech ;  and  this 
is  as  far  as  many  uneducated  persons  go  in  their  acquisition  even  of 
their  mother-tongue. 

1004.  The  function  of  seeing  in  the  acquisition  of  language. — Eut 
when  the  child  is  further  educated,  its  next  step  is  to  learn  written  or 
printed  language;  and  here  still  another  faculty  is  called  into  play. 
This  is  the  visual  apparatus.  This,  too,  is  quite  distinct  from  the 
hearing  and  the  speaking  organs,  and  differently  located  in  the  brain. 
This  acquisition  is  also  a  matter  of  prolonged  education.  It  may  lie 
entirely  dormant,  and  yet  the  person  have  a  good  speaking  command 
of  language.  This,  also,  is  a  matter  of  common  observation.  In 
past  ages  many  leading  personages,  even  kings  and  queens,  could  not 
read.^  In  this  age  of  public  schools  it  is  more  rare  to  see  this  defi- 
ciency in  any  one ;  still,  it  can  be  seen  even  yet. 

1005.  The  function  of  writing. — Finally,  the  child  is  taught  to 
write.  This  brings  into  action  still  another  and  distinct  apparatus, 
— the  graphic  center.  This  may  be  entirely  neglected,  even  although 
the  three  other  functions  are  well  cultivated.  With  some  persons  it 
is  always  poorly  developed :  they  remain  inexpert  all  their  lives.^ 

1006.  The  fourfold  faculty  of  language. — From  the  foregoing  analy- 
sis it  appears  that  the  faculty  of  language  is  fourfold.     There  are 

'  Language,  it  is  needless  to  say,  was  guage   of   childhood   and   of   deaf-mutes 

acquired  by  primitive  man  through  the  and    savages,    see    Wylie,    Disorders    of 

ear.     Writing  and  reading  were  entirely  Speech,  pp.  96,  155. 

secondary,    and    much     later.     Hearing  It  was  a  theory  of  the  Scotch  judge, 

and   talking  are  therefore  the  earliest,  Lord    Monboddo,    in    his    "Origin    and 

or    primary,    modes    of    language.     See  Progress  of  Language,"  that  wild  tribes 

JVIax   Muller,   Science  of  Language,   1st  still  existed  in  whom  there  was  no  trace 

ser.  p.   38.  of   language.     Lord    Monboddo's     homo 

It  was  the  theory  of  Locke  that  man  tctrapiis,  mntus,  hirsutus  has  still  to  be 

was    originarily   mute,    like   the   brutes,  discovered,  for  it  eeems  to  be  generally 

and  that  he  gradually  evolved  language  conceded   that  no  savage   tribe  has  yet 

by   a   process     of    artificially     invented  been  found  in  which  there  is  not  some 

sounds,   adopted   by   mutual   agreement,  capacity    for    language.      Bateman,    oa 

Adam  Smith,  in  his  essay  on  the  Origin  Aphasia,  p.  IGO. 

of  Language,  held  a   somewhat  similar  "  Napoleon,   towards    the    end    of  his 

view,    as    did    Dugald    Stewart.     What-  life,    could    scarcely    write   legibly;    his 

ever  the  exact  process  was,  it  must  have  handwriting    proceeded     from     bad     to 

been  gradual  and  by  a  series  of  sounds,  worse.     Yet  he  had  a  fine  command  of 

probably  assisted  by  gestures.  spoken   language.     Gourgaud's   Journal. 

For   observations   on   the  gesture-Ian- 


810  INSANITY— I'ORMS  AND  JMEDICO-LEGAL  ASPECTS.         [§  1006 

four  centers,  each  distinct.  Two  of  these  are  sensory, — hearing  and 
seeing ;  two  of  them  are  motor, — talking  and  writing.  Observations, 
now  very  nmnerous,  have  proved  that  these  centers  are  differently  lo- 
cated in  the  brain,  and  that  they  may  be  separately  injured  or  dis- 
eased. Consequently  we  may  have  different  kinds  of  aphasia.  The 
chief  disagreement  among  scientists  is  as  to  the  separate  existence  of 
a  graphic  center :  some  maintain,  others  deny  it ;  but  how  such  a  cen» 
ter  can  be  lacking  is  difficult  to  understand.  It  is  doubtless  inti- 
mately associated  with  the  portion  of  the  brain  that  presides  over  the 
general  movements  of  the  arm  and  hand.  The  various  speech  centers 
are  evidently  connected  with  each  other  by  tracts  of  nerve  fibers 
which  allow  them  to  act  in  harmony.  To  the  breaking  up  of  these 
tracts  by  disease  are  due  some  of  the  most  curious  disorders  of  speech. 
All  these  centers,  in  the  vast  majority  of  persons,  are  located  in  the 
left  half  of  the  brain.'^  The  speech  apparatus  in  the  human  brain 
may  be  likened  to  a  great  keyboard,  with  in-going  and  out-going 
wires,  and  with  connecting  strands  between  the  various  keys. 

1007.  The  principal  varieties  of  aphasia. — The  principal  varieties'' 
of  aphasia  are  as  follows : 

1007a.  Motor  aphasia. — This  is  the  form  originally  described  by 
Broca,  and  the  lesion  is  located  in  the  posterior  part  of  the  third 
frontal  convolution.  It  affects  the  power  of  evolving  speech.  The 
patient  cannot  frame  and  express  his  ideas  in  words.  He  not  only 
cannot  talk  spontaneously,  but  he  cannot  repeat  on  dictation,  nor  read 
aloud.  In  fact,  all  power  of  emitting  language  is  gone.  But  the  pa- 
tient can  understand  what  is  said  to  him,  and  in  some  instances  ho 
can  read  to  himself,  because  his  centers  for  hearing  and  seeing  are 
intact.  In  many  cases  he  cannot  write,  because  the  motor  center  for 
writing  seems  to  be  intimately  connected  with  the  center  for  speech. 
This  is  one  of  the  commonest  forms  of  aphasia.  The  patient  can,  as 
a  rule,  communicate  by  signs.^^ 

'  The  exceptions  are  seen  especially  in  retain  the  power  to  utter  a  few  words 

left-handed   persons.     A   recent   case   is  or  even  set  phrases.     Thus,  one  patient 

reported  in  which  there  was  word-deaf-  of  the  writer's  repeated  the  name  of  his 

ness    caused   by   a    lesion    in   the    riffht  dead  son,  and  used  it  for  every  and  all 

hemisphere  of  the  brain.     Surdite  Ver-  occasions.     Curious  instances  are  given 

bale  par  Lesion  Temporale  Droite  (Lyon  in  which  patients  have  suddenly  become 

Med.  May  17,  l!i03).  aphasic   for   one   language  and   not   for 

*  The  subject  has  undergrone  excessive  another;   as  in  the  case  of  a  gentleman 

subdivision.     Langdon     (The    Aphasias  who,  after  a  blow  on  the  head,  lost  his 

and  Their  Medico-Legal  Relations,  1898)  knowledge  of  Greek,  but  did  not  appear 

describes     twenty-eight     varieties.     All  to   have   lost   anything   else.      Some    of 

tliis   confuses  ratner   than   clarifies  the  these  reported  cases  are  probably  great- 

Bubject  for  nonmedical  readers.  ly  exaggerated.     See  Bateman,  on  Apha- 

8}  Some  patients  with  motor  aphasia  sia,  2d  ed.  pp.  187,  188. 


§  1007b]  APHASIA.  811 

1007b.  Auditory  aphasia,  or  word-deafness. — Tn  this  disorder®  the 
lesion  affects  the  hearing  center,  in  the  temporal  convolutions,  and  it 
is  one  of  the  most  serious  forms  of  aphasia.  The  term  "deafness"  is, 
however,  inappropriate,  for  the  patient  is  not  physically  deaf.  He 
can  hear  sounds  perfectly,  but  he  does  not  recognize  spoken  words. 
It  is  a  mental  defect.  The  words  of  his  mother-tongue  fall  upon  his 
ear  as  though  they  were  the  words  of  an  unknown  language.  They  are 
meaningless  sounds  to  him.  It  is  therefore  impossible  to  communi- 
cate with  him  by  talking,  but  he  may  be  able  to  recognize  signs,  and, 
in  some  cases,  to  read.  But  the  effect  upon  his  own  speech  is  often 
disastrous.  He  can  still  utter  words,  but,  not  being  guided  by  his 
hearing  sense,  he  uses  them  in  a  wrong  way,  and  his  utterances  may 
be  meaningless.^^  This  form  of  aphasia  gives  a  patient  a  peculiarly 
demented  appearance,  which  may  be  misleading.  It  also  illustrates 
how  ruinous  is  the  destruction  of  the  primary  center  for  language, — 
the  hearing  center,  through  which,  as  already  said,  language  is  pri- 
marily acquired.  The  ability  to  write  is  also  usually  impaired  sec- 
ondarily in  these  patients.  ^'^^ 

1007c.  Visual  aphasia,  or  word-blindness. — This  depends  upon  a 
lesion  in  the  visual  center,  in  the  region  of  the  brain  known  as  the 
angular  gyrus.  Here,  too,  there  is  not  a  physical  blindness,  for  the 
patient  can  see  objects,  such  as  printed  words,  but  he  does  not  recog- 
nize words,  either  printed  or  written.  They  are  meaningless  lines  to 
him.  Not  being  able  to  read,  he  is,  of  course,  not  able  to  write,  for  he 
does  not  recognize  the  strokes  of  his  own  pen  any  better  than  the  writ- 
ing of  another  person ;  but  he  is  able  to  understand  spoken  language 
and  to  talk.     The  intelligence  may  be  well  preserved. 

1007d.  Agraphia. — This  affection,  pure  and  simple,  is  rare.  Even 
its  existence  has  been  denied ;  but  Mills  has  recently  recorded  such  a 
case.-^^  The  lesion  is  located  just  above  that  for  motor  aphasia,  in 
the  pre-central  convolution.  It  is  usually  complicated  with  paralysis 
of  the  arm,  so  that  it  is  difficult  to  say  how  much  is  mental  and  how 
much  is  due  to  the  physical  impairment.     As  a  complication,  or  sec- 

°  Collins    ( op.  cit.  p.  252 )    reports  an  to    a    chair,    said,    'Pig,    brute,    stupid 

interesting  and  typical  case  of  this  af-  fool.' ''     Her  intention  was  to  be  polite, 

fection,  in  which  the  inability  to  under-  lo^  A  recent  paper  is  by  Dejerinc  and 

stand  what  was  said  was  accompanied  Thomas,     "Contribution     a    Viitxida    de 

with    "babbling,"    or    the    repetition    of  I'Aphasie   Sensorielle,"   in  Rev.   Neurol- 

meaningless  sounds.  ogique,  Aug.  15,  1904. 

**  Trousseau  related  the  case  of  a  lady  "  Trans.  Col.  Phys.  Phila.  June,  1904. 

who  had  a  curious  perversion  of  speech,  ('ollins,  who  opposes  the  doctrine  that 

"On  receiving  a  call  from  a  visitor,  she  there  is  a  separate  graphic  center,  has 

rose  to  receive  him  with   a  benevolent  .a  long  discussion  of  the  subject  in  liis 

smile  on  her  countenance,  and,  pointing  valuable  treatise    (op.  cit.  p.   136). 


812  INSANITY— FORMS  AND  MEDICOLEGAL  ASPECTS.       [§   lOOTd 

ondarj  phenomenon,  to  the  other  forms  of  aphasia,  agraphia  is  com- 
mon.    As  the  name  implies,  the  patient  is  unable  to  write. 

1008.  The  facts  needful  for  the  medical  jurist. — It  is  possible  to  sub- 
divide the  various  forms  of  aphasia  into  sub-groups ;  but  these  are  of 
scientific  rather  than  medico-legal  interest,  and  it  will  not  be  done 
here.  The  four  main  varieties,  above  given,  supply  the  medical  ju- 
rist with  the  chief  facts  which  he  requires  to  know.  The  following 
points,  however,  may  be  added : 

As  the  various  centers,  motor  and  sensory,  for  language  are  con- 
nected with  one  another  by  tracts  of  nerve  fibers,  and  depend  upon 
these  connecting  fibers  for  their  harmonious  action,  it  follows  that  de- 
fects in  speech  must  result  if  any  of  these  cross-tracts  are  broken  up. 
When  these  connecting  bands  only  are  broken,  the  speech-defects  are 
not  quite  so  profound  as  when  the  centers  themselves  are  destroyed. 
The  reason  for  this  is  that  the  centers  are  located  in  the  gray,  or  cor- 
tical, matter  of  the  brain,  in  which  the  intellectual  processes  occur, 
and  therefore  if  this  gray  matter  is  destroyed  the  patient's  linguistic 
concepts  are  just  that  much  destroyed  with  it. 

10C9.  The  dependence  of  thought  upon  language. — The  question 
has  been  much  debated  to  what  extent  thought  is  dependent  on  lan- 
guage. Doubtless  the  connection  is  much  closer  than  unreflecting  per- 
sons may  suppose.  As  man  has  developed,  and  acquired  more  and 
more  the  power  of  abstract  thought,  he  has  also  acquired  a  more  elab- 
orate language  as  a  medium  for  this  thought.  The  two  have  devel- 
oped side  by  side.  Deprive  man  of  his  linguistic  medium,  and  it  is 
doubtful  whether  he  can  think  as  far  and  as  well  as  though  he  had  it. 
Intellectual  processes  are  conducted  in  terms  of  language.^-  Let  any 
one  attempt  to  think,  to  meditate  to  himself,  and  he  will  find  that  the 
process  in  his  brain  is  going  on  by  the  silent  aid  of  language.  He 
cannot  think  well  or  closely  without  unconsciously  using  imspoken 
words,— words  which  are  the  symbols  of  his  thoughts, — the  garb  in 
which  he  has  always  clothed  them, — the  mold  in  which  he  has  always 
fashioned  his  ideas.^-^    This  is  a  question  of  great  importance  in  the 

""We  gain  abstract  ideas  only  wiUi        12,3  Whitney  ( Language  and  the  Study 

the    help    of    words,   which   alone  give  of  Language,  1872,  I^ect.  XL)   has  gone 

them  a  sure  form." — Kussmaul.  to  great  pains  to  refute  the  idea  that 

"Where,    then,    is    the    difference    he-  thought  is  dependent  on  language;   hut 

tween  brute  and  man?     What  is  it  that  he   seems  too   much   to   ignore   the  real 

man   can   do,   and   of  which   wo   lind   no  (]uestion.    that    it    is     abstract     thought 

signs,  no  rudiments,  in  the  whole  brute  that  is  thus  dependent.     It  is  worthy  of 

world?     I    answer,    without   hesitation:  remark,  also,  that  Whitney,  in  his  argu- 

'The     one     great    barrier     between     the  nient,  takes  no  notice  whatever  of  apha- 

brute     and     man    is    language.'  ' — Max  sia.       But     the     student     of     linguistic 

Mullcr,  op.  cit.  p.  oi54.  science   can   no  longer  afford   to   ignore 


§  1009]  APHASIA.  813 

jurispnidence  of  aphasia.  Tronsscau  and  others  liave  held  that  the 
mental  processes  are  always  of  necessity  impaired  to  some  extent  in 
these  patients,  and  that  the  extent  is  merely  a  question  of  the  extent 
and  gravity  of  the  lesioji.^^ 

Now,  when  merely  the  connecting  fibers  between  the  centers  are 
broken,  the  damage  is  not  so  great  to  the  intellectual  processes:  the 
patients  have  a  condition  called  '^paraphasia,"  which  is  not  so  much 
a  destruction  or  abolition  of  speech  as  a  misuse  of  it.  The  ideas  may 
remain  clear,  but  the  language  is  broken  and  imperfect.  In  otlier 
words,  the  internal  language  is  all  right,  but  the  external  speech  is 
not  evolved. 

1010.  Words  as  symbols  of  things. — Again,  in  acquiring  language 
the  young  child  does  more  than  learn  merely  to  utter  words.  These 
words  are  symbols  for  things.  Consequently,  there  is  an  association 
formed  in  the  mind  between  the  word  and  the  object.  A  child  learns 
the  word  "orange,"  but  at  the  same  time  he  learns  to  associate  the 
word  with  a  certain  fruit  which  has  a  characteristic  color,  shape,  fra- 
gTance,  and  taste.  These  ideas  gain  access  to  the  mind  by  different 
senses, — sight,  touch,  smell,  and  taste.  Hence,  a  complex  association 
of  ideas  is  formed  with  the  name  of  the  object.  Now,  in  some  forms 
of  aphasia,  this  association  is  broken  up  in  very  curious  ways.  There 
may  result  what  is  called  "object-blindness"  or  "object-deafness." 

For  instance,  the  writer  once  had  a  patient  in  the  Philadelphia 
Hospital  wiio  could  not  name  the  simplest  objects  that  were  held  up 
before  her  eyes.  She  had  no  motor  aphasia,  for  she  could  talk ;  but 
if  a  key  or  a  coin  were  held  up  before  her,  she  could  not  name  it.  If, 
however,  the  key  or  coin  were  slipped  into  her  hand,  she  instantly 
gave  the  correct  name  for  it.  This  must  indicate  that  a  lesion  in  her 
brain  had  affected  lier  visual  center :  the  path  was  closed ;  but  the 
pathway  into  her  brain  by  way  of  touch  was  open,  and  when  the  idea 
gained  access  by  this  pathway,  the  proper  name  was  at  once  suggested 
and  uttered.  This  woman  unfortunately  was  illiterate,  and  had 
never  learned  to  read ;  if  she  had  had  that  accomplishment,  she  would 
probably  have  been  found  to  have  "word-blindness,"  or  inability  to 
read. 

the  pathology  of  this  subject.     Disease  But  Trousseau  .always  maintained  that 

performs   experiments   on    speech    which  Lordat    liad    deceived     himself;    and   it 

are  not  possible  in  any  laboratory.  was  noted  by  all  his  friends  that  after 

"In     the     case   of   Lordat,    a    distin-  liis  attack   his   mind   was  impaired,  es- 

guished  professor  of  medicine  at  Mont-  pocially  his  memory  for  words,  and  that 

pellier,  aphasia  lasted  for  some  months,  he    could    not   trust   himself   to   deliver 

anu  tiie  professor  protested  tliat  lie  had  his  lectures  without  adhering  closely  to 

been  able  to  think  just  as  well  during  his  notes, 
that    time   as    when    in    perfect   heaiiu. 


814  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1011 

1011.  The  diseases  which  cause  aphasia. — Finally,  it  must  be  borne 
in  mind  that,  as  a  rule,  the  diseases  which  cause  aphasia  do  more 
damage  than  merely  to  the  centers  for  language.  Paralyses  of  various 
kinds  are  often  associated  with  aphasia.  Thus,  motor  aphasia  is 
commonly  seen  in  persons  who  have  had  a  stroke  of  paralysis,  and  this 
paralysis  is  almost  always  on  the  right  side  of  the  body,  for  the  reason 
that  lesions  in  the  left  side  of  the  brain  oftenest  cause  aphasia.  A 
left-sided  lesion  causes  a  right-sided  paralysis,  and  vice  versa}'*  Pa- 
tients with  left-sided  paralysis  rarely  have  aphasia,  because  in  their 
cases  the  lesion  is  on  the  right  side  of  the  brain.  Extensive  damage- 
may  be  done  to  the  brain  by  hemorrhage  or  softening,  or  the  lesion  may 
be  a  tumor  or  an  area  of  syphilitic  inflammation.  Therefore  the  mere 
aphasia  is  not  the  only  injury  sustained.  In  elderly  persons  there 
may  be  great  mental  impairment  apart  from  such  as  is  shown  by  the 
affection  of  speech.  In  short,  there  are  few  cases  (although  there 
are  some)  in  which  aphasia  is  the  only  disorder.  From  the  medico- 
legal standpoint  these  facts  are  of  great  importance.^"*^ 

II.  The  medico-legai.  aspects  of  aphasia. 

1012.  Testamentary  capacity  in  cases  of  aphasia. — The  testamentary 
capacity  of  an  aphasic  patient  must  be  judged  entirely  by  the  intelli- 
gibility with  which  he  can  make  himself  understood.  As  a  legal 
question  it  matters  not  whether  the  patient  knows  what  he  wants  to 
do,  if  he  has  not  the  ability  to  make  his  wants  known.  This  is  his 
misfortune;  it  is  a  part  of  the  calamity  which  disease  has  brought 
upon  him,  and  one  which  may  excite  the  liveliest  sympathy  and  solici- 
tude in  his  friends;  but  so  long  as  he  cannot  indicate  by  language, 
signs,  gestures,  or  any  means  whatever,  what  he  desires  to  devise,  the 
law  obviously  cannot  help  him.  The  ability  to  make  a  will  implies 
the  ability  to  make  one's  wishes  kno^\'n;  and  whatever  refinements 
are  evolved  on  the  subject  of  testamentary  capacity,  certainly  no 

'*  This   fact,   dependent    on    the    ana-  have  been  saved  this  mortification  if  he 

tomical  fact,  v.hich  is  constant  for  the  had   had   a   medical   expert   to   "coach" 

whole  vertebrate  kingdom,  that  the  one  liim  in  preparing  his  case  for  trial, 
side  of  the  brain  presides  over  the  oppo-        i-»^  It  is  motor  aphasia  especially  that 

site  side  of  the  bodj',  seems  not  to  be  is   associated    witli     paralysis,   such   as 

generally   known   in   court.     I   knew   of  hemiplegia  of  the  right  side.     But  cases 

an   amusing   instance   in   which    it   was  are   sometimes   seen    in   which   there   is 

overlooked  by  a  very  able  lawyer,  much  motor    aphasia    without   any    paralysis, 

to  his  discomfiture,   in  cross-examining  The  present  writer  has  seen  a  case  of 

a  medical  witness  in  a  suit  for  damages,  almost  complete  motor  aphasia  without 

He  lost  his  case,  after  trying  to  prove  paralysis,   lasting   for   five   years  before 

that  an  alleged  injury  to  the  right  side  the    patient's    death.       Such     cases     are 

of  the  brain  in  his  client  was  tlio  cause  probably   due   to   small   hemorrhages  or 

of   a   right-sided   paralysis.      He   might  .spots  of  softening  limited  very  strictly 


§  1012]  APHASIA.  815 

court  would  decide  that  such  capacity  could  exist  apart  from  the 
capacity  of  expression  in  some  form.^^'^'* 

It  is  therefore  incumbent  upon  us  to  inquire  in  what  ways  the  va- 
rious forms  of  aphasia  affect  a  person's  ability  to  express  himself. 
The  other  question,  as  to  what  extent  the  mind  itself  is  impaired,  will 
also  be  considered  briefly.^ ^ 

1013.  The  impairment  in  motor  aphasia. — In  motor  aphasia,  which 
is  the  commonest  form,  we  see  various  grades  of  impairment,  accord- 
ing as  the  lesion  is  more  or  less  extended.  In  the  simplest  form  the 
faculty  of  emitting  language  by  speech  is  partially  or  entirely  lost. 
The  patient  may  retain  a  few  words,  or  a  short  sentence  or  two,  which 
he  repeats  over  and  over,  using  them  for  everything.  Thus,  one  pa- 
tient, for  several  years,  used  the  one  sentence,  "I  cannot  talk."  He 
spoke  these  words  in  every  attempt  to  make  himself  understood.  It 
was  doubtful  whether  he  comprehended  their  exact  meaning.  The 
ability  to  hear  and  understand  language  is  retained.  The  patient 
will  do  as  he  is  told.  The  ability  to  read  is  often  retained,  but,  as  the 
patient  cannot  read  aloud,  it  is  not  always  easy  to  test  this  matter, 
[t  is  significant,  however,  that  not  a  few  motor  aphasics  evidently  do 
not  care  to  read,  the  effort  soon  tiring  them ;  and  they  soon  give  the 
attempt  up  entirely.^®  This  impairment  varies  in  different  cases, 
depending  upon  the  extent  to  which  the  fibers  joining  the  two  centers 
are  injured. 

Finally,  these  patients,  as  a  rule,  cannot  write,  either  spontane- 
ously, by  dictation,  or  by  copying ;  but  it  must  be  remembered  in  this 
connection  that  there  is  often  an  associated  paralysis  of  the  right  arm, 
which,  of  itself,  would  prevent  writing.  The  left  hand  can,  in  some 
cases,  be  educated  to  write.  In  some  cases  the  ability  to  make  a  mark 
has  been  retained,  or  at  least  it  has  been  exercised  with  the  help  of 

to  the  motor  center,  called  "Broca's  Con-  "  "It  is  doubtful  whether  it  would  be 
volution."     It  is  not  so  uncommon   for  correct   to   say  of  any  patient  affected 
sensory  aphasia  to  occur  without  par-  with  apliasia  that  his  intellect  remains 
alysis.     See  Collins,  op.  cit.  p.  215.  altogether  unimpaired.     Probably  there 
i*S  Tlie  ability  to  make  one's  meaning  is  more  or   less  mental   impairment  in 
known   is   not   usually   included    in    set  every  case.     Usually  it  is  less  distinct 
terms   in  the   legal   definition   of   testa-  in  purely  motor  aphasia  than  in  sensory 
mentary  capacity,  but  certainly  it  is  im-  aphasia." — Wylie,     The     Disorders     of 
plied.     The  best  exposition  of  this  sub-  Speech,   p.   270.      See  also  Bernard,  De 
ject  was  by  Judge  Davies  in  Delafield  v.  I'Aphasia,   Chap.   X. 
Parish,  25*  N.  Y.  9.     In  the  case  of  deaf-  ^^  In  Delafield  v.  Parish,  25  N.  Y.  9, 
mutes  this  element  of  testamentary  ca-  Justice    Davies,    in    his    opinion,    dwelt 
pacity  is  fully  recognized  and  insisted  on.  particularly  on  the  fact  that  the  testa- 
See  §§  1.30,  1098  and  footnotes.     If  the  tor,   during  the  seven  years  of  his  ill- 
wills  of  deaf-mutes,  as  is  said,  are  re-  ness,  never  read  newspaper  or  book, 
garded  by  the  courts  "with  suspicion," 
the  wills  of  aphasics  should  be  scrutin- 
ized with  equal  care. 


816        .         INSAJS IT Y— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1013 

others.  But,  in  spite  of  all  these  defects,  the  motor  aphasic  often  re- 
tains clear  ideas  of  what  he  wants  to  do,  and  can  make  himself  under- 
stood by  signs,  gestures,  nods  of  assent  or  dissent,  and  various  kinds 
of  pantomime.  These  milder  cases  probably  belong  to  the  sub-group 
in  which  the  gray,  or  cortical,  matter  of  the  brain  has  not  been  in- 
jured; in  other  words,  "subcortical"  cases,  in  which  the  intellectual 
concepts  of  language  are  not  destroyed,  but  only  the  emitting  power. 
But  in  the  more  severe  cases,  in  which  there  has  been  extensive  dam- 
age to  the  brain  tissue,  and  especially  to  the  gray  matter,  it  becomes  a 
grave  doubt  whether  normal  intelligence  is  preserved.  In  the  milder 
i'orms  of  motor  aphasia  the  testamentary  capacity  is  not  necessarily 
imiDaired  so  long  as  the  patient  can  make  himself  understood  by  signs 
nud  pantomine.^^ 

1014.  The  impairment  in  auditory  aphasia. — In  word-deafness,  or 
what  is  better  called  "auditory  aphasia,"  the  lesion  is  in  the  center 
I'or  hearing  language,  or  for  apprehending  spoken  language,  and  the 
iiifection,  from  the  legal  standpoint,  is  very  grave.  The  patient  is 
unable  to  understand  what  is  said  to  him :  the  words  of  his  mother- 
tongue  fall  upon  his  ears  as  unmeaning  sounds.  Consequently,  while 
he  may  be  able  to  utter  words,  he  does  not  do  so  intelligently,  because 
the  words  which  he  utters  have  no  more  meaning  for  him  than  those 
Liiat  are  spoken  to  him.     Plis  speech  may  become  an  unmeaning  string 

"Lord  Chief  Justice  Denman,  of  tlie  communications."  (Memoir  of  Lord 
(,iueen's  bench,  had  a  stroke  of  paraly-  Denman,  by  Arnould,  London,  1873,  Vol. 
sis,  in  his  74th  year,  which  aftected  his  II.  pp.  338,  339.)  We  are  told  further 
right  liand  and  made  liim  aphasic.  "It  that  he  soon  learned  to  write  very  tol- 
\\-as  on  the  2d  December,  1852,  that  tliis  ernbly  with  liis  left  hand,  but  "he  would 
strange  and  terrible  affliction  befell  him,  originate  nothing,  and  when  some  deeds 
— strange  as  well  as  terrible,  for  it  had  were  sent  from  England  for  his  signa- 
this  peculiarity  about  it,  that  while  he  ture,  he  could  only  sign  his  name  by  see- 
retained  his  intellectual  and  emotional  ing  it  written  out  and  copying  it."  It 
faculties  almost  unimpaired,  his  powers  is  claimed,  however,  inat  he  could  read, 
of  communication  with  others  by  writ-  and  continued  to  take  an  interest  in 
ing  as  well  as  by  speech,  were  absolutely  law  reports,  debates  in  Parliament,  etc. 
and  entirely  taken  from  him.  He  could  Considering  that  this  case  happened 
frame  written  letters  with  a  pen,  he  almost  ten  years  before  Broca  wrote 
could  readily  distinguish  one  wrong  let-  his  earliest  papers  on  aphasia,  it  is  re 
ter  from  another  when  ranged  in  lines  ported  with  remarkable  attention  to  de- 
before  him,  but  to  form  tnese  into  tails.  It  reveals,  in  its  simplest  form, 
words,  or  words  into  sentences,  was  ut-  a  case  of  uncomplicated  motor  aphasia, 
terly  beyond  his  powers,  unless  the  Especially  noteworthy  is  the  fact  that 
words  and  sentences  were  written,  or  the  patient  could  read,  and,  in  a  very 
put  together  as  a  model  for  him  to  copy  imperfect  way,  copy;  but  he  could  not 
from.  When  he  had  received  letters,  write  even  his  name  spontaneously.  The 
the  only  way  he  could  acknowledge  them  education  of  the  left  hand  is  also  in- 
was  by  copying  in  a  sort  of  formal  print  tcresting.  In  such  a  case,  the  right 
hand  any  passage  in  them  that  had  par-  hemisphere  of  the  brain  is  educated  to 
ticularly  pleased  him,  and  causing  that  take  the  place  of  the  injured  left  hemis- 
to  l)e  sent  to  the  writers,  in  token  that  phere. 
he  had  read    and    been    plea-sed  by  the 


g   1014]  APHASIA.  817 

of  words, — a  rigmarole  or  gibberish.  Thus,  in  this  form  of  aphasia  the 
patient  presents  a  particularly  unfavorable  appearance ;  neither  com- 
prehending nor  uttering  intelligible  speech,  he  seems  to  be  as  one  de- 
mented. Such  a  patient  cannot  comprehend  questions,  and  there- 
fore cannot  answer  them  rationally ;  neither  can  he  talk  coherently, 
but  utters  meaningless  words,  and  does  not  recognize  that  they  are 
meaningless.  Such  a  patient  can  liave  no  intelligent  communication 
with  the  world  unless  by  reading,  i.  e.,  using  his  visual  center,  or  by 
writing;  but  these  functions  are  also  often  seriously  involved.  Pan- 
tomime may  persist,  but  it  is  often  difficult  to  interpret.  Testamen- 
tary capacity  will  depend  on  the  success  with  wliich  such  signs  can 
be  interpreted. 

1015.  The  impairment  in  verbal  blindness,  or  visual  aphasia. — In 
this  affection  the  patient  cannot  recognize  written  or  printed  lan- 
guage, and,  of  course,  cannot  reproduce  it,  or  write  himself.  It  is 
often  associated  with  object-blindness,  as  in  the  case  narrated  above. 
But  the  patient  may  retain  the  power  to  understand  spoken  language, 
and  to  speak  himself;  consequently  he  is  in  a  condition  often  to  make 
himself  understood.  But  he  is  peculiarly  liable  to  be  imposed  on  in 
the  matter  of  printed  or  written  documents,  because,  by  reason  of  his 
impairment,  he  cannot  understand  them. 

1016.  The  impairment  iii  agraphia. — Simple,  uncomplicated  agraph- 
ia is  rare ;  in  fact,  its  existence  is  denied  by  many,  observers.  It 
would  cause  merely  an  inability  to  write,  and  would  not  impair  the 
patient's  ability  to  understand  what  was  said  to  him,  or  what  he  read, 
or  to  speak  in  turn.  In  its  simple  form  it  would  be  one  of  the  least 
disabling  of  all  the  aphasias;  but  it  is  seen  often  as  a  compHcation  of 
other  forms  of  aphasia,  as  already  shown,  and  this  tends  to  confuse 
the  case,  especially  where  there  arises  the  question  of  testamentary 
capacity. 

1017.  The  frequency  of  these  cases  in  the  courts. — The  history  and 
literature  of  the  jurisprudence  of  aphasia  are  not  very  full,  although 
these  cases  have  occurred  occasionally  in  the  courts,  and  are  likely  to 
continue  to  occur.  According  to  Bateman,^^  as  far  back  as  1743  an 
aphasic  patient  applied  to  the  Hanoverian  government  for  permission 
to  make  a  will  by  means  of  signs,  and  the  court  acknowledged  the  va- 
lidity of  the  act.-"^  Another  aphasic  discharged  for  five  years  the  du- 
ties of  mayor  by  signing  his  name  with  his  left  hand,  and  he  also 

"On  Aphasia,  2(1  ed.  London,  1800.  "  PIoflTljauer.  Traite  de  M^decine  L€ 
p.   302.  gale,  Paris,   1827. 

Vol.  I.  Med.  Jur. — 52. 


818 


INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS. 


[§  1017 


wrote  in  this  manner  a  holographic  will.^"  An  interesting  case  oc- 
curred in  England,  in  which  the  will  of  an  aphasic  patient  was  ac- 
knowledged to  be  a  good  will  in  itself,  but  was  rejected  on  a  techni- 
cality.^^ 

1018.  The  Parish  will  case,  and  the  onus  proband!. — The  leading 
case  in  America  is  Delafield  v.  Parish.^"^  In  that  case  it  was  decided, 
among  other  things,  that  the  onus  prohandi  is  on  the  propounder  of 
an  alleged  will  ;--^  in  other  words,  that  an  executor,  when  he  presents 
a  will  for  probate,  must  prove  the  mental  capacity  of  the  testator, — a 
decision  which  runs  counter  to  the  usual  presumption  that  every  man 
is  sane  until  the  contrary  is  proved.  It  was  also  declared  that,  in 
law,  the  only  standard  by  which  to  prove  testamentary  capacity  in 
})ersons  who  are  not  "idiots  or  lunatics"  is  found  in  the  fact  whether 
the  testator  was  compos  mentis  or  non  com,pos  mantis.  If  he  was 
compos  mentis,  the  testator  could  make  any  will,  however  compli- 
cated; if  he  was  non  compos  mentis,  he  could  make  no  will  whatever. 


^  Billod,  Ann.  Med.  Psych,  tome 
XVIII. 

^  Margary  v.  Robinson,  L.  R.  12  Prob. 
Div.  8.  56  U  J.  Piob.  N.  S.  42,  57  L.  T. 
N.  S.  35,  35  Week.  Rep.  350,  5l  J.  P. 
407.  The  testator,  aged  sixty-three,  was 
seized  with  paralysis  on  November  13th. 
He  was  unable  to  write,  and  speech  was 
affected.  What  purported  to  be  a  mem- 
orandum, written '  on  a  small  card,  by 
another  person,  indicated  an  intention 
to  bequeath  £30,000  to  his  fiancee.  Two 
medical  men  wrote  their  names  as  wit- 
nesses on  the  back  of  the  card,  and  the 
testator  wrote  his  mark  on  the  middle 
of  the  face  of  the  card.  He  died  on 
November  24th.  The  court  pronounced 
against  the  probate,  on  the  technicality 
that  the  signature  was  not  at  the  end 
of  the  document.  Otherwise,  it  was  a 
good  will. 

The  case  is  not  adequately  reported 
from  a  medical  standpoint.  The  symp- 
toms are  not  given  in  detail,  and  it  is 
impossible  to  say  what  form  of  aphasia 
the  testator  had.  It  has  practically  but 
little  value  as  a  case  of  aphasia,  for  it 
was  decided  on  other  groiuuls. 

"25  N.  Y.  9.  In  this  case  the  evi- 
dence taken  before  the  surrogate  filled 
three  printed  volumes  of  800  pages  each, 
and  the  report  of  the  case  in  the  court 
of  appeals  takes  more  than  100  pages. 
Justice  Davies'  analysis  of  the  case  is 
extremely  valuable  from  a  scientific  as 
well  as  from  a  legal  viewpoint.  It 
was  before  the  days  when  aphasia 
wa.s  much  discussed;   but  it  is  evident 


that  Mr.  Parish  had  had  a  very  grave 
form  of  the  affection.  He  was  speech- 
less and  unable  to  read  and  write  for 
years,  and  entirely  under  the  control  of 
his  wife  and  her  family.  "He  was 
therefore  denied,"  said  Justice  Davies, 
"the  usual  manner  of  communicating 
his  thoughts  and  wishes.  What  re- 
mained were  signs  and  gestures,  and  the 
expression  of  his  face  to  communicate 
with  those  around  him.  Some  of  the 
witnesses  supposed  that  they  obtained 
ins  meaning  by  the  expression  of  his 
face.  Now,  .  .  .  the  only  agents 
conveying  such  expression  are  the 
mouth  and  ej'es.  Mr.  Parish  had  no  use 
whatever  of  the  former  organ  for  this 
purpose.  .  .  .  After  his  attacks  the 
muscles  of  his  mouth  became  firm -and 
rigid.  .  .  .  He  could  therefore  nei- 
ther speak  nor  use  the  muscles  of  his 
face  to  give  expression  to  his  thoughts, 
and  tlie  gestures  made  by  him  with  the 
left  hand  and  its  fingers  were  irregular, 
unmeaning,  and  contradictory,  and  often 
conceded  to  be  misunderstood." 

\'ain  attempts  had  been  made  to  teach 
Mr.  Parish  to  write  with  his  left  hand, 
and  there  were  grave  doubts  of  his  abil- 
ity to  read.  Pie  never  read  for  seven 
years.  The  two  codicils,  which  were  the 
only  parts  of  the  will  contested,  xvere 
not  allowed.  A  dissenting  opinion  by 
•Justice  Giould  reflects  the  conflicting 
ideas  of  the  courts  on  this  delicate 
question. 

-  %  For  the  legal  discussion  of  this 
•  luestion,  see  ante.  §§  299-302. 


5   1018]  APHASIA.  819 

The  importance  of  these  decisions,  as  regards  aphasics,  is  very  great. 
If  it  falls  upon  the  proponent  of  the  will  of  an  aphasic  to  prove  that 
the  testator  had  testamentary  capacity,  this  question  is  necessarily 
opened  whenever  such  a  will  is  presented  for  probate ;  and  it  may  be 
a  more  difficult  thing  to  prove  that  such  a  patient  had  such  capacity 
than  to  prove  that  he  had  it  not.  At  any  rate,  this  decision  opens 
this  question  in  every  case  at  the  very  beginning. ^^ 

1019.  The  issue  briefly  stated. — The  wills  of  aphasics  have  been  sus- 
tained,-* but  call  for  caution.-^  On  the  other  hand,  such  wills  have, 
in  some  cases,  not  been  allowed.^^  Than  for  the  determination  of 
this  delicate  question  no  more  caution  and  judgment  are  required  in 
any  form  of  mental  disorder.^'^  Each  case  must  be  studied  on  its 
own  merits.  Cases  of  aphasia  differ  widely,  and  no  one  rule  will  ap- 
ply to  all  of  them.  The  most  careful  expert  tests  are  required  in 
every  case,  and  these  tests  are  to  be  applied  to  the  determination  par- 
ticularly of  the  four  points  already  emphasized  above:  Can  the  pa- 
tient talk  ?  Can  he  understand  what  is  said  to  him  ?  Can  he  read  ? 
Can  he  write  ?  Back  of  all  these  inquiries  still  lies  the  obscure  ques- 
tion of  his  mental  capacity,  and  of  his  ability  to  make  himself  under- 
stood by  gestures,  signs,  and  pantomime  in  general.  Relatives  and 
friiends  often  claim  more  for  these  patients  than  the  facts  warrant; 
medical  experts  sometimes  engage  in  too  many  physiological  refine- 
ments; and  the  courts  are  rather  too  prone  to  confine  the  question  to 
the  limits  of  a  technical  and  narrow  definition.^^ 

=' Baron  Parke  (Barry  v.  Butlin,  1  ^ Potts  v.  House,  6  Ga.  324,  50  Am 
Curt.  Eccl.  Rep.  637,  2  Moore,  P.  C.  C.  Dec.  329.  This  case  illustrates  the  lack 
480)  said:  "The  onus  probandi  lies,  in  of  care  with  which  such  affections  are 
every  case,  upon  the  party  propounding  reported.  It  is  usually  referred  to  as 
a  will;  and  he  must  satisfy  the  con-  an  instance  of  "mutism,"  even  "deaf- 
science  of  the  court  that  the  instrument  mutism,"  whereas  it  was  the  case  of  a 
so  propounded  is  the  last  will  of  a  free  man,  aged  ninety  years,  who  was  a  se- 
and  capable  testator."  nile  dement  and  probably  aphasic. 

-*i?of7)roc/:  V.  7>'o^/(rocfc,  22  Or.  551,  30        ^  An   important  case  was   one   which 

Pac.  453;  Re  Miller,  179  Pa.  645,  39  L.  formed   the   subject  of  an   historic   dis- 

R.  A.  220,  36  Atl.  139.  cussion  before  the  Societe  de  Medecino 

^/?e   Raynor,  44  N.  Y.  S.  R.  468,   18  Legale     de     Paris     (Ann.    d'Hvg.    tome 

N.  Y.  Supp.  426.  XXXI.  p.  430).     It  is  noteworthy  that 

^^Mendenhall  v.  Tungate,  95  Ky.  208,  the  tribunal  at  Avignon  gave  a  decision 

24  S.  W.  431;  Smith  v.  Henline,  174  111.  in  conformity  with  the  views  of  the  so- 

184,  51  N.  E.  227.  ciety.     Bateman,  op.  cit  p.  306. 


CHAPTER  XLVIIL 

PARANOIA. 

I.  The  medical  aspects  of  paranoia. 

1020.  Definition. 

1021.  Systematized  and  fixed  delusions. 

1022.  The  terms  "paranoia"  and  "monomania." 

1023.  Monomania  and  partial  insanity. 

1024.  The  t^vo  kinds  of  systematized  delusions. 

1025.  The  distinction  between  paranoia  and  melancholia, 

1026.  Delusions  of  persecution. 

1027.  Delusions  of  grandeur. 

1028.  Systematized   delusion   made  tlie  criterion   of  monomania. 

1029.  Degeneration. 

1030.  The  stigmata  of  degeneration. 

1031.  Paranoia  has  several  stages. 
1031a.  The  first  stage. 

1031b.  The  second  stage,  or  stage  of  persecution. 
1031c.  The  third  stage,  or  stage  of  grandeur. 

1032.  Paranoia  is  a  primary  affection. 

1033.  Various  forms  of  paranoia. 

1034.  Common  types  of  the  disease. 

103.5.  The  persecutory  form  is  the  most  dangerous. 

1036.  Hallucinations  in  paranoia. 

1037.  The  religious  paranoiacs. 

1038.  Insane  inventors. 

1039.  The  erotomaniacs. 

II.  The  medico-legal  aspect.s  of  paranoia. 

1040.  Criminal  paranoiacs. 

1041.  Sir  Matthew  Hale's  "partial  insanity." 

1042.  Abuse  of  the  term  "partial  insanity." 

1043.  Delusion  as  a  test  for  insanity. 

1044.  The  test  of  delusion  defined. 

1045.  The  connection  of  the  delusion  with  the  act. 

1046.  Delusions  to  be  judged  as  though  they  were  reaL 

1047.  The  knowledge  of  right  and  wrong. 

1048.  A  clear  statement  of  the  rule. 

1049.  The  rule  not  logically  enforced. 

1050.  The  distinction  between  delusion  and  erroneous  belief. 
lO.")!.  The  defense  of  insanity  resented  by  the  prisoner. 

III.  Moral  insanity. 

1052.  This  term  is  not  to  be  taken  too  literally, 

1053.  A  faulty  term. 

820 


S   1020]  PARANOIA.  821 

1054.  Moral  insanity  is  not  to  be  despised. 

1055.  Confusion  among  those  who  describe  this  afiFection. 

1056.  Difficulties  of  the  subject. 

1057.  The  criminal  degenerates. 

1058.  Moral  insanity  has  been  recognized  in  a  few  courts. 

I.  The  medical  aspects  of  paranoia. 

1020.  Definition. — Paranoia  is  a  form  of  insanity  which  is  charac- 
terized by  systematized  delusions,  or  by  the  tendency  to  form  such  de- 
lusions. It  is  often,  but  not  always,  established  on  a  basis  of  hered- 
ity, and  it  is  a  primary  affection  in  the  sense  that  it  does  not  follow 
upon  a  precedent  generalized  insanity,  such  as  a  mania  or  melan- 
cholia.^ 

1021.  Systematized  and  fixed  delusions. — As  systematized  delusions 
are  so  characteristic  of  paranoia,  it  is  imperative  to  know  what  is 
meant  by  that  term.  A  delusion  is  systematized  when  it  has  a  logical 
construction  in  all  its  parts.  It  is  a  belief  which  proceeds  from  an 
erroneous  premiss,  by  a  process  of  ratiocination,  to  insane  conclu- 
sions. Therefore  it  has  a  marked  influence  on  conduct  and  character, 
the  more  so  that  such  delusions  are  also,  as  a  rule,  fixed.  When  we 
speak  of  fixed  delusions,  however,  we  do  not  mean  that  such  delusions 
can  never  change,  but  only  that  they  persist  for  periods,  often  long 
extended,  and  that  they  change  slowly,  and  only  by  a  logical  sequence. 
When,  for  instance,  a  paranoiac  forms  the  delusion  that  he  is  perse- 
cuted, and  shapes  his  life  and  conduct  accordingly,  we  see  a  systema- 
tized and  fixed  delusion ;  when  he  explains  his  reasons  for  believing 
that  he  is  persecuted,  and  his  grounds  for  his  line  of  conduct,  we  see 
in  what  way  his  delusion  is  systematized ;  and,  finally,  when  his  per- 
secutory delusion,  after  a  period  perhaps  of  years,  changes  into  an 
expansive  delusion,  as  that  he  is  some  exalted  personage,  we  see  what 
was  a  fixed  delusion  change  its  type.  This  is  usually  the  course  in 
paranoia. 

1022.  The  terms  "paranoia"  and  "monomania." — Paranoia,  although 
a7i  old  word,  derived  from  the  Greek,  and  meaning  merely  insanity 
in  general,^  has  only  lately  come  into  general  use  in  psychiatry  for 
the  special  form  of  insanity  here  described.  It  was  adopted  as  a  pro- 
test against  the  further  use  of  the  word  ''monomania,"  a  term  which 

'  S#glas,  "La  Paranoia"  Arch,  de  Neu  -  Liddell  &  Scott,  Lexicon.  The  word 
rologie,  1887.  Mendel,  "Die  Verruck-  ■zaQauota  was  thus  used  by  Eschylus. 
theit,"   Eulenberg's   Eneyclopiidie,    1893.    Thebes,  756. 


822  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1022 

lias  been  so  abused  and  misimderstood  as  to  have  lost  many  of  its 
rights  to  exist.^ 

The  term  "monomania"  was  introduced  by  Esquirol,^  who  used  it 
to  denote  a  class  of  the  insane  who  were  supposed  to  be  alienated  only 
on  one  idea.  Esquirol,  whose  high  authority  has  diminished  but  lit- 
tle with  time,  described  monomania  as  a  chronic  cerebral  affection, 
unattended  by  fever,  and  characterized  by  a  partial  lesion  of  the  intel- 
ligence, affections,  or  will.  The  intellectual  disorder  is  confined  to  a 
single  object,  or  a  limited  number  of  objects.  In  other  words,  this  is 
a  partial  insanity ;  and,  apart  from  this  disorder,  these  patients  think, 
reason,  and  act  like  other  men. 

1023.  Monomania  and  partial  insanity. — It  is  thus  evident  that  Es- 
(luirol's  monomania  was  strikingly  in  accord  with  Sir  Matthew  Hale's 
"partial  insanity.''  According  to  Hale,^  this  form  of  insanity  is  of 
those  persons  who  "have  a  competent  use  of  reason  in  respect  of  some 
subjects,"  but  yet  are  "under  a  particular  dementia  in  respect  of 
some  particular  discourses,  subjects,  or  applications.  .  .  .  And 
this  is  the  condition  of  very  many,  especially  melancholy  persons, 
who,  for  the  most  part,  discover  tlieir  defect  in  excessive  fears  and 
gTiefs,  and  yet  are  not  wholly  destitute  of  the  use  of  reason."  In 
fact,  Hale,  the  jurist,  and  Esquirol,  the  alienist,  are  so  nearly  in  ac- 
cord in  this  matter  that  their  opinions  have  usually  flourished  side  by 
side  in  the  courts.  And  yet  the  experienced  eye  will  not  fail  to  detect 
that  Hale  included  melancholia  with  his  partial  insanity,  while  Es- 
quirol took  pains  to  distinguish  the  former  disease  under  the  term 
"lypemania."  Melancholia  is  no  longer  confused  with  monomania 
by  systematic  writers. 

But  the  term  "monomania"  was  never  entirely  satisfactory  U> 
alienist-s,  and,  in  spite  of  Esquirol's  high  authority,  it  has  had  to  run 
the  gauntlet  of  criticism  ever  since  its  birth.*^  The  objections  to  the 
term  rest  mainly  on  the  fact  that  it  gives  rise  to  erroneous  ideas  as  t«> 
what  is  meant  by  partial  insanity. 

1024.  The    two   kinds   of   systematized   delusions. — There   are   two 

*  "Paranoia"   has   not   attained    favor        *  1  P.  C.  Chap.  IV. 

with    British    authors,    but    it    is    more        "  For  a   luminous  account  of  the  his- 

popular   in   America.     For  a   statement  tory  of  the  term  "monomania"  and  the 

which  reflects  the  British  prejudice,  see  criticisms  to  whicli  it  lias  been  subject 

Bevan   Lewis,   Mental   Diseases,   2d   ed.  ed,   see   Spitzka's   treatise   on   Insanity, 

p.  232.    Lewis  prefers  "primary  system-  chapter    on    "Monomania:    Preliminarj^ 

atized   insanity,"   but    this    is    a    cum-  Considerations."     1st  ed.    1883.     In  his 

bersome  term.'  2d  ed.   1887,   Spitzka  adopted  the  word 

*  Des  Maladies  Mentales,  Paris,  1838.  "paranoia." 
Also   American    translation    (abridged) 

by  Hunt,   Phila.    1845. 


§  1024]  PARANOIA.  823 

kinds  of  systematized  delusions,  which  it  is  necessary  to  distinguish : 
the  delusions  of  persecution  and  the  delusions  of  grandeur.  In  the 
former  the  patient  believes  that  he  has  enemies ;  that  he  is  the  object 
of  conspiracies ;  of  designs  against  his  peace,  his  welfare,  even  his 
life.  In  the  latter  he  believes  that  he  is  a  personage  of  importance ; 
that  he  is  reserved  for  a  great  destiny ;  that  he  is  a  reformer,  an  in- 
ventor, a  prophet,  a  king,  or  even  a  Messiah.  These  two  types  of  de- 
lusions, as  may  readily  be  understood,  cause  different  reactions  in  the 
life  and  conduct.  They  are  not,  as  a  rule,  present  in  the  same  in- 
dividual in  full  force  at  the  same  time ;  in  other  words,  they  appear 
at  different  periods  in  the  evolution  of  the  disease.  They  also  have 
different  significance  as  to  the  degree  of  insanity.  The  patient 
who  believes  merely  that  he  is  persecuted  is  not  so  far  advanced  in 
mental  derangement  as  the  patient  who  has  evolved  the  delusion  that 
he  is  a  Messiah.  The  latter  is  a  much  more  crazy  idea  than  the 
former.  A  man  in  his  senses  might  have  some  reason  for  believing 
that  he  was  persecuted  by  enemies,  but  no  man  in  his  senses  would  be- 
lieve that  he  was  a  Messiah.  The  latter  delusion  involves  a  more  pro- 
found change  and  perversion  of  the  personality  than  the  former :  the 
[)atient  is  more  fundamentally  insane. 

Esquirol  included  in  his  monomaniacs  the  patients  chiefly  with  ex- 
pansive delusions,  or  delusions  of  gTandeur.  The  patients  with  de- 
pressive delusions,  or  delusions  of  persecution,  he  included  along  with 
the  melancholiacs,  in  the  group  which  he  called  "lypemania.""^  By 
this  arrangement  the  fault  was  committed  by  this  great  master  of  con- 
fusing two  classes  which  should  be  kept  distinct.  The  melancholy  pa- 
tient is  not  by  nature  in  the  same  group  with  the  patient  who  has  de- 
lusions of  persecution.  A  moment's  consideration  should  make  this 
point  clear. 

1025.  The  distinction  between  paranoia  and  melancholia. — The  mel- 
ancholy patient,  as  explained  fully  elsewhere  (chapter  on  "Melan- 
cholia," p.  625),  is  the  victim  of  a  profound  emotional  disturbance, 
which  has  for  its  basis  a  sense  of  personal  unworthiness,  or  a  sense  of 
mental  pain.  The  central  idea  is  one  of  abasement, — of  limitation ; 
the  person  is  not  persecuted,  but  he  suffers  from  defects  which  he  be- 
lieves he  fully  deserves;  and  for  which  he  holds  no  one  responsible 
but  himself. 

With  the  persecuted  patient  the  central  idea  is  exactly  the  reverse 

*  Lypemania    is    derived     from    Iv-tj^    has  never  been  naturalized  in  England 
sadness,  and  /lavta,   madness.     The  word    and  America, 
continues  in  use  by  French  writers,  but 


824  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1025 

of  all  that.  Far  from  meriting  his  sufferings,  he  is  the  object  of  un- 
just machinations.  The  sense  of  personality  is  affected,  therefore,  in 
quite  the  reverse  way  from  abasement.  The  patient  sees  nothing  in 
himself  that  is  to  be  blamed  for  his  sufferings.  .  He  loses  nothing  of 
his  sense  of  personal  esteem.  On  the  contrary,  this  sense  of  the  per- 
sonality is  rather  stimulated  or  goaded  into  a  state  of  morbid  egotism. 
Instead  of  being  emotionally  depressed,  as  is  the  melancholiac,  the 
persecuted  lunatic  is  incited  to  self- justification,  to  resentment.  It 
is  the  vital  difference  between  the  man  who  believes  that  he  has  sinned 
and  the  man  wlio  believes  rhat  he  is  sinned  against.  The  mental  re- 
action is  entirely  different  in  the  two  cases.  Hence,  melancholia 
should  be  distinguished,  and,  in  fact,  has  now  for  many  years  been 
distinguished  by  the  best  alienists,  from  the  insanity  of  persecution. 
From  the  medico-legal  standpoint  this  distinction  is  also  of  the  first 
importance. 

1026.  Delusions  of  persecution. — Among  the  first  to  make  this  vital 
distinction  was  Lasegiie.^  From  the  class  designated  by  Esquirol  as 
lypemania,  Lasegue  had  the  merit  of  detaching  a  group  of  patients 
with  a  form  of  monomania  or  partial  insanity  which  he  called  the 
■'insanity  of  persecution."  These  patients  were  not  melancholy, — 
they  did  not  suffer  ment'*-!  pain  from  a  -<;nse  of  personal  unworthi- 
ness, — but  they  had  the  belief  tliat  they  were  the  objects  of  the  evil 
designs  of  other  persons.  Lasegiie  included  in  this  group  all  patients 
who  had  delusions  of  this  kind,  whatever  the  origin  of  these  might  be, 
or  whatever  their  termination.  This  distinction  was  an  immense 
gain  in  psychiatry,  for  it  was  strictly  in  accord  with  natural  phe- 
nomena. It  served  to  mark  out  and  separate  a  group  of  the  insane 
who  have  no  natural  affinity  with  melancholia.  It  did  not,  however, 
distinguish  as  clearly  as  might  be  the  fact  that  persecutory  delusions 
may  occur  in  several  varieties  of  insanity;  for  instance,  in  chronic 
alcoholism  as  well  as  in  so-called  monomania, 

1027.  Delusions  of  grandeur. — Now,  in  the  same  way  as  the  delu- 
sions of  persecution  were  made  a  basis  for  a  special  form  of  insanity, 
as  we  have  just  seen,  so  the  delusions  of  grandeur  were  seized  on  to 
form  a  separate  group.  This  was  a  natural  tendenc}-,  because  the 
two  classes  of  delusions  seemed  so  distinct.  In  fact,  Esquirol,  as  we 
have  seen,  made  the  delusions  of  grandeur  the  basis  for  his  mono- 
mania; and  after  his  time,  Foville,^  another  French  alienist,  voiced 

•  "Du  D6lire  de  Persecution,"  in  dominance  du  Delire  des  Grandeurs, 
Arch.  Gfm.  de  M6d.  Fev.  1852.  Paris,    1871.     Also.    "Mcfralomania,"   in 

•fitude  Clinique  de  la  Folie  avec  Prt*-    Trans.   Int.  Med.   Cong.    1881. 


§   1027]  PARANOIA.  825 

this  tendency  bj  creating  a  special  group  of  the  insane,  which  he 
based  upon  these  exalted  delusions,  and  which  he  named  "megalo- 
mania."^^ These  are  the  patients,  as  we  have  said,  who  have  exalted 
opinions  about  themselves,  like  the  score  or  more  whom  Clouston" 
says  he  has  had  in  the  Royal  Edinburgh  Asylum,  who  were  to  marry 
Queen  Victoria.  In  fact,  the  popular,  and  even  the  legal,  notion  of 
monomania  still  takes  its  cue  largely  from  this  old  distinction.  The 
monomaniac,  for  most  persons,  is  an  erratic,  eccentric  individual, 
with  fantastic  and  impracticable  schemes,  with  unfailing  self-confi- 
dence and  self-assertion;  the  genius  who  is  popularly  called  a 
"crank."  This  idea  is  accurate  so  far  as  it  goes,  but  it  does  not  in- 
clude the  whole  of  paranoia.  Moreover,  the  group  outlined  by  Fo- 
ville  and  others  included  patients  with  various  sorts  of  delusions  of 
grandeur,  whereas  it  is  now  well  recognized  that  these  grandiose  ideas 
are  not  all  alike.  Thus,  some  of  them  belong  to  general  paresis 
(Chapter  XLII.),  and  are  to  be  easily  distinguished  from  those  of  the 
monomaniac.      Others  are  seen  in  chronic  mania. 

1028.  Systematized  delusion  made  the  criterion  of  monomania. — An- 
other step  in  advance,  therefore,  required  to  be  made  in  demarcating 
the  delusions  of  monomaniacs,  and  this  was  done  especially  by 
Morel,^-  when  he  pointed  out  that  the  delusions  of  these  patients  were 
systematized.  This  term  has  already  been  tiefincd.  A  systematized 
delusion  is  one  which  has  a  logical  construction :  the  patient  explains 
and  defends  it.  In  its  premisses  and  its  conclusions  it  is  faulty  and 
insane ;  but  it  has,  nevertheless,  for  the  patient  himself,  a  logical  co- 
herence. It  molds  character  and  controls  conduct.  It  is,  in  itself, 
consistent.  Thus,  a  patient  who  believes  that  he  is  deprived  of  his 
fortune,  or  that  he  is  a  Messiah,  is  always  ready  to  give  his  reasons 
and  live  up  to  his  belief.  ISTothing  is  more  real,  more  ever-present, 
more  determinative  of  a  line  of  conduct,  than  the  systematized  delu- 
sion of  a  paranoiac.  It  may  be  an  error  to  say  unreservedly  with 
Locke,^"  that  an  insane  person  always  reasons  correctly  from  wrong 
premisses,  for  in  fact  many  lunatics  reason  incorrectly  from  incorrect 
premisses :  the  whole  logical  process  is  wrong.  But  the  fact  remains 
that  in  systematized  delusions  we  see  a  logical  form  or  construction, 

"  From     Uh/aq,      Meyalri,      great,  and  Chap.  XI.  §    13.     Speaking  of  madmen, 

Mrtwa.      madness.  Locke   says :     "They   do   not   appear   to 

"  IMental  Maladies,  chapter  on  "States  me  to  have  lost  the  faculty  of  reason- 

of  Fixed  and  Limited  Delusions."  ing;    but,   having  joined  together   some 

"Traite      des      Maladies      Mentales,  i-deas  very  wrongly,  they  mistake  them 

Paris,  1860.  for  truths,  and  they  err  as  men  do  that 

**  Human      Understanding,      Bk.      II.  argue  right  from  wrong  principles." 


826  INSA^;iTY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1028 

although  the  whole  process  may  be  insane.     In  some  instances,  how- 
ever, Locke  is  correct. 

It  is  characteristic  of  monomania,  or  paranoia,  as  distinct  from 
most  other  forms  of  insanity,  that  the  delusions  are  thus  systematized. 
The  one  other  form  of  insanity  in  which  this  feature  is  seen  to  any- 
thing like  the  same  extent  is  melancholia ;  but  melancholia  is  distin- 
guished from  monomania  by  the  emotional  depression,  as  already 
explained. 

1029.  Degeneration. — It  remained  also  for  MoreP^  to  give  currency 
to  a  term  which  has  had  great  vogue  in  respect  to  monomania.  This 
is  the  term  "degeneration."  For  Morel  this  meant  merely  "a  morbid 
deviation  from  a  primitive  type."  The  book  in  which  he  expounded 
his  idea  has  had  great  influence,  and  his  scheme  may  be  called  Dar- 
winian in  its  general  scope,  although  Morel  wrote  before  Darwin. 
The  French  alienist  saw  in  the  history  of  the  human  race  a  struggle 
against  adverse  circumstances.  On  all  sides  mankind,  from  the 
moment  of  birth,  is  surrounded  with  risks  and  dangers.  These  are 
climatic,  social,  political,  hygienic,  and  all  such  as  arise  from  vices, 
diseases,  accidents,  and  occupations.  Such  causes,  innumerable  and 
unceasing,  act  disastrously  not  only  upon  some  individuals  but  also 
upon  their  offspring;  for  the  law  of  heredity  acts  with  precision  to 
pass  on  to  future  generations  what  was  begun  in  the  progenitor. 
It  thus  happens  that  in  the  course  of  generation  after  generation, 
morbid  types  are  established,  and  these  show  themselves  in  the  evolu- 
tion of  mental  disease. 

Morel  thus  made  a  broad  generalization  which  is  of  immense  value 
in  mental  pathology.  He  unfolded  this  idea  with  great  ingenuity 
and  learning,  and  his  book  remains  as  a  treasure-house  of  facts  and 
inductions.  According  to  this  philosophy,  there  is  always  to  be 
found  a  remnant  of  humanity  who  show  in  their  minds  and  persons 
the  fatal  blight  which  has  been  transmitted  to  them  as  a  resultant  of 
evil  influences  acting  through  former  generations,  or  acting  even  on 
the  individual  in  his  formative  period.  It  is  in  this  soil,  especially, 
that  paranoia  flourishes  in  some  of  its  worst  forms. 

1030.  The  stigmata  of  degeneration. — The  signs  of  degeneration, 
called  usually  the  stigmata  of  degeneration,  are  of  great  variety  and 
extent,  and  they  have  been  studied  in  great  detail  since  the  time  of 
Morel.     They  are  mental  and  physical.^ ^ 

"Traits   des   D^g6n6rescences,     Paris,  vous  and  Mental  Diseases,  1901,  p.  637 

1857.  et  infra;   Berkley,   Mental   Diseases,   p. 

"  Legrain,   Du   Dolire   chez   les   Dege-  536;  Meyer,  "Signs  of  Degeneration,"  fn 

n6r68,    1886;    Church   &   Peterson,   Ner-  Am.  Journ.  Insanity,  Vol.  711. 


§  1030]  PARAl>fOIA.  827 

The  mental  stigmata  have  heen  defined  as  general  want  of  harmony 
between  volition  and  instinct;  instability;  excess  or  deficiency  of 
(inaction ;  obtiiseness ;  slow  mental  development ;  defects  of  speech ; 
all  stages  of  mental  weakness,  down  to  idiocy.^*'  In  fact,  the  mental 
defects  in  degenerates  are  of  infinite  variety,  and  are  not  incompat- 
ible, in  a  few  cases,  with  considerable  ability  and  even  brilliancy; 
but  in  all  these  cases  there  is  a  want  of  balance,  and  in  many  of  them 
there  are  moral  and  mental  perversions  of  extraordinary  types. 
These  patients  are  often  visionary,  impractical,  desultory,  lacking  in 
common  sense,  and  the  creatures  of  impulse  and  of  queer  or  evil  pro- 
})ensities.  They  are  the  cranks,  vagabonds,  ne'er-do-wells,  moral  im- 
l)eciles,  and  border-line  cases,  who  often  present  the  most  perplexing 
problems  in  medical  jurisprudence.  Thus,  all  grades  and  varieties 
are  seen,  from  the  merely  eccentric  to  the  outright  insane ;  from  the 
dull  and  intractable  to  the  downright  imbecile.  To  define  them  in  a 
few  set  phrases  is  impossible. 

The  physical  stigmata  of  degeneracy  are  also  of  great  variety. 
To  describe  them  accurately  would  require  the  use  of  many  technical 
terms.  In  general,  they  consist  in  bodily  defects  and  deformities  in 
the  stature  of  the  body,  in  the  bones  of  the  face  and  skull,  in  the  ears 
and  palate.  Here,  too,  all  grades  and  varieties  occur,  as  is  always  the 
case  in  the  works  of  nature.  A  very  common  condition  is  asymmetry, 
or  an  unequal  development  of  the  two  sides,  as  of  the  skull  and  face. 
Thus,  there  exist  defects  which  range  from  the  slightest  inequalities, 
such  as  sometimes  excite  the  ridicule  of  the  unthinking,  down  to  the 
most  conspicuous  deformities  of  idiocy,  such  as  microcephalus  and 
hydrocephalus.  In  some  cases  the  sexual  organs  are  undeveloped; 
:ind  some  of  these  patients  are  deaf  and  dumb. 

1031.  Paranoia  has  several  stages. — From  the  foregoing  account, 
historical  and  descriptive,  it  is  now  possible  to  present  a  picture  of 
what  is  meant  by  paranoia.  This  form  of  insanity  is  characterized 
by  systematized  delusions,  such  as  have  been  described,  but  these 
delusions  present  themselves  in  a  particular  manner  of  evolution.^ ^ 
This  proceeds  by  stages,  as  follows : 

1031a.  The  first  stage. — In  the  first  stage  the  patient  passes  through 
a  period  of  disquietude,  in  which  he  begins  to  realize  that  he  is  out 
of  harmony  with  his  environment.  He  is  uneasy  and  dissatisfied. 
He  becomes  introspective,  and  subjects  himself  to  analysis  in  an  at- 
tempt to  interpret  his  disorderly  feelings  and  thoughts.     This  has 

'« Tuke,   Diet.   Psycli.   Med.   Vol.    I.   p.        "  Regis,   Mental   Medicine,   tran.slated 
33L-  by  Bannister,  p.  212,  et  infra. 


82S  INSANITY— FOPwMS  AND  MEDICO-LEGAL  ASPECTS.       [§   1031a 

been  called  the  hypochondriacal  stage,  although  this  term  is  not 
entirely  accurate.  It  is  rather  a  period  of  beginning  suspicion,  of 
rudimentary  delusions.  The  patient,  in  full  possession  of  his  intel- 
ligence, comes  to  realize  that  he  is  not  in  accord  with  others,  and 
from  this  it  is  but  a  step  for  him  to  believe  that  others  are  not  in 
accord  with  him.  He  is  gradually,  as  it  were,  breaking  up  the  ties 
of  confidence  and  harmony  upon  which  all  rational  society  is  founded. 
He  becomes  to  himself  something  peculiar  and  apari  from  others. 

1031b.  The  second  stage,  or  stage  of  persecution. — In  the  second  stage 
the  patient  passes  on  to  the  formation  of  delusions  of  suspicion  and  of 
persecution.  Some  observers  believe  that  these  arise  by  a  sort  of 
logical  process  in  the  patient's  mind.  It  is  thus  that  he  interprets 
his  own  disquietude.  However  that  may  be,  these  delusions  now 
gradually  become  more  and  more  systematized.  The  victim  believes 
that  he  is  the  object  of  the  evil  designs  of  other  persons ;  he  is  talked 
about  and  maligned ;  he  is  shunned ;  his  plans  are  thwarted ;  he  is 
unjustly  dealt  with;  he  is  defrauded  of  his  rights;  he  is  tormented  by 
unknown  and  unseen  foes;  he  is  worked  upon  with  electricity;  his 
semen  is  drawn  from  him/'^  In  some  cases  he  begins  to  have  hal- 
lucinations of  hearing.  Tormenting  voices  call  to  him;  they  insult 
and  revile  him ;  they  repeat  aloud  his  innermost  thoughts.  In  time 
he  may  fasten  his  suspicions  upon  some  particular  person  or  persons. 
He  meditates  plans  of  protection,  and  then  of  resentment.  He  ha? 
now  become  the  persecuted  paranoiac,  the  most  dangerous  of  all  the 
insane. 

1031c.  The  third  stage,  or  stage  of  grandeur. — In  the  third  period 
the  patient  undergoes  what  has  been  called  the  transformation  of  the 
personality.  Either  gradually  or  quite  suddenly  he  conceives  delu- 
sions of  grandeur.  He  who  was  persecuted,  who  was  reviled  and  re- 
jected by  man,  rises  superior  to  this  adverse  fate.  He  becomes  a  per- 
sonage of  exalted  destiny.  Herein  his  disordered  mind  finds  an 
interpretation  of  his  sufferings.  It  was  not  for  nothing  that  he  was 
singled  out  for  persecution  and  infamy.  By  a  sort  of  reaction,  or 
mental  recompense,  the  insane  conscience  passes  into  a  state  of  exalta- 
tion. This  marks  the  zenith  of  his  delusions.  He  becomes  a  reformer, 
a  prophet,  or  a  Messiah.  He  is  marked  for  a  great  destiny  in  the 
state:  he  is  to  be,  or  is,  a  scion  of  royalty,  king  himself,  political 

17A  Delusions  about  tho  sexual  orj^ans  IvilstafT,  wlio  was  oiTtainly  an  alcoholic 

are    not    uncommon    in    alcoholic    para-  case,    expresses    a    (|ueer   notion    on    the 

noiacs;    in   fact,   Spitzka    (Insanity.    1st  subject  r.i  spermatorrhea,  but  it  is  too 

ed.    p.    254)    thinks    they    are    specially  inelejijant   to   quote.      (]\Ierry    Wives   of 

significant  of  that  form  of  the  disease.  Windsor,  Act.  V.  Sc.  V.  lines  15,  16.) 


§   1031c]  PARANOIA.  829 

reformer,  or  president.  Tliese  delusions  take  many  and  extravagant 
forms;  but  all  of  them  indicate  a  more  profound  derangement  than 
the  ideas  of  persecution.  They  involve  a  transformation  in  the  pa- 
tient's conception  of  his  own  personality,— a  transformation  which  is 
profound  and  complete.^ ^ 

1032.  Paranoia  is  a  primary  affection. — It  is  to  be  noted  that  par- 
anoia, as  thus  described,  is  a  primary  affection ;  that  is  to  say,  it  does 
not  follow  on  a  more  generalized  insanity,  such  as  mania  or  melan- 
cholia. It  was  held  by  some  of  the  older  alienists,  such  as  Grie- 
•singer,^^  that  the  insanity  of  systematized  delusions  always  suc- 
€eeded  a  state  of  mania  or  melancholia ;  in  other  words,  that  it  was 
f^econdary.  But  this  idea  yielded  to  a  more  accurate  view  of  mono- 
mania or  paranoia,  which,  as  we  have  seen,  develops  as  a  primary 
disorder  in  a  soil  of  degeneracy.     Therefore  the  later  German  writers 

— Snell,  Meynert,  Mendel,  Krafft-Ebing,  and  others — adopted  for 
this  form  the  term  Primare  VerrucJdheitj  which  means  practically 
the  same  as  primary  monomania,  or  paranoia. ^'^^^ 

1033.  Various  forms  of  paranoia. — As  the  case  stands  at  present 
there  is  a  disposition  to  see  several  forms  of  primary  systematized 
insanity,  or  paranoia.  Some  of  the  Erench  and  Italian  alienists, 
for  instance,^*^  make  two  gi'eat  subdivisions :  First,  those  cases  that 
are  purely  degenerative.  In  this  class  the  evolution  of  the  disease 
is  irregular  or  atypical ;  all  sorts  of  aberrant  forms  are  seen.  Second, 
a  class  in  which  there  is  not  a  distinct  hereditary  or  degenerative 
taint.  This  develops  more  regularly,  as  in  the  type  described  in  the 
foregoing  pages,  and  may  be  acute  or  chronic.  They  also  recognize 
a  secondary  form,  following  on  mania  or  melancholia,  very  much  as 
Griesinger  had  done;  and  this  secondary  form,  in  fact,  is  not  easily 
distinguished  from  ordinary  chronic  mania  or  melancholia. 

This  non-degenerative  form  of  paranoia  has  recently  found  an 

"  A    very    remarkable    autobiograpiiy  '"  Mental  Pathology  and  Therapeutics, 

by   a  paranoiac   has   been   published   in  translated  by  Robertson  and  Rutherford, 

part  by  Dr.  Frederick  Peterson    (Ment.  p.  228. 

and  Nerv.  Dis.  by  Church  &  Peterson,  i^s  A  useful  review  of  the  whole  sub- 

1901,    p.    774).     The    patient,  although  ject  of  paranoia,  especially  as  reflecting 

badly   insane,   analyzed    his    own    case  the  opinions  of  German  and  continental 

with  accuracy,  and  recorded  it  in  a  lit-  alienists,   has  been  given  by  Dr.   Percy 

erary  style  which  is  unique.     It  shows  Smith   in   his  "Presidential   Address  on 

the   evolution    of    the    disease   in   very  Paranoia,"    in    the   Journal    of     Mental 

nearly  the    exact   way  described    above.  Science,  Oct.  1904,  p.  607. 

The  patient,  with  pathetic  force,  records  -"  Amadei  and  Tonnini,  Arch.  Ital.  per 

how  he  could,  in  his  own  case,  at  times  le    Mai.    Nerv.    Anno    XXI.,  quoted  in 

"'see  the  man  he  ought  to  have  become  Tuke's  Diet.  Psych.  Med.  Vol.  II.  p.  887. 
rising  up   like   a   shadowy  phantom   in 
judgment  on  the  wreck  he  really  was." 
Such  self-analysis  is  very  rare. 


830  INSANITY— FORMS  A^D  MEDICO-LEGAL  ASPECTS.         [§   1033 

advocate  in  Magnan,^^  a  leading  alienist  of  the  French  school,  who 
describes  it  as  chronic  insanity  of  systematic  evolution.  It  pursues 
a  course  of  development  by  stages,  such  as  have  been  described  above. 
These  various  distinctions  and  subdivisions  are  of  interest  to  the 
professed  alienist  rather  than  to  the  medical  jurist.  For  the  latter 
it  is  sufficient  to  bear  in  mind  that  paranoia,  whatever  its  form,  is  a 
primary  insanity,  characterized  by  the  formation  of  systematized  de- 
lusions. Without  such  delusions  there  is  no  true  paranoia,  although 
'udimentary  cases  are  observed,  especially  in  degenerates,  in  which 
the  mental  derangement  has  not  advanced  to  the  formation  of  such 
delusions  in  their  fully  developed  form.  In  these  rudimentary  cases 
erratic  conduct  and  moral  perversions  are  not  uncommon.^^ 

1034.  Common  types  of  the  disease. — Although  in  typical  cases  the 
evolution  of  paranoia  is  by  stages,  as  has  just  been  sho"\vn,  still  there 
are  cases  in  which  one  form  of  delusion  persists  so  long,  or  predom- 
inates so  much  over  the  others,  that  some  alienists  describe  different 
types  of  this  disease.  Thus,  Krafft-Ebing^^  recognizes  several  forms. 
First,  there  is  the  early  or  precocious  form,  developing  before  pu- 
berty; practically  a  form  of  dementia  prsecox  (see  Chapter  XLIX.). 
Second,  there  are  the  forms  developing  after  puberty;  and  among 
these  are  persecutory  paranoia,  in  which  the  delusions  of  persecution 
are  uppermost;  and  the  expansive  paranoia,  in  which  the  grandiose 
forms  of  delusion  control  the  case.  Of  this  latter  group  the  com- 
monest are  the  paranoia  inventoria,  or  the  class  of  insane  inventors ; 
paranoia  religiosa,  or  the  class  of  prophets  and  Messiahs;  and  para- 
noia erotica,  or  the  class  of  insane  lovers, — lunatics  who  believe  that 
they  are  the  objects  of  amorous  regard  on  the  part  of  prominent  per- 
sons. 

1035.  The  persecutory  form  is  the  most  dangerous. — These  patients 
develop  their  delusions  often  insidiously ;  and  these  delusions  may 
become  most  elaborately  systematized  before  they  begin  to  lead  the 
patient  to  commit  overt  acts.  In  the  meantime  the  patient  may 
attend  to  his  work  and  go  about  his  daily  life  as  though  he  were  in  his 
sane  mind.  The  writer  once  had  for  several  years  in  his  employ  a 
young  colored  man,  who  rode  with  him  daily,  and  who,  in  the  course 
of  the  professional  rounds,  often  stopped  at  a  large  hospital,  contain- 

"  "D(''liro  riironique  h  Evolution   Sys-  1880-1888.     Those  who  arc  specially  in- 

temati(|ue,"  in  Lemons  Cliniqiies  sur  les  tcrested  are  referred  to  the  proceedings 

Maladies  Mentales.  Paris,  1890.  of  that  distinguished   body,   as   well   aa 

^A  notable   discussion  of  this  whole  to   Magnan's   work,   already   quoted,   in 

subject   of   paranoia,   or   primary   delu-  which  the  subject  is  reviewed, 

sional    insanity,    took    place   before   the  "Traite  Clinique  de  Psychiatric,  tra- 

Frencli  "Medico-Psychological  Society  in  duit  par  Laurent,  Paris,  1897. 


§   1035]  PARANOIA.  831 

ing  more  than  a  thousand  insane  patients,  and  visited  daily  by  large 
classes  of  medical  students.  The  colored  youth  gradually  formed  the 
delusion  that  these  students  were  in  league  against  him,  to  secure  his 
person,  and  that  his  employer  was  a  ringleader  in  this  scheme.  ITe 
began  to  have  hallucinations ;  would  not  go  into  the  streets  alone  after 
dark;  and  (as  transpired  later)  he  secured  a  pistol,  with  which  in  his 
pocket  he  rode  alongside  of  his  unsuspecting  employer  for  three 
months.  When  his  condition  became  known  he  was  already  hope- 
lessly insane,  and  died  a  year  or  two  later  in  an  asylum.  To  this  per- 
secutory  class  belonged   Bellingham,   M'lSTaghten,    and   Guiteau.^"'^ 

1036.  Hallucinations  in  paranoia. — Some  of  these  patients  have 
auditory  hallucinations,  which  still  further  aggravate  the  mental 
disorder.  These  hallucinations  are  of  an  alarming  or  insulting  char- 
acter. The  patient  hears  voices  and  may  reply  to  them ;  and  in  cases 
in  which  he  attempts  to  conceal  thein,  as  is  not  unusual,  he  may  be 
observed  listening  to  them,  and  moving  his  lips  in  answer.  Ilallu- 
(dnations  grow  only  in  an  insane  soil:  the  patient  who  is  haunted  by 
rhem  is  mad. 

1037.  The  religious  paranoiacs. — These  belong  to  the  expansive  type, 
in  which  has  occurred  the  transformation  of  the  personality,  already 
referred  to.  A  complete  change  in  the  individual's  conception  of 
himself  has  occurred  in  these  patients.  They  believe  that  they  are 
commissioned  by  God  to  work  out  great  destinies.  History  has  many 
examples  of  them.  There  is  reason  to  believe  that,  in  ancient  Pales- 
tine, the  Messianic  dream  of  the  Jews  gave  origin  to  not  a  few  of 
this  class  of  pseudo-Messiahs  before  the  time  of  Jesus.^^  In  the 
Middle  Ages  the  crusades  were  both  the  cause  and  the  effect  of  in- 
sanity.^*^     In  our  own  America  there  seems  to  be  a  fruitful  soil  for 

23J  Felton,  the  assassin  of  Villiers,  is  known  to  onr  law."  Tims  "the  manly 
Duke  of  Buckingham,  Prime  Minister  of  spirit  of  Felton  .  .  .  wrenched  the 
Charles  I.,  in  1028,  was  actuated  by  hidden  law  from  the  judges  who  had 
ideas  of  persecution  as  well  as  by  reli-  hitherto  been  too  silent;  and  produced 
gious  and  political  excitement.  He  was  that  unexpected  avowal  which  con- 
considered  a  lunatic  by  some  persons,  demned  all  their  former  practices.  But 
He  is  worthy  of  being  commemorated  it  was  reserved  for  better  times,  when 
from  the  fact  that  he  was  the  means  of  philosophj',  combining  with  law,  enabled 
forcing  from  the  English  judges  the  his-  the  genius  of  Blackstone  to  quote  with 
toric  declaration  that  torture  is  con-  admiration  the  exquisite  ridicule  of  tor- 
trary  to  the  law  of  England.  When  he  ture  by  Beccaria." — Disraeli,  "Felton. 
was  threatened  with  the  torture,  he  the  Political  Assassin,"  in  Curiosities  of 
stoutly  maintained  that  there  was  no  Literature,  Vol.  III.  pp.  11.5  et  s.eq.  See 
law  for  it,  and  told  the  Duke  of  Dorset,  also  Blackstone,  4  Cora.  325,  320. 
the  agent  of  the  King,  that  if  he  was  ^*  Renan,  Life  of  Jesus,  Chapter  IV. 
put  on  the  rack  he  would  implicate  him.  See  also  Josephus,  Antiquities  of  the 
Dorset,  as  his  accomplice.  When  the  Jews,  Bk.  XVTII.  Chap.  I.  for  an  account 
question  was  referred  to  the  judges  they  of  Juda  the  Gaulonite. 
made  answer  that  "no  such  pimislnnent  ^  Peter  the  Hermit,  who  started  the 


S32  INSANITY- -FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1037 

these  insane  prophets  and  preachers.  We  have  had  in  recent  years, 
ii.  the  Philadelphia  Hospital,  a  typical  case  of  a  Messiah  in  a  man 
who  wore  his  hair  and  beard  long,  and  cultivated  a  remarkable  facial 
resemblance  to  the  conventional  portraiture.  Hadfield,  who  shot  at 
George  IIL,  was  a  paranoiac  with  the  delusion  that  he  was  called  by 
the  Almighty  to  do  a  great  deed.-^ 

Religious  fanatics  are  often  paranoiacs,  and  act  from  a  deep  con- 
viction that  they  are  right.  Jacques  Clement,  the  assassin  of  Henry 
III.,  of  France,  responded,  after  the  deed,  that  he  was  satisfied ; 
that  he  had  no  regret.  This  illustrates  an  important  trait  in  delu- 
sional lunatics, — their  domination  by  their  delusions ;  their  satisfac- 
tion in  acting  according  to  them ;  and  their  profound  belief  that  they 
have  acted  right. 

1038.  Insane  inventors. — The  insane  inventors  are  described  as  a 
separate  class  by  Kraflt-Ebing.^^  Their  schemes  are  often  extrava- 
gant, absurd,  puerile,  and  evolved  from  the  idea  or  dream  of  great 
fortune  awaiting  the  individual.  Some  of  these  patients  also  im- 
agine that  they  are  great  poets,  artists,  scientists,  mathematicians,  or 
statesmen.^ '^^  The  discoverers  of  perpetual  motion  are  usually  of  this 
class,  and  this  delusion  reveals  the  mental  incapacity  of  such  fools, 
for  they  have  not  minds  enough  to  appreciate  the  fact  that  such  a 
scheme  is,  of  necessity,  contrary  to  the  laws  of  nature.  Hence,  as 
Krafft-Ebing  has  observed,  these  inventing  paranoiacs  are  often  of 
inferior  intellect.^^"'^^     The  man  who  believes  that  he  can  square  the 

first  crusade,  was  probably  a  border-line  man  in  \\liom  he  could  detect  no  sign  of 

case,   if  not  downright  insane.     It  was  insanity,   so  he  discliarged   him  on  th<' 

an    age    of    extreme    ignorance    and    re-  spot.     When   the   patient   was   required 

ligious  credulity, — two  things  which  al-  to  sign    his    release    papers,   he  signed 

ways   favor   monomaniacs.     For  a  brief  "Christ."     A  patient  examined  in  open 

but   graphic    history,    see    Bemont     and  court     by     Lord    Lj-ndhurst    announced 

Monod,   Medieval    Europe.  himself    the    prophet    Ezokiel ;   another, 

You  may  as  well  whose  case  is  referred  to  bv  Erskine  in 

Forbid  the  sea  for  to  obe.y  the  moon.  ]uh   speech   for  Hadfield,   proclaimed,   in 

As  by  an  oath  remove,  or  counspl  shake  ii  ,   <•   „     „t  4.1,     „  1  „i     „„     *■    "t     ™   *i. 

The  fabric  of  his  foil  v.   whose  foundation  t>.e  face  of  the  whole  court,     I  am  the 

Is  pyl'd  upon  his  faith.  Christ." 

—Winter's  Tale.  =' Op.  cit.  p.  476. 

.'«' Chief  Justice  Taney,  when   a  child  27^  The  scribbling  paranoiac  was  ira- 

in  Maryland,  went  to  school  to  a  teacher  niortalized  bv  .Juvenal,  7,  52: 

who    was    such    a    lunatic   that   ho   was  Tenet  Insanahile  multos 

drowned   in    attempting   Peters   feat  of  Scribendi  cacnethes.  et  icgro  in  (orde 

walking  on   the   water.      (7   Alb.    L.   .T.  senescit. 

p.    3.)      This    was    a    good    example    to  The  fact  that  this  species  existed  in 

teach  a  judge  what  delusional  insanity  the  degenerate  days  of  ancient  Rome  is 

can  really  do.      (Matthew,  xiv.  22-33.)  not  without  significance. 

Maudsley    (Responsibility    in   Mental  272  Tiie  opinion  that  "great  wits  are 

Disease,  1874)  tells  of  a  commissioner  in  sure  to  madness  near  allied"  is  not  al- 

lunacy  who  went  to  an  asylum  in  his  ofli-  ways     justified     in     paranoiacs.       Sine 

cial  capacity  to  discharge  patients  who  aliqua   dementia,   nullus   phcebus    looks 

he  believed  had  recover6d.   He  found  one  better  in   Latin   than   in  fact.     Charles 


A  case  of  religious  paranoia  in  a  patient  wino  believed 
he  was  a  Messiahi. 


§   1035]  PARANOIA.  833 

circle  is  usually  a  paranoiac.  Clouston^  ^  had  a  patient  who  believed 
that  twice  two  were  four  and  a  quarter,  and  who  left  his  manuscripts, 
filling  two  large  chests,  to  the  University  of  Oxford.  Occasionally 
the  invention  of  a  paranoiac  is  not  without  value ;  but  this  fact  does 
not  prove  the  inventor  to  be  sane.  I  knew  such  a  man,  who  had  in- 
vented and  patented  a  harrow ;  it  was  of  some  use,  and  was  adopted 
by  the  farmers;  but  this  fact  only  increased  the  inventor's  insane 
delusion  as  to  his  own  importance.  He  became  a  political  and  re- 
ligious agitator.  These  inventors  may  become  very  suspicious  and 
resentful,  especially  if  they  believe,  as  is  not  unusual,  that  they  are 
defrauded  of  their  rights.  Bellingham,  although  not  an  inventor, 
and  usually  classed  as  a  persecutory  paranoiac,  believed  that  he  had 
conferred  a  great  benefit  upon  the  government,  and  was  deprived  of 
his  just  reward.  Such  a  case  is  of  rather  an  exceptional  type;  one  in 
which  the  delusion  of  persecution  follows,  instead  of  preceding,  the 
expansive  delusion.  ^^ 

1039.  The  erotomaniacs. — These  are  the  insane  lovers,  or  lunatics 
who  are  enamored  of  some  prominent  or  exalted  personage,  whom 
they  pursue  as  long  as  they  can  keep  out  of  an  asylum.  They  usually 
have  the  delusion  that  their  love  is  reciprocated,  and  they  build  in- 
sane air-castles  and  schemes  on  this  imaginary  basis.  Mary  Ander- 
son, the  actress,  had  such  an  insane  lover,  who  followed  her  up  and 
down  the  land.  He  was  finally  certified,  and  later  he  killed  one  of 
the  asylum  physicians,  who  he  believed  was  his  persecutor.^^ 

II.  The  medico-legal  aspects  of  paeanoia. 

1040.  Criminal  paranoiacs. — Wlien  it  is  borne  in  mind  that  the 
large  majority  of  the  criminal  insane  are  recruited  froiti  the  para- 
noiacs, it  becomes  evident  at  once  that  we  are  in  the  presence  here  of 

Lamb  combated  this  fallacy  in  an  essay  larije   family,  which   he  neglected.     His 
on   "The   Sanity   of  True   Genius;"   but  praises   have  now  been   hymned   for   al- 
poor    Lamb    himself   was   once   insane,  most  fifty  years,  but  if  his  wild  schemes 
(See  Hazlett's  Mary  and  Charles  Lamb,  had   led   him   to   assassinate   the   Presi- 
Chaps.  VI.  and  VII.)  dent   of   the    United    States    instead    of 
^  Mental    Diseases,   p.    189.  running  amuck  in  Virginia,  we  should 
Huxley  has  somewhere  declared  that  have  liad  a  different  popular  verdict. 
he   could   imagine    a    world    in    whicli        ^^  Cervantes,    in    his    immortal   book, 
twice  two  did  not  make  four.     He  had  has   drawn  the  picture  of  an   erotoma- 
probably  never  heard  of  Clouston's  pa-  niac  in  Don  Quixote.     The  fact  that  it 
tient,   else   he  would  have  hesitated   to  was  meant  as  a  satire  on  the  expiring 
avow  such  a  belief.  follies    of    chivalry,   only   adds    to    its 
**John  Brown,  the  emancipator,  who  value  as  a  psychological   study.     Chiv- 
ied the  raid  at  Harper's  Ferry,  probably  airy   was     one    of    the   popular   craze* 
belonged    to    this    class.     He  was  little  which  are  so  prolific  of  paranoiacs. 
better  than  a  vagabond,  and  had  a  very 
Vol.  I.  Med.  Jtjb, — 53. 


834  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1040 

one  of  the  most  important  of  the  insanities.  This  is  the  form,  in 
fact,  about  which  have  been  waged  most  of  the  forensic  battles,  and 
it  is  beyond  compare  the  most  intricate  of  all  forms,  if  we  except 
those  that  raise  the  question  of  testamentary  capacity.  It  is  here 
that  we  meet  in  full  force  with  such  questions  as  partial  insanity, 
delusions,  moral  insanity,  partial  responsibility,  and  the  knowledge 
of  right  and  ^^Tong.^•^ 

1041.  Sir  Matthew  Hale's  "partial  insanity." — The  first  recognition 
in  English  law  of  a  form  of  insanity  corresponding  in  a  way  to  para- 
noia is  found  in  the  well-known  definition  of  Sir  Matthew  Hale,^- 
already  referred  to.  (Ante,  p.  518.)  Before  Hale's  time,  and  even 
after  it,  the  subject  was  without  form,  and  void.  Insanity,  or  "mad- 
ness," or  "lunacy,"  as  it  was  called  by  the  old  writers,  was  a  general- 
ized mental  disease,  in  which  the  patient  (or  the  prisoner)  was  "totally 
deprived  of  his  understanding  and  memory,"  or  had  no  more  knowl- 
edge of  what  he  was  doing  than  a  wild  beast,'^^  or,  as  the  civilians 
put  it,  non  intelligit  quid  agit, — did  not  know  what  he  was  doing.^"* 
But  Hale,  as  we  have  seen,  recognized  a  "partial"  insanity,  in  which 
it  is  easy  to  see  that  he  referred  to  persons  who  had  systematized  de- 
lusions, and  whose  minds,  except  for  those  delusions,  had  "a  compe- 
tent use  of  reason  in  respect  of  some  subjects." 

For  this  differentiation  Hale  would  deserve  great  credit,  were  it 
not  that  he  proceeded,  almost  with  the  next  stroke  of  his  quill,  to  de- 
clare that  this  delusional  insanity  was  no  excuse  for  crime.  "This 
partial  insanity  seems  not  to  excuse  them  in  the  committing  of  any 
offense  for  its  matter  capital."  When  he  wrote  those  words  the  Lord 
Chief  Justice  of  the  King's  bench  was  literally  passing  sentence  of 
death  on  a  large  number  of  paranoiacs,  who,  during  the  following 
two  hundred  and  more  years,  were  to  perish  on  the  scaffolds  of  two 
continents.  Hale's  doctrine  of  partial  insanity  was,  indeed,  for  all 
that  time,  the  shibboleth  of  the  criminal  law  of  England. 

1042.  Abuse  of  the  term  "partial  insanity." — We  have  already  dis- 
cussed the  subject  of  partial  insanity  in  these  pages  (§§  472-475), 
and  refer  to  it  briefly  again  because  it  is  an  essential  part  of  paranoia. 

''According    to    Nicolson     ("Criminal  drift  of  his  paper,  that  many  of  tlioni 

Lunacy  in  England,"  in  Allbutt's  System  were  delusional  cases. 

of   Medicine,   Vol.   IX.   p.   448),   of   640  °M  P.  C.  Chap.  IV. 

criminal   insane  in   Broadmore  Asylum,  ^Itex  v.  Arnold,  16  How.  St.  Tr.  764. 

4G7  had  committed  murder,  manslaugh-  Also   Ferrers's    Trial,    19   How.    St.   Tr. 

ter,  or  attempts  at  murder.     Nicolson's  947. 

report   is   very   imperfect,   inasmuch   as  '*  Justinian,  Institutes,  Lib.  III.  title 

he  does  not  state  the  forms  of  insanity  XX.  §  8.     Bracton,  De  Legibus,  Lib.  III. 

from  which  these  prisoners  suffered,  but  fol.  100. 
it  is  a  legitimate  conclusion,  from  the 


§  1042]  PARANOIA.  S35 

It  13  a  term  that  lends  itself  readily  to  misunderstanding  and  sophism. 
There  can  be  no  doubt  that  the  paranoiac,  or  monomaniac,  is  not 
totally  insane,  in  the  sense  of  the  old  law.  His  mental  disorder  is 
not  coextensive  with  all  his  mental  faculties.  Being  under  the  do- 
minion of  one  or  a  few  systematized  delusions,  he  may  be  most  in- 
sane, and  yet  have  the  use  of  his  eyes,  ears,  senses,  memory,  intelli- 
gence, and  even  his  conscience.  This  use,  to  be  sure,  is  impaired  and 
interfered  with  by  his  delusions  in  many  and  various  ways,  and  yet, 
so  long  as  he  has  a  spark  of  memory  and  reason  in  him,  he  is  only  a 
"partial"  lunatic,  according  to  Hale. 

jSTow,  from  the  standpoint  both  of  i3athology  and  common  sense,  it 
is  surely  no  longer  needful  to  enter  upon  a  labored  refutation  of  such 
a  doctrine.  It  becomes  a  mere  quibble  of  words  as  to  what  is  meant 
by  "partial."  We  do  not  say  that  a  man  with  typhoid  fever  is  only 
partially  ill,  even  though  some  of  the  organs  of  his  body  escape  the 
ravages  of  the  disease.  It  is  a  common  saying  that  a  chain  is  only  as 
strong  as  its  weakest  link,  and  a  bridge  with  one  rotten  span  is  not  a 
sound  bridge.  Although  this  doctrine  of  partial  insanity  has  ap- 
pealed, for  some  reason,  with  irresistible  force  to  courts  and  lawyers, 
it  was  yet  a  great  judge  who  demolished  it  with  a  phrase;  for  Lord 
Lyndhurst  said^^  that  a  person  could  not  be  partially  insane  and 
sane  at  the  same  moment  of  time :  to  be  sane  the  mind  must  be  per- 
fectly sound,  otherwise  it  is  unsound.  And  Lord  Brougham,  who  was 
probably  a  better  analyst  than  Hale,  said  that  the  human  mind  was 
one  and  indivisible,  and  could  not  be  sound  in  one  part  and  unsound 
in  another.^^ 

1043.  Delusion  as  a  test  for  insanity.— It  was  not  until  the  trial  of 
Hadfield,^^  in  1800,  that  the  doctrine  of  delusion  as  a  defense  for 
crime  was  established  in  English  law^,  and  this  was  due  to  the  elo- 
quence and  insight  of  Erskine,  in  his  speech  at  the  bar  for  that 
prisoner.  This  was  a  complete  reversal  of  the  doctrine  of  Hale. 
"Delusion,"  said  Erskine,  "where  there  is  no  frenzy  or  raving  mad- 
ness, is  the  true  character  of  insanity ;  and  where  it  cannot  be  predi- 
cated of  a  man  standing  for  life  or  death,  for  a  crime,  he  ought  not 
.     .     .     to  be  acquitted."     The  fact  that  this  successful  defense  re- 

='Z)CM)  V.  Clarice,  5  Russ.  Ch.  166,  6  L.  ="  Waring  v.  Waring,  6  Moore,  P.  C.  C. 
J.  Ch.  186.  341,   12  Jur.  947. 

The  Lord  Chancellor,  in  using  these        ^''Had/icld's   Trial,   27    How.    St.    Tr. 
words,  ascribed  thera  to  Sir  .John  Nich-    1281. 
oil,  whose  decision  he  was  reviewing  on 
appeal.       The      phraseology,      however, 
seems  to  have  been  his  own. 


836  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1042 

versed  the  position  of  Hale  seems  to  have  escaped  notice  at  the  time, 
and  has  been  but  little  dwelt  on  by  subsequent  legal  writers.^^ 

1044.  The  test  of  delusion  defined. — But  the  courts  did  not  remain 
satisfied  with  the  doctrine  of  delusions,  and  after  the  acquittal  of 
M'Naghten,  a  paranoiac,  for  the  murder  of  Mr.  Drummond,^**  in 
1843,  the  subject  was  formulated  in  a  set  of  rules  by  the  English 
judges.  As  these  M'JSTaghten  rules  have  already  been  discussed  in 
these  pages  {ante.  Chapter  XXVII.)  it  is  not  necessary  to  repeat 
them  here  in  cxtenso.  It  is  sufficient  to  point  out  again  that  those  rules 
embody  two  errors  with  respect  to  insane  delusions.  The  first  error 
is  that  the  insane  act  must  be  traced  directly  to  the  delusion,  so  as  to 
cause  it  to  appear  that  the  prisoner  did  not  understand  the  nature  of 
his  act,  and  that  it  was  wrong.  And  the  second  error  is,  that  a  delu- 
sional lunatic  "must  be  considered  in  the  same  situation  as  to  respon- 
sibility as  if  the  facts  with  respect  to  which  the  delusion  exists  were 
real."  These  errors  simply  indicate  an  attempt  to  return  to  Hale's 
doctrine  of  partial  insanity,  by  which  a  delusional  lunatic  is  to  be 
regarded  as  one  part  insane  and  nine  parts  sane.  But  they  depart 
from  Hale,  as  already  said,  in  the  fact  that,  whereas  the  Lord  Chief 
Justice  denied  that  such  partial  lunatics  were  exempt  from  punish- 
ment, the  M'Xaghten  rules  held  that  they  were  the  only  lunatics  who 
were  thus  exempt,  under  certain  conditions.'*^ 

1045.  The  connection  of  the  delusion  with  the  act. — As  to  tracing 
the  act  of  a  paranoiac  directly  to  his  delusion,  it  may  or  it  may  not  be 
possible  ;'*^  but  until  we  have  devised  some  probe  that  will  explore  the 
intellect,  or  some  method  of  divination  that  can  disclose  all  the  work- 

"  It  has  been  customary  for  some  an  adverse  criticism,  see  Parsons  ▼. 
writers  to  depreciate  Lord  Erskine  as  a  State,  81  Ala.  610,  60  Am.  Rep.  193,  2 
lawyer.  See  Cral)b  Robinson's  Diary,  So.  854;  Boardman  v.  Woodman,  47  N. 
Vol.  I.  p.  400.  Sir  Fitzjames  Stephen  H.  120;  State  v.  Jones,  50  N.  H.  369,  9 
also  has  a  rather  cool  estimate  of  him.  Am.  Rep.  242;  State  v.  Pike,  49  N.  H. 
The  reputation  which  he  made  as  an  ad-  438,  6  Am.  Rep.  533. 
vocate  he  seems  not  to  have  maintained  "In  Hall  v.  Com.  22  W.  N.  C.  25,  12 
as  Lord  Chancellor.  But  his  speech  for  Atl.  163,  the  court,  Arnold,  charged  that 
Hadfleld  will  always  give  him  promi-  "insanity  or  insane  delusions  in  respect 
nence  in  the  annals  of  medical  juris-  to  one  thing  or  person  will  not  relieve 
prudence.  the   person   affected   from   responsibility 

*"  10  Clark  &  F.  200,  8  Scott,  N.  R.  for  his  acts  towards  other  persons  or 
595,  1  Car.  &  K.  130,  note.  things,  imless  his   insanity  or  delusion 

*"2  Stephen,  History  Crim.  Law,  is  such  as  dethrones  his  reason,  and 
Chap.  XIX.;  Com.  v.  Frcth.  3  Pliila.  renders  him  incapable  of  forming  or 
105;  Smith's  Case,  15  L.  I.  33;  Webber  carrying  out  a  purpose,  or  to  resist  the 
v.  Com.  119  Pa.  223,  4  Am.  St.  Rep.  impulse  to  commit  the  act  if  he  would." 
634,  13  Atl.  427;  Com.  v.  Meredith.  17  Note  the  conditional  clause,  and  the  odd 
Phi'la.  90;  Taylor  v.  Com.  109  Pa.  262;  statement  about  insanity  dethroning  the 
Com.  V.  Wireback,  190  Pa.  138,  70  Am.  reason.  What  does  insanity  do  if  it 
St.  Rep.  625,  42  Atl.  542;  People  v.  Tay-  does  not  dethrone  the  reason? 
tor,  138  N.  Y.  398,  34  N.  E.  275.     For 


§   1045] 


PARANOIA. 


837 


ings  of  the  human  mind,  or  can  unfold  these  as  a  man  unfolds  the 
map  of  a  country,  it  will  be  hazardous  to  make  laws  on  the  subject. 
If  such  interpretation  cannot  always  be  made  in  the  normal  mind,  the 
laws  of  which  are  fairly  well  known,  how  can  it  be  made  unerringly 
in  the  insane  mind,  in  which  the  laws  are  disordered  ?  A  paranoiac 
with  ideas  of  persecution  may  build  up  a  most  complex  system  of  de- 
lusions, which  control  his  conduct  by  hidden  springs  of  action,  and 
which  he  may  not  disclose.  Where  is  the  psychiatrist  with  the  slight- 
est personal  knowledge  of  the  insane,  who  will  venture  to  proclaim  that 
he  can  read  unerringly  the  mental  processes  in  every  case  ?  A  para- 
noiac with  hallucinations  of  hearing  may  receive  a  command  out  of 
the  void,  and  obey  it  as  though  it  were  the  voice  of  the  Almighty.*^ 
In  other  words,  the  disturbing  action  of  a  systematized  delusion  may 
extend  to  all  the  mental  functions,  and  control  conduct  in  the  most 
inscrutable  ways.^^  Hence,  it  is  an  unsafe  and  unjust  rule  to  judge 
a  man  responsible  because  he  is  not  totally  insane  (in  Hale's  sense), 
or  because  the  connection  of  his  criminal  act  with  his  delusions  can- 
not be  proved.  Such  a  legal  standard  is  the  merest  assumption.^* 
An  insane  delusion  controls  conduct;  or,  as  the  courts  express  it, 


*^Sir  Fitzjames  Stephen  wrote  (op. 
cit.  p.  160,  footnote)  :  "My  own  opin- 
ion is  that  if  a  special  Divine  order 
were  given  to  a  man  to  commit  murder, 
I  should  certainly  hang  him  for  it,  un- 
less I  got  a  special  Divine  order  not  to 
hang  him.  What  the  effect  of  getting 
such  an  order  would  be,  is  a  question 
difficult  for  anyone  to  answer  till  he 
gets  it."  The  man  who  wrote  those 
lines  died  insane.  If  he  could  have  fore- 
seen his  own  death,  and  the  circumstan- 
ces of  it,  he  would  probably  not  have 
written  thus  lightly  of  the  Divine  order 
of  insanity. 

"In  Webber  v.  Com.  119  Pa.  223,  4 
Am.  St.  Rep.  634,  13  Atl.  427.  the  con- 
nection of  the  prisoner's  delusions  with 
his  crime  was  made  a  test  of  his  respon- 
sibility. Webber  had  had  delusions  of 
persecution,  of  marital  infidelity,  and  of 
poisoning;  and  had  been  considered  in- 
sane for  some  time  by  his  employer  and 
acquaintances.  He  shot  and  killed  a 
jeweler  in  an  altercation  over  a  clock. 
His  conduct  and  speech  while  in  jail 
were  those  of  an  insane  man,  and  he 
was  even  chained  to  the  floor  by  his  jail- 
ers in  fear  of  him.  He  was  convicted, 
but  was  never  executed,  because,  appar- 
ently, the  governor  of  the  state  would 
not  take  the  responsibility  of  signing 
his  death-warrant.     On   appeal,  the  su- 


preme court  sustained  the  court  below, 
but,  in  a  dissenting  opinion,  Justice 
Sterrett  said  the  refusal  of  the  trial 
judge,  Arnold,  to  gi-ant  a  preliminary 
trial,  or  to  hear  testimony  as  to  the 
prisoner's  insanity  at  the  time  of  his 
trial,  was  an  error.  "If  that  was  an 
exercise  of  sound  judicial  discretion," 
said  Justice  Sterrett,  "it  would  be  dif- 
ficult indeed  to  say  what,  in  a  legal 
sense,  constitutes  abuse  of  discretion." 
Legal  Intelligencer,  May  11,  1888.  Also 
"The  Insanity  of  Oscar  Hugo  Webber," 
by  the  present  writer,  who  was  one  ot 
the  experts  for  the  defense,  in  Proceed- 
ings of  the  Medical  Jurisprudence  So- 
ciety of  Philadelphia,  for  Nov.  13,  1888. 
"  A  writer  in  the  Edinburgh  L. 
Jour.  Vol.  I.  p.  542,  asks,  "What  are  we 
to  think  of  making  distinctions  and 
drawing  the  line  of  responsibility  with 
perfect  confidence,  as  if  all  were  clear 
between  partial  and  total  insanity  ?" 
He  contends  that  it  is  more  just  and 
merciful,  instead  of  deciding  for  re- 
sponsibility in  partial  insanity  (as  Hale 
does),  to  doubt  as  to  that  essential, 
when  disease  of  the  mind,  to  a  palpable 
and  considerable  amount,  is  proved.  In 
otlier  words,  he  would  give  the  accused 
the  benefit  of  the  doubt.  This  is  a 
lawyer's  way  of  putting  it,  and  is  not 
an  unacceptable  statement. 


838  INSANITY— FOllMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1045 

^'controls  the  will," — a  subject  which  has  been  elaborated  by  a  few 
judges."*^ 

1046.  Delusions  to  be  judged  as  though  they  were  real. — What  shall 
be  said  of  the  M'Naghten  rule  which  prescribes  that  an  insane  man 
"must  be  considered  in  the  same  situation  as  to  responsibility  as  if 
the  facts  with  respect  to  which  the  delusion  exists  were  real  ?"  This 
"means  that  if  a  man  commits  murder  in  the  false  belief  that  his  life 
is  threatened,  he  shall  be  exempt ;  but  if  he  kills  merely  on  some  slight 
provocation,  in  the  delusion,  for  instance,  that  he  is  simply  maligned, 
he  shall  be  hanged.  This  is  on  the  principle  that  the  law  recognizes 
the  right  of  self-defense,  but  not  of  vengeance.  This  is  a  proper  and 
just  rule  to  apply  to  sane  men,  and  it  would  be  equally  so  for  insane 
men, — if  they  were  not  insane.  In  other  words,  this  rule  proceeds 
on  the  principle  that  insane  men  are  to  be  judged  in  the  same  way  as 
sane  men ;  there  must  be  reason  in  a  man's  madness,  otherwise  he  is 
Responsible.'*''  But  insane  delusions  are  not  to  be  judged  by  the  laws 
of  normal  ethics,  any  more  than  a  sick  man  is  to  be  fitted  for  a  gar- 
ment to  wear  when  he  is  well.*'^ 

1047.  The  knowledge  of  right  and  wrong. — It  may  be  stated  as  an 
almost  universal  rule  that  a  paranoiac  is  not  able  to  recognize  the  dif- 
ference between  right  and  wrong  with  respect  to  his  delusions, 
•although  he  may  know  that  the  delusion  leads  him  to  commit  an  act 
contrary  to  the  human  law,  and  he  may  recognize  the  difference  be- 
tween right  and  wrong  in  general.  It  is  somewhat  surprising  that 
there  should  be  so  much  diversity  of  opinion  between  the  legal  and 
medical  professions  on  this  subject;  and  it  might  be  better  for  medical 
experts  squarely  to  meet  the  demands  of  the  courts  on  this  rule.  A 
good  defense  could  have  been  made  for  Bellingham^^  and  for 
Guiteau*^  on  this  test  alone,  for  both  these  assassins  were  fully  con- 
vinced that  what  they  did  was  right.     They  both  protested  in  open 

■-  *'Com.   V.  I'oqers,  7   Met.   500 ;   Dunn  for  the  court  of  appeals,  rendered  a  de- 

V.  People,  100  111.  63.5;  Com.  v.  Mosler,  cision  in  which  he  used  the  above  lan- 

4  Pa.  264;  Ortwein  v.  Com.  76  Pa.  414,  j,'uaore. 

18  Am.  Rep.  420.  *'^Bcllingham's  Case,  1   Collinson,  Lu- 

**  Ray,  Mod.  Jur.  Insanity,  5th  ed.  p.  nacy,   636. 

48.  'Hiuiteau's  Case,  10  Fed.   182.    Judge 

"  The  idea  that  a  delusion  is  no  ex-  Cox,  in  the  Guiieau  Case,  said  that  "the 

case  for  crime  unless  it  is  "of  such   a  question  of  insane  delusion  is  only  im- 

character  that,   if  it  had  been  true,   it  portant  as  it  throws  light  on  the  ques- 

would  have  rendered  the  act  excusable  tion    of    knowledge    of,    or    capacity    to 

or   justifiable,"   is  illustrated  in  People  know,   the  right  and  wrong."     Guiteau 

V.  Taylor,  138  N.  Y.  398,  34  N.  E.  275.  had  not  so  much  a  condition  of  system- 

A   convict    killed    a    fellow   convict   in  atized  delusions  as  a  perversion  of  this 

DannfMuora  prison,  and  the  defense  was  very    capacity   to    know   the    right   and 

delusion    of    persecution.     Maynard,    J.,  wrong  of  his  act. 


§   1047]  PARAJ<J01A.  839 

court  against  the  defense  of  insanity,  and  proclaimed  that  they  were 
justified  in  what  they  had  done.  There  could  be  no  stronger  evidence 
of  the  perversion  of  their  moral  sense.  We  are  speaking  now  of  para- 
noia, and  not  of  all  forms  of  insanity.  But  in  paranoia,  we  repeat,  the 
moral  sense  is  usually  quite  perverted  by  the  systematized  delusions. 
An  insane  man  who  believes  he  is  persecuted  loses  all  sense  of  moral 
restraint  in  time,  and  proceeds  to  avenge  himself;  another,  who  be- 
lieves he  is  commanded  by  God  to  take  life,  may  know  perfectly  that 
the  law  of  the  state  forbids  it,  but  he  believes  he  follows  a  higher  laAV ; 
hence,  his  moral  insight  is  perverted  with  respect  to  the  act  itself. 

1048.  A  clear  statement  of  the  rule. — It  would  be  fruitless  here, 
even  if  our  space  permitted,  to  marshal  all  the  cases  in  which  the 
courts  have  imposed  the  right-and-wrong  rule.^^  Besides,  we  have 
already  discussed  this  subject  in  these  pages  (Chap.  XXVII.),  and 
cannot  afford  to  enter  upon  longer  historical  digressions.  Coke  and 
Hale  knew  nothing  of  such  a  rule ;  it  seems  to  have  been  first  promul- 
gated by  Hawkins  ;^^  and  since  his  time  it  has  appeared  in  pretty 
much  every  criminal  trial  in  England  and  America.  It  was  embodied 
in  unmistakable  language  in  the  M'lTaghten  rules,  and  has  ever  since 
retained  the  form  in  which  it  was  then  molded.  A  recent  and 
authoritative  English  writer^^  has  given,  perhaps,  the  best  expres- 
sion of  this  rule  when  he  says:  "I  think  that  any  one  would  fall 
within  the  description  .  .  .  who  was  deprived,  by  disease  affecting 
the  mind,  of  the  power  of  passing  a  rational  judgment  on  the  moral 
character  of  the  act  which  he  meant  to  do."  This  practically  exempts 
every  paranoiac  who  commits  a  crime  upon  the  promptings  either  of 
his  systematized  delusions  or  his  insane  logic;  for  surely  no  such 
paranoiac  has  a  rational  judgment  of  the  moral  character  of  such  an 
act.53 

1049.  The  rule  not  logically  enforced.— The  fault  is  in  part  with 
the  courts  in  failing  or  refusing  to  abide  by  the  rule  which  they 
themselves  impose.  They  judge  of  a  lunatic's  moral  sense  by  his 
general  intelligence,  and  not  by  the  act  of  which  he  is  accused.  On 
the  other  hand,  it  is  a  fault  of  experts  in  some  of  these  cases  not  to 
accept  the  rule,  and  endeavor  to  have  it  logically  applied. 

The  rule,  as  we  have  said  elsewhere,  is  cut  out  of  the  same  piece 

"  See  ante,  §  175.  to  say  that  a  party  was  responsible  in 

"  1  P.  C.  Chap.  I.  every  case  where  he  had  a  glimmering 

'*  2   Stephen,   History   Crim.   Law,   p.  knowledge     of     what     was     right     and 

163.  wrong."     Baron   Rolfe  in  Reg.  v.   Lay- 

"  'Perhaps  it  would  be  going  too  far  ton,  4  Cox,  C.  C.  149. 


840  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1049 

as  the  doctrine  of  "moral  insanity,"  to  which,  nevertheless,  the  courts 
are  so  much  averse.  In  both  cases  the  state  of  the  moral  sense  is 
made  the  test.  If  this  moral  sense  is  competent,  say  the  courts,  there 
is  mental  health ;  if  this  moral  sense  is  incompetent,  say  some  alien- 
ists, there  is  insanity.  The  one  is  simply  the  reverse,  the  other  the 
obverse,  of  one  and  the  same  proposition.  That  proposition,  in  its 
essence,  is  that  the  moral  sense  is  a  separate  mental  "organ,"  capable 
of  being  separately  healthy  or  diseased.  So  long  as  such  psychology' 
is  to  prevail  it  would  be  better  for  alienists  to  get  the  most  out  of  it 
possible,  and  to  insist  that  it  be  followed  to  logical  conclusions.^^ 

1050.  The  distinction  between  delusion  and  erroneous  belief. — The 
question  of  erroneous  belief  as  distinct  from  an  insane  delusion  may 
arise  in  these  cases.  An  insane  delusion  is  an  erroneous  belief  which 
is  caused  by  mental  disease,  and  is  of  such  a  nature  as  would  not  have 
occurred  if  the  patient  had  been  of  sound  mind.^^ 

1051.  The  defense  of  insanity  resented  by  the  prisoner. — The  defense 
of  insanity  is,  as  a  rule,  not  relished  by  paranoiacs.  These  lunatics 
do  not  like  to  be  called  insane.  They  resent  the  imputation,  often 
most  vigorously;  for  it  is  a  well-known  characteristic  of  delusional 
patients  to  defend  their  delusions,  and  this  they  will  do  at  any  risk; 
even  at  the  risk  of  their  lives  when  on  trial  for  murder.  An  early 
case  was  that  of  Frith,^^  in  1790,  who  protested  against  being  de- 
fended on  the  ground  of  insanity.  He  had  thrown  a  stone  at  the  King 
in  his  royal  coach,  and  when  put  on  trial  he  harangued  the  court  at  a 

•*Legrand  du  Saulle  (Trait6  de  Med.  this  day.  Instead  of  converting  the 
Legale,  12th  ed.  p.  689)  says:  "Rea-  Chinese,  he  had  been  perverted  by  them : 
son  cannot  exist  intact  without  the  fac-  and  although  a  man  of  limited  scientific 
ulty  of  judging  good  and  evil,  .  .  .  comprehension,  he  was  not  insane, 
and  the  power  to  do  freely  and  intelli-  When  Huxley  dissected  the  alleged  mira- 
gently  the  one  or  the  other.  This  fac-  cle  of  the  Gadarene  sv/ine,  Gladstone 
ulty  and  this  power,  necessary  conse-  endeavored  to  reply  to  him,  and  showed 
quences  of  human  reason,  constitute  free  thereby  that  he  himself  was  a  believer 
will,  and  consequent  moral  responsibil-  in  witches ;  yet  Gladstone,  whose  mind 
ity."  was    remarkably   bound    down  .  by    theo- 

"  The  Case  of  Vedder,  6  Dem.  92,  is  logical  preconceptions,  was  not  insane, 
pertinent.  The  testatrix  believed  in  A  case  illustrating  the  distinction  be- 
witches, and  the  will  was  contested  on  tween  a  "delusion"  and  an  "insane  im- 
the  ground  that  this  belief  proved  her  pulse"  is  Reg.  v.  Burton,  3  Fost.  &  F. 
insane.  She  died  at  seventy-seven  j-ears  772,  in  which  the  prisoner  killed  a  boy 
of  age.  The  court  decided  properly  that  because,  as  he  said,  he  was  tired  of  life, 
this  belief  is  not  an  insane  delusion,  and  wanted  to  be  hanged.  He  was  con- 
Two  himdred  years  ago  the  whole  Chris-  victed.  There  may,  however,  have  been 
tian  world  believed  thus;  the  Bible  some  underlying  delusion  in  tne  case, 
teaches  it;  and  many  persons  still  have  Consult  also  Chaplin,  Cases  on  Criminal 
this  belief.     A  Chinese  missionary,  Rev.    Law,  1891,  p.  75. 

J.  Nevius.  has  recently  written  "a  book        '"'Frith's   Case,   22   How.    St.   Tr.   307. 
(Demon-Possession  and  Allied  Themes)     The  report  of  this  case  is  quite  amus- 
in    which    he    endeavors    to    prove    that    ing. 
ffuch  things  occur  among  the  Chinese  to 


§   1051]  PARANOIA.  841 

great  rate.  He  believed  that  he  had  a  claim  against  the  government, 
and  was  endowed  with  8t.  Paul's  gifts,  and  much  else  that  was  crazy. 
He  \vas  pron^ptly  found  insane  by  a  jury  empaneled  for  that  special 
purpose.  It  is  to  be  noted,  however,  that  he  had  not  harmed  the 
King;  otherwise  he  might  not  have  escaped  so  easily.  A  like  scene 
was  enacted  at  the  trial  of  Pearce,^'^  in  1840,  for  felonious  assault. 
Insanity  was  admitted  by  the  Crown,  but  the  prisoner  would  have 
none  of  it,  and  insisted  on  addressing  the  court  and  examining  the 
witnesses  himself.  The  witnesses  called  and  examined  by  him,  so 
far  from  proving  him  sane,  proved  quite  the  contrary;  and  he  was 
found  not  guilty,  on  the  ground  of  insanity,  in  spite  of  his  protests. 
Earl  Ferrers,^^  at  his  trial,  expostulated  against  the  defense  of  in- 
sanity, which  he  said  his  family  had  forced  upon  him,  although  this 
defense  was  his  only  chance ;  and  the  Solicitor-General  in  triumph 
proclaimed  that  the  prisoner  was  sane  because  he  himself  said  he  was. 
By  this  reasoning  all  paranoiacs  are  sane.  Bellingham  addressed 
the  court  himself,  and  spoke  so'  coherently  that  the  Crown  lawyers 
attempted  to  make  much  of  it,  as  evidence  of  a  sane  mind.  Guiteau 
derided  the  idea  of  his  own  insanity. 

III.  Moral  insanity. 

1052.  This  term  is  not  to  be  taken  too  literally. — Bitter  controversy 
has  been  waged  about  this  affection.  The  term  is  not  a  happy  one,  or 
even  accurate,  if  taken  literally.  But  it  is  not  to  be  taken  too  liter- 
ally, any  more  than  is  monomania  (insanity  of  one  idea),  or  melan- 
cholia (which  means,  literally,  black  bile),  or  hysteria  (insanity  of 
the  womb),  or  even  that  good  old  law-term,  "lunatic,"  which  means 
a  man  who  is  moon-struck,  or  deprived  of  his  mind  by  action  of  the 
moon.  The  science  of  psychiatry,  like  the  science  of  law,  has  many 
terms,  derived  from  the  old  and  even  exploded  ideas,  which  are  not 
to  be  taken  in  a  literal  sense.  A  constable,  for  instance,  who,  in  our 
day,  is  a  rather  humble  officer  of  the  law,  was  originally  a  count  of 
the  stable,  or  master  of  the  horse, — a  high  officer  in  the  Carolingian 
empire.^^  The  cardinals  were  once  the  parish  priests  of  Rome,  and 
a  juror  was  originally  a  witness.     Thus  usage  changes  the  meaning 

"Reg.  V.  Pearce,  9  Car.  &  P.  667.   The  the  opposite  conclusion  has  been  drawn 

prisoner's   counsel   said  that  "he  relied  by  the  prosecution. 

on  the  prisoner's  denial  of  his  insanity,  ^Ferrers's  Trial,  19  How.  St.  Tr.  886. 

under  the  circumstances  which  had  been  ■*"  Bemont      and      Monod,      Medieval 

proved  against  him;,  as  one  proof  of  the  Eurojie. 
fact  of  his  being  insane."     But  usually 


842  INSANITY— FOliMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1052 

and  application  of  words;  and  if  we  were  to  reject  all  that  have  a 
strained  significance,  we  should  impoverish  language  out  of  all  sense 
and  reason. 

1053.  A  faulty  term. — The  great  fault  with  this  term,  "moral  in- 
sanity," is  that  it  is  defined  as  though  it  applied  to  persons  who  are 
insane  merely  in  their  moral  sense,  and  not  at  all  in  their  intellect. 
This  leads  to  a  fruitless  controversy  whether  it  is  possible  for  a  man 
to  be  insane  in  his  morals,  and  not  in  his  reason.  Some  say  yes,  others 
no,  and  the  question  soon  becomes  a  mere  academic  one.  The  pres- 
ent writer  has  always  maintained  the  negative  of  this  question. ^'^ 
To  him  it  is  inconceivable  that  there  can  be  a  moral  concept  without 
an  intellectual  one;  or  that  an  emotion  can  exist  without  an  idea.®^ 
If,  for  instance,  a  man  has  an  emotion  of  fear  or  hatred,  he  must  have 
with  it  an  idea  of  the  thing  feared  or  hated.  This  idea,  as  in  the 
very  young  child  or  very  young  animal,  may  be  a  very  imperfect  one, 
but  nevertheless  it  exists.  Otherwise  there  would  be  nothing  to  fear 
or  hate.  M,  Ribot^-  has  indeed  sought  to  prove  that  the  emotions  are 
the  earliest  of  the  mental  functions  to  be  displayed  in  young  animals ; 
that  they  precede  the  intelligence ;  but  he  has  not  made  out  his  case. 
At  least,  he  has  not  shown  that  in  an  emotion,  even  in  the  youngest 
and  least  developed  of  the  animate  kingdom,  there  is  not  also  a  faint 
spark  of  conscious  ideation.  The  proper  statement  would  seem  to 
be  that  the  minds  of  young  animals  respond  quickest  to  ideas  which 
excite  emotion,  not  to  emotions  which  are  without  ideas. 

1054.  Moral  insanity  is  not  to  be  despised. — In  psychiatry  this  idea 
of  moral  insanity  has  taken  deep  root,  and  means  something  which 
must  not  be  overlooked,  and  cannot  be  despised.*^^  It  has  an  unfor- 
tunate name,  that  is  all ;  unless  we  may  also  say  that  it  has  had  some 
unfortunate  advocates,  who  have  insisted  on  making  these  academic 
distinctions  between  ideas  and  emotions.  It  has,  however,  also  had 
very  distinguished  champions,  among  whom  have  been  Pinel,  Rush, 
Pritchard,  Ray,  Maudsley,  and  Clouston.  The  folie  raisonnante,  of 
Pinel,  was  not  unlike  the  "moral  insanity"  of  Pritchard.     In  both 

*•  "Moral  Insanity;  a  Plea  for  a  More  element     of     them." — Fleming,     Moral 

Exact    Cerebral    Pathologv,"    in    Joiirn.  Pliilosopliy,  p.  45. 

Nerv.  and  Ment.  Dis.  Vol.  XIII.  p.  009.  "The   Emotions,   London,    1897.     See 

""As  our  Desires,   Passions,  and   x\f-  especially   the   introductory  chapter   on 

fections   are   connected,   in   their   orififin  "The  Evolution   of  the  Affective  Life.'' 

and    development,  with    the    knowledge  ""Wharton    (Wharton   &   Still*?,   Med. 

which  we  have  of  their  objects,  Opinion  Jur.    4th    ed.)    attempts    a    refutation 

may  be  said  to  be,  not  merely  the  con-  of  moral  insanity,   based  upon  specula- 

dition  of  these  states  of  feelings,  but  an  tive  psychology. 


§   1054]  PARANOIA.  843 

there  were  strange  lapses  in  the  moral  sense,  according  to  these 
authors,  without  a  marked  disorder  of  the  intelligence;  and  along 
with  these  lapses  there  was  great  plausibility,  or  readiness  in  ex- 
plaining and  excusing  conduct.  Such  a  form  of  insanity  is  still 
described  by  Krafft-Ebing,"'*  who  allies  it  with  paranoia. 

1055.  Confusion  among  those  who  describe  this  affection. — The  diffi- 
culty in  appreciating  what  these  distinguished  authors  mean  by 
moral  insanity  is  at  once  felt  when  we  attempt  to  analyze  the  cases 
which  they  report  to  illustrate  their  ideas.  There  is  no  agreement 
among  them.  Ray^^  tells  us  that  Pinel's  cases  by  no  means  furnish 
suitable  examples  of  this  affection.  Clouston^®  says  he  would  put 
Pritchard's  cases  in  the  category  of  simple  mania;  and  he  himself 
reports  a  case  of  so-called  moral  insanity  (case  of  F.  L.)  in  which 
the  patient  was  evidently  in  the  early  stages  of  general  paresis, 
Ray's  description  of  moral  insanity  is  full  of  inconsistencies.  Thus, 
he  included  cases  of  maniacal  exaltation,  of  paranoia,  of  circular 
insanity,  and  of  melancholia.  The  cases  of  Pritchard,^'^  as  any  one 
who  runs  can  read,  are  all  instances  of  intellectual  disorder.  In 
maniacal  exaltation,  as  shown  in  some  of  Pritchard  and  Ray's 
cases,  there  may,  indeed,  be  no  systematized  delusions;  but  surely 
this  is  no  reason  for  saying  that  the  intellect  is  not  disordered. 
Ray's  analysis  of  his  own  cases  will  not  stand  for  a  moment.  He 
himself  acknowledges  that  they  often  led  to  intellectual  derange^ 
ment  and  delusions.  One  man  had  extravagant  schemes,  another 
had  religious  mania.  These  patients  were  undoubtedly  insane;  but 
they  were  not  cases  of  "moral"  insanity.^^  Guy  and  Terrier  cit^ 
as  an  example  of  moral  or  emotional  insanity  the  case  of  a  lunatic 
"who  imagined  he  was  the  Farnese  Hercules;  had  written  Clark's 
Travels  in  Russia ;  had  painted  one  of  the  masterpieces  of  Raphael ; 
and  knew  everything."  Surely  confusion  in  nomenclature  can 
hardly  go  farther  than  to  describe  such  a  patient  as  a  case  of  moral 
insanity  without  disorder  of  the  intelligence. 

1056.  Difficulties  of  the  subject. — There  are  grave  difficulties  in  the 

'*0p.  cit.  p.  440.  either    imperfectly    evolved     ...     or 
"Med.  Jur.  Insanity,  ,5th  ed.  p.  215.  become  diseased  and  more  or  leas  func- 
•"  Mental  Diseases,   1884,  p.  256.  tionless:  the  result  being  that,  although 
•"Cyclopedia     of     Practical    Medicine,  the  intellectual  capacity  is  not  serious- 
edited  by  Forbes,  Tweedie,  and  Conolly,  ly  affected,  the  emotional  and  automatic 
1845,  Vol.  III.  art.  "Insanity."  functions  have  more  than  normal  play." 
"*  For  examples  of  the  confusion  that  This  is  altogether  fanciful,  especially  as 
veigns  on  the  subject  of  moral  insanity,  to  "levels."     Note  that  it  puts  the  cmo- 
see,   of   later   writers   on    jurisprudence,  tioiial    and     automatic    functions   on   a 
Dixon   Mann    (Medical    .Jurisprudence),  higher    level    than    the    intellect!      See 
who  says:    "In  moral  insanity  the  high-  1i(^g.  v.  Edwards,  C.  C.  C.   1872. 
er    levels    of    cerebral    development    are 


S44  INSANITY^— FORMS  AND  MEDICO-LEGAL  ASPECTS.         L§   1056 

way  of  a  proper  criticism  of  this  subject.''^  We  doubtless  have  cases 
of  degeneracy,  imbecility,  and  incipient  paranoia,  in  which  the 
disease  has  not  advanced  to  the  formation  of  systematized  delusions, 
but  in  which  there  is  a  general  defect  in  the  moral  nature  which  is 
perplexing  and  exasperating.  Such  cases  will  always  be  the  subjects 
of  forensic  dispute.^-'^  The  courts  insist  upon  regarding  them  as  mere 
criminals ;  the  scientists  claim  that  they  are  degenerates.  The  present 
writer  does  not  feel  himself  competent  to  formulate  a  general  rule 
for  these  cases.  Each  must  be  studied  on  its  own  merits  or  demerits. 
They  are  usuall}^  *'border-line"  cases, — cases  which  occupy  that 
debatable  territory  between  the  normal  and  the  abnormal  which  na- 
ture reserves  for  the  manifestation  of  some  of  her  most  puzzling 
prerogatives.  Nothing  is  gained  by  extreme  dogmatism  on  one  side 
or  the  other  of  this  delicate  subject.  ISTeither  should  it  be  confined 
to  a  mere  academic  question  of  the  distinction  between  emotions  and 
intelligence.  A  searching  criticism  will  usually  reveal,  however,  that 
when  the  moral  concepts  are  perverted  there  is,  of  necessity,  a  per- 
version of  that  much  of  the  intelligence  which  has  to  do  with  such 
moral  concepts ;  and  in  many  of  these  cases,  as  we  have  already  shown 
from  A^arious  authors,  there  is  often  an  unmistakable  derangement  of 
the  intellect."^^ 

1057.  The  criminal  degenerates. — The  criminal  degenerates  are  a 
much  exploited  class  at  the  present  time,  especially  under  the  in- 
fluence of  Lombroso'^^  and  the  Italian  school.  Regis  says^^  that  the 
complete  study  of  the  criminal  appertains  more  to  sociology  than  to 
psychiatry.  If  so,  we  believe  that  most  psychiatrists  in  America 
will  be  glad  to  have  it  off  their  hands,  especially  as  developed  by 
the  extreme  anthropological  cult.  By  the  abuse  of  the  word  "degen- 
erate," by  making  it  include  almost  all  forms  of  criminality,  nothing 
is  gained  for  real  science,  and  something  is  lost  for  truth  and  jus- 
tice.'3 

**Soine  cases  quoted  in  the  law  books  orio:inator    in    Ens^lish    of    this    special 

as  bearing  on  the  subject  of  moral  in-  form,    but   it   is   evident   that   he   must 

sanity   have   practically   nothing   to   do  yield    the   distinction   to   the   American 

with  it.     Such,  for  instance,  are  Reg.  v.  physician. 

Leigh,  4  Fost.  &    F.    915,    and  Keg.  v.        "  L'Homme  Criminel,  translated  from 

Dixon,  11  Cox,  C.  C.  341.     The  doctrine  tlie  Italian.   1805. 
of  moral    insanity    is    controverted    at        "Mental  Medicine,  p.  307. 
some  length  in  Choice  v.  Htate,  31   Ga.        "A  vigorous  protest  agamst  the  ex- 

424.  ecssos    of    the    Italian    school    has    been 

69J  See  Dove's    Case,  in    3    Stephen's  made   by   Spitzka   in   his   recent   paper. 

Crim.  Law,  p.  273.  "Roirenticidcs  not  Abnormal  as  a  Class 

'"Rush  (Diseases  of  the  Mind,  1835,  A  Protest  against  the  Chimera  of  Do- 
Chap.  XIX.)  distinctly  outlines  the  generacy."  in  tlio  Phila.  Med.  Journal, 
"moral  insanity"  of  later  writers.  Feb.  1902.  Of  'ACA  "magnieides"  (as- 
Pritchard   was   long  thought   to  bo  the  sassins    of    prominent    persons)     whose 


§   105S]  PARANOIA.  845 

1058.  Moral  insanity  has  been  recognized  in  a  few  courts. — A  New 
England  jiidge'^^  has  announced  from  the  bench  that,  "if  we  are  to 
take  judicial  notice  of  a  fact  as  settled  by  the  scientific  knowledge  of 
experts,  we  must  racognize  the  fact  as  established  by  the  unanimous 
medical  authorities  of  our  day,  that  there  is  a  mental  disease  some- 
times called  moral  insanity,  and  that  delusion  is  not  the  test  of  it." 
In  a  recent  and  extraordinary  case^^  in  a  professional  nurse,  aged 
forty-five  years,  the  prisoner  was  declared  not  guilty  by  reason  of  in- 
sanity, although  there  was  reason  to  believe  that  she  had  fatally  poi- 
soned twenty  persons.  The  sequel  of  this  case,  however,  is  most  in- 
structive, for  in  a  year  or  so  the  patient  began  to  have  delusions  of 
persecution  and  of  poisoning,  with  hallucinations  of  hearing,  and  she 
greatly  deteriorated.  In  other  words,  her  intelligence  gave  way  as 
well  as  her  moral  faculty ;  and  this  fact,  which  is  not  uncommon  in 
moral  insanity,  strongly  suggests  that  such  patients,  when  they  com- 
mit crime,  are  not  as  sound  in  the  intellect  as  they  seem  to  be.  Among 
those  who  have  made  similar  observations  and  have  reported  delusions 
i-n  such  cases,  are  Schiile,"*^  Dagonet,'^'^  Arnaud,'^^  and  Hack  Tuke.'^^ 
But  if  delusions  occur,  these  are  surely  not  cases  of  mere  moral  in- 
sanity. Thus,  the  controversy  is  sometimes  more  over  words  than 
things,  for  most  of  these  patients  are  unquestionably  insane,  whatever 
we  may  call  them,  and  are  first  cousins  to  the  paranoiacs.^'^ 

records    were    gathered    from    historical  '"  Geist,  Krankhoit,  1881. 

sources,  27  were  undoubtedly  insane,  11  "La  Folic  Morale,  1878. 

were   uncertain,   and   15   were  suicides;  "Ballet,  Pathologic  Mentale,  1903,  p. 

giving  a  total  of  53,  or  only  about  one  C52. 

fifth — 20  per  cent — abnormal.  "Diet.  Psych.  Med.  p.  814. 

'^  Judge   Doe   in   Boardman  v.   Wood-  *"  See    Blandford     (Insanity    and    Its 

man,  47  Is.H.  120.  Treatment,    3d   ed.   p.   228)    for   an   ac- 

"  Stedman,  "A  Case  of  Moral  Insanity  count    of    Christiana    Edmunds,    a    no- 

with    Repeated    Homicides    and    Incen-  torious  case, 
diarism   and   Late   Development   of   De- 
lusions," in  the  Boston  Medical  and  Sur- 
gical Journal,  July  21,  1904,  p.  67. 


CHAPTER  XLIX. 

DEMENTIA  PRECOX. 

I.  The  medical  aspects  ot  dementia  pr.ecox. 

1059.  Definition. 

1060.  The  ideas  underlying  this  term. 

1061.  History  of  this  term. 

1062.  The  causes. 

1063.  An  objection  to  this  term. 

1064.  Hebephrenia. 

1065.  Katatonia. 

1066.  The  paranoid  form. 

1067.  A  criticism  of  terms. 

1068.  Juvenile  insanity  not  always  incurable. 
II.  The  medico-legal  aspects  of  dementia  pk^cox. 

1069.  Juvenile  insanity  and  juvenile  crime. 

1070.  Simulation  in  these  cases. 

1071.  Grave  problems  may  arise. 

1072.  Crimes  committed  by  juvenile  paranoiacs. 

I.  The  medical  aspects  of  dementia  pe^ecox. 

1059.  Definition. — Dementia  prsecox  is  a  mental  disease  appearing 
at  puberty,  in  adolescence,  or,  rarely,  later  in  life,  and  leading  rather 
rapidly  to  permanent  mental  enfeeblement  in  nearly  all  cases.  Pick 
introduced  the  term  in  1891,  tliough  the  French  equivalent,  demence 
precoce,  was  applied  much  earlier  to  one  type  of  this  disease  by 
Morel.^ 

Dementia  prsecox  is  best  defined  by  specifying  separately  the  mean- 
ing of  the  two  words  which  compose  the  term.  The  word  "demen- 
tia," as  noted  elsewhere,  signifies  a  state  of  enfeeblement  of  the  men- 
tal faculties.  It  is  usually  employed  for  a  terminal  stage  of  insan- 
ity; one  which  has  followed  a  more  acute  stage,  and  is  permanent 
and  incurable.  This  is  its  meaning  for  most  of  the  cases  described 
under  this  head.  The  word  "prsecox"  means  precocious ;  and  is  used 
to  signify  a  form  of  dementia  which  not  only  appears,  as  a  rule,  in 
early  life,  but  which  also  sets  in  rapidly  and  without  necessarily  a 
prolonged  acute  or  precedent  stage.  ^ 

2  Trait<"!  des  Maladies  Montalcs,  pp.  *  Deny  and  Roy,  La  Demence  Prgcoce, 
502-.5r.6.  Paris.   1903,  p.   12. 

346 


§   1060]  DEMENTIA  PliiflCOX.  847 

1060.  The  ideas  underlying  this  term. — The  conception  of  demen- 
tia praecox  has  been  a  slow  growth,  taking  in  successively  the  he- 
bephrenia and  katatonia  of  Kahlbaum,  and  several  types  of  paranoia 
(Westphal's,  Sander's,  etc.)  At  the  present  time  Kraepelin  is  the 
foremost  exponent  of  the  subject,  and,  after  him,  it  is  customary  to 
speak  of  three  types;  the  simplest,  called  the  "hebephrenic  form"  of 
dementia  praecox,  being  equivalent  to  the  hebephrenia  of  Kahlbaum. 
Its  principal  symptoms  are  an  irregular  alternation  of  shallow  melan- 
choly and  clownish  excitement,  with  confusion,  weird  delusions,  hal- 
lucinations, and  obsessions;  especially  morbid  impulses  which  lead 
to  the  commission  of  violent  acts  without  motive. ^^ 

In  the  "katatonic  form"  of  dementia  praecox  (or  katatonia)  the 
same  symptoms  are  present,  but  cataleptoid  attitudes,  a  dramatic  or 
pathetic  manner,  and  various  phenomena  of  automatism  are  promi- 
nent. 

In  the  "paranoid  form"  delusions  of  persecution  and  of  exaltation, 
more  or  less  systematized,  dominate  the  scene.  The  delusions  are 
more  rapidly  and  irregularly  evolved,  and  more  fantastic  than  in  true 
paranoia;  they  are  often  mystic  and  erotic,  and  are  commonly  va- 
riable, multiple,  and  confused. 

These  three  forms  are  united  by  their  common  symptoms  and  by 
their  outcome  in  dementia,  which  may  be  profound,  constituting  the 
"acquired  imbecility"  of  Esquirol  and  older  writers,  or  may  be  slight, 
affecting  chiefly  the  "moral  sphere."  The  whole  process  of  preco- 
cious dementia  may  be  subtle  and  misunderstood  by  the  youth's 
friends,  appearing  to  them  as  strangeness  or  waj^vardness,  and  con- 
verting him  into  a  ne'er-do-well  or  into  a  criminal.  Pickett,^  of 
Philadelphia,  has  spoken  of  this  as  "moral  dementia  prsecox,"  corre- 
sponding to  moral  imbecility,  but  acquired  at  puberty  or  later. 

1061.  -History  of  this  term. — The  Ifistory  of  this  form  of  insanity 
is  not  without  interest.  Cases  of  juvenile  insanity  had,  of  course, 
long  been  observed ;  such  cases,  for  instance,  as  appear  about  or  soon 
after  the  age  of  puberty.^  These  cases  were  recogTiized,  in  a  general 
way,  as  having  some  special  features,  such  as  a  weak  or  foolish  type  of 

i^  The  terra  "hebephrenia"  was  first  30  hebephrenia,  and  17  paranoid  de- 
proposed  by  Ilecker,  in  Virchow's  Archiv.  mentia.  Pickett  follows  the  German 
:V2,  p.  394.  Kahlbaum's  work  is  in  Klin,  authorities,  but  his  ideas  are  original 
Abhand.  Ueber  Psych.  Krank.  Heft.  1  in  the  way  he  explains  the  reaction  of 
Merlin,  1874.  these  patients  to  their  insane  ideas. 

''In  the  Journal  of  Nervous  and  Men-        =  Willis,  in  1072,  mentioned  the  hebe- 

tal  Diseases,  August,   1901,  Pickett  dis-  (ude   into  which   adolescents   may   fall; 

cusses  the  insanities  of  adolescence.    Of  and  Morel,  in   1851.  gave  a  true  resum<? 

58  cases  classed  as  instances  of  demen-  of  dementia  praecox   umli-r  the;  name  of 

tia  praecox,  11  v/ere  cases  of  katatonia,  stupid ite. 


843  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   IQGl 

mental  disorder  and  often  a  rapidly  downward  course,  so  that  the  pa- 
tient passed  into  a  state  of  hopeless  dementia.  It  seems  that  in  ado- 
lescence, or  early  maturity,  the  mind  more  rapidly  and  more  com- 
pletely succumbs  to  an  attack  of  insanity.  It  has  not  yet  the  resistive 
power  of  later  life;  mental  disease  plays  havoc  more  rapidly,  and 
the  patient  is  arrested  in  his  normal  career  of  brain  development  or 
expansion. 

Recognizing  these  cases,  Kahlbaum,'*  in  1863,  proposed  to  group 
them  under  the  term  "hebephrenia"  {rj^'f],  "puberty"  and  C^/'-jv, 
"the  mind")  ;  but  this  term  was  not  received  with  universal  favor. 
It  was  criticized  as  covering  cases  merely  of  degeneration  in  early 
life,  and  was  denied  a  separate  place,  especially  by  Krafft-Ebing  and 
Schiile,  in  Germany,  and  almost  uniformly  in  England  and  America. 
But  the  ideas  of  Kahlbaum  slowly  gained  place.  In  1891,  Pick,'* 
in  Germany,  claimed  that  hebephrenia  was  a  form  of  chronic  primary 
dementia,  occurring  in  adolescence;  and  he  assigned  as  causes  for  it 
in  some  cases  the  febrile  and  infectious  diseases.  Other  observers 
demonstrated  that  these  forms  of  insanity  occurring  in  pubescence 
were  not  necessarily  dependent  on  heredity.  They  could  occur  in 
subjects  of  normal  descent;  but  they  were  gTave  in  type,  and  led  to 
an  incurable  dementia.  It  was  in  1893  that  Kraepelin,*'  professor 
in  Heidelberg,  collected  in  one  group  various  forms  of  juvenile  insan- 
ty  under  the  head  of  dementia  pra^cox.  These  fonns  of  Kraepelin  in- 
cluded the  hebephrenia  of  Kahlbaum,  the  form  known  as  katatonia, 
and  a  third  variety,  which  he  called  paranoid  dementia.  Without 
going  minutely  into  the  further  history,  it  is  enough  to  say  that  de- 
mentia praecox  is  now  accej)tcd  by  many  alienists  as  signifying  a  form 
of  insanity  occurring  in  early  life,  and  marked  by  a  strong  tendency 
to  penuanent  enfeeblement  of  the  mental  faculties. 

1062.  The  causes. — Among  the  causes  of  all  forms  of  juvenile  in- 
sanity the  commonest  is  heredity.  This  has  been  established  in  about 
70  per  cent  of  the  cases. '^  It  has  been  shown  by  numerous 
examples  that  children  of  insane  parents  are  not  only  predisposed  to 
become  insane  in  their  own  turn,  but  at  an  earlier  age  than  the 
parents.  ■  An  insane  heredity,  however,  is  not  the  only  form  of  he- 
redity that  acts  in  these  cases.  Alcoholism  in  the  parent,  as  well  as 
tuberculosis  and  infectious  diseases  in  the  mother  during  pregTiancy, 
injuries  to  the  mother,  fright,  moral  and  mental  shocks,  and  pov- 

*Gruppirung  der  Psychiachen  Krank-  •  Prager,  Med.  Woch.  1891. 

heiten,    1863.      See    also    Hecker.    "Die  « Psychiatrie,  4th  ed.  1893. 

Hebeplircrre/'   Vircliow's   Arch.   LIl.    s.  'Deny  and  Roy,  op.  cit.  p.  82. 
394-429. 


I   10G2]  DEMENTIA  PRiECOX.  84» 

crty, — all  have  their  effect  upon  the  health  of  the  offspring,  and  may 
cause  such  a  faulty  development  as  leads  to  an  early  break-down  in 
the  nei'vous  system. 

Among  other  causes,  special  importance  is  assigned  to  onanism. 
Maudsley  ascribed  a  peculiar  character  to  these  cases,  especially  a 
self-conscious  and  hypochondriacal  tinge.  Many  authorities  believe 
that  this  vicious  habit,  so  widespread  in  youth,  is  the  cause  of  men- 
tal disorder.^  It  acts  both  physically  and  morally :  in  the  first 
place,  by  constituting  a  drain  upon  the  system ;  in  the  second,  by  de- 
grading the  sense  of  self-respect.'*^ 

In  fact,  any  cause  that  acts  to  depress  or  to  interfere  with  the 
healthy  action  and  growth  of  the  juvenile  brain  may  conduce  to  in- 
sanity. Any  person  who  has  seen  the  total  wreck  which  results  in 
some  of  these  cases  must  be  impressed  with  the  gi-avity  of  such  causes 
as  overtax  or  poison  or  overwhelm  the  brain  in  children  or  in  young 
adults.  Overschooling,^"  overworking,^^  cruel  treatment,  bad  hy- 
giene, poor  food,  and  the  infectious  diseases  are  among  the  occasional 
causes  of  dementia  prsecox.  The  greatest  number  of  cases  of  this 
disease  occur  between  the  ages  of  fifteen  and  twenty-five  years.  Chris- 
tian has  noted,  among  100  patients,  that  56  occurred  before  the 
twentieth  birthday. 

1063. ,  An  objection  to  this  term. — It  may  be  objected  that  most  of 
these  cases  are  merely  instances  of  ordinary  insanity  of  various  kinds, 
occurring  in  early  life ;  and  that  there  is  not  good  and  sufficient  rea- 
son for  separating  them  in  a  group  by  themselves.  This  objection 
has  already  been  noted.     The  features  in  these  cases  which  are,  in  a 

'  Clouston    (Montal   Diseases,   chapter  jjiven  great  promise  in  early  life.    Ann. 

on    "The    Insanity    of    Masturbation")  Med.  Psych.  1899. 

gives  a  graphic  picture,  as  usual,  of  this        "  The    growing   evil    in    this    country 

mental  destruction,  and  reports  a  typ-  of  forcing  young  children  into  the  mills 

ical  case  of  what  would  now  be  called  and    factories    will    yet    contribute    its 

dementia   pra-cox,   due     to    this    cause,  quota  to  the  number  of  these  early  hu- 

(Case  of  K.  A.  p.  346,  1st  ed.)  man    wrecks.      For   some   literature   on 

"  See  Monograph  by  Spitzka,  Journal  the   subject   of   "child-labor,"   see   "Dis- 

of  Mental  Science,  1887-88.  eases  of  Occupations"  in  Twentieth  Cen- 

'"  The   statistics   of.  Christian  showed  tury  Practice,  Vol.  III.  p.  324. 
that  of   100  male  patients  with  demen-        This  danger  has  long  been  recognized 

tia  prrecox,  4G,  or  almost  one  half,  had  abroad.      "Tlie   promising   child   of  ten, 

been  pursuing  what  may  be  called  higher  entering    the    factory,    degenerates    into 

studies  and  the  professions.    Law,  medi-  the  lean  and  sallow  person  of  thirteen; 

cine,   and   theology   claimed   9   of   them,  and  this  process  continues  until  a  whole 

A  large  number  were  from  the  colleges  population   becomes   stunted:    and   thus 

and     polytechnic     schools.       The     mere  the   conditions  of  life  in   factory  towns 

statement   of   this    fact   shows   that   all  become  a  real  source  of  danger  to  Eng- 

these  cases  are  not  recruited  from  con-  land's   future." — Torrop,  quoted  by   Ar- 

genital     imbeciles,     but     that     many    of  lidge,    in    The    Hygiene.    Diseases,    and 

them  occur   in  young  persons  who  had  Mortality  of  Occupations,  1892. 
Vol.  I.  ]\Ied.  Jub. — 54. 


850  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1063 

sense,  special,  are  the  rapid  weakening  of  the  mental  faculties  and 
the  tendency  to  incurable  dementia.  This  point  will  be  discussed 
later, 

1064,  Hebephrenia. — The  commonest  form  of  juvenile  insanity  is 
^'hebephrenia."  This  is  the  insanity  of  puberty,  properly  so-called, 
and  bears  the  impress  of  adolescence.  These  cases  may  occur  in 
young  patients  who,  up  to  that  time,  have  been  of  normal  promise. 
But  a  change  comes.  The  youth  grows  morose,  irritable,  depressed, 
and  insubordinate.  This  unaccountable  change  of  character  is  shown 
in  the  affections  as  well  as  the  intellect.  The  patient  ceases  to  care 
for  parents  and  relatives;  resists  them;  absents  himself;  avoids  so- 
ciety; is  downcast  and  obviously  not  well.  There  may  be  physical 
signs  of  ill-health,  as  headache,  insomnia,  loss  of  appetite,  and  loss 
of  weight. 

When  the  disease  is  once  well  established  the  patient  is  in  a  state  of 
exaltation,  or  maniacal  excitement;  and,  in  fact,  hebephrenia  might 
be  called  juvenile  mania.  It  takes  its  special  characteristics  from 
the  youthful  age  of  the  patient.  The  conduct,  the  gestures,  the  lan- 
guage, the  expression,  are  puerile  and  foolish.  The  boy  boasts,  tells 
extraordinary  tales,  is  silly  in  his  speech  and  behavior,  wanders  about 
without  object,  cannot  be  made  to  attend  to  his  duties,  and  may  be 
emotional,  affected,  or  sentimental.  His  excitement  alternates  with 
sadness;  he  w^eeps,  begs  for  forgiveness,  and  is  then  inclined  to  be 
self-accusatory.  The  intellectual  faculties  suffer.  Delirious  ideas 
soon  appear,  and  these  often  are  grandiose ;  the  patient  exaggerates 
and  has  delusions  of  riches  or  of  his  o^\^a  merits ;  but  the  logical 
sense,  the  sense  of  probability  and  of  proportion,  is  lost.  The  mental 
state  is  peculiarly  reflected  in  what  the  patient  writes ;  this  is  juve- 
nile in  tone  and  character,  of  course ;  it  is  marked  by  exaggerations, 
set  phrases,  puerile  and  trivial  conceits.^-     In  manner  these  patients 

"Clouston  (Mental  Diseases,  1st  ed.  And  kisses,  sacred  as  the  brooding:  dove, 
p.  380)  preserves  the  following  bit  of  'i'^^y  look  J'^nto^the  Great  White  Throne 
verse,  which  was  composed  by  a  juvenile  Christ  plies  the^Virsin  with  luxurious  chaff 
maniac:  .Teliova   feels  the  Queen  of  Sheba's  l)cauty 

And  refers  to  the  loveliness  of  Judy 
The  I>evil  reads  the  Sermon  on  the  Mount, 
A  SOLEMN  ANTHEM  IN  CELEBRATION     And  adds  a   little  on  his  own  account. 

OF   THE    NEW   JERUSALEM.  And    so    they    sing   their   wicked    songs    to- 

O  Rosaly,  my  warm  and  panting  girl.  ,,.,  .,     "!^^^]^^''.       „ „_    *>.„„„     „r^„     ♦k^ 

Just  image  to  yourself  the  gates  of  pearl  :  ^^'^'e    9°^     in    anger    frowns    upon    the 
The  angels  sitting  in  illustrious  row,  weatnei. 
Kissing  their  hands  to  the  Holy  Ghost  be- 
low ;  Til  is    verse,    which    is    said    to    have 
That  glorious  unimagined   mystery,  ^           inspired    bv    a    desire    to    imitate 
The  verv  hot  and  lovely  Trinity.  ,.     •    ,        '        -n     'i.     *        ii            -4.              e 
Afar   tliey  see  the  lake  of  crystal   sliino.  Swiiibiinie,    illustrates    the    mixture    of 
Filled    with    the    juice    of    maidens'    paps  se.xual  and  religious  emotionalism  often 
divine.                                      .  .  ,     ,  seen     in    these    patients.      lliis    youth. 
They  hear  the  sappy  sound  of  neighboring  ,,          ,             *       iju              i-n-,.*- 
^     loye            "  "^                        "  aged  twenty  years,  had  been  a  brilliant 


§   1004]  DEMENTIA  PRECOX.  851 

are  often  affected,  theatrical.  There  is  usually  some  incoherence  of 
ideas  and  speech.  Impulsive  acts  of  violence  are  not  uncommon; 
these  show  a  malicious  intent,  not  usually  a  homicidal  one.  Suicide 
is  rare.  In  a  word,  the  normal  transition  from  boyhood  to  manhood 
is  interrupted  in  these  patients.  The  foolish  notions,  silly  propensi- 
ties, and  obtnisive  egotism  of  youth  continue  to  be  reflected  in  a  ma- 
niacal conduct  long  after  the  patient  should  have  put  aside  childish 
things.^^     Heredity  is  well  marked  in  some  of  these  cases.^^ 

1065.  Katatonia. — Another  variety  of  dementia  prsecox  is  "ka- 
tatonia,"  also  first  described  by  Kahlbaum.^^  Just  as  in  hebephrenia 
we  see  a  type  of  mania  in  juvenile  cases,  so  in  katatonia  we  see  a 
type  of  melancholia;  but  this  juvenile  melancholia  is  distinguished 
by  rigidity  of  the  muscles,  approaching  to  a  catalepsy.^ ^  On  the 
mental  side  this  disorder  is  marked  by  melancholia  of  the  atonic  va- 
riety, or,  as  some  autliors  describe  it,  by  stupor.  The  patients  arc 
apathetic,  taking  little  notice,  and  are  often  plunged  in  a  profoundly 
negative  state  of  mind.  On  the  physical  side  there  is  muscular 
rigidity;  the  limbs  are  fixed  and  held  in  statuesque  positions.  Seg- 
las^'^  held  that  these  cases  are  varieties  of  melancholia,  with  stupor 
more  or  less  profound,  and  of  an  hysterical  type.  Kraepelin,  as  al- 
ready shown,  includes  them  among  the  cases  of  dementia  prsecox. 

They  are,  in  fact,  cases  of  atonic  or  stuporous  melancholia,  occur- 
ring in  young  persons,  and  tending  to  rapid  deterioration,  or  perma- 
nent dementia.  They  take  their  special  characteristics  from  the 
early  age  of  the  patient.  The  catalepsy,  or  tendency  to  remain  in  a 
state  of  muscular  rigidity,  is  very  similar  to  the  catalepsy  seen  in 
hysteria.  The  patient  is  passive,  and  retains  for  a  long  while  the 
posture  in  which  he  is  placed  by  another  person ;  as,  for  instance, 
with  an  arm  elevated.^  ^ 

1066.  The  paranoid  form. — Kraepelin's  third  form  of  dementia 
praicox  is  the  paranoid  form,  or  wdiat  we  may  call  "juvenile  para- 
noia."    Just  as  in  paranoia  in  adult  life,  so  here,  there  is  a  tendency 

and  successful  student.     He  broke  down  imbecile;    two   brotliers   of   her   mother 

while  studying  hard,  sleepinfj  little,  sup-  had  died  insane;  another  was  a  suicide; 

portint?  himself  by  teaching',  and  prob-  the    mother    was    abnormal;    a    brother 

ably  indulging  in  sexual  excesses.   After  was   an   idiot;    and   the  patient  herself 

a  period  of  hyperacute  mania  he  passed  had  developed  slowly, 

into  a  state  "of  hopeless  dementia.  ^  Die  Katatonie,  Berlin,  1874. 

"  Spitzka,    Insanity,   chapter   on   "In-  *"  Seglas   and    Chaslin,    La   Catatonie, 

sanity  of  Pul)cscence."  Paris,  1888. 

"  Krafft-Ebing  (Traitg  de  Psyehiatrie,  ^' Nouvelle    Iconographie    de    la    Sal- 

traduit  par  Laurent,  p.   181)    relates  a  petri&re,  1889. 

oase  in  a  girl  aged  nineteen  years.     The  '^Tuke,    Dictionary    of    Psychological 

patient's  maternal  grandmother  was  an  Medicine,  art.  "Katatonia." 


852  INSANITY— FORMS  AND  JIEDICO-LEGAL  ASPECTS.         [§  1066 

to  forai  delusions,  first  of  porseciition,  then  of  grandeur.  In  the  ju- 
venile type  these  delusions  are  quickly  formed  and  transformed,  and 
the  tendency  is  towards  mental  enfeeblement,  or  dementia, — a 
tendency  much  more  rapid  than  in  adult  life.  This  juvenile 
type,  just  as  the  adult  type,  is  often  constitutional  or  heredi- 
tary. These  young  patients  rapidly  deteriorate.  They  are  eccentric 
and  morally  perverse.  Some  of  them  answer  to  the  description  of 
moral  imbeciles.  From  the  medico-legal  viewpoint  these  young 
paranoiacs  are  of  special  interest,  because  they  may  perform  crimi- 
nal acts.  There  does  not  seem  to  be  adequate  reason  in  all  cases  to 
separate  them  from  the  ordinary  paranoia  (described  elsewhere  in 
these  pages)  except  for  the  juvenile  traits  of  mind,  reflected  in  their 
delusions,  and  the  tendency  to  early  and  complete  dementia, — a  ten- 
dency not  so  marked  in  the  ordinary  paranoia.  The  delusions  in 
the  juvenile  cases  are  not  well  systematized ;  they  are  irregular,  fan- 
tastic, puerile,  and  not  so  formative  of  character  as  in  the  older  cases ; 
yet  they  may  lead,  and  do  lead,  to  criminal  acts. 

1067.  A  criticism  of  terms. — It  must  be  apparent  to  anyone  who  has 
followed  the  evolution  of  dementia  pmecox  that  Kraepelin  and  liis 
followers  have  simply  included  under  this  term  cases,  first,  of  mania ; 
second,  of  melancholia;  third,  of  paranoia,  as  these  several  forms  of 
insanity  manifest  themselves  in  early  life,  especially  during  pubes- 
cence; and  that  the  special  character  of  these  cases  is  due  to  the  fact 
that  they  evolve  in  a  juvenile  soil ;  and,  moreover,  that  they  owe 
Their  tendency  to  rapid  deterioration  to  the  additional  fact  that  the 
brain,  in  this  critical  formative  period,  is  not  able,  in  some  cases,  to 
resist  the  onset  of  the  disease.-'^^'^ 

1068.  Juvenile  insanity  not  always  incurable. — But  it  must  not  be 
ignored  that  all  cases  of  juvenile  insanity  are  not  necessarily  hope- 
less; many  of  these  young  patients  recover.  Accordingly,  if  an  in- 
curable dementia  is  to  be  the  criterion  by  which  we  determine  cases 
of  dementia  precox,  we  must  separate  these  curable  cases  from  this 
group.  Clouston^^  claims  that  05  per  cent  of  the  cases  of  juvenile 
insanity  recover.  Bevan  Lewis^''''^*  agrees  with  him.  These  figures  are 

1  "5  Some  writers    {especially  Italians  section   in  psycliological  medicine,  July, 

and  Germans)   go  to  absurd  extremes  in  1!)04. 

tiieir   use   of  the   term   "dementia    pra^-  "  Art.   "Developmental   Insanities,"  in 

cox."     Thus,  Lujraro  has  described   the  Tuke's      Dictionary      of      Psychological 

ca^e   of  an    old    man,   with   melancholia  Medicine. 

and  attempts  at  suicide,  as  an  instance  "i  Text-Book  of  Mental   Diseases,   2d 

of  this  disease!      How  an  old  man  can  ed.   Phila.   p.  395.     He  claims  that  the 

have  a  form  of  juvenile  insanity  is  liard  recovery   rate   is   nearly   as   high   as   80 

to  understand.     See  a  paper  by  Norma**,  per  cent, 
before  the  British   Medical  Association, 


§   1068]  DEMENTIA  VH/ECOX.  853 

probably  too  high ;  or,  at  least,  they  do  not  indicate  the  fact  that  many 
of  these  patients  have  recurrences  later.  But  they  serve  to  prove,  from 
the  observations  of  eminent  authorities,  that  juvenile  insanity  is  not 
always  a  hopeless  dementia  prsecox.  ISTow,  in  any  particular  gi'oup 
oi  diseases,  like  the  insanities  of  adolescence,  to  separate  the  curable 
from  the  incurable  cases,  and  to  include  all  the  latter  in  a  distinct 
class,  and  to  give  to  this  class  a  separate  name,  is  not  a  satisfactory 
way  to  describe  disease ;  and  this  is  a  criticism  to  which  dementia 
prciecox  is  justly  open.-''  Nevertheless*,  as  indicating  a  mere  clinical 
grouping,  it  is  a  convenient  term,  and  therefore  will  probably  j)re- 
vail^^^ 

IL  The  medtco-legal  aspects  of  dementia  pk.t?:cox. 

1C69.  Juvenile  insanity  and  juvenile  crime. — To  the  medical  jurist 
all  forms  of  juvenile  insanity  are  of  importance  in  so  far  as  they 
affect  the  moral  accountability  of  these  patients;  but  this  problem  is 
not  quite  the  same  in  all  these  cases.  ^  *^ ''^^  The  hebephrenic  patient, 
for  instance,  with  his  confusion, his  puerile  weaknesses,  his  exaltation, 
his  almost  fatuous  state,  does  not  offer  a  perplexing  problem.  His 
condition  is  too  manifest  to  admit  of  a  doubt  that  lie  is  an  irresponsi- 
ble creature;  moreover,  he  is  not  likely  to  connnit  crime.  His  im- 
pulsive acts,  to  which,  indeed,  he  is  quite  subject,  may  be  mischiev- 
I'US  and  malicious,  but  they  are  seldom  dangerous.  Much  that  has 
already  been  said  of  maniacs  in  general  (Chap,  XXII.)  applies  to 
him. 

The  same  may  be  said  of  the  kata tonic  patient.  He  is,  if  any- 
thing, even  more  fatuous,  more  irresponsible.  His  prevailing  men- 
tal state  is  stuporous.  He  is  oblivious  of  his  surroundings,  or  indif- 
ferent to  them.     Absorbed  in  a  dull,  confused,  apathetic  delirium,  he 

"•Kraepelin  seems  to  acknowledge  that  laid   great   stress    uyjon    lieredity,    espe- 

some  cases  of  dementia  praeeox  recover ;  cially   from  tlie  mother,  and  upon  pre- 

if  so,  the  name  is  a  misnomer  as  applied  cocious     mental     work     and     emotional 

to  them.     Deny  and  Roy   (op.  cit.  p.  70)  strain.     He  found  mania  more  common 

v/ould  evidently  confine  the  term  to  in-  than   melancholia,  and   that  such   cases 

curable  cases.  took  on  a  periodic  or  circular  character, 

20J  G.  Stanley  Hall   (Adolescence,  etc.  and  often  passed  into  stupor  or  demen- 

2  vols.,  N.  Y.,   1004)    devotes  two  chap  tia. 

ters,  IV.  and  V.,  to  the  diseases,  faults,        202  Goethe  said  that  every  person  has 

immoralities,    and    crimes    of    juveniles,  committed  crime  at  some  time  in  his  or 

His  work  is  useful  for  tlie  references  it  her    life.      Every    one    must    search    his 

contains.  own    conscience   for   an   answer   to   this 

Sepelli   ( "Delia  psicosi  delta  puberta,"  universal     indictment.       The     decalogue 

Atti  del  V.  Cong,  della  Soc.  Fren.  1886,  contains  but  few  offenses    (three,  or,  at 

]).  321  )    found  that  out  of  0,000  insane  most,    four)     which     today   are     crimes, 

patients    only    400   became     so     between  Thus    the    definition    of    crime     changes 

twelve  and  twenty-two  years  of  age.     He  witli  the  ages. 


854  INSANITY— FOK MS  AND  MEDICO-LEGAL  ASPECTS.         [§  1069 

is  not  given  to  criminal  impulses,  as  a  rule,  and  anything  amiss  that 
he  may  do  cannot  be  ascribed  to  a  rational  and  moral  intelligence. 
From  this  toi'por  he  is  sometimes  aroused  in  a  crisis  of  agitation, 
resembling  superficially  agitated  melancholia;  but  such  a  crisis  is  not 
likely  to  be  violent.  Such  crises  are  remarkable  for  impulsive  ten- 
dencies, for  verbigeration,  or  the  senseless  use  of  words,  and  for  the 
repetition,  almost  automatic,  of  certain  stereotyped  movements.  Like 
the  hysterical  patient,  the  katatonic  can  be  impressed  by  suggestion^^ 
from  without,  and  will  react  almost  like  a  machine ;  but  his  impulses 
and  reactions  are  not  usually  of  a  criminal  type.^^ 

1070.  Simulation  in  these  cases. — The  question  of  simulation  may 
arise  in  some  of  these  juvenile  cases,  especially  when  there  is  a  mo- 
tive for  shamming.  In  France  tliese  cases  have  been  noted  in  the 
anuy,^^  where  tliey  have  led  to  desertions.  The  patient  leaves  his 
post  suddenly  under  an  impulse  to  decamp,  and  may  not  be  appre- 
hended for  weeks  or  months.  The  foolish  conduct,  mannerisms, 
the  silly  speech,  lead  to  a  suspicion  of  simulation,  but  close  obser\^ers 
will  soon  detect  the  underlying  mental  feebleness  which  charactei-- 
izes  all  tliese  patients. 

1071.  Grave  problems  may  arise. — lu  the  paranoid  form  the  prol) 
lem  is  often  more  serious,  for  under  the  sway  of  delusional  ideas 
these  patients  may  commit  crime.  There  is  a  moral  perversion  in 
most  of  them,  and  their  deeds  may  sometimes  be  flagi-ant.^^     Mar- 

-^Uaijs  V.  Com.  17  Ky.  L.  Rep.  1,147,  some  candy,  and   said,   as  the  point  of 

33  S.  W.  1,104.                "  the  shears"  stuck  in  the  boy's  heel,  "If 

--Deny  and  Roy.  op.  cit.  p.  90.  that  don't  kill  you  somethin«'  else  will." 

°*  George  Nelk,  twenty-two  years  old,  At  another  time  George  chased  his  elder 
was  tried  in  Philadelphia,  March  23,  brother  with  a  carving  knife.  Not  long 
1903,  for  the  murder  of  his  mother.  She  before  the  murder,  one  Sunday  after- 
had  been  found,  on  the  afternoon  of  noon,  another  brother  and  their  mother 
February  10,  lying  in  a  pool  of  blood,  were  chatting  quietly,  with  George  lying 
by  her  rocking-chair,  in  the  sitting-room  a]>parently  asleep  on  a  couch  near  them. 
of  her  home,  her  head  literally  split  when  George  suddenly  sprang  at  hi'* 
open,  and  a  hatchet,  covered  with  blood,  brother  and  pushed  him  upon  the  stove, 
beside  her.  Up  stairs  her  daughter  with  no  evident  motive.  Two  witnesses 
Minnie,  twenty-five  years  old.  was  found  rleclared  that  George  laughed  much  in 
with  a  gash  in  the  top  of  her  a  foolish  way,  when  "the  joke  was  all  to 
head.  In  the  entry-way  of  the  house,  himself;"  another,  that  he  often  saw 
nailed  to  the  wall,  was  a  large  piece  of  George  walking  back  and  forth  in  tlie 
M'rapping-paper  over  which  was  scrawled  house  or  in  the  back-yard,  "swearing 
a  confession  of  the  crime,  signed  and  hollering."  A  man  delivering  good^ 
"George."  ^Minnie  survived;  but  being  at  the  house  saw  George  stand,  with 
a  congenital,  middle-grade  imbecile,  his  head  dropped  on  his  chest,  motion- 
could  tell  little  more  than  "George  did  h  ss,  for  three  minutes;  the  mother  was 
it,"  and  that  there  had  been  no  quarrel,  weeping  and   exclaiming  "O,  my  God!" 

At  the  trial,  a   relative  and  some  ac-  ]\Irs.  Nelk  had  several  times  confided  to 

quaintances    testified    to    various    peeu-  friends  her  fears  that  "George  will  kill 

liarities    of    conduct    shown    by    George  me    some    time;"    and    her    belief    that 

Nelk.     On  one  occasion  he  hurled  a  pair  "George  is  crazy;"  but  she  "didn't  want 

of  shears  at  a  friend  who  refused  him  to  put  him  in  an  asyhnu;  they  wotildn't 


§   1071]  DEMENTIA  PRiECOX.  855 

ro^^  has  discussed  the  relations  of  puberty  to  criminality.  At  this 
age,  in  these  patients  can  be  noted  offenses  against  propriety,  thefts, 
incendiarism,  and  even  homicidal  assaults;  but  underlying  all  .is  the 
state  of  dementia,— of  mental  M'eakness, — which  is  characteristic  of 
all  forms  of  dementia  prsecox. 

1072.  Crimes  committed  by  juvenile  paranoiacs. — Acts  of  atrocious 
cruelty  are  sometimes  committed  by  young  paranoiacs,  as  in  the  case 
of  Jesse  Pomeroy.  Within  recent  years  a  somewhat  similar  case 
occurred  in  Philadelphia:  a  boy  killed  a  little  companion  while  p^iy- 
ing  with  him,  and  hid  his  body.^^  A  boy  only  eight  years  old  was 
hanged  in  England  in  the  17th  century  for  firing  two  barns ;  and 
Blackstone  tells  us  that  many  years  later  a  boy  ten  years  old  was  con- 
victed on  his  own  confession  of  murdering  his  bedfellow,  and  that 
there  appearing  in  his  whole  behavior  plain  tokens  of  a  "mischievous 
discretion,"  and  as  the  sparing  of  this  boy  merely  on  account  of  his 
tender  years  might  be  of  dangerous  consequences  to  the  public  by 
propagating  a  notion  that  children  might  commit  such  atrocious 
crimes  with  impunity,  it  was  unanimously  agreed  by  all  the  judges 
that  he  was  a  proper  subject  of  capital  punishment.-^  But  fortu- 
nately the  bloody  days  of  criminal  jurisprudence,  Avhen  it  was  possi- 
ble to  execute  children  of  eight  and  ten  years  without  a  question 
being  raised  of  their  mental  soundness,  have  now  gone  by.     And  yet, 

be  good  to  him."     On   the  other  hand,  lie  will  take  food  in  a  gross  fashion,  by 

many  acquaintances  testified  that  they  hand;  he  sleeps  very  little.     (The  above 

never  had  seen  any  evidence  of  insanity  notes    were    supplied    by    Dr.    William 

in   George  Nelk.     It  was  acknowledged  Pickett,  one  of  the  experts  for  the  dc- 

that    he    had    taken    a    sum    of   money,  fense. ) 

which  his  mother  was  known  to  have,  ^  La   Puberte   chez   I'Homme   et   chez 

jmd  that  he  had  spent  this  in  houses  of  la  Femme,  1901. 

prostitution,  in  neighboring  towns,  after  -^  For  important  recent  papers,  see 
the  murder.  Dunton  (American  Journal  of  Insanity, 
He  was  promptly  convicted  of  murder  Apr.  1904,  p.  761),  who  reports  a  case 
in  the  first  degree,  and  sent  to  Moya-  with  autopsy  and  references;  also  Regis 
mensing  Prison.  Here,  in  a  short  time,  ("Note  a  propos  de  la  Demence  Precoce" 
he  lapsed  into  a  state  which  has  per-  in  Rev.  de  Psych.  VIII.  No.  4,  p.  150). 
sisted  to  the  present  time.  He  lies  who  does  not  regard  the  disease  as  a 
motionless,  save  for  uttering  the  half-  distinct  affection,  but  only  a  terminal 
articulate  sound  "Bo!"  over  and  over;  dementia.  For  a  general  discussion  of 
he  never  utters  a  word  aside  from  tliat,  juvenile  insanity,  see  Spitzka,  in  Keat- 
and  pays  no  attention  to  anything;  the  ing's  Cyclopedia  of  the  Diseases  of  Chil- 
whole  body  is  rigid  and  resistive;  all  dren.  Vol.  IV.  p.  1038.  Also,  Clouston, 
the  reflexes  are  exaggerated,  and  there  "The  Insanity  of  Puberty  and  Ado- 
is  ankle-clonus;  the  extremities  are  lescence"  in  Alibutt's  System  of  Medi- 
livid;  urine  and  fees  are  voided  in  the  cine,  Vol.  IX.  p.  296. 
bed;  he  is  nourished  ordinarily  by  ^'Blackstone,  4  Com.  24. 
forced  spoon-feeding,  although  at  times 


856 


INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1072 


SO  late  as  1828,  a  boy  aged  twelve  years  was  executed  in  New  Jersey, 
on  his  own  confession,  for  murder.^'^ 


"  Keating,  "Juvenile  Crime,"  in  Keat- 
ing's  Cj'clopedia  of  the  Diseases  of  Chil- 
dren, Vol.  IV.  p.  424.  In  a  recent  Eng- 
lish case,  Rex  v.  Rodgers  (Journal  of 
Mental  Science,  July,  1904,  p.  588),  the 
defense  of  "uncontrollable  impulse"  was 
allowed.  A  boy  aged  fifteen  years  shot 
his  mother,  who  was  a  chronic  drunk- 
ard. Evidence  of  both  physical  and 
mental    impairment,    tliougli   not   great, 


was  accepted.  Tlie  case  was  such  as  to 
appeal  to  the  sympathies,  as  the 
mother's  drunken  habits  had  driven  the 
boy  to  despair,  and  his  motive,  he  said, 
had  been  to  save  his  little  sister  from  a 
vicious  bringing  up.  The  judge  said  he 
thought  the  theory  of  irresistible  im- 
pulse a  dangerous  one,  but  in  this  case 
it  might  be  considered  as  of  great 
w  ei^ht. 


i 


CHAPTER  L. 

IDIOCY. 

1-  The  medical  aspects  of  idiocy. 

1073.  The  distinction  between  idiocy  and  insanity. 

1074.  The  definition  of  idiocy  and  imbecility. 

1075.  Malformation  of  the  brain. 

1076.  The  various  kinds  of  idiocy. 

1077.  The  intelligence  always  involved  in  idiocy. 

1078.  The  other  mental  faculties  involved. 

1079.  The  moral  faculties  also  involved. 

1080.  The  moral  imbeciles. 

1081.  The  epileptic  idiots. 

1082.  The  pathology  and  morbid  anatomy  of  idiocy. 
EI.  The  medico-legal  aspects  of  idiocy. 

1083.  Ancient  laws  on  defective  children. 

1084.  The  statute  De  Prerogativfi  Regis. 

1085.  Hardship  and  confvision  caused  by  the  old  law. 

1086.  The  deaf  and  dumb  were  regarded  as  idiots. 

1087.  No  scientific  test  for  idiocy. 

1088.  The  presumption  of  law  in  eases  of  idiocy. 

1089.  The  rights  and  responsibilities  of  idiots. 

1090.  The  marriage  of  imbeciles. 

1091.  Testamentary  capacity. 

1092.  Capacity  in  civil  matters. 

1093.  Responsibilty  in  criminal  matters. 
III.  The  deaf  and  dumb. 

1094.  The  civil  law  on  deaf-mutism. 

1095.  The  legal  presumption  in  deaf-mutism. 

1096.  An  error  to  be  avoided. 

1097.  The  mental  capacity  of  deaf-mutes  varies. 

1098.  Deeds  and  wills  by  deaf-mutes. 

1099.  The  marriage  of  deaf-mutes. 

1100.  Deaf-mutes  as  witnesses. 

1101.  The  legal  presumption  of  sanity  in  deaf-mutes. 

1102.  The  distinction  between  deaf-mutism  and  acquired  deafnesa. 

1103.  Standing  mute. 

I.  The  medicat.  aspects  of  idiocy. 

1073.  The  distinction  between  idiocy  and  insanity. — There  are  by 
universal  consent  two  great  divisions  of  mental  disorder,  and  these 

857 


I 


858  INSAiSilTY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   107:J 

have  long  been  recognized,  both  in  law  and  in  medicine.  Thej  are 
"idiocv"  and  "insanity."  In  the  former  the  defect  is  said  to  be 
acquired  before,  in  the  latter  after,  the  normal  development  of  the 
brain.  In  the  former  the  patients  are  born  insane;  in  the  latter 
they  become  so.  The  insane  have,  at  one  time,  enjoyed  mental 
health ;  the  idiots  have  never  had  a  sound  brain. '''^ 

1074.  The  definition  of  idiocy  and  imbecility. — Idiocy,  therefore, 
represents  a  state  of  arrested  development.  The  defect  dates  back 
to  a  period  in  which  the  brain  was  still  in  process  of  formation ;  con- 
sequently, to  a  period  preceding  birth  ;  or,  at  least,  to  a  period  in  very 
early  life,  before  the  brain  of  the  infant  or  young  child  had  fully 
developed.  Imbecility  is  only  a  milder  grade  of  idiocy,  and  is  often 
found  in  those  patients  whose  arrest  of  development  dates  from  early 
childhood.  The  distinction,  therefore,  between  idiocy  and  imbecil- 
ity is  quite  arbitrary ;   the  two  conditions  merge  into  one  another. 

1075.  Malformation  of  the  brain. — It  follows  that  idiocy  is  some- 
times associated  witli  gross  malformations  of  the  brain, — defects 
never  seen  in  insanity.  But  these  malformations  vary  widely,  from 
a  slight  defect  to  an  almost  complete  absence  of  the  organ.  In  some 
cases,  however,  even  of  a  low  grade  of  idiocy  and  imbecility,  there 
is  no  such  gross  deformity,  but  the  mental  faculties  have  not  properly 
developed ;  doubtless  because  of  defects  in  the  finer  elements  of  the 
brain-mass,  such  as  the  nerve  cells  in  the  cortex. 

1076.  The  various  kinds  of  idiocy. — There  are  many  varieties  of 
idiocy.  Ireland,^  one  of  the  best  of  authorities,  has  described  no  less 
than  ten  kinds.  These  are  as  follows :  ''Genetous,"  the  congenital 
idiot,  often  with  bodily  defects,  usually  hereditary;  "microcepha- 
lic," in  which  the  brain  has  not  developed,  and  the  skull  is  corre- 
spondingly small ;  "eclamptic,"  due  to  infantile  convulsions  and  the 
disorders  associated  with  them;  "epileptic,"  associated,  as  the  name 
implies,  with  epileptic  fits ;  "hydrocephalic,"  in  which  there  is  effu- 
sion of  fluid  within  the  ventricles  of  the  brain,  leading  to  distention, 
often  immense,  of  the  brain  and  skull ;  "paralytic,"  in  Avhich,  owing 
to  gross  defects  in  the  brain,  there  are  various  forms  of  paralysis  of 

*  It  is  needless  to  say  that  from  the  ity;"  but  all   idiots  are  not  congenital, 

purely  scientific  standpoint  there  is  no  for  many  of  thorn  date  merely  from  early 

hard-and-fast  line  to  be  drawn  between  life,  having  been  born  in  good  health, 

"idiocy"  and  "insanity."     Tlie  two  con-  '  Idiocy  and  Imbecility,  London,  1887. 

ditions  practically  merge  into  each  other  By  William  W.  Ireland.  M.  D.,  Medical 

by   way   of   the    degenerates    and   para  Superintendent  of  the  Scottish  National 

noiacs.      Tuke    (art,    on   "Insanity,"   in  Institution    for    the    Education    of    Im- 

Brit.  Encye.  Vol.  XIII.)   includes  idiocy  becile  Children, 
under    the   head    of   "Congenital    Insan- 


A  case  of  hydrocephalic  idiocy,  with  deformity  of  the 
spine  known  as  spina  bifida. 


( 


§   1070]  IDlOCi'.  859 

the  limbs;  "cretinism,"  a  special  type,  stunted  in  mind,  dwarfed  in 
body,  often  prevailing  in  certain  localities,  as  in  the  Alps;  "trau- 
matic," due  to  injury,  especially  at  birth;  "inflammatory,"  due  to 
inflammation  of  the  brain  or  its  membranes,  either  before  birth  or 
in  early  life;  "by  deprivation  of  the  senses,"  as  in  cases  in  which  a 
child  is  born  deaf  and  blind. 

We  need  not  stop  to  engage  in  tedious  criticism  of  the  foregoing 
list.  It  explains  much,  even  though  it  does  not  explain  everything. 
Its  main  defects  are  the  defects  of  most  schemes  of  classification 
which  are  based  on  imperfect  knowledge;  for  our  knowledge  of 
idiocy  is  not  yet  perfect.  Some  of  these  varieties  overlap,  as  it  were; 
therefore,  it  would  be  possible  to  include  some  idiots  in  more  than 
one  of  Ireland's  groups.  If  we  take,  for  example,  the  genetous,  or 
congenital,  group,  we  can  include  in  it  many  of  the  epileptics,  mi- 
crocephales,  cretins,  and  the  deaf  and  blind.  Again,  some  idiots  are 
both  paralytic  and  ej^ileptic,  while  a  small  number  of  both  these 
classes  is  due  to  injury.  Some  hydroceplialic  patients  are  both  para- 
lytic and  epileptic,  and  even  congenital.  Tbus  it  is  possible  to  bring 
the  whole  subject  of  idiocy  into  confusion  if  we  attempt  to  follow  too 
rigidly  Ireland's  scheme  or  any  other  scheme. 

The  best  plan  is  to  follow  nature ;  and  this  is  quite  ix)ssible  by 
adopting  Ireland's  scheme  as  merely  a  sort  of  catalogue  or  guide-book. 
These  groups  represent  certain  prevailing  types ;  not  distinct  diseases, 
separable  from  one  another  by  hard  and  fast  lines.  They  are  mere 
variants,  showing  different  modes  by  which  disease  has  wrought  ruin 
upon  the  tender  brains  of  very  young  children,  and  giving  certain 
permanent  results  with  which  we  have  to  deal  in  our  institutions, 
wherein  we  provide  care  and  training  for  these  unfortunates. 

Nor  is  it  desirable  to  enter  here  into  a  minute  description  of  all 
these  types.^  For  the  purpose  of  the  medical  jurist  it  is  sufficient  to 
point  out  in  wdiat  general  ways  the  mental  faculties  are  impaired  in 
the  various  forms  of  idiocy.    - 

1077.  The  intelligence  always  involved  in  idiocy. — By  the  very  na- 
ture of  these  cases,  the  intelligence  is  involved.  This  fact  is  implied 
in  the  very  idea  of  idiocy.  This  defect  is  seen  in  many  grades,  from 
the  complete  obliteration  of  this  faculty,  as  in  microcephales,  up  to  a 
slight  weakness  in  high-grade  imbeciles.  I^Tot  a  few  idiots,  therefore, 
can  be  educated  to  some  extent,  and  at  the  present  time  training 

*  Very  good  descriptive  monographs  on  Diseases  of  Children,  2d  ed.  p.  667;  and 
idiocy  have  been  contributed  by  Mills  by  Brush  in  Keating's  Cyclopedia  of  the 
in   Starr's   American   Text-Book   of   the    Diseases  of  Children..  Vol.  IV.  p.  1,019. 


SCO  INSA^'1TY— FOEMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1077 

schools,  which  are  also  hospitals  and  asylums,  supply  the  best  men- 
tal development  of  which  these  patients  are  capable.^ 

1078.  The  other  mental  faculties  involved. — As  with  the  intelli- 
gence, so  with  the  memory,  the  attention,  the  affections,  and,  in  fact, 
all  the  mental  functions, — these  are  more  or  less  involved  in  idiocy. 
It  is  not  in  the  nature  of  disease,  as  a  rule,  to  separate  the  mental 
faculties,  and  to  mark  out  some  for  preservation,  others  for  destruc-- 
tion.  The  degree  of  impairment  varies  in  different  cases;  and  yet, 
in  some  rare  cases  of  idiocy  or  imbecility,  we  do  see  remarkable  pre- 
cocity, or  the  almost  preternatural  development  of  some  one  function 
at  the  cost,  apparently,  of  the  others.  Thus,  some  idiots  of  low  intel- 
ligence have  extraordinary  powers  of  imitation,  as  for  music  or  for 
aritlimetic.  But  these  idiots  have  no  originating  power ;  their  abnor- 
mal faculty,  whatx3ver  it  is,  acts  mechanically.* 

1079.  The  moral  faculties  also  involved. — It  follows,  of  necessity, 
"that,  in  the  great  majority  of  feeble-minded  children,  the  moral  fac- 
ulties are  stunted,  and  that  in  some  of  them  these  faculties  are  quite 
undeveloped.  A  microcephalic  idiot  has  no  better  moral  perceptions 
than  he  has  intellectual  ones ;  his  mind  is  practically  a  blank.  But, 
just  as  in  the  case  of  the  mental  faculties  in  general,  there  are  many 
grades  and  varieties  of  moral  defect.  We  cannot  reduce  the  moral 
accountability  of  idiots  and  imbeciles  to  fixed  rules.  Only  personal 
contact  with  these  patients  can  reveal  how  complicated  is  this  subject. 
It  is  only  the  study  of  individuals  that  can  justify  anyone  in  reacli- 
ing  conclusions.  In  every  training-school  for  the  feeble-minded  a 
system  of  moral  discipline  is  adopted,  and  rewards  and  punishments 
are  meted  out  somewhat  as  in  ordinary  schools;  yet  this  system  and 
these  rewards  and  punishments  have  to  be  modified  in  countless  ways 
to  meet  the  various  cases  of  idiots  and  imbeciles.  It  would  be  as  un- 
scientific, on  the  one  hand,  to  ignore  the  moral  accountability  in 
various  degrees  of  some  of  these  patients,  as  it  would  be,  on  the 
other  hand,  to  claim  (if  any  person  could  be  so  rash)  that  they  are 
all  equally  accountable,  or  that  all  idiots  are  equally  weak-minded. 
There  is  no  equality,  either  of  mind  or  morals,  among  these  patients, 
taken  as  a  whole  class. 

'This   work   is    well    reflected    in    tlie  pntients  have  nn  nbnornial  capacity  for 

Annual    Reports    of    the    Pennsylvania  rdnemberincr   dates,   or   for   doinj?  prob- 

Training  School  for  Feeble-Minded  Cliil-  lems  in  matlieuiaties.     Such  individuals 

dren,  at  Elw^n.  near  Philadelpliia.  are  called  bv  the  French  idiots  sarnnts. 

'The  case  "of  tlie  negro,  'T.lind  Tom/'  Barr  (Mental  Defectives,  1904.  p.  228) 

who  could  imitate  the  most  complicated  has  a  chijiter  on  this  subject,  with  some 

music   on   the   piano,   was   an   instance,  interesting    examples     seen   by   him    or 

He   was   quite   idiotic.      Some   of   these  culled   from   the  literature.     Bart  com- 


§   1080]  IDIOCY.  861 

1080.  The  moral  imbeciles. — There  is  a  class  of  imbeciles,  of  the 
higher  grade,  in  whom  the  moral  faculties  are  poorly  developed,  and 
hence  easily  pen'erted,  while  the  intellectual  faculties  are  by  no 
means  idiotic.  In  these  cases  there  seems  to  be  a  disproportion  be- 
tween the  development  of  the  moral  and  intellectual  functions.  As 
a  rule,  however,  such  patients  have  not  normal  minds;  the  intelligence 
is  usually  below  par.  They  are  not  often  brilliant  or  even  passable 
scholars,  but  are  slow  to  learn,  without  being  positively  stupid  in  all 
cases ;  and  yet  their  mental  faculties  seem  much  nearer  a  nonnal 
standard  than  their  moral  ones.  These  patients  are  insubordinate, 
bad,  untruthful,  not  amenable  to  good  influences,  easily  led  astray,''* 
or  they  go  astray  without  being  led,  and  are  quite  as  likely  to  lead 
others  astray.  Such  patients  are  sometimes  called  moral  imbeciles, 
— a  misnomer,  because  it  ignores  the  fact  that  the  intellectual  facul- 
ties are  really  never  normal  in  these  cases.  The  intellectual  defects 
are  merely  obscured  by  the  moral  defects.^^' 

bats  the  idea  tliat  these  idiots  savants  the  last  time  receivin.i^  a  wound  in  the 

liave  no  originality,  and  that  their  pre-  chest  from  which  he  died.     The  evidence 

cocions  power  tends  to  decrease  in  adult  was    strong    that   he    had    inflicted    the 

life.      He    agrees    with    Down,    however,  wound  himself,  in  order  to  maintain  the 

that  idiots  savants  are  confined  almost  popular     interest    in     himself,     but    he 

entirely  to  the  male  sex,  only  one  case  struck  too  hard  ana  deep,  and  perished 

in    a   female   being   on    record.^ — -that   of  from  tlie  injury.     He  left  a.  sensational 

Quenan.    a    female    idiot    at    the    Salpe-  note  in  mirror  writing,  in  itself  an  evi- 

trifere,   in   Paris,  who  was   a  mute  and  dence    of    degeneracy.      Attempts    were 

unable  to  dress  herself,  but  was  a  "rare  made  to  prove  that  he  was  the  heir  to 

musician."  the   throne   of  Baden.      See    The    True 

°  The  fact,  reported  by  Voisin  (Revue  Story  of  Kaspar  Hauser,  by  the  Duchess 
de  I'Hypnotisme,  Nov.  1888),  that  some  of  Cleveland  (daughter  of  Lord  Stan- 
moral  imbeciles  are  benefited  by  hypno-  hope),  London,  1893.  Also  Feuei-bach's 
tism,  is  not  without  significance.  It  work,  Beispiel  eines  Verbrechens  am 
shows  how  susceptible  these  patients  are  Seelenleben  des  Menschens  (History  of 
to  novel  and  bizarre  influences.  As  to  a  Crime  Against  a  Human  Soul),  18.32. 
the  permanent  efl'ects  of  hypnotism,  that  Hauser's  case  was  an  instance  of  how 
is  another  question.                                       ■  easily  these  individuals  receive   morbid 

5i  The  marvelous  story  of  Kaspar  and  unwholesome  suggestions.  This 
Hauser  is  well  worth  reading  in  connec-  boy's  case  was  talked  about  and  written 
tion  with  moral  imbecility.  At  one  time  about  all  over  Europe;  crowds  of  people 
it  created  a  great  sensation  in  Europe,  went  to  stare  at  him ;  he  was  discussed 
Kaspar  Hauser  appeared  mysteriously  as  the  possible  heir  of  half  the  crowned 
as  a  formdling,  aged  about  sixteen,  at  heads  of  the  continent;  his  vanity  was 
one  of  the  gates  of  Nuremburg,  in  jSLay,  flattered  and  his  hopes  stimulated  by  of- 
1828.  No  one  knew  whence  he  came,  ficials.  professors,  and  learned  doctors; 
and  his  own  story  was  that  he  had  been  and  he  was  patronized  by  an  English 
reai-ed  in  solitary  confinement,  without  nobleman.  When  all  this  evil  had  been 
learning  to  talk  or  being  allowed  to  done,  the  tide  turned,  and  he  was  doubt- 
communicate  with  any  living  creature,  ed,  scolded,  and  rejected.  It  is  no  won- 
He  was  a  moral  pervert,  a  liar,  simu-  der  the  poor  fellow  lost  his  moral  equi- 
lator,  and  pretended  victim  of  some  poise,  and  resorted  to  shamming  to  keep 
great  political  conspiracy;  and  he  found  up  the  farce. 

many  to  believe  him,  among  others  the  For    a    note    on    mirror    writing,    see 

English  Earl  of  Stanhope.     On  three  oc-  Wylie,  Disorders  of  Speech,  p.  359. 
casions   he  was  mysteriously  assaulted. 


8G2  INSANITY— FORMS  AND  MKDICO-LEGAL  ASPECTS.         [§   1080 

In  these  cases  tliere  is  usually  a  bad  heredity,  and  the  patients  are 
not  far  removed  from  the  paranoiacs.  (See  §  1029.)  In  fact, 
later  in  life  they  may  develop  into  well-marked  cases  of  paranoia,  with 
delusions  and  morbid  projects.  Such  imbecile  children  are  usually 
selfish,  mischievous,  cruel,  untruthful,  devoid  of  the  ordinary  affec- 
tions for  parents  and  friends,  onanists,  sexual  perverts,  and  the  crea- 
tures of  morbid  impulses.  Among  their  delinquencies  may  be  theft, 
incendiarism,  and  sexual  and  homicidal  assaults.^ 

1081.  The  epileptic  idiots. — In  epileptic  imbeciles  and  idiots  we 
sometimes  see  acts  of  violence,  automatism,  mania,  and  fury,  caused 
by  the  fits,  such  as  have  already  been  described  under  the  head  of 
"Epileptic  Insanity"  (page  726).  Epileptic  children  may  have 
peculiar  moral  pen^ersions,  not  unlike  the  cases  of  so-called  moral  im- 
becility.'^ 

1082.  The  pathology  and  morbid  anatomy  of  idiocy. — We  have 
more  knowledge  of  tlie  pathology  of  idiocy  than  of  insanity,  because 
in  idiocy  there  are  often  gToss  defects  in  the  brain  which  are  not  dif- 
ficrdt  to  obserA-e.  Idiocy,  indeed,  furnishes  the  most  conclusive 
proof,  if  such  proof  were  longer  needed,  that  healthy  mental  functions 
are  merely  the  activities  of  a  sound  brain. 

In  the  brains  of  idiots  after  death  we  see  the  havoc  caused  by 
disease  or  injury,  just  as,  during  their  lives,  we  see  weak-mindedness, 
which  is  the  result  and  the  evidence  of  this  havoc.  Among  the 
changes  found  in  the  brains  of  idiots  are  atrophy,  or  w'asting  of  tis- 
sue ;  hypertrophy,  or  overgrowth  of  the  supporting  tissue ;  inflamma- 
tion of  the  membranes ;  sclerosis,  or  hardening ;  in  other  cases,  soften- 
ing; the  formation  of  cavities  and  cysts;  effusion  of  fluid;  distention 
of  the  ventricles;  thinning  of  the  skull;  and,  occasionally,  tumors.'* 

II.  The  medico-legal  aspects  of  idiocy. 

1083.  Ancient  laws  on  defective  children. — In  the  laws  of  the 
Twelve  Tables  of  ancient  Eome^  it  Avas  written,  "If  a  father  has  a 

'  Spitzka,     "Insanity,"     in     Keating's  tion  to  the  Pathology  of  Iinbocility  and 

CyHopodia  of  tlio  Diseases  of  Children,  Idiocy."  Pliila.  Med.  Journ.  Vol.  T.  No. 

Vol.  IV.  pp.  1051,  1052;  Clouston,  Men-  11;    "Shuttleworth    and    Beach,    "Idiocy 

tal  Diseases,  p.  212.  1st  ed.  "Congenital  and    Imbecility,"    in    Allbutt's    Svst.    of 

Imbecility,"  case  of  E.  C.  Med.   Vol.    IX.   p.   233  ;■  Mills.   "Cretin- 

'Spratiing,  Epilepsy.     This  Avork  con-  ism,"  in   Starr's  Text-Book  of  the  Dis- 

tains    an    excellent    description    of    the  eases  of  Children,  2d  ed.  p.  080:  Lloyd, 

mental  changes  caused  by  epilepsy.  "Hydrocephalus."    ibid.    p.    024;     Lloyd, 

'  Shuttleworth,      ^Mentally      Deficient  "Sporadic    Cretinism."    in    International 

Children;  their  Treatinent  and  Trainimr.  Clinics,   Vol.   11.   2d   Ser.    1892,   p.   113; 

London.       1805;       Sachs,       "Amaurotic  Schutte,     Centralbl.    f.    allg.    Path,    und 

Idiocy,"    N.    Y.    Med.    Journ.    May    30.  Path.  Anat.  June  15,  1900.     The  last  is 

1890:    Osier.    Cerebral    Palsies    of    Chil-  a  valuable  digest. 

dren,  Phila.  1889;  Spiller,  "A  Contribu-  "Table  IV.  Law  III. 


Sporadic  cretinism 


§  10S3] 


IDIOCY. 


863 


child  bom  r/hich  is  monstrously  deformed,  let  him  kill  him  immedi- 
ately." This  early  written  law  rellects  the  prejudice  of  primitive 
people  against  deformed  and  sickly  infants;  and  in  some  of  the  an- 
cient states  it  was  customary  to  expose  such  weaklings  on  the  moun- 
tain-tops to  perish.^^ 

Even  the  early  English  law  shared  this  prejudice,  for  we  read  in 
Britton^*'  that  any  child  born  a  monster,  "as,  one  that  has  more  than 
the  proper  number  of  members,  as  three  hands  or  three  feet,  or  a  de-' 
ficiency  in  the 'same,  as,  no  hands  or  no  feet,"  cannot  inherit,  and 
such  are  not  to  be  "accounted  as  children,  but  as  beasts  and  monsters." 
But  Bracton^^  says  that  an  increase  or  decrease  in  tlie  number  of 
members  "not  affecting  the  human  form,"  as  six  or  four  fingers  on 
one  hand,  does  not  affect  the  person's  rights.  But  the  law  made  a 
distinction  between  a  "monster"  and  an  idiot,  fatuus  naturalis,  for 
it  does  not  appear  that  an  idiot  could  not  inherit.  In  fact,  the  early 
statutory  law  made  special  provision  for  the  estates  of  idiots.^ ^ 


9§  In  ancient  Rome  it  was  the  custom 
of  the  great  ladies  to  keep  an  idiot  as 
a  sort  of  freak  of  nature  with  wliich  to 
amuse  themselves.  Seneca,  in  a  letter 
to  Lucilius,  regrets  that  his  wife's  idiot 
girl  had  remained  to  him  as  a  burden- 
some legacy,  "for  personally,"  he  said, 
"I  feel  the  ]irofoundest  disliks  to  mon- 
strosities of  this  kind.  If  ever  I  want 
to  amuse  myself  with  an  idiot,  I  have 
not  far  to  look  for  one.  I  laugh  at  mv- 
self."  See  Tuke,  Diet.  Psvch.  Med.  Vol. 
I.  p.  17. 

^^  1G76.  English  translation  by  Nich- 
ols. 

^^  Quoted  by  Nichols,  op.  cit. 

"  It  is  almost  needless  to  say  that  the 
old  common  law  disinheriting  "mon- 
sters" was  based  entirely  on  old  fables 
and  superstitions.  Blackstone  tells  us 
(2  Com.  246,  247)  that  the  reason  for 
the  law  is  "too  shocking  to  bear  a 
minute  discussion,"  and  he  evidently 
means  us  to  understand  that  a  "mon- 
ster" is  the  product  of  the  copulation 
of  a  lower  animal  with  a  woman.  The 
learned  commentator  never  hints  that 
there  may  be  anything  fabulous  in  such 
a  being,  but  expounds  the  old  law  with 
all  due  gravity.  He  says  that  a  "mon- 
ster, which  hath  not  the  shape  of  man- 
kind, but  in  any  part  evidpnHy  bears 
the  resemblance  of  the  brute  creation, 
hath  no  inheritable  blood."  But  l>e  pro- 
ceeds Lo  say  that  "altliough  it  hath 
deformity  in  any  part  of  its  body,  yet 
if  it  hath  human  shape  it  may  be  heir.'* 


These  points  of  resemblance  or  nonre- 
semblance  to  brutes  must  have  been  nice 
questions  to  determine  in  an  unscien- 
tific age,  and  cases  of  arrest  of  develop- 
ment might  occasionally  have  passed  for 
the  offspring  of  goats  or  dogs,  to  the 
mortification  of  the  poor  mother.  The 
very  fact  that  there  was  sucli  a  law 
proves  that  such  atrocious  errors  must 
have  been  made  in  times  past. 

In  such  bad  odor  had  the  Latin  word 
monstrum  fallen,  because  of  these  and 
similar  fables  which  had  gathered  round 
it,  that  modern  scientists  would  have 
nothing  to  do  with  it,  and  when  they 
wanted  a  name  for  the  new  science 
which  deals  with  these  embryological 
freaks,  they  took  the  Greek  word  mpa^ 
(which  means  the  same  as  monstrum) 
and  coined  th-^  term  "teratology."  Hu- 
man monstrosities  are  now,  of  course, 
well  known  to  be  mere  deviations  in  the 
development  of  the  embryo  (with  wliich 
none  of  the  lower  animals  has  had  any- 
thing to  do).  See  Hirst,  Am.  Syst.  of 
Obstetrics,  Vol.  I.  p.  761,  for  some 
striking  pictures  of  human  monsters. 

See  a  quaint  description  of  a  double 
monster,  by  Montaigne,  in  his  essay 
"Of  a  Monstrous  Cliild,"  with  character- 
istic comments,  in  Avliich  he  points  out 
that  such  things  are  not  against  the 
laws  of  nature,  for  "nothing,  whatever 
it  be,  is  contraiy  to  her."  How  different 
the  mental  attitude  of  Martin  Luther, 
who,  wlien  he  heard  of  the  birth  of  a 
monstrous  calf,  believed  it  was  a  portent 


864  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1084 

1084.  The  Statute  De  Prerogativa  Regis. — This  law  was  the  statute 
17  Edward  II.  chap.  9,  which  plainly  distinguished  between  ths 
insane,  nori  compotes  mentis,  and  idiots,  fatui  naturales,  and  gaj'e 
the  estates  of  the  latter  into  the  keeping  of  the  King,  who  hud  tho 
right  to  the  revenues  of  the  same  during  the  idiot's  life,  but  was 
obliged  to  restore  the  estates  to  the  heirs  at  the  idiot's  death.  Tlie 
reasons  for  this  provision  have  been  explained  elsewhere  (chapter  on 
"ISTon  Compos  Mentis,"  page  482),  and  need  not  be  repeated  here.  It 
is  noteworthy,  however,  that  the  word  "idiot"  was  n'ot  used  in  that 
statute,  and,  indeed,  it  seems  at  one  time  to  have  been  used  indis- 
criminately for  the  insane  and  for  the  feeble-minded.^^  There  was 
an  old  common-law  writ  de  idiota  inquirendo  which  apparently  ante- 
dated the  writ  de  lunatico.^^  Nevertheless,  as  already  said,  the  old 
statute  distinguished  clearly  between  these  two  classes,  although  it. 
did  not  use  the  terms  "lunatic"  and  "idiot."^^ 

1085.  Hardship  and  confusion  caused  by  the  old  law. — In  order  \a> 
avoid  the  hardship  imposed  upon  the  family  of  the  idiot  by  that 
statute,  it  became  later  a  common  custom  to  find  the  feeble-mindeil 
person  not  an  idiot,  but  a  lunatic  ;^^''^^  for  the  revenue  of  the  latter  did 
not  fall  to  the  King;  and  thus  some  confusion  arose  about  terms, 
as  explained  elsewhere  in  these  pages.  (§§  406,  407.)  Moreover,  the 
test  for  idiocy  was  exceedingly  crude,  for,  according  to  Fitzherbert,^'' 
he  was  not  an  idiot  who  could  tell  his  parents  and  his  age,  and  could 
count  20  pence.  This  test,  if  applied  at  the  present  day,  would 
empty  our  training-schools  for  the  feeble-minded  of  a  large  propor- 
tion of  their  imnates ;  but  perhaps  it  was  a  good  enough  test  in  an 
age  when  to  be  found  an  idiot  meant  to  forfeit  one's  income  to  the 
King  for  one's  natural  life.  Certainly,  it  must  have  comported  with 
the  wishes  and  the  welfare  of  the  idiot's  family,  who  w^ould  have 
thought  no  test  was  too  light  which  saved  his  estate  from  the  King. 

of    some    great    event,    and    liopcd    the  person,     or     plebian.     Among     classical 

catastrophe  might  be  the  Last  Day  it-  writers  it  does  not  seem   to  have  been 

self.     All  because   of  a   deformed   calf!  used    generally,  if    at    all,  in  its  more 

(Luther's   Works,   Halle,   Vol.   XIX.    p.  modern  significance.    (Liddell  and  Scott, 

2416.)      There   is   a   vast   literature   on  Lexicon.)      In    classical    Latin     it    was 

monsters.     Index-Catalogue,  Vol.  IX.  used  with  the  same  meaning  as  in  the 

"1  Collinson,  Lunacv,  p.  117  et  infra.  Greek,  from  which  the  Latin  derived  it. 

"  Fitzhcrbert,   Nat.  'P.rev.   232;    1    Bl.  (Anthon,    Dictionary.)       Even    in    Eng- 

Com.  304.  land,   as   late   as    1023,  an   "idiote"  was 

"The      word      "idiot"      comes      from  defined  by  Cockeram  as  "an   unlearned 

the    Greek    word      u^iu-Tjq,     meaning   a  asse."     There  is  nothing  pathological  in 

private   person, — one   in   a  private   sta-  that. 

tion  of  life    {  Mtof ,       one's  own,  or  pri-  is  JWenman's  Ca.se,  cited  in  3  Atk.  17 J. 

vate).     Hence  it  came  to  mean  an  \m-  "Nat.  Brev.  233. 
skilled,     ignorant     person, — a     common 


§   1085]  IDIOCY.  865 

These  records  are  now  of  little  more  than  historic  interest,  especially 
in  America,  where  the  estate  of  an  idiot  is  administered  in  nowise 
differently  from  that  of  an  insane  person. 

1086.  The  deaf  and  dumb  were  regarded  as  idiots. — It  is  worth 
while  to  note  that  a  person  who  was  born  deaf,  dumb,  and  blind, 
was.  by  the  old  common  law,  looked  upon  as  in  the  same  state  as  an 
idiot.-''^  Thus,  the  law  clearly  recognized  that  class  of  idiots  whom 
Dr.  Ireland  describes  in  his  classification  as  idiots,  "by  deprivation  of 
the  senses,"  as  already  shown  {.supra,  §  1076).  But,  while  such  an 
unfortunate  may  be  idiotic,  it  no  longer  follows  that  he  is  so  of  neces- 
sity, for  modern  instances  are  well-known  in  which  such  patients 
have  had  normal  minds  and  have  been  well  educated.-^^ 

1087.  No  scientific  test  for  idiocy. — There  is  no  scientific  test  for 
idiocy  any  more  than  for  insanity;  for,  as  Sir  Matthew  Hale^^  said 
of  Fitzherbert's  test,  it  is  too  narrow;  "For  idiocy  or  not  is  a  qiiCvS- 
tion  of  fact,  triable  by  jury,  and  sometimes  by  inspection."  It  is 
much  to  be  wished  that  the  courts  would  constantly  keep  in  mind  this 
wise  saying  of  the  Lord  Chief  Justice.  Idiocy  is  a  general  term  for 
a  wide  group  of  fatui  naturales,  persons  who  by  nature  are  deficient 
in  mind,  memory,  and  morals,  of  the  greatest  variety,  extent,  and  com- 
plexity. It  is  impossible  to  reduce  this  groujD  to  the  limits  of  fixed 
rules. "^ 

1088.  The  presumption  of  law  in  cases  of  idiocy. — The  presump- 
tion of  the  common  law  is  that,  if  a  person  is  bom  an  idiot,  he  will 
always  remain  so  f^  and  in  this  respect  the  law  is  in  accord  with 
science.  It  is  a  fact  that  few  of  these  patients  ever  entirely  recover, 
or,  to  speak  more  correctly,  ever  properly  develop.^^  There  is,  there- 
fore, not  the  same  presumption  either  of  recovery  or  of  lucid  intervals 

"Co.  Litt.  42;   1   Bl.  Com.  304.  ''^  Renton    ("Idiocy  in  its  Legal  Rela- 

'*  The   cases  of  Laura  Bridgman  and  tions,"  in  Tuke's  Diet.  Psych.  INIed.  Vol. 

Helen  Keller  will   recur  to  all  readers.  II.)    says  that  the  old  presiimptio  juris 

^^  1  P.  C.  Chap.  IV.  p.  29.  et  de  jure,  that  an  idiot  cannot  recover, 

^  Extreme   statements   are   sometimes  is  now  of  little  importance,  owing  to  its 

made  by  the  courts  in  defining  idiocy,  having  been  displaced  by  modern  science, 

Thus,  in  Diving's  Vase,  1  Bland,  Ch.  372,  as  well  as  by  statute   (The  Idiots'  Act, 

17   Am.   Dec.   311,   the  judge   said   that  1886,   49   Vict.   chap.  25). 

idiocy  is  "not  a  condition  of  deranged  Now,  the  fact  is  that,  although  science 

mind,  but  that  of  a  total  absence  of  all  claims    that    many  idiots    can    be    im- 

mind."     This  would  apply  only  to  the  proved    by  education,  science    does    not 

very   lowest   grades   of   idiocy,    such   as  claim  that  many  of  them  can  be  cured, 

mierocephalus,    and    would    exclude  the  Extravagant   statements   are    made    by 

vast  majority  of  cases.  some  writers  about  the  results  obtained 

"  1  Bl.  Com.  303.     "An  idiot,  or  nat-  in    training-schools,    but   moderation   )• 

ural  fool,  IS  one  that  hath  had  no  un-  called  for. 
derstanding     from     his     nativity;     and 
therefore  is  by  law  presumed  never  like- 
Ij  to  attain  any." 

Vol.  I.  Med.  Jub. — f\5. 


SGG  INSANITY— FOUMS  AND  MEDICO-LEGAL  ASPECTS.         [§  10S8 

that  is  SO  often  claimed  in  the  case  of  insanity.  And  yet,  in 
the  old  common-law  writ  de  idiota  inquirendo,  it  was  declared  that 
the  escheator,  who  acted  as  a  modern  commission,  was  to  inquire 
whether  the  alleged  idiot  had  lucid  intervals, — si  lucidis  gaudcat  in- 
tervallis?^  But  this  writ  evidently  dates  from  a  time  when  the  word 
''idiot"  was  used  in  a  loose  way,  and  possibly  not  restricted  to  "nat- 
ural fools," — fatui  naturales.  In  no  other  way  can  we  explain  the 
inconsistency  implied  in  the  writ,  which  recognizes  "lucid  inter\'als" 
in  patients  whom  the  law  presmnes  never  likely  to  have  any. 

1089.  The  rights  and  responsibilities  of  idiots. —  In  most  ways, 
however,  idiocy  is  associated  with  hmacy  in  the  common  law  in  all 
that  pertains  to  civil  rights  and  criminal  responsibility.  What  is 
said  of  one  is  said  of  the  other.  An  idiot  cannot  make  a  will  f*  his 
conveyances  and  purchases,  if  not  actually  void,  are  voidable  ;^^  and 
he  cannot  make  a  valid  marriage.^*^  Blackstone  combats  the  idea  that 
the  issue  of  an  idiot  can  ever  be  legitimate,  for,  since  consent  is  abso- 
lutely requisite  to  matrimony,  and  "neither  idiots  nor  lunatics  are 
capable  of  consenting  to  anything,"  their  marriage  cannot  be  valid. 
In  criminal  matters  an  idiot  would  be  subject  to  the  same  tests  appar- 
ently as  an  insane  person.^^  Most  courts  would  probably  insist  on 
the  right-and-wrong  test  in  a  doubtful  case. 

Thus  it  follows  that,  exactl}^  as  in  insanity,  the  hitch  in  this  matter 
of  idiocy  occurs  in  individual  cases  when  the  question  arises  in  court 
as  to  what  constitutes  idiocy  or  imbecility.  These  cases,  from  the 
nature  of  things,  are  not  so  numerous  in  jurisprudence  as  cases  of 
insanity,  but  they  have  occurred.-^  They  are  not  reducible  to  a  uni- 
form and  simple  definition. 

1090.  The  marriage  of  imbeciles. — The  marriages  of  imbeciles  have 
been  annulled  in  a  number  of  cases.     Sir  John  JSTicholl,"^  in  the  Case 

^  1  Collinf5on,  Lunacy.  Avliich  the  law  looks  at  all  transactions 

**  2   Bl.   Com.   497.  between  parties  standing  in  those  rola- 

^2  Bl.  Com.  291.  tions     to     each     other."     And     again: 

"  1   Bl.  Com.  438.  "Every  circumstance  conspires  to  prove 

"  4  Bl.  Com.  24.  that   he   was    the    mere   puppet   of   the 

"  Gerard-Marchant.  "Rapport  Medico-    Hanson  family,  and  that  the  celebration 

Legal   sur   un   Cas   d'Imbecillite,"   Ann.    of  this  marriage  was  brought  about  by 

Med.  Psych.  18.55,  I.  250.  a  conspiracy  among  them  to  circumvent 

^  1   Hagg.  Eccl.  Rep.  359.     The  Earl    Lord  Portsmouth,  over  whom  they,  and 

of    Portsmouth    was    a    well-recognized    particularly  the  father,  had  a  complete 

imbecile  to  all  who  knew  him.     One  of    ascendency  and  control,  so  as  to  destroy 

his  trustees,  a  solicitor  named  Hanson,    all  free  agency  and  rational  consent  on 

secured  possession    of    him,   and    in    a    his  Lordship's  part  to  this  marriage." 

week's  time  married  him  to  one  of  his,        Mr.  Hanson  was  Lord  Byron's  solici- 

Hanson's,    daughters.     "It    is     unneces-    tor,  and  the  poet  knew  something  about 

sary,"  said  Sir  John  Nicholl,  in  giving    the  afTair,  as  is  seen  in  his  correspond- 

judgment,  "to   state  the  jealousy  with    ence,  published  by  Murray. 


§  1090]  IDIOCY.  807 

0/  Earl  of  Portsmouth,  held  that  the  facts  that  the  person  was  capable 
of  receiving  some  instniction,  that  he  had  once  given  testimony  in 
court,  and  had  some  limited  knowledge  of  farming  and  other  subjects, 
were  not  incompatible  with  imbecility.  In  fact,  this  learned  judge 
did'not  rely  ujjon  tests,  but  upon  an  analysis  of  the  symptoms  in  tlic 
individual  case  before  him ;  and  this  is  what  gives  this  Case  of  Earl  of 
Portsmouth  its  special  importance  in  the  annals  of  medical  jurispru- 
dence. The  method  adopted  was  a  scientific  one ;  the  individual  was 
found  to  be  imbecile,  and  the  marriage  was  annulled.  An  imbecile 
who  happens  to  have  a  fortune  is  tempting  game  for  the  adventurer, 
but  the  law  will  not  always  condone  the  offense  of  marrying  such  a 
person  off-hand.^° 

This  subject  has  still  another  aspect,  for  there  have  not  been  lack- 
ing thoughtful  writers  who  have  advocated,  first,  that  the  marriage 
of  epileptics,  imbeciles,  and  feeble-minded  persons  should  be  prohib- 
ited by  statute  law;  and,  second,  that  these  unfortunates  should  bo' 
put  into  a  condition  by  castration  that  would  forever  prevent  them 
from  reproducing  their  kind.  In  European  countries,  if  we  are 
correctly  informed,  no  such  legislation  has  been  secured;  but  in 
America  there  are  laws  on  the  statute  books  both  in  Connecticiit 
and  New  Jersey  that  forbid  such  marriages."'^*''''''  But  such  legislation" 
will  not  prevent  procreation  by  and  of  idiots.  It  could  be  evaded  in- 
many  instances  by  the  usual  conventional  proof  that  the  individual 
was  not  an  "imbecile"  or  "idiot;"  while  in  the  case  of  epileptics, 
such  law  is  a  doubtful  expedient  and  might  be  regarded  by  the 
courts  as  a  grave  infringement  on  personal  rights.  Moreover,  idiots 
can  procreate  without  going  through  the  formality  of  a  marriage, 
and  not  a  few  of  them  do  so. 

To  meet  such  emergencies  the  radical  position  is  taken  by  some 
writers  that  epileptics,  imbeciles,  and  idiots  should  be  castrated  or 
"asexualized."  It  is  safe  to  say,  however,  that  the  day  has  not  yet 
arrived  when  this  Oriental  practice  can  be  legalized  in  many  of 
our  American  states.^'' "''^ 

'"See  report  of  the  Bapster  Case,  in        soj  g^rr    (Mental  Defectives,  1004,  p. 

Ray,  Med,  Jur.  Insanity,  .5th  ed,  p.  108.  189)  has  a  Avhole  chapter  on  the  subject 

3  0^  The  Connecticut  law  of  July  4,  of  "Asexualization,"  Some  years  ago, 
1895,  forbids  the  marriage  of  epileptics,  he  tells  us,  a  circular  was  sent  out  from 
imbeciles,  or  feeble-minded  persons,  or  the  Pennsylvania  Training  School  at 
their  living  together  when  the  woman  Elwyn,  asking  for  opinions  on  this  sub- 
is  under  forty-five  years  of  age.  It  pre-  ject.  Of  61  institutions  addressed  only 
scribes  severe  penalties,  as  also  for  hav-  12  responded,  of  which  9  were  American, 
ing  carnal  connection  with  such  defect-  1  German,  1  Scotch,  and  1  English.  The 
ives.  For  the  New  Jersey  law,  which  answers  in  these  few  cases  were  "c:vu- 
is  similar,  see  §  8811/0  of  the  present  tious"  and  noncommittal,  and  the  idea 
work,  of   an   appeal    to   legislation     met   with 


86S 


INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1091 


1091.  Testamentary  capacity.  —  The  testamentary  capacity  of 
idiots  and  imbeciles  will  doubtless  come  under  the  same  rules  as  that 
of  lunatics  and  dements  generally.  It  wall  be  merely  a  question  of  a 
sound  and  disposing  mind.  The  courts  in  some  cases  have  been  ex- 
traordinarily blind  to  the  facts,  even  though  the  common  law  presumes 
that  a  person  bom  an  idiot  will  never  have  the  use  of  his  reason.  The 
will  of  a  congenital  imbecile  has  been  sustained  on  a  technical  con- 
struction of  what  constitutes  "unsoundness  of  mind."'^'^  If  a  mere 
"glimmering  of  reason,"  as  Blackstone  puts  it,  is  sufficient  to  prove 
a  person  not  an  idiot,  then  there  are  no  idiots  but  the  lowest  grades 


little  approval.  The  fact  that  this  cir- 
cular was  so  widely  ignored  seems  to 
show  that  the  proposition  was  not  taken 
seriously.  And  yet  in  America  feeble- 
minded children  have  been  deliberately 
unsexed  in  a  few  institutions,  but  the 
writer  is  not  aware  that  the  subject  has 
ever  been  adjudicated  in  any  court  of 
last  resort.  According  to  Barr,  5S  boys 
have  been  castrated  by  Pilcher.  of  Win- 
field,  Kansas ;  Flood,  of  Palmer,  Mass., 
practised  this  method  in  26  cases;  in 
24  of  these  cases  the  patients  were  epi- 
leptics and  persistent  masturbators ;  one 
half  the  number  were  under  fourteen 
years,  and  two  over  twenty  years  of 
age.  Barr  has  practised  "asexualiza- 
tion" in  6  cases, — 3  women  and  3  boys. 
The  operation  on  boys  is  either  by  cas- 
tration proper  (testectomy)  or  by  cut- 
ting out  a  portion  of  the  excretory  duct 
of  the  testicle  (vasectomy).  By  the 
latter  operation  the  person  is  not  really 
unsexed,  for  the  testicle  remains;  he  is 
merely  rendered  unable  to  procreate,  and 
is  not  even  incapacitated  for  sexual 
congress.  Hence  vasectomy  has  no  ben- 
eficial effect  on  the  patient,  by  extin- 
guishing sexuality,  but  merely  renders 
him  harmless  to  posterity.  Some  years 
ago  the  legislature  of  Pennsylvania 
passed  a  law  legalizing  "asexualization," 
l)ut  it  was  returned  by  the  governor  un- 
approved.    See  Barr,  loc.  cit. 

The  pious  practice  of  making  eunuchs 
of  boys  in  order  to  secure  the  male  so- 
prano voices,  so  much  prized  in  the  Sis- 
tine  Chapel  at  Rome,  may  be  recalled 
here;  as  also  the  fallacy  of  supposing 
that  all  eunuchs  are  destitute  of  courage 
and  high  intelligence.  Narses.  tlie  fa- 
mous general  of  Justinian  (the  Roman 
emperor  and  law-maker),  was  a  eunuch. 

'^Stewart  v.  lAspenard,  26  Wend.  2.56. 
Alice  Lispenard  was  an  idiot,  as  the  tes- 
timony in  the  case  amply  proved,  and 


had  always  been  so  regarded  and  treated 
by  her  family.  Toward  the  close  of  her 
life  she  lived  with  her  brother-in-law, 
A.  L.  Stewart,  and  made  a  will,  leaving 
him  all  her  estate. 

The  will  was  refused  probate,  but,  on 
final  appeal  to  the  New  York  court  of 
errors  (composed  largely  of  state  sena- 
tors), it  was  sustained.  The  court  held 
that  "imbecility  of  mind  in  a  testator 
will  not  avoid  his  last  will  and  testa- 
ment. Idiots,  lunatics,  and  persons  non 
compotes  mentis,  are  disabled  from  dis- 
posing of  their  property  by  will ;  but 
every  person  not  embraced  within  either 
of  the  above  classes,  of  lawful  age,  and 
not  under  coverture,  is  competent  to 
make  a  will,  be  his  understanding  ever 
so  weak.  Courts,  in  passing  upon  the 
validity  of  a  will,  do  not  measure  the 
extent  of  the  understanding  of  the  tes- 
tator; if  he  be  not  totally  deprived  of 
reason  .  .  .  his  will  stands  as  a 
reason  for  his  action." 

The  decision  in  the  Lispenard  Case 
has  been  much  and  justly  criticized. 
.Justice  Davies  (in  Delafiehl  v.  Parish, 
2.5  N.  Y.  27 )  said  that  the  Lispenard 
Vase  had  "not  been  regarded  with  favor 
by  the  bench  and  bar.  The  circum- 
stances under  which  it  was  heard  and 
decided  on  the  part  of  the  court  are 
such  as  to  carry  with  it  little,  if  any, 
weight  of  authority."  The  court  at 
that  sitting  "was  composed  exclusively 
of  senators,  .  .  .  and  reversed  the 
decree  of  the  chancellor,  which  affirmed 
tlie  judgment  of  the  circuit  judge,  who 
affirmed  the  decree  of  tlie  surrogate,  re- 
fusing to  admit  the  will  to  probate." 

It  is  satisfactory  to  know  that  such 
a  decision  was  not  made  by  a  bench  of 
learned  judges,  but  by  a  coterie  of  state 
senators.  See  the  case  discussed  also 
by  Red  field.  Wills,  Vol.  I.  Chap.  IV.  S 
1.5.  and  footnote. 


§   1091]  IDIOCY.  869 

of  microcephales ;  and  if  such  a  glimmering  is  all  that  is  required 
for  testamentary  capacity,  then,  indeed,  can  most  idiots  make  lawful 
wills.  But  to  attempt  to  confine  idiocy  and  imbecility  within  such  a 
rule  is  simply  to  revert  to  the  cmde  test  promulgated  by  Fitzherbert, 
which  Lord  Chief  Justice  Hale,  as  we  have  seen,  condemned  more 
than  two  centuries  ago. 

1092.  Capacity  in  civil  matters. — Idiots  and  imbeciles  cannot  con- 
tract. Moreover,  it  is  sufficient  to  invalidate  any  instrument  exe- 
cuted for  an  inadequate  consideration  by  a  person  of  weak  intellect, 
to  show  that  the  person  in  whose  favor  it  is  framed  holds  a  situation 
of  confidence  with  respect  to  the  maker  of  such  instrument.^^ 

1093.  Responsibility  in  criminal  matters. — In  criminal  cases  the 
responsiblity  of  an  imbecile  or  idiot  would  probably,  in  most  courts, 
be  made  subject  to  the  right-and- wrong  test,  unless  the  case  were 
so  evidently  one  of  low-grade  idiocy  that  the  court  would  dismiss  it 
merely  on  inspection.^^  In  cases  of  so-called  moral  imbecility  the 
question  will  always  arouse  controversy ;  but  as  this  question  is  dis- 
cussed elsewhere  in  these  pages  it  need  not  be  pursued  further  here. 
(Ante,  §§  1052-1058.)  It  is  believed  that  the  youngest  person  ever 
executed  for  crime  was  a  boy  named  Dean,  aged  eight  years,  who,  in 
♦1629,  w^as  found  giiilty  of  burning  two  barns  at  Windsor.^^  A  boy, 
aged  twelve  years,  was  executed  in  'New  Jersey,  in  1828,  for  murder. 
All  juvenile  crime  does  not  necessarily  imply  imbecility,  but  in  very 
heinous  crimes  committed  at  such  a  tender  age  the  question  of  abnor- 
mality may  w^ell  arise. 

In  a  case  of  burglary,  wherein  it  appeared  that  the  accused  was  an 
imbecile  boy,  who  committed  the  crime  by  the  persuasion  of  others, 
the  supreme  court  of  Kentucky  gTanted  a  new  trial,  on  the  gi'ound 
that  the  prisoner  did  not  know  right  from  v^^rong,  and  had  not  mind 
enough  to  resist  persuasion.^^ 

Sexual  assaults  have  been  made  by  imbeciles.  The  sexual  instinct 
is  strong  in  some  of  these  patients,  and  not  always  controlled  by  the 
moral  sense.  The  victims  of  their  assaults  are  sometimes  young  chil- 
dren.^*"' 

1 

^Arnold  v.   Townsend,   14  Phila.  216.  '^Hoys  v.  Com.   17  Ky.  L.  Rep.   1147, 

^1    Hale,    P.     C.     Chap.     IV.:     "For  33  S.  W.  1104. 

idiocy  or  not  is  a  question  of  fact,  tri-  ^  Gerard,     Rapport  Mgdieo-L^gal  sur 

able  bv  jury,  and  sometimes  by  inspec-  un     Cas     d'InibecillitS     Compliqu6e    de 

tion."'  See  also  3  Bl.  Com.  331,  332.  Delire     Melancolique ;      Viol      sur      de 

"  Keating,  "Juvenile  Crime,"  in  Keat-  Jeunes     Enfants."     Ann.     Med.     Psych. 

ing's  Cyclopedia  of  the  Diseases  of  Chil-  XIII.  515. 
dren,  Vol.  IV.  p.  424. 


870  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1094 

III.  The  deaf  and  dumb, 

1094.  The  civil  law  on  deaf-mutism. — By  the  Roman  law  the  deaf 
and  dumb  were  held  to  be  without  civil  capacity ,^^  and  were  on  the 
same  footing  as  persons  deprived  of  intelligence  (jnente  capti),  to 
whom  curators  or  trustees  were  to  be  appointed.^^  But  an  exception 
seemed  to  be  made  in  favor  of  soldiers,  for  such  persons,  though  deaf 
and  mute,  might  yet  make  their  testaments.^^ 

It  is  evident  from  Bracton,  that  the  early  common  law  of  England 
follow^ed  the  Roman ;  or,  at  least,  Bracton  followed  Justinian,  for  on 
this  subject,  as  usual,  he  copied  the  Roman  code  almost  verbatim.^*^ 

1095.  The  legal  presumption  in  deaf-mutism. — The  presumption 
of  the  old  common  law  was  that  a  deaf  and  dumb  person  was  an 
idiot.  But  Coke*^  added  blindness  to  the  defects  that  seemed  neces- 
sary to  constitute  an  idiot  in  tlie  presumption  of  law;  thus,  a  person 
born  deaf,  dumb,  and  blind  was  such  an  idiot.  In  Elyot's  Case'^^ 
it  was  decided  that  a  person  who  is  deprived  of  one  or  two  senses 
only,  and  who  can  convey  his  meaning  by  writing  or  signs,  is  not  in- 
capacitated. 

Therefore,  the  presumption  of  idiocy  in  deaf-mutism  could  be 
rebutted,  and  this  is  clearly  expressed  by  Hale.^^  "A  man,"  wrote 
the  Lord  Chief  Justice,  "that  is  surdus  &  mutus  a  nativitate  is,  in 
j)resumption  of  law,  an  idiot;  and  the  rather  because  he  hath  no 
possibility  to  understand  what  is  forbidden  by  law  to  be  done,  or 
imder  what  penalties ;  but  if  it  can  appear  that  he  hath  the  use  of 
imderstanding,  which  many  of  that  condition  discover  by  signs  to  a 
very  great  measure,  tlien  he  may  be  tried,  and  suffer  judgment  and 
execution,  though  great  caution  is  to  be  used  therein." 

Thus  a  door  was  left  open  for  abolishing  the  old  presumption,  and 
at  the  present  time  nothing  much  is  left  of  it.^*     This  is  largely  due 

"  "It  is  evident  that  a  dumb  man  can  speecliless  from    injuries.     It    is    incon- 

iieither   stipulate   nor   promise;    and   so  ceivable    that     deaf-mutes    should    have 

of  deaf  persons ;   for  he  who  stipulates  been  in  sei'vice  in  tl«  Roman  legions, 

ought  to  hoar  the  words  of  the  obligor;  '"' De  Legibus,  fol.    100;   also  fol.  421. 

and  he  who  promises,  the  words  of  the  Bracton    uses    the    word  naturaliter  as 

stipulator.     I5ut   we    speak   not   of   him  meaning  "from  birth." 

who   hears   with   difficulty,   but   of   him  "  Co.   Litt.   42. 

who  has  no  hearing." — Justinian,  Insti-  *"  Carter.   53. 

tutes,  Lib.  IIL  title  XX.  §  7,  translated  *="  1  P.  C.  34. 

by  Cooper.  "State  v.  noward,  118  Mo.  127.  24  S. 

^Ibid.  Lib.  I.  title  XXIII.  §  4.  W.  41.     "The   presumption  that  a  per- 

"Jhid.  Lib.  II.  title  XI.  §  2.    This  ex-  son  deaf  and  dumb  from  birth  should  be 

ception   may   have   been   more  apparent  deemed   an   idiot  does   not  seem   to  ob- 

than  real,  for  it  may  have  been  meant  tain  in  modern  practice,  at  least  in  the 

to  api^ly  to  soldiers  who  were  deaf  or  United  States." 


§  1095]  IDIOCY.  871 

to  the  more  scientific  view  of  deaf-mutism  which  now  prevails,  and 
to  tlie  education  of  those  unfortunates,  as  inaugurated  by  the  Abbe 
Sicard.  This  is  a  happy  instance  of  a  legal  presumption  on  the 
subject  of  mental  unsoundness  yielding  before  a  more  enlightened 
opinion.  For  the  truth  is  that  there  are  various  kinds  and  grades 
of  deaf-mutism.  Some  of  these  patients  are  undoubtedly  idiotic  or 
imbecile;  education  can  do  little  or  nothing  for  them;  but  others  are 
of  quite  competent  intelligence.  Each  individual  case  must  be 
judged  on  its  own  merits,  and  not  by  legal  rules  or  presumptions, 
many  centuries  too  old. 

1096.  An  error  to  be  avoided. — Deaf  and  dumb  idiots  are  included 
in  that  class  described  by  Ireland**^  as  "idiots  by  deprivation  of  the 
senses;"  described  also  by  Blackstone^®  as  "being  supposed  incapable 
of  any  understanding,  as  wanting  all  those  senses  which  furnish  the 
human  mind  with  ideas."  But  an  erroneous  idea  may  easily  be  con- 
veyed here.  Deaf  and  dumb  idiots  are  not  idiotic  merely  because 
of  the  fact  that  they  cannot  hear  and  talk.  Their  deaf-mutism  is  only 
a  part  of  a  larger  fact.  The  arrest  of  development  has  involved  not 
only  the  hearing  apparatus,  but  also  the  brain.  They  are  idiotic  plus 
their  deaf-mutism.  If  it  were  otherwise,  they  could  be  educated  in 
the  sign-language  like  the  more  intelligent  deaf-mutes.  Hence,  as 
already  said,  the  only  scientific  way  is  to  study  individual  cases,  and 
determine  the  capacity  of  each  person;  for  deaf-mutes  vary  within 
wide  limits. 

1097.  The  mental  capacity  of  deaf-mutes  varies. — It  is  now,  there- 
fore, recognized  in  law  that  the  only  question  in  the  case  of  deaf- 
mutes,  as  in  the  case  of  any  person,  is  their  mental  capacity.^'^  Long 
ago,  in  fact.  Lord  Chancellor  Hardwicke^^  tested  the  matter  by 
inspection  in  court  in  the  case  of  a  woman  who,  having  attained  her 
majority,  applied  for  possession  of  her  estate.  He  put  questions  to 
her  in  writing,  to  which  she  replied  properly  in  writing,  and  the 
application  was  granted. 

Thus,  in  civil  matters,  the  modern  rule  seems  to  be  that  the  fact 
that  a  person  is  deaf  and  dumb  does  not,  unless  he  is  actually  deficient 
in  understanding,  render  him  incompetent  to  hold  and  manage  prop- 
erty, or  to  prosecute  and  defend  actions  in  court  ;'*^  but  it  must  be 

"  Op.  cit.  question    as    to    their    legal  ability  to 

**  1  Com.  304.  make  a  contract  is  placed  on  its  proper 

"Barnett     v.     Barnett,    54    N.    C.    (1  gromuls, — their  mental  capacity." 

Jones,   Eq.)    221.     "In   the  earlier   his-  '^Dickenson  v.  Blisset,  1  Dick.  268. 

tory  of  the  law  a  person  who  was  born  *"  8  Am.  &  Eng.  Enc.  Law,  art.  "Deaf 

deaf  and  dumb  was  considered  an  idiot,  and  Dumb." 

That   period   has   long  passed,   and   the 


o72  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1097 

clear  that  he  is  not  deficient.  An  inquisition  finding  a  deaf-mnte 
competent  has  been  set  aside  because  it  appeared  that  the  person,  a 
woman,  sixty-five  years  old,  who  had  been  deaf  and  dumb  from  the 
age  of  two  years,  was  very  ignorant,  never  having  learned  the  sign- 
language,  could  not  read  or  write,  and  could  not  be  made  to  under- 
stand ordinary  business.  This  was  a  righteous  judgTnent^^  It  was 
probably  witli  respect  to  such  cases  that  Chancellor  Kent  obser\'ed 
that  the  old  presumption  was  reasonable  ''in  order  to  insure  protec- 
tion, and  to  prevent  fraud."^^  But,  as  already  observed,  tliis  is  a 
matter   of   evidence,   not  of   presumption.^^ ^* 

1098.  Deeds  and  wills  by  deaf  mutes. — In  the  matter  of  deeds,  a 
a  deaf  and  dumb  person  can  execute  one,  if  it  be  shown  that  he  under- 
stands the  nature  of  the  instrument  he  is  signing.^^  But  the  wills 
of  deaf-mutes  are  often  regarded  with  suspicion,  and  the  courts 
properly  demand  satisfactory  evidence  that  the  signs  by  which  the 
testator  had  communicated  his  wishes  were  unmistakable.^^ 

1099.  The  marriage  of  deaf-mutes. — The  marriage  of  deaf-mutes 
is  a  question  of  grave  sociological  import  Intermarriage  is  not  im- 
oommon  among  these  persons,  but  the  risks  of  imperfect  offspring  are 
not  slight.  Clouston^^  speaks  of  such  a  marriage  as  "a  physiological 
sin."  He  voices  the  prejudices  of  most,  if  not  all,  psychiatrists  in 
that  opinion.^^^  But  the  marriage  of  deaf-mutes  is  lawful  if  the  con- 
tracting parties  have  mental  capacity."^  "^'«  A  question  of  fraud,  how- 
ever, has  arisen  in  such  a  case,  even  although  there  was  no  question  of 
mental  capacity.^^ 

1100.  Deaf-mutes  as  witnesses. — A  deaf-mute  may  be  a  witness  in 
court,  if  he  can  understand  and  be  understood  by  signs  or  by  reading 
and  writing.     But  a  deaf  and  dumb  child,  who  has  never  been  edu- 

"i?e  Perrine,  41  N.  J.  Eq.  409,  5  Atl.  31  L.  J.  Prob.  N.  S.  177,  6  L.  T.  N.  S. 

579.    Chancellor  Rimyon  said:    "Wheth-  368,  10  Week.  Rep.  140;   Geale's  Goods, 

er  persons  born  deaf  and  dumb  are  to  3  Swabey  &  T.  430,  33  L.  J.  Prob.  N.  S. 

be   treated   judicially,   as   persons   men-  125,  12  Week.  Rep.  1027. 

tally   incompetent  to   manage   their   af-  "Mental  Diseases,  1st  ed.  p.  216. 

fairs,   must   depend   upon    the   evidence  54^  For  some  statistics  on  the  subject 

they  are  able  to  give  of  the  possession  of  deaf-mutism  as  occurring  in  consan- 

of  capacity."  guineous    marriages,    see    Senator    and 

"Brower  v.  Fisher,  4  .Johns.  Ch.  441.  Kajnmir,   Health    and   Disease   in    Rela- 

6ii  There  is  quite  a  voluminous  medi-  tiou  to  Marriage  and  the  Married  State, 

cal   literature   on   tlie  capacity  of  deaf-  X.   Y.   1904. 

mutes.     See   Index-Catalogue,"  Vol.   III.  For  statistics  of  hereditary  deaf-mu- 

pp.  610,  017,  for  bibliography.  tism,  see  Large's  excellent  paper  in  the 

^""Farmer  v.  Farmer,  1  H.  L.  Cas.  724;  Encyc.  Brit.  Vol.  VII. 

Darnett  v.  Burnett,  54  N.  C.    (1  Jones,  sig  See  ante,  §  43. 

Eq.)    221.  '^Harrod  v.  Harrod,  1  Kay  &  J.  4,  18 

•^Owston's  Goods,  2  Swabey  &  T.  461,  Jur.  853. 


§  1100] 


IDIOCY. 


873 


cated  in  the  sign-language,  is  not  a  competent  witness,  if  it  is  impos- 
sible to  communicate  with  him  or  to  understand  his  pantomime.'''*' 

1101.  The  legal  presumption  of  sanity  in  deaf-mutes. — The  pre- 
sumption of  sanity  has  been  held  not  to  apply  to  a  deaf-mute  accused 
of  crime,  and  it  is  incumbent  on  the  prosecution  to  prove  capacity 
and  the  ability  to  distinguish  right  and  wrong. "''^  This  is  a  reversion 
to  the  old  presumption  of  idiocy  in  deaf-mutes ;  and  it  remains  to  be 
seen  whether,  in  future  cases,  this  ruling  will  be  followed.  But  deaf- 
mutes  are  not  often  accused  of  crime. 

1102.  The  distinction  between  deaf -mutism  and  acquired  deafness. 
— Finally,  it  is  important  to  distinguish  deaf  mutes  a  nativitate  from 
persons  who  have  acquired  deafness ;  for  neither  the  Roman  nor  the 
common  law  applied  to  the  latter;  and  from  persons  who  have  lost 
tlie  use  of  speech  from  disease,  as  in  cases  of  aphasia.^^ 

1103.  Standing  mute. — In  court  it  may  be  a  nice  question  to  de- 
termine about  a  person  who  stands  mute ;  and  in  such  cases  a  special 
jury  may  be  sworn  to  determine,  first,  whether  the  prisoner  be  mute 
of  malice  or  by  visitation  of  God ;  second,  whether  he  be  able  to 
plead;  third,  whether  he  be  sane  or  not.^^      (See  Chapter  LVII.)^^ 


^Territory  v.  Duran,  3  N.  M.  194,  3 
Pac.  53.  For  other  references  see  the 
Am.  &  Eng.  Enc.  Law,  loc.  cit. 

'"''State  V.  Draper,  1  Houst.  Crim.  Rep. 
(Del.)    291. 

"■^Potts  V.  Bouse,  6  Ga.  324,  50  Am. 
Dec.  329.  Tliis  case  is  often  quoted  on 
the  subject  of  deaf-mutism,  but  it  was 
not  such  a  case.  The  person  was  ninety 
years  old,  a  senile  dement,  and  prob- 
ably aphasic. 

=»See  footnote,  1  Hale  P.  C.  34,  Km. 
ed.  Also,  Rex  v.  Pritchard,  1  Car.  & 
P.  303;  Rex  v.  Dysoyi,  7  Car.  &  P.  305, 
1  Lewin,  C.  C.  04 ;  Thompson's  Case,  2 
Lewin,  C.  C.  137  (the  prisoner  wrote  his 
plea).  1  Russell,  Crimes,  7,  note;  Peo- 
ple V.  McGee,  1  Denio,  19;  Com.  v.  Hill, 
14  Mass.  207;  State  v.  De  Wolf,  8  Conn. 
93,  20  Am.  Dec.  90. 


'■"N.  B.  But  little  space  has  been  de- 
voted in  the  above  chapter  to  the  subject 
of  monsters,  and  that  chiefly  in  footnote 
12.  The  subject,  however,  is  not  with 
out  medico-legal  interest,  now  mostly 
historical,  for  the  curious  student.  A 
wonderful  discourse  on  the  subject  is 
found  in  Ambroise  Pare's  opera,  Franco- 
furti,  1594,  Lib.  XXIV.  Many  illustra- 
tions of  fabled  monsters  are  given,  show- 
ing the  miscegenation  of  the  human  race 
with  brutes,  and  throwing  a  strong  light 
on  the  passage  in  Blackstone's  Commen- 
taries (2  Bl.  24G,  247).  It  is  remark- 
able that  men  of  tlie  intelligence  of  Am- 
broise Par6,  who  was  a  great  surgeon, 
and  of  Blackstone,  who  was  a  great  law- 
yer, should  have  been  deluded  into  such 
grotesque  beliefs,  even  making  due  al- 
lowance for  their  times. 


CHAPTER  LL 

NARCOMANIA^ 

I.  The  medical  aspects  of  the  opium  habit. 

1104.  Meaning  of  the  term. 

1105.  Some  historical  data. 

1106.  The  peculiar  features  of  morphinism. 

1107.  The  various  forms  of  the  opium  habit. 

1108.  The  opium  habit  becomes  a  disease. 

1109.  The  physiological  action  of  opium. 

1110.  The  chronic  effects  of  the  drug. 

1111.  Moral  perversions. 

1112.  The  narcomaniac's  unreal  world. 

1113.  The  mental  changes. 

II.  The  medico-legal  aspects  of  the  opium  habit. 

1114.  Crimes  by  narcomaniacs. 

1115.  Medico-legal  cases  not  numerous. 

III.  The  medical  aspects  of  the  cocain  habit. 

11 IG.  The  abuse  of  coca  and  cocain. 

1117.  Cocain  is  a  powerful  poison  to  the  nervous  system. 

Ills.  The  tragic  history  of  the  all-round  victims  of  drugs. 

1119.  The  symptoms  of  cocain  poisoning. 

1120.  Various  forms  of  the  disorder.  / 

1121.  Cocomania  is  a  form  of  insanity. 

IV.  The  medico-legal  aspects  of  the  cocaix  habit. 

1122.  The  cocomaniac  not  responsible. 

1123.  The  great  danger  from  the  cocomaniac  is  violence. 
V.  The  chloral  and  other  drug  habits. 

1124.  These  drug  habits  are  various. 

1125.  More  than  one  drug  used  by  the  patient. 

I.  The  medical  aspects  of  the  opium  habit. 

1104.  Meaning  of  the  term. — By  this  term  is  meant  particularly 
the  opium  habit,  although  it  is  properly  made  to  include  also  the 
habit  of  using  other  narcotic  drugs.^  When  the  term  "opium"  is 
used  thus,  it  must  be  understood  as  including  the  various  alkaloids  or 
active  principles  of  that  drug,  the  chief  of  which  is  morphin.  There 
are  practically  few,  if  any,  distinctions  to  be  made  between  the  opium 
habit  and  the  morphin  habit,  although  there  are  some;  and  these  dis- 
tinctions are  urged  by  some  writers. 

*  Kerr,  "Narcomania,  the  Disease  of 
Inebriety,"  in  the  Twentieth  Century 
Practice  of  Medicine,  Vol.  III.  p.  115. 

874 


§   1105]  NARCOMANIA.  875 

1105.  Some  historical  data. — Opium  was  known  to  the  ancients, 
but  it  was  not  used  by  them  to  anything  like  the  extent  to  which  it  is 
used  by  the  moderns.  The  crude  drug  is  the  inspissated  juice  (ottoc) 
of  the  poppy, — a  plant  which  is  now  widely  cultivated,  but  the  orig- 
inal home  of  which  is  placed  by  some  writers  in  the  valley  of  the  Nile. 
There  seems  to  be  no  better  reason  for  that  opinion  than  the  fact  that 
the  first  mention  of  the  use  of  opium  is  found  in  hieroglyphics  of  an 
early  date  in  Eg^^pt.^  In  the  fourth  book  of  the  Odyssey  a  drug 
which  may  have  been  opium  is  described  by  Horner.'^  The  ancient 
physicians — Hippocrates,  and,  after  him,  Dioscorides^^ — used 
opium;  and  during  the  Middle  Ages  it  was  much  in  vogue  as  a  rem- 
edy. The  dates  of  its  introduction  or  first  use  in  India  and  China 
are  probably  no  longer  to  be  ascertained  with  certainty,  nor  does  the 
question  concern  us  here.  In  those  countries,  and  especially  in 
China,  the  abuse  of  opium  is  now  carried  to  a  greater  extent,  prob- 
ably, than  in  any  country  on  the  globe;  and  the  Chinese,  as  has 
always  been  their  wont,  may  have  had  as  early  a  knowledge  of  the 
drug  as  any  of  the  other  ancients. 

The  spread  of  Islamism  is  said  to  have  spread  the  use  of  opium, 
but  possibly  it  only  increased  it;  for  religious  and  political  excite- 
ment, and  especially  war,  have  usually  tended  to  increase  the  abuse 
of  all  stimulants  and  narcotics.  Still,  as  the  Mohammedan  religion 
forbids  the  use  of  wine,  it  may  readily  have  increased  the  use  of  opi- 
um as  a  substitute.  Mankind  will  not  be  deprived  of  its  favorite 
poisons  with  impunity.^ '"'' 

-  Crothers,  Morphinism,  1902,  p.  17.  There  is  also,  as  is  well-known,  a  ref- 

» Meantime,  with    genial    joy  to   warm    the  erence  in  the  Odyssey,  Book  IX.,  to  the 

soul,  lotus    and   to   the   lotus-eaters,    or    "lo- 

Bright     Helen    mlxt    a    mirth-inspiring  tophagi;"   but   this   plant   is   not  to   be 

Temper^cTwith  drugs  of  sovereign  use,  to  confounded    with    opium.      It    seems    to 

assuage  have   been   a   kind   of   date,   and   is   re- 

The  boiling  bosom  of  tumultuous  rage ;  ferred   to  bv  Herodotus,   Polybius,   and 

To  clear  the  cloudy  front  of  wrinkled  care,  pij^v      See  "also  Tennvson's  ooem    "The 

And  dry  the  tearful  sluices  of  despair;  5",  -•     ^f^     „"  ^ennybons  poem,     ine 

Charmed   with   that   virtuous   draught,    th'  J^otus-iiaters. 

exalted  mind  3^  U.   S.  Dispensatory,  art.  "Opiura." 

All  sense  of  woe  delivers  to  the  wind  3§  If  it  be   "not  poppy,   nor  mandra- 

Though  on  the  blazing  pile  his  parent  lay,  •*                n    .i        ,       *^' *^                    j.  /, 

Or  a  lov'd  brother  groaned  his  life  away,  gora.  nor  all  the  drowsy  syrups  of  the 

Or  darling  son,  oppressed  by  ruffian-force,  viorld,"  it  will  be  something  else  equally 

Fell  ^breathless   at   his   feet,   a   mangled  noxious.    This  is  the  only  instance  where 

From  mcfra  "to  eve,   impassive  and  serene,  Shakespeare  (Othello,  Act.  III.  Sc.  III.) 

The    man,    entranced,    would    view    the  uses  the  word  "poppy." 
dreadful  scene. 
These  drugs,  so  friendly  to  the  joys  of  life. 
Bright    Helen    learn'd   from   Thone's    im- 
perial wife. 
— Pope's  Odyssey,  Book  IV.  301-316. 


876  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§    1105 

But  while  opium  has  been  known,  and  doubtless  abused,  for  man^ 
centuries,  it  is  evidently  due  to  the  discovery  of  its  alkaloid,  morphin, 
that  the  habit  has  become  more  widely  spread  to-day  than  in  former 
times.  Morphinism  is  a  modern  disease.  It  dates  back  only  about 
a  century,  or  since  the  discovery  of  the  alkaloid  by  Sertlirner,  in 
1804.* 

1106.  The  peculiar  features  of  morphinism. — The  fact  that  mor- 
phinism, as  a  form  of  opium-addiction,  has  some  peculiar  features, 
is  due  to  several  causes.  In  the  first  place,  the  alkaloid  can  be  taken 
in  small  doses.  But  the  chief  reason  is  the  use  of  the  hypodermic 
syringe,  introduced  by  Pravaz,  in  1866,  for  use  in  the  French  army. 
By  the  aid  of  this  nefarious  little  tool,  whose  sting  is  worse  than  that 
of  any  serpent  that  lies  coiled  in  the  wine-cup,  morphin  can  be  used 
with  great  comfort,  perfect  convenience,  and  the  utmost  secrecy.  It 
is  a  more  refined  and  captivating  habit  than  drinking  laudanum,  and 
far  more  so  than  drinking  whisky ;  and  is  not  attended  with  some  of 
the  disagreeable  features  which  attend  the  grosser  uses  of  the  drug. 
In  its  ultimate  effects,  that  is,  in  its  pathology,  it  does  not  materially 
differ  from  the  use  of  other  forms  of  opium.  In  the  facility  with 
which  it  can  be  concealed,  the  morphin  habit  has  many  advantages 
over  the  use  of  alcoholic  drinks.  It  leaves  no  odor,  nor  the  besotted 
look  of  the  toper. ^ 

1107.  The  various  forms  of  the  opium-habit. — The  attempt  has 
often  been  made  to  distinguish  the  pathological  effects  of  the  various 
forms  of  the  opium  habit.  Thus,  opium-eating,  which  is  very  preva- 
lent in  India,  is  usually  supposed  to  be  more  deleterious  than  opium- 
smoking,  which  is  the  mode  among  the  Chinese.  In  America  and 
England  the  drinking  of  laudanum  is  not  uncommon,  although  it  is 
probably  yielding  before  the  use  of  morphin  by  the  syringe.*'  From 
the  medico-legal  standpoint  it  is  not  possible  to  draw  distinctions 
based  on  these  various  modes  of  taking  the  drug.     Opium,  however 

*  Fowne,  Elementary  Chemistry,  1875,    Enfjland.         "Shearer     (Opium-smoking 
p.  751.  and  Opium-eating,  etc.)    states  that  the 

°  It  is  claimed  by  .some  oI)servers  that  increase  in  tlie  practice  of  opium-eating 

the  morpliin   habit   is   particularly   rife  among    the    workpeople    of  Manchester 

among    physicians;    and    statistics    tend  (England)    is    such    that    on  Saturday 

to  confirm  this  statement.   According  to  afternoons   the   druggists'    counters   are 

Oppenheim     (Diseases    of    the    Nervous  strewed  with  pills  of  opium  of  one,  two. 

System,   translated   by  Mayer,  p.   S82),  and  three  grains,  in  anticipation  of  the 

among  one  hundred  male  morphinoma-  known   demand    of   the   evening." — Wil- 

niacs,  forty-two  were  yjhysicians.     Drug-  son.  "The  Opium  Habit  and  Kindred  Af- 

gists  come  next  in  point  of  frequency.  fections,"  in  Pepper's  Syst.  of  Medicine, 

•  But  opium-eating  is  also  conamon  in  Vol.  V.  p.  647. 


§  1107]  NARCOMANIA.  877 

it  is  introduced  into  the  system,  probably  acts  in  the  end  very  sim- 
ilarly in  all  cases.^ 

1108.  The  opium  habit  becomes  a  disease.— Just  as  in  the  case  of 
alcohol,  so  in  the  case  of  opium,  the  prolonged  use  of  the  poison  con- 
stitutes a  disease.  The  confirmed  hahitue  of  opium  becomes  enslaved 
not  only  mentally  and  morally,  but  also  physically.  It  is  impossible 
to  poison  the  nerve  cells  daily  with  such  a  potent  narcotic,  and  not  set 
up  changes  in  them  which  are  pathological.  This  is  shown  in  chronic 
cases  by  the  physical  condition  of  the  patient,  and  by  the  grave  con- 
sequences which  may  result  from  a  sudden  withdrawal  (^f  the  drug. 
And  yet  opium,  or  its  alkaloid,  morphin,  does  not  cause  such  gross  an- 
atomical changes  in  the  tissues  as  docs  alcohol.  It  is  a  more  insidious 
poison,  but  it  is  none  the  less  destructive.^ 

1109.  The  physiological  action  of  opium. — The  physiological  ac- 
tion of  opium  is,  first,  exciting,  secondly,  somniferous.  The  after- 
effects are  depressant,  with  nausea,  headache,  and  a  sense  of  malaise. 
In  time,  as  a  tolerance  for  the  drug  is  established,  the  exhilarating 
effect  is  the  one  most  sought  after,  and  it  is  often  secured  to  a  degree 
not  possible  for  the  neophyte,  who  soon  falls  asleep,  and  awakens 
nauseated  and  depressed. 

1110.  The  chronic  effects  of  the  drug. — By  the  habitual  use  of  the 
drug  a  truly  abnormal  mental  state  results,  which  is  characterized  by 
moral  perversions,  enfeebled  will,  loss  of  power  of  attention,  and  the 
establishment  of  a  delirious  or  delusional  psychosis.  In  this  chronic 
stage  the  victim  of  the  drug  is  often  insane  and  irresponsible,  al- 
though even  in  this  stage  the  patient  can  sometimes  conceal  his  disor- 
der with  remarkable  success. 

Lentz^  has  tabulated  the  symptoms  in  morphinism,  as  follows: 
First,  diminished  power  of  recollection.     Increasing  amnesia,  or 
inability  to  recall  past  mental  images  and  ideas. 

Second,  diminished  power  of  attention  and  volition. 

'For  the  bonelit  of  nonmedical  read-  pliin.     Wood's  Therapeutics,  8th   ed.  p. 

ers  it  may  be  exphiined  that  the  princi-  171. 

pal  preparations  of  opium  are  as  fol-  *  Berkley,  Mental  Diseases,  p.  282. 
lows:  Crude  opium,  or  tlie  dried  juice  of  "In  India,  where  the  opium  liabit  is 
the  poppy,  used  in  pills;  the  extract  of  widespread  and  is  continued  from  one 
opium,  twice  the  strength  of  the  crude  generation  to  another,  the  children  of 
drug;  Dover's  powder,  a  mixture  of  such  parents  eventually  reach  a  plane 
opium,  ipecac,  and  sugar  of  milk;  laud-  of  lowered  mental  activity;  and  the  pop- 
anum,  or  tincture  of  opium,  an  alcoholic  ulation  of  opium-eating  districts  con- 
preparation  ;  paregoric,  a  weaker  and  tains  a  larger  proportion  of  idiots  and 
flavored  tincture;  and  the  various  alka-  imbeciles  than  is  found  in  others  in 
loids,  or  active  principles,  the  chief  of  which  the  habit  is  not  prevalent." 
which  is  morphin,  combined  with  an  *  La  Temperance,  1894. 
acid  to  form  a  salt,  as  sulphate  of  mor- 


878  INSANITV— FOllMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1110 

Third,  diminished  power  of  initiative  and  energy  of  conduct. 

Fourth,  diminished  muscular  power,  frequently  marked  by  trem- 
bling. 

Fifth,  blunting  of  the  higher  moral  and  ethical  senses. 

Sixth,  insomnia,  loss  of  desire  for  sleep,  and  nutritive  disturbances 
of  the  brain. 

Seventh,  disturbances  in  the  balance  of  representation  between  the 
external  world  and  the  ego,  with  false  impressions,  hallucinations,  de- 
lusions, and  suspicions  of  wrong. 

In  addition  to  these  purely  mental  disturbances,  there  are,  as 
Crothers  points  out,  disturbances  of  the  special  senses.  The  percep- 
tion is  at  fault  rather  than  the  sense-organ  itself;  thus,  the  musician 
loses  his  fine  appreciation  of  notes;  the  singer  loses  his  command 
over  his  voice;  the  eyes  ako  are  involved,  and  the  sense  of  taste. 

There  are  many  physical  signs  of  chronic  opium  poisoning,  among 
which  may  be  mentioned  impaired  nutrition,  disordered  secretions, 
loss  of  appetite,  sallow  skin,  loss  of  the  sexual  function,  and,  in 
women,  amenorrhea.''^ 

1111.  Moral  perversions. — Of  the  mental  symptoms,  enumerated 
above,  the  most  characteristic,  perhaps,  are  the  moral  perversions. 
The  chronic  morphinomaniac  is  often  a  confirmed  liar.  The  truth  is 
not  in  him,  especially  with  reference  to  himself  and  his  habits. 
There  is  something  quite  pathological  in  this  mendacity ;  the  lying  is 
unblushing,  inexpert,  spontaneous, — a  sort  of. second  nature.  I  have 
known  a  confirmed  morphin-taker  to  deny  point  blank  his  own  signa- 
riire  to  a  letter,  referring  to  a  business  transaction,  although  the  sig- 
nature had  been  written  by  him  only  a  short  while  before,  and  its 
identity  was  absolutely  unquestionable,  and  confirmed  by  all  the  at- 
tendant circumstances,  and  by  witnesses.  Moreover,  the  denial  was 
senseless  and  without  sufficient  motive,  for  the  transaction  in  ques- 

•A  Dr.   Henry   Leffmann,   chemist   and  in  lager  beer.     Remedies  advertised  for 

toxicologist,    of    Philadelphia,    supplie3  the   cure   of  common   chronic  affections 

the  following  note:  often  contain  over  20  per  cent  of  alcohol. 

The  extensive  use  of  patent  medicines  — more  than  in  many  wines,  and  nearly 

containing   alcohol   and   other   powerful  lialf    that    in    strong    whiskey.      Cough 

toxic    agents    constitutes    an    insidious  mixtures  and  emulsions  of  cod  liver  oil 

cause    of    drug-insanities.      These    rem-  may    contain    morpliin.      Some    of    the 

I'dies   are   especially   dangerous   because  widely-advertised  cures  for  drug  habits 

the  steady  use  of  them  may  not  be  sus-  contain    notable    amounts    of    the    drug 

pected,   or   even   if   such   use   is   known,  against   which    they   are   alleged    to   be 

the   physician   and   friends   may   not  be  antagonistic.     On   the   other   hand,   one 

aware  of  their   chemical   character  and  remedy  for  drunkenness  consists  of  noth- 

thus     overlook     their     causal     relation,  ing   but   milk   sugar   with   a   little   ani- 

Malt  extracts  may   contain   as  high   as  monium   chlorid. 
7  per  cent  of  alcohol,  about  double  that 


f  nil]  NARCOMANIA.  879 

tion  did  not  depend  npon  the  letter.  The  question  arises  in  such  a 
case  whether  a  hipse  of  memory  may  not  be  the  underlying  cause. 
This  may  be  a  partial  explanation,  for  the  minds  of  these  patients 
are  full  of  blank  spaces  (if  such  an  expression  may  be  used).  They 
have  been  so  often  narcotized,  and  thus  cut  off  from  actualities,  liv^- 
ing  in  a  dream-state,  that  they  do  not  seem  able  to  recognize  realities 
when  they  see  them. 

1112.  The  narcomaniac's  unreal  world. — This  is,  indeed,  the  key- 
note to  the  narcomaniac's  mind,  lie  lives  a  large  part  of  his  time  in 
an  unreal  world ;  his  mind  is  filled  with  ideas  and  images  which  have 
no  counterpart  in  real  life.  In  the  course  of  time  these  ideas  become 
real  to  him ;  there  is  a  confusion  in  his  mind  between  the  dreams  and 
the  facts.^^  This  leads  to  a  complete  disorientation  of  the  man.  It 
disturbs  his  concepts  not  only  of  material  facts,  but  also  of  moral 
facts.  He  becomes  both  delusional  and  false.  But  in  the  great  ma- 
jority of  these  cases  there  is  preserved  a  certain  coherence  of  ideas, — 
a  certain  balance  of  the  mental  faculties, — which  gives  the  patient  a 
misleading  appearance  of  normality.  These  patients  are  seldom 
confused,  incoherent,  or  tipsy,  as  in  the  case  of  alcoholic  drunken- 
ness. 

1113.  The  mental  changes. — As  a  consequence  of  this  breaking  up 
of  the  normal  connections  of  the  mind  with  its  actual  environment, 
the  narcomaniac  becomes  the  prey  of  delusions  and  false  sensory  im- 
pressions, or  hallucinations.  His  delusions  may  be  persecutory  or 
grandiose.  In  fact,  in  some  advanced  cases  the  patient's  mind  un- 
dergoes what  may  be  called  a  paranoiac  change;  that  is,  he  degener- 
ates ;  first  developing  delusions  of  persecution,  believing  that  he  has 
enemies;  and  then  later  evolving  delusions  of  grandeur.  In  other 
cases  the  patient  may  sink  into  a  condition  strongly  resembling  gen- 
eral paresis  ;^^  especially  if  the  drug  has  been  taken  along  with  alco- 
holic drinks, — a  not  uncommon  thing.  ^-  Under  the  influence  of 
delusions  the  patient  may  commit  criminal  acts. 

'"  De  Quincey  was    an    example    of    a  sponsible  for  helping  to  spread  the  habit. 

brilliant .  mind    half-ruined    by    opium.  Plis    writings   on   the   subject,   however, 

"De  Quincey's  mind  never  wholly  recov-  are  to  some  readers,  among  whom  is  the 

ered   from   the  effects    of    his    eighteen  present  writer,  rather  stupid.     See  his 

years'    indulgence    in    opium.     He  him-  Confessions  of  an  English  Opium-Eater. 

self  says,  half  jocularly,  but  apparently  "  Regis,   Mental   Medicine,   translated 

quite  truly,  that  it  is  the  characteristic  by  Bannister,  pp.  497  and  514. 

of  the  opium-eater  never  to  finish  any-  "  In  a  case  observed  by  the  writer,  in 

thing."     Quarterly  Review,  No.  219.  pp.  a   physician,   there   wa-s   a   close  resem- 

15,  16.     It  has  become  customary  in  re-  blance  to  general   paresis,   both   in   the 

cent  years  to  criticize  De  Quincey  for  liis  mental  state  and  in  the  tremor  and  de- 

highly-colored  pictures  of  the  dreams  of  fects  of  speech.     But  in  this  ca.se  mor- 

tbie   opium-taker,   and   to   hold   him    re-  phin   was  not  the  only  poison,   for  the 


880  INSANITY— FOTL^rs  AND  MEDICO-LEGAL  ASPECTS.         [§   lUS 

The  affections  are  usually  blunted  in  advanced  cases,  especially  if 
it  comes  to  a  question  of  the  patient  procuring  the  drug.  Many  of 
these  patients,  it  is  true,  live  in  seemingly  happy  relations  with  their 
families,  but  they  are  well  known  to  be  utterly  selfish  and  unreliable. 
The  confirmed  habitue  would  sell  his  soul  for  his  poison.  So  intense 
is  the  craving  for  the  drug  that  in  China  a  man  has  been  known  to 
mortgage  his  mother  and  sell  his  wife  to  gratify  it.-^^ 

From  this  loosening  of  the  moral  sense  and  from  this  dazed  state 
of  the  consciousness  arise  many  and  various  impulses,  conceits,  and 
queer  acts.  These  patients  sometimes  make  promises  which  they 
never  keep ;  they  also  steal,  become  shoplifters,  or  kleptomaniacs ; 
and  even  do  worse,  as  setting  fire  to  buildings.  From  their  forget- 
fulness  alone  arise  many  unconventional  acts,  as  broken  engagements, 
failure  to  attend  to  business,  and  bearing  false  witness.^"^  These 
mental,  moral,  and  affective  changes  in  the  narcomaniac  constitute 
the  soil  from  which  evolve  his  acts  which  bring  him  to  the  notice  of 
the  medical  jurist.^* 

II.   The  medico-legal  aspects  of  the  opium  habit. 

1114.  Crimes  by  narcomaniacs. — Crothers  gives  some  instances  of 
morphinomaniacs  who  have  been  violators  of  the  law.^^  Crimes 
against  the  person  are  not  common  in  these  patients,  and  when  they 
occur  they  are  usually  due  to  the  peculiar  delusional  or  unreal  state 
in  which  these  persons  pass  so  much  of  their  time.  A  woman  killed 
her  infant  child,  and  was  unable  to  recall  the  act  or  explain  the  mo- 
tive. She  became  a  maniac  shortly  after  being  taken  to  jail;  proba- 
bly from  the  enforced  abstinence  from  the  drug.^*^  In  another  case 
a  narcomaniac  became  an  accessory  to  a  murder.  Some  of  these  pa- 
tients become  pyromaniacs.^'^ 

patient  had  also  used  chloral,  bromids,  "1  State  v.  White,  10  Wash.  611. 
and   not   a   little   alcohol.     This   use   of  "  Levinstein,      Morbid      Cravinj;     for 
more  than  one  drug  is  not  uncommon  in  Morphia,  translated  by  Harrer.  1878. 
narcomaniacs.  '°  Op.  cit.  Chapters  VIIL  and  IX.  Dr. 
"  '"One    man    sold     his    wife     for    12  Crotliors'  valuable  book  is  quite  a  mine 
pounds,  and  smoked  the  proceeds.    ...  of   information   for   the   medical    jurist. 
In  some  localities,  especially  in   China,  but  unfortunately  he  omits  to  give  the 
the  opium   degradation    is    so    terrible  references  to  the  cases  he  quotes.    These 
that  gross  immorality  abounds.     Some-  cases,  therefore,  cannot  be  verified  and 
times  men  tliink  nothing  of  gratifying  satisfactorily  used  by  other  writers, 
their   m.ania  for  this  narcotic  from  the  '"  Crothers,  op.  cit.  p.  246. 
proceeds     of    their    wife's    prostitution.  "A  noted   politician  and   banker,   re- 
Even    little    children     .     .     .     are    sold  tired   from   business,   was   detected   set- 
into   slavery   to   secure   supplies   of   the  ting  fire  to  buildings.     After  taking  a 
demoralizing  drug." — Kerr,  Inebriety  or  large  dose  of  the  drug  he  would  sally 
Narcomania,  p.  89.  forth  in  the  nipiht  and  go  and  set  fire  to 


8  1114]  NARCOMANIA.  881 

It  is  in  business  transactions,  in  positions  requiring  trustworthi- 
ness, honor,  and  integrity,  that  the  moral  lapses  of  the  morphino- 
inaniac  are  most  flagrant.  Change  of  character  in  a  reliable  busi- 
ness man,  shown  by  recklessness  in  speculation  and  in  business  enter- 
prises, is  sometimes  one  of  the  indications  of  a  confirmed  opium 
habit.  But  the  difficulty  in  thesa  cases  consists  in  finding  adequate 
proof, — proof  that  will  satisfy  the  judgment  of  the  court.  These 
patients  are  often  exceedingly  plausible,  and  show  great  skill  in  con- 
cealing their  habit.  When  it  comes  to  a  question  of  the  knowledge 
of  right  and  wrong,  upon  which  the  courts  usually  insist,  this  diffi- 
culty may  be  well-nigh  unsurmountable.  It  is  usually  greater  than 
in  the  case  of  alcoholism.  According  to  Crothcrs,  only  a  few  cases 
of  swindling  have  been  contested  on  the  ground  of  irresponsibility 
from  the  use  of  morphin,  and  the  courts  have  declined  to  recognize 
fine  distinctions  of  mental  health.  A  morphinomaniac  who  sold  out 
his  business  to  a  clerk  at  a  very  low  price  has  been  found  insane  by  a 
commission  in  lunacy.^ ^ 

Kleptomania,  or  the  impulse  to  steal,  is  not  uncommon  in  some 
of  these  patients.  They  accumulate  and  hoard  their  ill-gotten  gains, 
[n  some  notorious  cases  of  shoplifting  among  respectable  women, 
who  are  not  in  need  of  money,  the  motive  may  be  found  in  the  dis- 
ordered mental  action  due  to  morphin.^ ^^ 

Some  morphin-takers  make  their  wills  upon  the  slightest  provo- 
cation, and  unmake  and  remake  them.  Instances  are  recorded  of 
oUch  patients  making  as  many  as  eight  wills  in  one  ycar.^^'^'^J 

some   old    structure.      He   set   fire   to   a  The  opium  habit  has  been  held  to  be  a 

l)uilding  of  his  own,  and  the  next  day  of-  good    defense    in    some    cases.      State   v. 

fered  a  large  reward  for  the  apprehen-  Rippy,    104   N.    C.    752,    10     S.    E.    259; 

sion  of  the  guilty  person.    There  was  no  State  v.  Mahn,  25  Kan.  182. 

malice  in  these  acts.     Crothers,  op.  cit.  The  opportunity  may  be  taken  here  to 

p.   250.  acknowledge   the   care   with    which    Mr. 

"It  is  well  known  that  judges  them-  F.  H.  Bowlby  (in  Clevenger's  'Med. 
selves  have  become  the  victims  of  the  Jurisp.  of  Insanity,  Vol.  II.  Chap.  XVI.) 
opium  habit,  and  have  discharged  their  has  collected  the  references  to  medico- 
duties  on  the  bench  while  narcotized,  legal  cases  in  wliich  drug-addiction  has 
In  one  instance  the  competency  of  the  figured.  Mr.  Bowlby  has,  indeed,  not 
seller  of  a  piece  of  property  was  ques-  only  there,  but  elsewhere  in  that  work, 
tioned  from  the  fact  that  the  person  laid  both  the  legal  and  medical  pro- 
was  a  morphinomaniac.  and  the  judge  fessions  under  obligation  to  him  for  col- 
gave  a  decision  supporting  the  claim  of  locting  the  references  to  medico-legal 
irresponsibility,  charging  the  jury  tliat  cases  in  all  their  various  bearings.  It 
morphinism  is  a  disease,  and  all  users  has  thus  become  a  work  of  supereroga- 
01  morphin  are  incompetent.  At  the  tion  for  any  other  writer  to  attempt 
very  time  he  was  himself  under  the  iii  such  a  laboi'ious  task, 
fluence  of  the  drug.  Crothers,  op.  cit.  '  sg  Xaicotics  have  figured  in  some 
p.  269.  cases  of  disputed  wills.     In  Ilamilton's 

is^rSee  Rogers  v.  Stale,  .33   Ind.  543,  Estate,  4  Pa.  Dist.  R.  161;  also  16  Pa. 

which   this   narcotic   played   a   part.  Co.   Ct.  303,   it    was    alleged    that    the 
Vol.   I.  Med.   Jur. — 56. 


882  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1115 

1115.  Medico-legal  cases  not  nuiiierous. — Instances  are  not  numer- 
ous, up  to  the  present  time,  of  morphin-takers  having  figured  in 
medico-legal  cases;  not  nearly  so  numerous,  for  instance,  as  in  the 
cases  of  alcoholism.^  ^  The  chief  reason  is  that  the  use  of  opium  in 
all  its  forms  is  a  secret  vice,  and  one  not  easily  proved;  and,  espe- 
cially, that  the  mental  changes  in  these  patients  are  insidious  and 
often  hard  to  demonstrate.  It  is  probable,  however,  that,  with  the 
increasing  use  of  the  drug  in  various  forms,  this  question  will  as- 
sume more  prominence  in  the  courts  in  the  future.  Opium,  in  its 
various  forms,  can  cause  mental  disorders,  as  already  shown,  promi- 
nent among  which  are  maniacal  outbursts,  delusions,  and  moral  per- 
versions ;  and  the  question  in  each  case  will  have  to  be  determined  ac- 
cording to  the  evidence,  as  in  every  case  of  mental  disorder.^" 

Tuke^^  calls  attention  to  the  fact  that  morphinomaniacs  may  com 
mit  forgery.  It  is  well  known  that  they  forge  prescriptions,  and  it 
might  well  be  that  they  would  forge  other  papers.  Still,  the  motives 
for  forging  prescriptions  for  their  favorite  drug  are  so  special  and 
so  overpowering  that  they  do  not  necessarily  imply  that  these  per 
sons  would  forge  checks  and  notes.^- 

testator  was  under  the  influence  of  nar-  drops.  A  well-known  professor,  in  Phil- 
cotics  when  he  made  his  wull;  and  it  adelphia.  took  about  20  grains  of  mor- 
was  true  he  had  been  given  chloral  by  phin  a  day;  the  therapeutic  dose  being 
his  physician  during  his  last  illness  to  only  from  %  to  f4  of  a  grain;  he  even- 
induce  sleep,  but  the  evidence  of  lack  tually  became  violently  insane,  with  de- 
oi  capacity  was  of  the  flimsiest  kind.  lusions    of   persecution,   and   threatened 

In  Re  Glockner,  17  N.  Y.  S.  R.  798,  2  to  use  his  pistol.     He  was  taken  to  an 

N.   Y.  Supp.   97,  the  testator  had  been  asylum.     The  gravity  of  the  case  is  not 

given    opium    for   the    pains    of   uterine  always  exactly  proportionate  to  the  size 

cancer,   but  the  evidence  did  not  prove  of  the  dose.    Some  confirmed  narcomani- 

that  she  was  incapacitated  for  making  acs  take  a  comparatively  moderate  quan- 

lier  will.     But  in  Hildreth  v.  Marshall,  tity,  and  eventually  break  doA\-n  under 

51  N.  J.  Eq.  241,  27  Atl.  465,  the  will  it.     The    secrecy   with   which    the   drug 

was  rejected,  partly  on  the  gi-ound  that  can     be     taken    is    extraordinary.     The 

the  testatrix,  a  woman  aged  ninety-four  writer  attended  professionally,  for  many 

years,  was  under  the  influence  of  opium,  years,  a  i-etired  physician  who  took  4  or 

and  debilitated  by  age  and  disease,  and  5  grains  of  morphin  daily,  but  the  habit 

did  not  know  what  she  was  signing.   See  was   not  discovered    until    the    patient 

also  Carlinw.  Baird,  11  Ky.  L.  Rep.  932,  was   on   his   deathbed.        This  man   had 

13   S.   W.   434,    in   which    the   will   was  mental  peculiarities  and  lapses,  the  true 

set  aside.  nature  of  which  had  not  been  suspected. 

"  See  Kane,  "Some  Medico-Legal  As-  -'  Diet.    Psych.    Med.    art.    "Morphio 

pects   of  Morphia-Taking,   with   Special  mania."      Consult    also    Guimball,    Les 

References  to  the  Lason  Case,"  in  Alien-  Morphinomanes,  1892;  Kane,  Drugs  that 

ist  and  Neurologist,   1882.  Vol.   III.   p.  Enslave,    1881.      The    literature    is    im- 

419;   Motet.  "Rapport  Medico-l^gal   sur  mense;     Index-Catalogue,     arts.     "Moi 

Annette  G."     Arch,  de  Xourolog.   1880,  phin"  and  "Opium." 

XI.  .'J98.  "  A  curious  example  of  literary  thiev- 

^  The  amount   of   opium   or   morphin  ing,  due  to  opium,  was  seen  in  the  case 

taken   by   some   habitues   is  very  large,  of    the    poet    Coleridge.     This    brilliant 

De  Quincey  is    said    to    have  taken  a.s  man   was,   for   a   part   of   his    life,   the 

much  33  a  quart  of  laudanum  in  a  day.  slave  of  opium,  and  wrote  not  a  littlo 

The  therapeutic  dose  is  from   1.5  to  30  (but  not  his  best)    when  under  the* in- 


§   1115] 


NARCOAIANIA. 


883 


In  the  East  opium  causes  maniacal  paroxysms ;  and  in  the  Malays 
it  excites  the  homicidal  impulse  called  "runniiig-a-muck."  This  is 
also  ascribed   to  hashish. ^-^ 

III.  The  medical  aspects  of  the  cocain  habit. 

1116.  The  abuse  of  coca  and  cocain. — Cocain  is  the  active  princi- 
ple of  a  South  American  plant  known  as  the  Erytliroxylon  coca. 
This  plant  is  largely  cultivated  in  Peru  and  neighboring  countries, 
and  has  been  used  since  the  days  of  the  Incas  as  a  stimulant.  The 
leaves  are  chewed,  somewhat  like  tobacco;  and  the  action  is  to  ex- 
hilarate and  to  increase  temporarily  the  sense  of  physical  strength 
and  well-being.  The  drug  was  gradually  introduced  into  medical 
practice,  but  only  gained  a  limited  use  until  after  the  discovery  of 
the  alkaloid  "cocain"  by  Gardeke,  in  1855,  and  \\&  description  by 
Niemann  in  1859.^^ 

1117.  Cocain  is  a  powerful  poison  to  the  nervous  system. — The 
abuse  of  cocain,  and  its  poisonous  effects  on  the  nervous  system,^* 
began  to  be  apparent,  especially  among  physicians  and  druggists, 
after  the  demand  for  it  as  a  therapeutic  agent  had  once  become  well 


fluence  of  the  drug.  His  alleged  pla- 
giarisms caused  much  discussion  after 
his  death,  and  his  reputation  for  liter- 
ary honesty  was  ably  defended  bj'  his 
daughter  Sara.  '"The  infirmity  of  his 
character,"  says  Boyle,  "and  the  men- 
tal confusion  caused  by  tne  unhappy 
habit  which  so  long  had  dominion  over 
him,  indisposed  him  for  the  exactitude 
rightly  demanded  from  all  who  under- 
take philosophic  discussion.  In  the 
latter  part  of  his  life,  more  than  one  of 
those  admitted  to  his  confidence  have 
given  curious  instances  of  his  confusion 
between  the  words  of  an  author  and  the 
marginalia  which  he  had  written  in  that 
author's  pages."  Encyclopedia  Britan- 
nica,  art.  "Coleridge." 

2  2iDr.  F.  Peterson  ("Medical  Notes 
in  Egypt")  says  that  of  248  patients 
whom  he  saw  in  an  asylum  in  Cairo, 
sixty  men  and  four  or  five  women  were 
insane  from  the  use  of  hashish,  or 
cannabis  indica.  This  drug,  also  knoA\'n 
as  Indian  hemp,  is  but  little  if  at  all 
used  as  an  intoxicant  in  America. 

But  in  the  East  its  use  is  not  imcom- 
mon.  "Ganjah"  is  prepared  from  the 
flowers  of  the  hemp  plant,  and  is  potent 
for  evil.  In  Bengal  53  per  cent  of  iill 
•cases  of  lunacy  in  which  the  cause  caa 


be  traced  are  attributed  to  ganjah. 
Acute  intoxication  from  this  drug  is 
said  to  be  especially  marked  by  homi- 
cidal impulses.  (See  Kerr,  Inebriety, 
3d  ed.  N.  Y.  pp.  95,  96.) 

With  a  heart  of  furious  fancies. 
Whereof  1  am  commander  : 
With  a  burning  spear. 
And  a   horse  of  air. 
To  the  wilderness  I   wander  ; 
With  a  Ivnight  of  ghosts  and  shadows, 
I   summoned  am   to  tourney ; 
Ten   leagues  beyond 
The  wide   world's  end: 
Methinks  it  is  no  journey  ! 

— Tom-o'-Bedlam  Song. 
From    Disraeli,  Curiosities  of   Litera 
ture.  Vol.  III.  pp.  51-53. 

='  Wood,  Therapeutics,  8th  ed.  p.  242. 
-*  The  eai  ly  travelers  in  Peru  noted 
the  use  of  coca  as  a  masticatory  by  the 
natives,  and  reported  that  the  plant  had 
thus  been  used  by  the  Peruvian  Indians 
from  the  most  ancient  times.  Contra- 
dictory accounts  were  given  of  its  efi"ects; 
some  observers  seemed  to  think  it  did 
no  harm  to  the  Peruvian  natives,  who 
had  become  used  to  it;  but  a  more  ac- 
curate statement  was  made  by  Ptippeg 
(Travels  in  Chili  and  Peru),  who  said 
it  was  as  dangerous  to  health  as  opium- 
eating. 


SS4  INSANITY— FOFJMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1117 

Gstaljlishcd.  Erlenmeyer  was  the  first  writer  who  gave  a  systematic 
description  of  the  cocain  habit,  and  of  the  disastrous  effects  caused 
bj  the  abuse  of  the  drug.-^''^  Unfortunately,  this  abuse  was  increased 
by  the  belief,  entertained  formerly  more  than  at  present,  that  cocain 
is  a  remedy  for  the  opium  habit.  The  consequence  was  that  many 
morphin-takers  became  addicted  to  cocain  too ;  and,  in  fact,  it  is 
very  common  to  find  the  abuse  of  the  two  drugs  in  the  same  person. 
Probably  the  majority  of  cocain  users  are  also  addicted  to  morphin, 
although  the  converse  is  not  true.  Many  of  them  begin  the  use 
of  the  former  drug  in  order  to  escape  the  tyranny  of  the  latter,  but 
the  result  is  simply  to  enslave  themselves  to  two  masters.  Those 
who  use  cocain  alone  are  probably  in  the  minority.^"*  ^ 

The  cocain  habit  is,  by  general  consent,  held  to  be  more  deleterious 
even  than  the  morphin  habit.  These  victims  deteriorate  rapidly, 
both  in  body  and  mind,  and  soon  become  wrecks.  A  well-marked 
form  of  insanity  is  one  of  the  common  results.  Hence  we  are  not  so 
likely  to  observe  the  long  continued  and  secret  cases,  such  as  are  ob- 
served among  morphinomaniacs.  The  secret  will  out.  The  victim 
goes  to  pieces,  and  is  usually  consigned  to  the  asylum  early  in  his 
career.^^ 

1118.  The  tragic  history  of  the  all-round  victims  of  drugs. — There 
is  something  tragic  in  the  extreme  in  the  history  of  some  of  these 
victims  to  drugs.  Having  succumbed  to  morphin,  the  victim  turns 
to  cocain ;  then  back  again  to  morphin ;  then  yields  indiscriminately 
to  both,  or  varies  his  debauches  with  a  resort  to  chloral,  the  bromids 
and  alcohol.  It  is  needless  to  say  that  these  confirmed  drug  fiends 
are  often  hopeless  cases.  Even  when  snatched  from  themselves  by 
friends  and  physicians,  and  set  once  more  upon  their  feet,  they  are 
only  too  likely  to  relapse.  The  craving  becomes  worse  than  a  habit, 
it  is  a  disease.^^^ 

2 •'J  "Uel)Pr     CocainsiiHit."     in     Deut.  dung    des    Cocains    Tiei    Npurosen    iind 

Mofi.'Ztg.  18SG,  VII.  483.  Psycliosen,"    Wien    Med.    Presse,    1885, 

"4f,  The     raw     material     comes     from  XXVI.     Also  by  the  same.  Ueber  Intox- 

I'eru,  and  exports  of  it  from  that  conn-  icaTions-Psychosen,  Wien,  1886. 
try  have  more  tlian  doubled  in  the  five        25^,  Simonton.  in  a  recent  paper  ("The 

years  since  1899.     The  bulk  of  the  prod-  Increase  of  tlie  Use  of  Cocain  Among  the 

net    is    gathered    by    Indians    from    the  Laity    in     Pittsburg,"    in     Phila.     Med. 

wild  plants  in  the  forests.     (Med.  News,  Journ.  Mar.  28^   190.3.  p.  55G)    describes 

Sep.  17.  1904.  p.  5fi4.)      These  statistics  the   extraordinary    increase    of    the   use 

are  melancholy  evidence  of  an  increase  of  cocain,  especially  among  the  negroes 

in  the  abuse  of  the  drug,   for  although  in    Pittsburg.     It    is    iised    by    colored 

the   therapeutic   use   of   cociin    lias   also  waiters,  prostitutes,  and  various  classes 

greatly  increased,  the  legitimate  demand  of   this   race.     They  even   have   a   nick- 

lor   it  does  not  explain   such   enormous  name  for  one  of  the  streets  which  they 

figures.  frequent,     calling     it    "Cocain     Street." 

"Obersteiner,    "Zur    internen    Anwen-  One  druggist  sold  his  store  because  h» 


}   1119]  NARCOMANIA.  885 

1119.  The  symptoms  of  cocain  poisoning. — Apart  from  the  physi- 
cal symptoms,  which  are  those  of  chronic  poisoning,  such  as  loss  of 
weight,  muscnlar  weakness,  tremor,  anesthesia,  and  disturbance  of 
the  heart  and  circulation,  there  is,  for  our  consideration  here,  the 
mental  disorder.  This  was  described  by  Erlenmeyer  as  coco- 
mania."*'  After  the  habitual  use  of  cocain  for  a  longer  or  shorter 
time  the  patient  develops  this  psychosis,  which,  in  most  cases,  is  quite 
characteristic. 

It  is  a  delusional  insanity,  marked  especially  by  hallucinations. 
It  may  appear  suddenly,  and  it  usually  develops  quickly.  The  ])a- 
tient  has  delusions  of  suspicion  and  persecution.  He  believes  that 
he  has  enemies;  that  people  are  in  league  against  him  or  talking 
about  him ;  that  his  wife  is  unfaithful  to  him ;  or  that  burglars 
break  into  the  house.  These  delusions  are  of  great  variety,  change- 
able, and  not  well  systematized.  They  are  accompanied  with  hallu- 
cinations :  the  patient  hears  voices,  usually  menacing'  or  insulting, 
and  sees  various  objects,  such  as  insects  or  small  animals.  These 
visual  hallucinations,  as  Erlenmeyer  points  out,  may  be  due  to .  a 
poisoning  of  the  optic  nerves,  causing  what  are  called  "scotomata," 
or  blank  spaces  in  the  field  of  vision.  The  disordered  mind  of  the 
patient  fills  in  the  spaces  with  bugs,  insects,  etc.  Very  common  hallu- 
cinations are  those  of  general  sensation :  the  patient  imagines  that  he 
feels  objects  on  his  skin  and  in  his  hand.  So  common  is  this  symp- 
tom that  it  has  been  called,  colloquially,  the  "cocain  bug."  It  is 
■quite  characteristic,  and  this  foreign  body  is  felt  as  though  it  were 
under  the  skin ;  doubtless  because  the  tactile  nerves  are  dulled  by 
the  action  of  the  drug.    This  is  known  as  Magnan's  sign.^" 

1120.  Various  forms  of  the  disorder. — In  this  mental  disorder 
memory  and  attention  are  impaired,  and  the  patient  is  often  restless 
and  combative ;  but  there  is  also  a  depressive  type,  in  which  the  vic- 
tim is  downcast.  In  some  cases  great  distress  is  manifested.  The 
patient  moans  and  bewails  his  condition.  There  is  a  corresponding 
loss  of  physical  strength  and  muscular  energy. 

In  slower  and  more  chronic  cases  the  cocomaniae  presents  distinct 
marks  of  mental  feebleness;  total  inability  to  apply  the  mind  and, 
of  course,  to  work.  Slow  and  tedious  mental  processes  are  seen :  the 
patient  is  prosy  and  prolix  in  speech  and  writing.  He  accomplishes 
nothing,  and  seems  never  able  to  bring  anything  to  a  conclusion. 

did  little  business  except  selling  cocain,        ™  Tuke's  Diet.  Psych.  Med.  Vol.   I.  p. 

and  he  wished  to  be  rid  of  this  feature  236. 

of  his   trade.     Unfortunately   all   drug-        ""  Berkley,  Mental  Diseases,  p.  292. 
gists  are  not  so  conscientious. 


8SG  INSANITY- FORMS  AND  MKDICO-LEGAL  ASPECTS.         [§  1121 

1121.  Cocomania  is  a  form  of  insanity. — In  short,  cocomania  is  a 
form  of  hallucinatory  and  delusional  insanity,  with  attendant  en- 
feeblement  of  the  mental  faculties,  and  with  marked  physical  im- 
pairment.^^ In  a  few  cases  hysterical  and  epileptic  convulsions  oc- 
cur. As  may  be  observed,  it  has  some  marked  resemblances  to  alco- 
holic delirium  in  its  hallucinations  and  delusions.  Most  observers 
agree  that  the  delirium  of  abstinence,  i.  e.,  the  symptoms  that  occur 
on  the  withdrawal  of  the  drug,  are  not  nearly  so  severe  in  the  case 
of  cocain  as  in  the  case  of  morphin.^^ 

IV.  The  medico-legal  aspects  of  the  cocain  habit. 

1122.  The  cocomaniac  not  responsible. — We  have  to  do  here 
mainly  with  a  delusional  and  hallucinatory  insanity,  and  one  which 
is  marked  with  very  positive  mental  deterioration  for  the  time  being. 
Hence,  all  that  has  been  said  elsewhere  in  this  work  about  such 
mental  disorders  applies  to  these  cases.^^^  The  patient  who  is  con- 
verted into  a  paranoiac  by  a  drug  is  not  a  responsible  being  in  the 
eyes  of  the  law,  even  according  to  the  doctrines  of  the  old  common- 
law  sages, — Coke,^^  Hale,^^  and  Blackstone,^^ — for  although  these 
authorities  were  referring  to  alcohol,  and  wrote  in  an  age  when  co 
cain  was  unknown,  there  can  be  no  doubt  that  what  they  said  ap- 
plies as  w^ell  to  the  one  poison. as  to  the  other.  And,  indeed,  Sir 
Matthew  Hale  expressly  mentions  the  actions  of  some  drugs  as 
causing  "a  temporary  phrenzy."  But  the  underlying  principle  is 
that,  although  a  man  is  not  to  be  excused  for  any  crime  committed 
while  in  a  state  of  voluntary  drunkenness,  "yet  if,  by  one  or  more 
such  practices,  an  habitual  or  fixed  phrenzy  be  caused,  though  this 
madness  was  contracted  by  the  vice  and  will  of  the  party,  yet  this 
habitual  and  fixed  phrenzy  thereby  caused  puts  the  man  in  the  same 
condition  in  relation  to  crimes  as  if  the  same  were  contracted  in- 
voluntarily at  first."^^  This  applies  exactly  to  cocomania,  or  the 
insanity  caused  by  addiction  to  cocain,  and  the  discussion  of  the  law 
can  therefore  be  read  in  the  article  on  "Alcoholic  Insanity"  (p.  766, 
ante),  without  repeating  it  here. 

=»  Ref^is,   Mental   Medicine,   translated        ="  1  Litt.  247. 
by  Bannister,  pp.  520,  521.'  '' 1  P.  C.  32 

^  Krafft-Ebinjr,     Traitf-     Clinique     de        "M  Com.  2.5,  2G. 
Psvchiatrio,  traduit  par  Laurent,  p.  238.        "  1  Hale,  P.  C.  Chap.  IV.  p.  32. 

■^9J  In  Re  UnderhUl,  21  Ohio  L.  J.  279, 
the  will  of  a  cocomaniac  was  not  al- 
lowed. 


§  1123]  NARCOMANIA.  887 

1123.  The  great  danger  from  the  cocomaniac  is  violence. — Under 
the  influence  of  his  delusions  and  hallucinations,  desperate  and  con- 
fused, such  a  patient  might  make  a  homJcidal  assault.  The  delusion 
of  marital  infidelity  is  peculiarly  likely  to  excite  to  violence.  Up  to 
the  present  time,  however,  this  danger  seems  rather  hypothetical  than 
real,  for  the  annals  of  medical  jurisprudence  contain  but  little,  if 
anything,  on  the  subject  of  cocomania.  The  cocain  victims  are,  as 
a  rule,  not  physically  strong,  and  some  of  them  might  easily  be  con- 
trolled; but  this  would  not  apply  to  all.^'* 

V.  The  ch'loeal  and  other  drug  habits. 

1124.  These  drug  habits  are  various. — Although  morphin  and  co- 
cain are  the  chief,  they  are  not  the  only  drugs  that  enslave.  From 
the  standpoint  of  the  medical  jurist,  however,  it  is  hardly  necessary 
to  enter  upon  a  detailed  discussion  of  all  the  various  drug  habits. 
Among  these  drugs  are  chloral,  ether,  chloroform,  and  some  of  the 
coal-tar  products,  such  as  antipyrin.  The  legal  principles  are  the 
same  in  all  these  cases,  and  the  pathological  distinctions  are  not  such 
as  modify  the  law  on  the  subject  of  intoxication  generally.  If  a  drug 
produces  an  insanity,  that  insanity,  for  all  practical  purposes  in  law, 
is  the  same  as  in  all  other  cases. 

1125.  More  than  one  drug  used  by  the  patient. — Chloral  and  the 
bromids  are  often  abused  by  the  victims  of  alcohol,  opium,  and  co- 
ca^. Some  of  these  patients  range  over  a  wide  field,  and  have  a 
variety  of  poisons  to  which  they  resort.  They  are  the  all-round 
drug  fiends.  Curious  instances  are  given  of  the  substitution  of  ether 
for  alcohol;  thus,  in  Ireland,  in  1842,  after  the  celebrated  crusade 
of  Father  Matthew  against  drunkenness,  some  of  his  converts  began 
to  use  ether,  holding  that  they  were  not  breaking  the  pledge.  In  a 
few  years  ether-drinking  had  spread  over  295  square  miles  of  the 
country.^  ^'' 

'*  Smith,   Journal   of   Mental    Science,  its,"  in  the  Twentieth  Century  Practice, 

1892.       Ihlow,   Ueber   Morphio-Cocainis-  Vol.  III.  p.  9G.     For  much  information 

mus  und  hallucinatorische  Cocain-Para-  on  this  subject,  in  general,   Dr.   Kerr's 

noia,    Berlin,    1895.       Also    Index-Cata-  article  is  especially  useful  to  the  physi- 

logue,  2d  Ser.  Vol.  III.  pp.  709,  710.  cian;  but  it  contains  very  little  on  med- 

"  Kerr,    "Alcoholism   and   Drug  Hab-  ical  jurisprudence. 


CHAPTER  LIT. 

COMMUNICATED  INSANITY. 

1126.  Insanity  transferred  from  one  person  to  another. 

1127.  Mental  contagion. 

1128.  Coninnmicated   insanity  is   practically  always  a  delusional   insanity,   or   a 

paranoia. 

1129.  A  case  in  three  sisters. 

1130.  Insanity  in  twins. 

1126.  Insanity  transferred  from  one  person  to  another. — Under  the 
term  folie  communiquee,  or  "communicated  insanity/'  the  French 
have  described  a  form  of  mental  disease  which  is  transferred  from 
one  person  to  another.^  For  instance,  a  person  having  a  fixed  dehi- 
sion  imposes  this  dehision  on  another  person,  u'ho  in  turn  becomes 
equally  insane.  The  affection  has  also  been  called  folie  a  deux,  or 
the  insanity  of  two ;  but  this  is  not  a  satisfactory  term,  for  the  reason 
that  commmiicated  insanity  is  not  always  confined  to  two  persons. 
The  writer  has  seen  a  marked  example  of  it  in  three  sisters. 

1127.  Mental  contagion. — This  extraordinary  affection  depends 
upon  what  is  called  "mental  contagion," — a  force  which  is  sometimes 
seen  also  in  epidemic  insanity,  such  as  prevailed  in  the  Middle  Ages, 
and  still  prevails  at  times,  under  the  influence  of  religious  excitement. 
In  such  epidemics,  however,  the  insanity  which  attacks  numerous 
people  is  due  to  one  cause  acting  upon  all  equally,  rather  than  upon 
contagion  from  one  to  another,  although  such  contagion  also  acts; 
hence,  it  is  better  called  "epidemic"  or  "simultaneous"  insanity.-^ ^ 
In  the  genuine  communicated  insanity  the  disease  is  transferred  di- 
rectly from  one  person  to  another;  it  is  like  an  infectious  disease 
which  spreads  by  personal  contact.  It  has  also  been  called  "imposed" 

'  Macey,  De    la    Folie    Communiquee,  Hebrew  king  was  undoubtedly  insane  at 

ou    Delire    il    Deux,    etc.      Paris,    1874;  several  periods  in  his  life.      These   primi- 

Lasegue  and  Falret,  "La  Folie  a.  Deux,  five  bands  of  "prophets"  were  probably 

ou   Folie   Communiquee,"   in   Ann.   Med.  not    unlike    the    dancing    dervishes    still 

Psych.  Nov.  1877.  seen    in    the    East.     The    spectacle    so 

1^  The   curious   incident  related   in   1  amazed  the  people  that  they  cried  out, 

Samuel,  x..  of  King  Saul  joining  a  band  "What  is  this  that  has  come  unto  the 

of  prophets,  and  prophesying  with  them,  son  of  Kish  ?     Is  Saul   also  among  the 

is   possibly  a  case   of  communicated   or  prophets?"      See   also    1    Sam.   xvi.    15; 

epidemic  religious  excuement.    The  first  xviii.  10;  and  xix.  24. 

888 


§  1127]  COMMUNICATED  INSANITY.  889 

or  '"induced"  insanity;  but  the  term  adopted  at  the  head  of  this 
chapter  is  the  most  satisfactory,  and  the  one  now  generally  em- 
ployed. 

1128.  Communicated  insanity  is  practically  always  a  delusional 
insanity,  or  a  paranoia. — The  acute  generalized  insanities,  such  as 
mania  or  melancholia,  are  not  easily  thus  transferred.^  It  is  usual 
for  the  first  patient  to  have  a  fixed,  systematized  delusion.  This  pa- 
tient is  called  the  active  patient;  while  the  one  receiving  the  delusion 
from  the  other  is  passive,  and  is  usually  a  neurotic  individual  with 
an  hereditary  taint;  in  other  words,  one  whose  mind  is  easily  thrown 
oif  the  balance. 

It  is  necessary,  of  course,  that  conditions  should  be  favorable  in 
order  that  one  patient  should  be  able  to  impose  his  or  her  delusions 
on  another.  The  two  persons  usually  live  in  intimate  association,  as 
in  the  same  family ;  and  the  active  patient  is  usually  older,  or  of  more 
personal  force,  and  is  also,  as  a  rule,  very  badly  insane;  in  other 
words,  very  profoundly  under  the  influence  of  the  insane  delusion. 
Thus  it  happens  that  communicated  insanity  is  usually  seen  among 
l)rothers  and  sisters,  or  other  members  of  the  same  family.  It  has 
also  occurred  in  asylums;  as  where  one  insane  patient  influences 
another  and  weaker  patient  to  adopt  a  delusion. 

The  delusions  most  likely  to  be  communicated  are  those  of  perse- 
cution ;  such  as  fear  of  enemies,  of  unseen  agencies,  of  robbery,  of 
fraud,  and  of  poisoning.  The  insane  propaganda,  as  Tuke  has  well 
called  it,  proceeds  from  the  active,  or  primary,  patient,  whose  delu- 
sion is  so  firmly  fixed  and  so  plausible  that  in  time  one  or  more  rela- 
tives or  associates  are  converted  to  a  belief  in  it;  and,  by  reaction 
and  mutual  influence,  the  delusions  are  gradually  strengthened  in  all 
the  parties  concerned.  What  is  this  but  the  force  of  example,  or 
suggestion,  so  potent  even  in  normal  minds,  but  acting  with  tenfold 
230wer  in  the  minds  of  weak  and  neurotic  persons  ?  This  deplorable 
Aveakness  suggests  how  carefully  the  insane  should  be  isolated,  not 
only  for  their  own  welfare,  but  also  for  that  of  others.  It  is  es- 
pecially important  that  young  and  susceptible  persons  should  not  be 
left  to  associate  with  older  relatives  who  are  insane.  I  have  known 
morbid  ideas  to  be  implanted  in  the  mind  of  a  child  by  association 
with  an  insane  grandparent. 

1129.  A  case  in  three  sisters. — A  few  years  ago  I  saw  a  striking 

*  Sequin  (Arch.  Med.  N.  Y.  1870,  Vol. 
I.  p.  3.34)  reported  a  case  of  apparent 
contaffion  in  melancholia. 


S90  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1125) 

example  of  communicated  insanity  in  three  sisters,  resident  in  Wash- 
ington, D.  C.  They  had  been  living  by  themselves  in  a  house  in  that 
city,  and  were  discovered  by  the  police  in  a  half-starved  condition, 
and  suffering  from  a  series  of  elaborate  delusions.  They  believed 
that  unseen  and  unknown  agents  were  admitted  beneath  the  house 
through  pipes,  and  that  their  brothers  were  personated  by  strangers. 
They  had  therefore  not  cashed  checks  sent  by  their  brothers,  and  were 
without  the  necessaries  of  life.  The  eldest  sister  was  the  weakest  in 
mind,  the  youngest  the  most  rational,  and  the  second  sister  the  most 
inveterately  monomaniacal.  This  second  sister  had  been  the  pri- 
mary, or  active,  patient,  and  had  gradually  influenced  the  others  to 
adopt  her  delusions.  These  sisters  were  all  committed  at  one  time 
to  the  Pennsylvania  Hospital  for  the  Insane,  where  they  were  separ- 
ated and  placed  in  different  wards." 

1130.  Insanity  in  twins. — Among  the  curiosities  of  mental  medi- 
cine is  insanity  in  twins,  of  which  a  number  of  cases  are  reported. 
Tuke^  refers  to  the  case  of  twin  sisters  who  were  observed  in  Bethlem 
Asylum.  They  were  twenty-three  years  old,  single,  and  domestic 
servants.  The  attacks  dated  in  both  patients  from  the  same  day; 
l)oth  were  delusional  about  being  poisoned,  and  they  were  suicidal 
and  dangerous  to  others.  Both  sisters  recovered,  one  much  sooner 
than  the  other.  The  one  who  recovered  sooner  was  probably  the  pas- 
sive patient.  Another  case  was  that  of  twin  brothers,  both  of  whom 
liad  general  paresis ;  but  this  could  only  have  been  a  coincidence,  be- 
cause it  is  inconceivable  that  general  paresis  should  be  communicated 
ill  the  sense  here  discussed. 

We  have  already  discussed  the  force  of  insane  example  as  seen  in 
some  cases  of  double  suicide.  (Ante,  §§  678-681.)  For  the  medi- 
cal jurist  this  general  subject  might  have  interest,  if  it  could  be 
shown  that  criminal  acts  were  induced  under  the  influence  of  com- 
municated insanity.^ 

'' Tho  ancionts,  who  expressed  so  much  footnote)   as  having  been  related  by  Dr. 

trutli  in  their  mytliology,  had  the  fable  (hegory   in   his   Lectures.     Few   details 

of  tlie  insane  Proetides.     These  were  the  are   given,   but   it   is   said   that   all   the 

three  daughters  of  Prcctus,  king  of  Ar-  sisters  had  the  same  mental  malady, 

golis.  who    were    seized    with  insanity,  *  "Folie  a  Deux"  in  Brain,  Vol.  X.  p. 

and  fled  to  the  wilderness,  communicat-  418. 

ing  their  madness  to  other  women,  who  '^  Rfigis,    La    Folie    a   Deux,    ou    Folie 

killed    their    children    and    also    ilod    to  Simultanee,    Paris,    1880    (an   excellent 

the    wilds.     Anthon,    Classical    Diction-  monograph,    both    historical    and    seien- 

ary.  tific)  ;    Smith,   "Mental   Contagion:     Its 

A   very   early  case   probably   of   com-  Relation    to    Crime^    Suicide,    and    Cer- 

municated   insanity   in   three   sisters   is  tain  Neuroses."  in  Austral.  Med.  Journ. 

referred  to  by  Cox    (Practical  Observa-  Vol.  XX.  p.  394.     Also  Index-Catalogue, 

tions  on  Insanity.  I^ondon,  1806,  p.  186,  Vol.  VI.  p.   1035,  for  bibliography. 


CHAPTER  LIII. 

SIMULATED  INSANITY. 

1131.  Popular  errors  on  this  subject. 

1132.  Historic  instances. 

1133.  The  simulation  of  insanity  is  not  common. 

1134.  Neither  is  the  simulation  of  insanity  easy. 

1 135.  Motives  for  simulation. 

1 136.  The  mode  of  onset  is  to  be  scrutinized  carefully  in  such  cases. 
H37.  Overacting  the  part. 

1 138.  Dementia  is  commonly  simulated. 

J 139.  Loss  of  memory  is  not  unfrequently  feigned  by  criminals. 

1140.  The  simulation  of  mania. 

1141.  Violent  conduct. 

1 142.  The  simulation  of  epilepsy. 

1 143.  Injurious  effects  of  feigning. 

1131.  Popular  errors  on  this  subject. — To  the  medical  jurist  the 
simulation  of  insanity  offers  important  problems.  There  are  popular 
<^rrors  on  the  subject,  however,  and  these  are  apt  to  influence  legal 
opinion.  The  most  common  of  these  errors  are,  first,  that  the  simu- 
lation of  insanity  is  quite  common;  and,  second,  that  it  is  quite 
iiasy.^ 

1132.  Historic  instances. — The  feigning  of  insanity  has  been  dig- 
nified with  not  a  few  historic  and  poetic  instances.  King  David 
played  the  part  of  a  madman,  and,  as  usual,  overdid  it,  although  he 
succeeded  in  imposing  on  the  king  of  Gath.  He  scrabbled  on  the 
doors  of  the  gate,  and  let  his  spittle  fall  down  upon  his  beard.^ 
Ulysses,  for  the  love  of  Penelope,  and  to  avoid  going  to  the  Trojan 
war,  yoked  a  horse  and  a  bull  together  and  ploughed  the  seashore  in 
an  effort  to  prove  himself  insane ;  but  he  was  quickly  detected,  for 
\vhen  Palamedes  placed  the  infant  Telemachus  in  the  way  of  the 
plough,  Ulysses  turned  aside  in  order  not  to  harm  his  child.^^  This 
was  probably  the  first  instance  on  record  of  feigned  insanity  in  a 
conscript.      Solon,   the   Athenian   law-giver,    shammed    insanity   by 

iHale    (P.   C.   Chap.   IV.)    speaks   of        'I.  Samuel,  xxi.  13. 
the  "easiness  of  counterfeiting  this  dis-        U  Harper,   Diet,   of  Classic  Lit.   art. 
ability."  "Odysseus." 

891 


892  iNSA.MTY— FORMS  AND  MEDICOLEGAL  ASPECTS.         [§   1132 

writing  a  poem  and  reciting  it  in  the  market-place,  in  order  to  incite 
the  Athenians  to  recover  the  island  of  Salamis.^  This  is  one  of  the 
few  instances  known  of  a  lawyer,  instead  of  a  client,  feigning  in- 
sanity. 

1133.  The  simulation  of  insanity  is  not  common. — That  the  simu- 
lation of  insanity  is  not  common  is  true  in  spite  of  the  popular  belief,, 
shared  unfortunately  by  too  many  courts,  that  the  "insanity  dodge" 
is  of  frequent  occurrence.  This  dodge  is  played  usually  not  so  much 
by  the  patient  as  by  his  counsel ;  and  it  is  to  be  noted  that  in  most  of 
such  cases  the  evidence  is  based  upon  the  past  history  of  the  prisoner, 
before  his  crime,  rather  than  upon  his  alleged  insanity  after  his 
crime.  Now,  there  has  usually  been  no  motive  for  simulating  insan- 
ity before  the  crime,  and  yet  most  of  the  testimony  in  criminal 
cases  has  reference  to  that  period,  during  which  there  could  be  n<> 
allegation  of  feigning. 

Alienists  of  wide  experience  have  said  that  they  have  seen  but 
little,  if  any,  simulated  insanity.  Schiile,  in  the  second  edition  of 
his  treatise  on  insanity,  declared  that  he  had  never  seen  a  case."*^ 
MoreP  said  that  such  cases  were  rare.  The  present  writer,  who  has 
had  experience  with  several  thousands  of  the  insane,  does  not  recall, 
at  this  writing,  ever  having  seen  a  well-marked  case.  Some  years  ago, 
however,  a  newspaper  reporter  succeeded  in  having  himself  com- 
mitted, as  insane,  to  the  Philadelphia  Hospital,  in  order  to  write 
a  sensational  article,  and  this  case  came  indirectly  under  my  notice. 
In  such  a  case  there  is  no"  reason  to  suspect  a  motive ;  the  patient  is 
not  critically  examined  for  shamming,  and  he  may  be  lost  for  a  short 
time  in  the  general  population  of  a  large  asylum.  There  is,  there- 
fore, nothing  surprising  in  this  cheap  trick  succeeding  for  a  while,  as 
it  has  done  in  several  instances.  It  is  very  different  in  the  case  of  a 
(criminal  who  is  suspected  of  feigning,  and  is  carefully  watched  with 
that  possibility  in  view. 

1134.  Neither  is  the  simulation  of  insanity  easy. — Another  com- 
mon mistake  is  to  suppose  that  simulation  is  easy.  All  that  a  man 
has  to  do  is  to  "scrabble"  like  David,  and  to  let  his  spittle  fall  down 
upon  his  beard.  In  other  words,  any  witless  speech  and  senseless 
behavior  are  enough  to  impose  upon  experts  whose  lives  are  passed 
in  daily  contact  with  real  insanity.     Such  is  the  theory  of  the  laity. 

*This  was  not  the  battle  of  Salamis,  'Tliis  is  on  tlio  autliority  of  Norman, 

as  some  writers  seem  to  suppose,  but  an  in    Tnkc's    Dictinnary    of  Psychological 

attempt  to  wrest  that  island  from  the  Medicine    Vol.  I.  p.  502. 

Megiirians,  many  years  before  the  Per-  *  Ann.  ^led.  Psych.  3  S.  Vol.  III.  p.  57. 
sian    invasion.     See    Anthon's    Classical 
Dictionary,  art.  "Solon." 


5   1134}  SIMULATED  INSANITY.  SOn 

ISTotliing  can  be  further  from  the  truth  than  this,  for  nothing  is 
more  difficult  in  the  whole  range  of  histrionics  than  successfully  to 
simulate  insanity.  It  is  not  enough  to  appeal  to  the  poets, — to  quote 
Hamlet,  who  tliinks  meet  "to  put  an  antic  disposition  on"  in  order 
to  fool  Polonius  and  the  others.^  Hamlet  was  not  playing  to  a 
committee  of  alienists.  Georget  said  that  he  did  not  Lelieve  that  an 
individual  who  had  not  studied  the  insane  could  so  imitate  insanity 
as  to  deceive  a  physician  well  acquainted  with  the  disease.*'  How, 
indeed,  can  it  be  possible  for  a  man  successfully  to  imitate  what  he 
knows  nothing  about?  In  order  to  succeed  in  the  simplest  task  of  a 
copyist  the  individual  must,  at  least,  know  what  he  copies.  But  an 
ignorant,  and  usually  a  stupid,  criminal  assumes  to  portray  in  his 
conduct  the  intricate  disorders  of  the  human  mind, — disorders  which 
require  the  gTeatest  care  and  study  to  understand ;  and  yet  such  a 
man  hopes  to  present  a  counterfeit  which  will  deceive  those  whose 
constant  business  it  is  to  analyze  the  genuine  thing.  It  is  impossible 
for  this  to  be  done  with  success  in  most  cases. 

1135.  Motives  for  simulation. — Let  us  proceed  to  a  brief  analysis 
of  this  subject ;  and,  in  the  first  place,  we  must  consider  the  question 
of  motive.  It  is  hard  to  conceive  that  any  person  would  feign  in- 
sanity without  a  sufficient  motive.  It  is  not  done  for  sport.  It  is  a 
difficult,  an  arduous,  and  an  irksome  thing  to  do,  and  one  that  re- 
quires much  power  of  sustaining  a  part,  and  consumes  much  time. 
The  instances  on  record  are  largely  those  of  criminals,  who  have 
wished  to  escape  the  penalties  of  their  crimes.  In  European  armies, 
also,  this  trick  is  resorted  to,  just  as  in  the  case  of  Ulysses,  in  order 
to  escape  military  service.  Instances  are  known  in  which  the  insane 
have  simulated  insanity,  strange  as  it  may  appear.'^  But  for  the 
medical  jurist  the  criminal  cases  are  of  chief  interest,  just  as  they 
are  the  most  numerous.  In  estimating  the  force  of  motive,  however, 
it  is  possible  to  make  mistakes,  and  great  caution  is  required ;  for  the 
fact  that  a  man  has  a  motive  for  feigiiing  insanity  is  not  a  proof 
that  he  is  not  genuinely  insane.  Criminals  are  usually  suspected 
when  they  show  signs  of  mental  disorder,  but  there  is,  of  necessity, 
no  presumption  that  such  a  person  is  a  malingerer.     Insanity  may 

•Act  T.  Scene  V.  171,  172.  ^Kiernan,  "Simulation  of  Insanity  bv 
•  Discussion  Medico-legale  sur  la  Folie  the  Insane,"  in  Alienist  and  Neurolo- 
ou  Alienation  Mentale,  Suivie  de  I'Ex-  gist,  April,  1882;  Hughes,  "Simulation 
amen  du  Proc6s  Criminel  d'Henriette  of  Insanity  by  the  Insane,"  Trans.  In- 
Cornier,  et  de  Plusieurs  Autres  Proc&s  ternational  Medical  Congress,  Phila. 
dans  lesquels  cette  Maladie  a  6t§  alle-  1876,  p.  1110. 
guee  comrae  Moyen  de  Defense.  Paris, 
J  826. 


S94  INSANITY— FOIUIS  AND  MEDICO-LEGAL  ASPECTS.         [§   1135 

not  be  feigned  until  long  after  trial  and  sentence;  as  in  capital  cases, 
in  order  to  avoid  execution.     This  was  so  in  the  Case  of  Gaffney.^ 

1136.  The  mode  of  onset  is  to  be  scrutinized  carefully  in  such  cases. 
— It  is  right  here  at  the  beginning  that  the  malingerer  may  show  his 
profound  ignorance,  for  he  often  unfolds  the  drama  with  an  abrupt- 
ness that  is  not  natural.  In  most  cases  of  real  insanity  the  disease 
is  of  gradual  onset,  and  the  patient  has  prodromes,  or  premonitory 
symptoms,  often  ranging  over  many  days.  Explosive  or  fulminat- 
ing attacks  of  insanity,  i.  e.,  cases  beginning  suddenly  and  with  vio- 
lence, are  rare.  Exceptions  to  this  rule  are  seen  in  epilepsy  and  in 
acute  delirium ;  but  such  exceptions  are  not  hard  to  recognize.  When 
simulated,  such  explosive  attacks  are  very  unreal.  Gaffney  began  to 
shout,  rave,  and  blaspheme  suddenly  in  the  afternoon,  after  rising 
from  a  quiet  nap;  there  had  been  a  complete  absence  of  any  premoni- 
tory symptoms. 

1137.  Overacting  the  part. — These  simulators  usually  overact  the 
part.  In  their  ignorance  of  the  workings  of  the  insane  mind  they 
think  that  any  extravagance  and  absurdity  will  pass  for  insanity. 
They  affect  ignorance  of  the  most  ordinary  facts.  They  pretend  that 
they  cannot  tell  their  names,  their  ages,  their  relatives  and  friends, 
or  whether  it  is  day  or  night.  One  of  the  best  examples,  often  quoted, 
was  that  of  Derozier,  which  has  been  reported  in  great  detail  by 
Morel. ^  This  man,  when  asked  his  age,  replied,  "245  francs,  35 
centimes,  124  carriages  to  carry  it,  35  millions,"  and  so  on.  When 
asked  hoAV  long  he  had  been  deranged,  he  replied,  "The  cats,  always 
the  cats.  I  am  not  insane;  the  insane  do  not  turn  around."  He  then 
arose,  and,  as  though  to  give  himself  the  lie,  turned  around  several 
times.  Asked  for  his  right  hand,  he  extended  his  left.  There  was 
much  more  of  this  extravagance,  and  Morel  pointed  out  that  sucli 
responses  are  not  those  of  an  insane  person.  The  insane  mind  re- 
tains some  idea  of  cause  and  effect,  of  substance,  of  time,  of  existence ; 
in  other  words,  the  elementary  concepts  are  not  totally  abolished  in 
insanity,  unless,  indeed,  it  be  in  advanced  cases  of  delirium  or  de- 
mentia. 

1138.  Dementia  is  commonly  simulated. — When  we  come  to  class- 
ify these  cases,  or  to  assign  them  to  their  proper  groups,  we  meet  at 

*  Brush.   "Fcijrnod   Insanity.     Case  of  of  one  weok  in  ort'er  to  test  the  matter. 

John  Gaffney,  ITung  for  Murder,"  in  the  The   ruse   was   easily   exposed,   and   the 

Am.   Journal   of   Insanity,  Vol.   XXXV.  man   was  handed. 

p.  534.     Gaffney  did  not  feign  until  four        "  "Rapport   Medical    sur    un     Cas   de 

days  before  tlie  day  fixed  for  his  execu-  Simulation     de    Folic,"    in    Ann.    Med- 

tion.     Governor  Dix  granted  a  reprieve  Psych.  3  S.  Vol.  III.  p.  57. 


§  1138]  SIMULATED  INSANITY.  895 

once  with  difficulties  and  inconsistencies.  One  of  the  commonest 
forms  of  simulation,  as  we  have  just  seen  in  Derozier's  case,  is  ex- 
treme fatuity,  or  dementia.  These  patients  affect  to  have  no  mind 
for  the  most  ordinary  matters;  but  they  are  ignorant  of  the  fact  that 
such  an  extreme  dementia,  or  "amentia,"  is  only  seen,  if  at  all,  as  a 
terminal  stage ;  in  other  words,  after  a  long  precedent  attack  of  acute 
insanity,  such  as  mania  or  melancholia.  Moreover,  even  in  genuine 
dements,  it  is  usually  possible  to  arouse  the  patients  to  their  best 
efforts;  they  will  often  make  some  attempt  at  a  response,  and  may 
even  appear  at  their  best  on  a  little  urging  and  persuasion ;  but  it  is 
just  the  reverse  with  the  simulator:  the  more  notice  that  is  taken  of 
him  the  worse  he  grows;  his  efforts  to  appear  fatuous  are  more  and 
more  strained.  While  the  genuine  dement  is  always  natural  and 
unaffected,  the  malingerer  is  manifestly  playing  a  part.  Moreover, 
>vhen  left  to  themselves,  these  simulators  often  cease  from  playing 
rheir  parts,  as  can  sometimes  be  detected  with  a  little  finesse. 

1139.  Loss  of  memory  is  not  unfrequently  feigned  by  criminals. — 
In  cases  where  loss  of  memory  is  feigned  they  will  answer  "1  do  not 
know,"  or  "I  do  not  remember,"  to  questions  about  the  most  ordinary 
facts  or  well-known  events.  Laros,  whose  case  is  cited  further  on, 
affected  not  to  remember  that  his  father  and  mother  were  dead,  al- 
though he  had  killed  them  both  with  poison,  and  had  just  stood  a  long 
trial  for  the  crime.^'^ 

1140.  The  simulation  of  mania. — Maniacal  excitement  and  ineo- 
lierence  are  sometimes  assumed,  but  this  is  an  almost  impossible 
part  for  an  ignorant  person  to  play.  The  genuine  incoherence  of 
mania,  the  broken  and  fragmentary  ideas,  the  flow  of  speech,  the  mo- 
tor excitement,  tbe  perfect  naturalness  of  the  patient,  his  aversion 
to  assuming  or  inability  to  assume  a  part, — all  these  could  be  simu- 
lated by  only  the  most  consummate  actor,  after  a  careful  study  of  the 
real  disease.  Even  then  it  would  be  impossible  for  a  person  in  health 
to  play  the  part  hour  after  hour,  day  after  day,  and  night  after 
night.  The  simulator  usually  has  a  mere  rigmarole  of  words,  which 
he  repeats  again  and  again ;  moreover,  he  tires  at  last,  and  sleeps 
soundly  all  night:  he  cannot  simulate  insomnia.  Neither  has  he  the 
physical  disorders, — the  rapid  pulse,  vitiated  secretions,  bad  tongue, 
loss  of  weight,  and  general  appearance  of  ill-health.  Gaffney  tried 
to  assume  this  role,  but  merely  swore,  abused  everybody,  repeated  set 
forms  of  gibberish,  and  pretended  to  pay  no  attention.  He  was  final- 
ly tripped,  and  confessed  his  deceit. 

"See  Report  of  the  trial,  by  Edgar, 
Easton,  1877,  p.  240. 


89G  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  lUl 

1141.  Violent  conduct. — Obstreperous  conduct,  destruction  of 
clothes  and  bedding,  filthy  practices,  and  loud  shouting,  are  a  part 
of  the  repertoire  of  the  malingerer.  Such  displays  have  sometimes 
been  stopped  by  heroic  treatment.  William  Barr,  whose  case  was  re- 
ported by  MacDonald,^^  indulged  in  such  loud  shouts  that  he  dis- 
turbed the  whole  neighborhood  of  the  jail  in  the  early  part  of  the 
nights  (for  he  slept  soundly  in  the  later  parts),  but  the  warden  had 
the  hose  turned  on  him  whenever  he  began  to  shout,  and  the  noise 
soon  ceased.  Such  heroic  treatment  is  recommended  by  some  writ- 
ers for  detecting  malingerers,  but  the  best  authorities  condemn  it. 
Etherization  has  also  been  used  in  an  effort  to  unmask  the  pretender. 
But  such  methods  are  not  always  reliable ;  for  an  insane  man,  as  well 
as  a  sane  one,  might  object  to  a  cold  deluge  from  a  hose,  and  decide 
to  remain  quiet,  and  he  might  also,  under  the  influence  of  ether,  dis- 
play some  glimpses  of  rationality.  Hence,  such  crude  tests  may 
be  misleading.^ ^^ 

1142.  The  simulation  of  epilepsy. — Epilepsy  is  sometimes  simu- 
lated by  criminals,  often  with  remarkable  success.  But  to  do  it 
with  success  requires  practice.  The  tonic  and  clonic  spasms  are 
usually  a  little  overdone,  but  the  bloody  froth  may  be  imitated  by 
voluntarily  biting  the  tongiie,  or  even  cutting  it  with  a  knife ;  and  a 
little  soap  in  the  mouth  will  supply  all  the  froth  wanted.  But  there 
are  some  things  that  a  simulator  cannot  well  do:  he  cannot  simulate 
the  pallor,  followed  by  lividity,  or  the  deep  unconsciousness,  and  pu- 
pillary changes  (although  these  latter  are  not  constant  in  epilepsy). 
Extraordinary  tests  have  been  resorted  to  in  some  of  these  cases ; 
such  as  dropping  melted  sealing-wax  on  the  skin,  blowing  snuff  into 
the  nose,  scratching  the  eye-ball  with  the  thumb-nail,  and  thrusting 
a  penknife  blade  under  the  finger-nail.^^  The  reliability  of  somo' 
of  these  tests  may  be  questioned,  especially  the  snuff  test,  for  a  real 
epileptic  might  sneeze  under  some  circumstances.^^     Genuine  epi- 

"  "Feigned    Insanity,    Homicide,    Sui-  go  to  the  electric  chair  than  go  through 

cide.     Case   of   William   Barr,"   in   Am.  the  same  experience  again. 

Journ.  Ins.  Vol.  XXXV.  p.  411.  "Trial  of  Allen  C.  Laros,  etc.,  by  F. 

Hi  "Feigned  Insanity:  Malingerin-;  W.  Edgar,  Easton,  Pa.  1877,  p.  107  et 
Revealed  by  the  Use  of  Ether,"  by  C.  G.  infra.  Tliis  case  will  always  be  a  stand- 
Wagner,  in  the  Medical  News.  The  ard  one,  but  it  is  not  conclusive  as  to 
prisoner,  under  sentence  of  death,  simu-  the  existence  of  epilepsy  in  the  prisoner, 
lated  paralysis  and  dementia.  The  ether  who  had  attempted  to  poison  nearly  his 
unmasked  the  fraud,  which  had  boon  whole  family,  and  succeeded  in  killing 
kept  up  in  Sing  Sing  Prison  for  eighteen  his  father,  mother,  and  the  hired  man. 
months.  The  prisoner  said,  "You  never  "  Aitken,  Practice  of  Medicine,  Vol. 
would  have  caught  me  only  for  the  II.  p.  3.58.  Also  Watson's  Lectures, 
ether;"  and  also  that  "he  had  been  uti-  XXXVI.  for  an  account  of  varioiiB  tests 
der  an  awful  strain,"  and  would  rather  for  epilepsy. 


5  1142]  SIMULATED  INSANITY.  S97 

leptics  sometimes  injure  themselves  in  the  fall,  and  sometimes  void 
urine  during  or  just  after  the  fit;  but  these  things  are  not  common 
in  malingerers,  "^hieves  in  England  are  said  to  have  a  trick  by 
^vhich  one  of  them  falls  in  a  fit  in  a  public  place  while  his  confidants 
proceed  to  pick  the  pockets  of  the  on-lookers.^^  Soldiers  simulate 
epilepsy  in  order  to  escape  military  service;  and  convicts,  in  order 
to  be  transferred  to  the  hospital  or  to  better  quarters.^'*''* 

1143.  Injurious  effects  of  feigning. — So  poiverful  is  the  influence 
of  suggestion  on  the  human  mind  that  the  continued  attempt  to 
feign  insanity  is  not  without  injurious  effects.  Some  authors  even 
claim  that  persons  have  gone  insane  from  pretending  to  be  so.  Such 
statements  may  readily  be  exaggerated;  and  yet  persistent  feigning, 
by  keeping  one  idea  uppermost  for  a  long  time  in  the  mind,  may  be- 
come such  a  habit  as  to  be  second  nature.  Something  like  this  was 
seen  in  the  old  days  of  the  torture.  It  is  well  known  that  under  the 
influence  of  torture  the  victims  would  not  only  confess  falsely  that 
they  were  guilty,  but  would  adhere  to  it  ever  afterwards ;  and  the 
instance  is  told  of  a  Milanese  judge,  who,  becoming  sceptical  about 
the  value  of  torture  as  a  mode  of  eliciting  the  truth,  caused  one  of  his 
mules  to  be  killed  in  such  a  way  as  to  fasten  the  guilt  on  an  innocent 
servant,  whereupon,  under  torture,  this  servant  confessed  that  he 
had  done  the  deed.^^  Indeed,  the  capacity  of  the  human  mind  not  to 
tell  the  truth  is  almost  without  limit  In  this  way  may  occur  self- 
imposed  delusions.^  ^ 

"  Gray,  Treatise  on  Nerv.  and  IVIent.        '■'^  Lea,  Superstition  and  Force,  3d  ed. 

Dis.  1893,  p.  393.     "Among  the  English  It   is   further    related    that    tliis  judge 

thieves  there    is    a    class    of  what  are  thereupon    resigned    his    judicial   office, 

known    as    'dunimy-chuekers.'     One    of  and   afterwards  became  a  cardinal, 
this     undesirable     class     honored     our        "  The  following  are  valuable  as  works 

American  prisons  with  his  presence  for  of  reference  on  feigned  insanity: 
a  number  of  years,  and  I  have  frequently        Laurent,    fitude   Medico-legale   siir   la 

had  him  'chuck  a  dummy,'  as  simulat-  Simulation  de  la  Folie,  etc.,  Paris,  1866; 

ing  an  epileptic  convulsion  is  called  in  Spitzka,  Insanity,  chapter  on  "The  Rec- 

the  thieves'  parlance,  for  my  class;  and  ognition  of  Simulation;"  Tuke,  Diction- 

I  must  confess  that  when  this  simula-  ary    of   Psychological   Medicine,   Vol.   I. 

tion  is  artistically  done,  the  fraud  can-  p.  502;   Regis,  Mental  Medicine,  trans- 

not  be  detected  except  by  close  and  re-  lated  by  Bannister,  p.  658;  Snell,  Ueber 

peated  observation,"  etc.  Simulation  von  Geistesstcirung,  in  Allg. 

i*i  See    a    paper    on    malingering   by  Ztschr.  f.  Psych.  1856,  XIII.  1-32.     See 

Mitchell,  Morehouse,  &  Keen,  in  the  Am.  also  Index-Catalogue,  Vol.  VI.  p.   1036, 

Journ.  of  Med.  Sci.  Oct.  1864,  p.  384.  for  bibliography. 
Vol,  L  Med.  Jue. — 57. 


CHAPTER  LIV. 

SOMNAilBULISM. 

I.  The  medical  aspects  of  somnambulism. 

1144.  A  definition  of  this  disorder. 

1145.  Unconsciousness  in  somnambulism. 

1146.  Tlie  self-absorption  of  the  sleep-walker. 

1147.  Two  kinds  of  somnambulism. 

1148.  Somnambulism  and  hypnotism. 

1149.  The  influence  of  suggestion. 

1150.  Somnambulism  and  epilepsy. 

n.  The  medico-legal  aspects  of  somnambltlism. 

1151.  Somnambulism  not  usually  described  as  an  insanity. 

1152.  Somnambulism  and  hypnotism  as  medico-legal  topics. 

1153.  Responsibility  in  somnambulism. 

1154.  The  case  of  Fraser. 

1155.  Is  somnambulism  teelmical  insanity? 
llofl.  Somnambulism  is  a  form  of  insanity. 

1157.  The  possibility  of  epilepsy  being  confounded  with  somnambulism. 

1158.  Sexual  assaults  on  somnambulists  and  by  somnambulists. 

1159.  Somnambulism  and  divorce. 

1160.  Trespass  by  the  sleep-walker. 
1101.  Somnambulism  and  life  insurance. 
1162.  Somnolentia. 

1103.  Somnolentia  as  an  excuse  for  homicide. 

I.  The  medical  aspects  of  somnambulism. 

1144.  A  definition  of  this  disorder. — Somnambulism,  or  noctambti- 
lism,  is  a  disorder  of  sleep,  in  which  a  dream  is  acted.  It  differs  from 
ordinary  dreaming  in  this  one  fact  particularly,  that  in  somnambu- 
lism the  patient  reacts  to  the  dream,  whereas  in  ordinary  dreaming 
there  is  practically  no  response  to  it.^ 

1145.  Unconsciousness  in  somnambulism. — In  profound  somnam- 
bulism the  patient  is  unconscious,  and  yet  he  reacts  to  a  mental  pic- 
ture. But  this  reaction  is  entirely  automatic.  The  mental  faculties 
are  variously  involved.     Somnambulism  is  not  incompatible  Avith  a 

'  Maury,  Le  Sommeil  et  Les  RGves,  icales,  for  bibliography  and  a  discussion 
Paris,  1878.  See  also  the  article  "Som-  of  medico-legal  questions.  Also  the  ar- 
raeil"  in  Diet.  Encyc.  des  Sciences  Med-    tide  "Soranambulisme." 

898 


§   1145]  SOMNAMBULISM.  899 

iiigb  degree  of  mental  activity ;  even  the  reasoning  power  may  he  ac- 
tive, if  we  are  to  believe  the  stories  about  sleep-walkers  who  have 
solved  mathematical  problems.^  Even  in  the  less  sensational  cases 
these  patients  perform  highly  complex  acts ;  but,  as  a  rule,  these 
acts  do  not  call  for  much  mental  vigor.  The  emotions  are  not  greatly 
excited,  but  exceptional  cases  have  been  reporjted  in  which  the  pa- 
tients have  been  violent.  The  memory  is  almost  doi*mant,  and  the 
patient  recalls  nothing  of  the  scene  on  waking,  unless  it  be  a  confused 
remembrance,  as  of  a  dream.  The  attention  is  absorbed  in  the  con- 
tents of  the  somnambulistic  dream;  and  cannot  be  distracted  with- 
out waking  the  patient.  Hence  it  follows  that  these  patients,  as  a 
rule,  are  not  open  to  suggestions ;  no  impression  is  made  upon  them ; 
their  conduct  cannot  be  directed  or  controlled ;  and  this  is  a  very 
important  feature,  as  we  shall  see. 

1146.  The  self -absorption  of  the  sleep-walker. — So  absorbed  is  the 
sleep-walker  in  his  dream  that  no  ordinary  obstacle  stops  him:  he 
passes  around  inanimate  objects,  and,  if  an  attempt  is  made  to  op- 
pose him,  he  resists  vigorously.  Hence,  he  is  not  a  tool,  willing  or 
unwilling,  in  any  person's  hands.  The  special  senses  are  obtunded : 
the  eyes  may  be  open  or  closed ;  but,  even  if  open,  they  see  nothing, 
or,  at  least,  the  j^atient  perceives  nothing;^  so  is  it  also  with  hear- 
ing. But  general  sensibility  is  acute,  for  these  patients  readily  re- 
act to  external  objects  if  these  are  placed  in  their  way ;  and  yet  the\' 
seem  insensible  to  heat  and  cold. 

1147.  Two  kinds  of  somnambulism.— Of  recent  years  it  has  become 
customary  to  distinguish  two  varieties  of  somnambulism, — the  "nat- 
ural,"  and  the   "provoked."      The  former   is   the  kind   alluded   to 

*Very  much  that  is  unauthentic  and  wrote  tliat  passage,  was  trying  to  bol- 
oven  fanciful  is  written  about  somnam-  ster  up  a  pet  theory  of  his;  namely,  that 
bulisni.  In  a  passage  that  is  often  consciousness  never  sleeps.  Neither  the 
fpioted,  Sir  William  Hamilton  (Meta-  theory  nor  the  passage  will  bear  scien- 
physics,  ed.  by  Bowen,  p.  220)  makes  tific  scrutiny.  Mr.  Wharton,  in  the  for- 
some  statements  which  would  be  hard  to  mer  editions  of  the  present  work,  ac- 
confirm.  He  says  that  he  was  in  pos-  cepted  Sir  Wm.  Hamilton's  statements 
session  of  "three  works,  written  during  and  quoted  long  passages  from  him. 
tiie  crisis^  by  three  different  somnanibu-  He  also  quoted  page  after  page  from 
lists,"  but  he  omits  to  tell  us  anything  Abercrombie  (The  Intellectual  Powers, 
about  these  extraordinary  "works,"  the  p.  238),  many  of  whose  statements 
circumstances  under  which  they  were  must  be  taken  cum  grano  salts. 
written,  or  the  patients  themselves.  =  Shakespeare,  who  let  little  escape 
Some  of  his  other  statements  are  equally  him^  notes  this  condition  in  Lady  Mac- 
extravagant  ;  as,  for  instance,  that  the  betli : 
somnambulist      speaks      languages      of 

which,   in   his   senses,   he   knows   not   a        rr»/t'';,-nX?«  ^^t'J'"'u,fr%  ''■''  °P^°-    . 

J       CI-     AT7-11-         TIT       -M  I        1  (xemieitomun.     les,    but    their    sense   I* 

word.     Sir  William  Hamilton,  when  he   shut. — Macbeth,  Act  V.  Scene  I. 


900  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1147 

above.^^  It  arises  spontaneously,  entirely  apart  from  tLe  will  or 
knowledge  of  the  patient  or  of  any  other  person.  It  is,  in  every 
sense,  a  morbid  process,  indicative  of  a  functional  disturbance  of  the 
brain,  and  is  usually  seen  in  neurotic  persons,  especially  children, 
and  is  occasionally  hereditary.*  It  occurs  periodically,  but  with  no 
regularity,  and  is  not  followed  by  any  other  disorder,  as  headache, 
depression,  etc.  There  is  nothing  artificial  about  it,  nor  is  it  often 
simulated.  As  a  rule,  it  is  a  harmless  affection,  both  to  the  patient 
;ind  to  others. 

1148.  Somnambulism  and  hypnotism. — The  second  variety,  or  pro- 
voked somnambulism,  is  a  form  of  hysteria, — especially  of  that 
kind  of  hysteria  which  receives  its  greatest  development  in  hypno- 
tism at  the  hands  of  the  French  school  of  neurologists.^  It  has  many 
points  of  superficial  resemblance  to  the  natural,  or  true,  somnambu- 
lism, but  it  is  not  identical  with  it.''  It  is  characterized,  like  all 
phases  of  hypnotism,  by  suggestibility;  and  in  this  respect  it  is  in 
striking  contrast  with  the  other  form.  These  hysterical,  hypnotized 
sleep-walkers  are  iu  a  psychosis  which  is  artificially  induced,  and 
during  which  they  often  act  a  part  impressed  upon  them  by  another 
person.  In  many  ways  this  state  resembles  the  real  thing,  but  it  is 
doubtful  whether  there  is  the  profound  unconsciousness  that  is  seen 
in  the  natural  variety.  In  both  forms  the  tendency  is  for  the  attack 
to  reproduce  itself  in  each  succeeding  attack;  but  this  tendency  is 
much  more  easily  broken  up  in  the  hysterical  patient  under  the  in- 
fluence of  suggestion  than  in  the  spontaneous  form/ 

3J  Laurent,  Du  SomnambulisTne  Nat-  sleep,   such    as     setting    the    table   for 

urel.  Paris  Thesis,  No.   148,   1834,  with  breakfast.     Later,   and   evidentlj'   under 

liistoric  references.  tlie  influence  of  suggestion   (for  she  was 

*  Cliambers  (RejTiold's  Syst.  of  Med.  much  stared  at  and  talked  about),  her 
Vol.  I.  p.  G59).  attacks   became   more   complicated,   and 

'^  Bernbeim,  Hypnotism.  occurred  even  in  the  daytijne.  Before 
'Tbe  French,  who  ai'C  largely  to  the  attacks  she  had  headache,  fliishing, 
blame  for  confusing  somnambulism  with  and  other  symptoms  like  the  i)rodromes 
hysteria,  have  lately  seen  the  necessity  seen  in  hysteria.  During  the  attacks 
of  more  care  in  distinguishing  the  two  she  would  recite  poetry,  and  very  pal- 
varieties  named  in  the  text.  See  "'Les  pably  act  a  part.  She  eventually  landed 
Somnambulisms,"  by  Blocq,  in  Cliniquo  in  an  insane  asylum,  but  did  not  re- 
d.  Mai.  du  Syst.  Nerv.     Guinon.  1803.  cover,  and  was  discharged.     A  very  sig- 

*  A  very  curious  case  of  what  seems  to  nificant  symptom  was  the  fact  that  she 
have  been  hysterical  somnambulism  was  usually  could  not  be  aroused  from  her 
observed  many  years  ago  in  New  Eng-  "spells"  by  urging;  in  other  words,  she 
land.  It  was  the  case  of  Jane  Rider,  could  not  be  awakened;  she  took  her 
the  "Springfield  somnambulist,"  report-  own  time  to  come  to.  This  is  exactly 
cd  by  Dr.  Belden  (Boston  Medical  Sc  what  is  seen  in  hysteria,  and  is  not  seen 
Surgical  Journal,  1834,  Vol.  XI.  p.  53).  in  the  genuine  somnambulism.  Dr. 
The  patient  was  seventeen  years  of  age  lielden's  account  is  interesting,  but  in- 
when  she  began  to  attract  attention,  tolerably  prolix.  He  anticipated  the 
She  did  all  sorts  of  complex  acts  in  her  French  school  by  many  years. 


i 


§  1149]  SOMNAMBULISM.  901 

1149.  The  influence  of  suggestion. — And  yet  the  influence  of  sug- 
gestion is  not  entirely  nil  in  the  natural  variety.  The  story  is  told 
of  a  school-master  whose  custom  it  was  to  call  the  young  somnambulist 
aside  at  bed-time,  and  sternly  rebuke  him,  and  tell  him  not  to  let 
the  thing  happen  again.^  He  claimed  that  this  method  seldom  failed 
to  break  up  the  habit.  The  reason  for  the  success  of  such  a  method 
lies  in  substituting  a  strong  impression,  which  continues  to  act  dur- 
ing the  dream-state.  But  this  method  is  of  doubtful  value  in  most 
cases. 

1150.  Somnambulism  and  epilepsy. — Somnambulism  has  some  re- 
semblance to  the  automatism  seen  in  epilepsy.^  There  is  the  same 
profound  unconsciousness,  and  the  same  reaction  to  a  dream-like 
state.  But  they  are  not  identical,  although  the  possibility  of  mis- 
taking nocturnal  epilepsy  for  ordinary  noctambulism  should  not  be 
ignored.  I^octurnal  incontinence  of  urine,  often  seen  in  young 
children,  and  sometimes,  also,  in  nocturnal  epilepsy,  is  not  usual  in 
somnambulists,  Neither  has  somnambulism  any  relationship  with 
the  so-called  spermatorrhea. 

II.  The  medico-legal  aspects  of  somnambulism, 

1151.  Somnambulism  not  usually  described  as  an  insanity.— Al- 
though somnambulism  is  not,  popularly  speaking,  a  form  of  insan- 
ity, still  it  is  in  fact  a  mental  disorder,  functional  and  temporary. 
The  analogies  between  dreams  and  insanity  have  often  been  noticed, 
but  need  not  be  urged  here.  It  is  sufficient  to  say  that  in  somnam- 
bulism there  is  a  morbid,  or  aberrant,  action  of  the  brain,  and  that, 
in  so  far  as  jurisprudence  is  concerned,  it  must  be  regarded  as  a 
temporary  alien ation.^'-^ 

1152.  Somnambulism  and  hypnotism  as  medico-legal  topics. — The 
subject  of  provoked  somnambulism,  as  a  part  of  hypnotism,  has  re- 
ceived an  immense  development  in  France,  and  its  medico-legal  rela- 
tions have  been  fully  discussed  by  French  authors.  It  is  not  to 
physicians  alone  that  this  development  is  due,  for  the  members  of  the 
legal  profession  have  also  devoted  time  and  attention  to  it,-**^  In  fact, 
the  French  have  accorded  a  medico-legal  importance  to  hypnotism 
which  has  not  been  accorded  to  it  in  other  countries,  especially  Amer- 

'  Tuke,    Dictionary    of    Psychological  Somnambvilisme,  Paris,  1889)   has  writ- 
Medicine,   Vol.   II.  p.    1173.  ten  an  elaborate  work  on  the  jurispiii- 
'  Spratling,  Epilepsy.  dence  of  the  subject.     He  is  a  professor 
9^  IG  Am.  &  Eng.  Enc.  Law,  p.  565.  in  the  Faculty  of  Law,  at  Nancy. 
"Liegeois    (De    la    Suggestion   et   du 


902  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1152 

ica  and  England.  Their  doctrine,  in  brief,  is  that  a  patient  who  is 
profoundly  hypnotized  is  irresponsible,  and  acts  upon  ideas  which 
have  been  implanted  in  the  mind  by  another  person  by  suggestion.-^  ^ 

To  attempt  here  to  discuss  this  subject  fully  would  be  to  traverse 
the  wdiole  field  of  hypnotism,  which  is  not  a  part  of  the  plan  of  this 
work.  It  is  sufiicient  to  say  that  provoked,  or  hypnotic,  somnam- 
bulism is  not,  in  the  judgment  of  many  good  authorities,  the  samo 
as  the  natural,  or  spontaneous,  somnambulism,  and  the  two  should 
be  distinguished  in  medical  jurisprudence.  The  hypnotic  variety, 
as  already  said,  is  characterized  by  the  fact  that  the  patient  is  acting 
entirely  on  suggestion, — on  ideas  received  from  without,  and  usual- 
ly from  another  person, — and  the  medico-legal  problem  is  not  the 
same  as  in  the  case  of  a  genuine  somnambulist,  whose  disorder  is 
entirely  spontaneous. 

1153.  Responsibility  in  somnambulism. — But  whatever  difference 
of  opinion  may  exist  as  to  the  relationship  or  identity  of  the  two  forms 
of  somnambulism,  there  can  be  no  doubt  that,  in  a  genuine  somnambu- 
listic state,  the  patient  is  not  responsible  for  his  acts.  Such  cases 
are  rare  in  the  annals  of  jurisprudence ;  so  rare  as  to  partake  almost 
of  the  nature  of  curiosities.  One  of  the  most  celebrated  is  that  which 
is  related  by  Brierre  de  Boismont,^^  of  a  man  who  rose  at  night  in 
his  sleep,  and,  taking  a  knife,  went  to  the  bed  of  another,  and  stabbed 
violently  at  the  place  where  he  evidently  supposed  the  intended  vic- 
tim to  be ;  but  the  intended  victim,  not  having  yet  retired,  but  being 
seated  in  the  room,  which  was  brilliantly  lighted,  saw  the  ugly  pan- 
tomime from  start  to  finish.  This  man  was  acting  in  a  dream,  in 
which  he  supposed  that  his  companion  had  killed  his  mother.  A  som- 
nambulistic patient  has  been  kno^vn  to  steal,^^  and  to  attempt  sui- 
cide.i'* 

Some  authors  have  indulged  in  far-fetched  speculations  about  som- 
nambulists and  their  responsibility.  It  seemed  to  Fodere^'^  that,  inas- 
much as  these  patients  often  show  themselves  competent  to  do  quasi- 
rational  acts,  such,  even,  as  writing  poetry,  they  should  not  be  held 
entirely  exempt  for  their  deeds;  and  Iloffbauer^^  argued  that,  since 

a  somnambulist  is  aware  of  his  own  malady,  i.  e.,  that  he  is  subject  to 

* 

"  Mesnet,     Le     Somnambulismo     Pro  '^  Mesnet,  Rev.  de  THypnotisme,  1887  : 

voquo,  Paris,  1894.  Dornbliith,      "Gesehicte      einer      Nacht 

"Des  TTallucinations,  3d  ed.   18G2,  p.  wandlerin,"  Henke's  Zeitschrift,  XXXIL 

330.     "Tlio    old    stock    case,  which    iias  2. 

found    a    place   in    every   work    of    this  "  Mesnet,  Arch,  de  M(kl.  1  SCO. 

kind  for  the  last  fifty  years,  claims  its  "Traite  dTIy.Jri&ne,  etc.,  1813,  I.  25G. 

place    here     Ijy     prescriptive    right." —  "'  Traite  de  MOdecine  Legale. 
Brov/ne.    Medical    Jurisprudence   of   In 
sanity,  2d  ed. 


§  1153]  SOMNAMBULISM.  903 

such  attacks,  he  should  be  held  responsible  for  what  he  does,  apparent- 
ly on  the  principle  that  he  ought  to  have  himself  watched.  It  is  diffi- 
cult to  reconcile  such  opinions  with  a  scientific  view  of  an  aftection 
in  which  consciousness  is  entirely  abolished.^'^ 

1154.  The  case  of  Fraser. — Tn  medical  jurisprudence  the  most 
noteworthy  case  of  somnambulism  was  that  of  Simon  Fraser,^^  tried 
in  the  High  Court  of  Justiciary,  in  Edinburgh,  in  July,  1878.  Fra- 
ser was  twenty-eight  years  old,  below  the  average  in  intellect,  but 
steady,  of  good  habits,  and  able  to  earn  his  living.  He  was  of  bad 
heredity;  so  bad  that  it  can  not  well  be  surpassed.  His  mother  was 
an  epileptic;  his  maternal  grandfather  had  died  in  a  fit;  a  maternal 
aunt  and  her  son  had  been  insane  and  in  asylums ;  his  brother  died  in 
convulsions,  and  his  child,  whom  he  killed,  had  also  had  fits.  This 
man  had  for  years  been  a  somnambulist,  and  the  victim  of  bad  dreams 
and  nightmares.  If  excited  or  worried  during  the  day,  the  events 
were  usually  recalled  in  dreams  that  night,  and  he  would  then  walk 
in  his  sleep.  On  one  occasion  he  rose  at  3  o'clock  a.  m.,  dressed,  took 
the  milk  pitcher,  and  set  off  for  a  neighboring  farm  to  fetch  milk, 
being  asleep  all  the  time.  Another  time  he  went  into  the  yard  in 
the  dead  of  night  and  began  working  at  moving  logs,  and  only  awoke 
when  it  began  to  rain.  Many  other  instances  are  given.  He  remem- 
bered nothing  in  the  morning  except  being  wearied  and  unrefreshed. 
He  also  had  night-terrors  of  an  aggravated  type;  starting  out  of  bed 
with  the  belief  that  some  great  evil  was  coming  on  him,  or  that  there 
was  a  wild  beast  in  the  room.  He  would  then  pull  his  wife  and  child 
out  of  bed,  throwing  furniture  about  as  a  weapon,  or  seizing  his  wife 
by  the  throat.  His  wife  had  been  in  the  habit  of  hiding  knives  and 
poker  as  a  precaution  before  going  to  bed.  In  this  state  he  would 
halloo,  roar,  and  answer  questions.  It  was  like  a  delirium  with  hal- 
lucinations. He  had  thus  assaulted  numerous  members  of  the  fam- 
ily,— his  wife,  father,  sister,  and  fellow  lodgers, — and  his  ailment 
was  well  known. 

Fraser's  fatal  act  was  done  in  one  of  these  paroxysms.  He  had 
retired  with  wife  and  child,  to  whom  he  was  greatly  attached,  and 

"Browne  (Medical  Jurisprudence  of  his  senses  has  no  right  to  kill  another 
Insanity,  2d  ed.  p.  484)  attempts  to  for-  on  such  provocation;  but  if  he  kills  in 
mulate  rules  of  responsibility  in  these  supposed  self-defense,  he  is  innocent, 
cases  on  the  pattern  of  the  IM'Naghten  In  other  words,  the  sleep-walker,  like 
rules  respecting  delusions.  Thus,  if  a  the  delusional  lunatic,  must  act  ration- 
somnambulist  goes  into  another  man's  ally  in  his  delirium!  A  more  unscien- 
house,  in  the  belief  tnat  the  latter  has  tific  proposal  was  probably  never  made, 
called  him  a  liar,  and  kills  him,  ho  "  Journal  of  Mental  Science,  1878, 
should  be  held  guilty,  because  a  man  in  Vol.  XXIV.  p.  451. 


904  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1154 

had  fallen  asleep,  Avhen  he  saw  a  wild  beast  enter  the  room  and  ap- 
proach his  child.  He  at  once  passed  into  one  of  his  paroxysms;  h(^ 
sprang  up  to  seize  the  wild  beast,  and  struggled  with  it.  His  wife? 
was  awakened,  as  usual;  but,  before  she  could  prevent  him,  he  had 
seized  the  child  and  killed  it  by  dashing  its  head  against  the  wall. 
When  fully  awakened,  he  realized  what  he  had  done,  was  greatly  dis- 
tressed, and  ran  for  a  doctor.  At  his  trial,  when  he  was  asked  to 
plead,  he  said,  "I  am  guilty  in  my  sleep,  but  not  in  my  senses."  He 
was  promptly  acquitted. 

1155.  Is  somnambulism  technical  insanity? — An  important  question 
in  Fraser's  case  under  the  English  law  was  whether  the  prisoner  was 
technically,  or  legally,  "insane,"  for  had  he  been  so  found,  he  would 
have  been  committed  to  a  criminal  lunatic  asylum, — a  hard  lot  for 
a  man  who  was  sane  except  occasionally  for  a  few  moments  in  his 
sleep.  Dr.  Yellowlees,  one  of  the  expert  witnesses  for  the  Crown, 
defined  somnambulism  as  "a  state  of  morbid  activity  of  the  brain, 
coming  on  during  sleep,  of  very  varying  intensity,  sometimes  littler 
more  than  restless  sleep ;  but  sometimes  developing  delusions  and  vio- 
lence, and  amounting  really  to  insanity."  Dr.  Robertson,  another 
Crown  witness,  said  that  "extravagant  delusion,  high  excitement,  and 
dangerous  conduct,  constitute  insanity,"  and  the  prisoner  "passes  out 
of  sleep  to  a  very  great  extent  into  that  condition  of  temporary  in- 
sanity." Dr.  Clouston,  a  witness  for  the  defense,  did  not  consider 
somnambulism  insanity,  and  yet  he  thought  the  prisoner  was  not  re- 
sponsible.^^ The  Lord  Justice-Clerk  solved  the  difficulty  by  direct- 
ing the  jury  to  bring  in  the  following  verdict:  "The  jury  find 
that  the  panel  killed  his  child  when  he  was  unconscious  of  the  na- 
ture of  the  act  which  he  committed,  by  reason  of  a  condition  arising 
from  somnambulism ;  and  that  the  panel  was  not  responsible."  The 
question  of  insanity  was  thus  "conveniently  evaded." 

1156.  Somnambulism  is  a  form  of  insanity. — The  case  of  Fraser 
was  so  exceptional  that  the  law  was  deemed  not  to  provide  for  it. 
Yet  a  safer  course,  and  more  in  accord  both  with  law  and  science, 
would  have  been  to  find  the  man  insane,  and  commit  him  to  an  asy- 
lum. He  could  then  have  been  paroled,  if  need  were,  and  kept  un- 
der observation.  He  was  not  fit  to  be  allowed  to  sleep  with  an- 
other person,  or  to  be  left  unguarded  at  night.  The  man  was  insane 
during  the  attacks.  He  had  a  species  of  "transitory  insanity,"  duo 
to  somnambulism ;  and  Yellowlees  suggested  that  it  be  called  "som- 

*•  See  "Pseudo-Insanity  of  Somnambu-  Krafft-Ebinfj.  Traits  Clinique  de  Psy- 
lism,"  by  Dr.  Clouston,  in  his  Lectures  chiatrie,  trad,  par  Laurent,  pp.  118,  119. 
on  Mental  Diseases,  1st  ed.  p.  421.   Also 


§   llfiO]  SOMNAMBULlSAt  905 

nomania."  The  only  difference  between  such  seizures  and  an  ordi- 
nary acute  attack  of  delirious  insanity  is  in  their  singular  brevity, 
and  their  accession  during  sleep. 

1157.  The  possibility  of  epilepsy  being  confounded  with  somnam- 
bulism.— In  such  a  case  the  grave  question  also  arises  whether  the 
attacks  are  epileptic.  The  family  history  in  Fraser's  case  strongly 
suggested  this  possibility,  but  the  question  seems  not  to  have  been 
carefully  investigated,  although  Dr.  Yellowlees  speaks  of  it  in  his  re- 
port. Fraser  was  never  known  to  have  had  a  fit  in  the  daytime ;  and 
his  nocturnal  attacks  did  not  last  as  long  as  in  epilepsy,  and  he  could 
be  awakened  from  them.^*^  In  this  last  respect  they  differed  from 
most  cases  of  epilepsy. 

1158.  Sexual  assaults  on  somnambulists  and  by  somnambulists. — 
Some  French  writers  have  raised  the  question  whether  a  sexual 
assault  could  be  successfully  made  upon  a  woman  while  she  w'as  in 
the  somnambulistic  state.^^  The  general  opinion  seems  to  be  in  the 
negative.  The  sleep-walker,  if  interfered  with,  will  usually  resist 
energetically;  and  if  the  interference  is  forcible  and  persisted  in, 
will  generally  awake.^^- 

On  the  other  hand,  the  sleep-walker  is  not  erotic,  and  therefore  the 
case  tried  within  very  recent,  years  in  England  is  probably  unique. 
A  young  man  w'as  found  by  a  young  woman  in  her  bed.  He  was  pros- 
ecuted, and  claimed  as  a  defense  that  he  had  gone  there  in  his  sleep ; 
and  it  was  proved  that  his  mother,  his  brother,  and  himself  were  som- 
nambulists.    He  was  acquitted.^^ 

1159.  Somnambulism  and  divorce. — Mr.  Browne^^  thinks  that 
somnambulism  might  be  a  good  ground  for  separation  in  some  cases, 
but  he  gives  no  instances,  nor  do  any  seem  to  have  occurred. 

1160.  Trespass  by  the  sleep-walker. — The  same  authority  reminds 
us  that  the  sleep-walker,  like  the  lunatic,  can  commit  a  trespass  and 
be  held  for  the  consequences. 

1161.  Somnambulism  and  life  insurance. — Taylor^ ^  supposes  a  case 
in  which  death  might  occur  to  the  sleep-walker  while  in  his  attack, 
but  he  gives  no  actual  instance.    In  such  a  case,  could  a  policy  of  life 

*•  Consult  also  Logrand  du  Saulle,  "Le  bered  nothing  of  it;  but  in  a  subsequent 

Somnambulisme  Natural,"   Ann.  d'Hyg.  attack  she    recalled    the    incident,  and 

2d  Ser.  XVIII.  18G2,  p.  141.  told  her  mother. 

"  Mesnet,     Le     Somnambulisme     Pro-  "^  Leeds,   Ass.   1901,   quoted  by  Glais- 

voqu6,  p.  227.  ter,   Medical    Jurisprudence,   Toxicology 

"Dewar    (Trans.    Royal    Soc.    Edinb.  and  Public  Health,  1902,  p.  377. 

Vol,  IX.  p.  3G5)   reports  a  case  of  som-  ^*  Op.    cit.    2d     ed.    art.    "Somnambu- 

nambulism  in  a  young  girl.     In  one  of  lism." 

her    attacks     she     was     indecently    ap-  ^  Medical    Jurisprudence,    art.   "Som- 

proached,  and,  upon  awakening,  remem-  nambulism." 


906  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1161 

insurance  be  declared  void  ?  We  fail  to  see  upon  what  ground.  Cer- 
tainly not  on  the  ground  of  suicide,  for  the  accidental  death  of  a  sleep- 
walker is  not  suicide ;  and  the  opinions  of  some  writers,  that  patients 
who  arise  from  sleep  and  proceed  to  commit  suicide  are  often  sleep- 
walkers, appear  to  us  to  be  entirely  gratuitous. 

1168.  Somnolentia. — This  is  a  term  used  to  describe  states  of  men- 
tal confusion  occurring  on  waking  from  sound  slumber,  in  the  state 
'^twixt  sleep  and  wake."  It  is  also  called  "sleep-drunkenness,"  al- 
though the  patient  is  not  necessarily  in  a  state  of  alcoholic  intoxica- 
tion. It  is  not  essentially  a  condition  of  somnambulism,  although 
it  is  allied  to  it.  At  such  times  the  mind  may  react  violently  to  a 
dream-like  state,  and  the  patient  may  even  commit  a  homicidal  as- 
sault. Persons  in  this  state  are  often  difficult  to  rouse ;  their  senses 
are  overpowered  with  slumber;  they  are  in  a  delusional  state, — very 
transitory,  but  having  distinct  analogies  with  a  true  delirium. 

The  term  "somnolentia"  was  first  used,  according  to  Wharton,^® 
by  Plouaquet;  and  the  first  case  reported  was  by  Bucher,^'  in  a 
sentry,  who  fell  asleep  at  his  post,  and  when  roused  by  an  officer,  as- 
saulted the  latter  furiously  with  his  dra^vn  sword.  The  case  of  Levet, 
reported  by  Sir  Matthew  Hale,-^  and  often  quoted,  was  hardly  a  true 
example.  Other  cases  are  on  record,  as  of  a  peddler,  who  fell  asleep 
by  the  wayside,  and  when  roused  made  a  homicidal  assault.^^  In 
another  case  a  man,  when  roused  from  a  deep  drunken  sleep,  kicked 
his  disturber  in  the  abdomen,  causing  death. ^*^ 

1163.  Somnolentia  as  an  excuse  for  homicide. — It  has  been  held  in 
an  American  court  that  proof  of  somnambulism  or  somnolentia  is 
admissible,  and  that  no  crime  can  be  committed  in  this  condition,  be- 
cause the  necessary  intent  is  absent.^^      The  testimony  would  have 

^  Wharton   &    Stille's   Medical   Juris-  ^Reg.    v.    Byron,   Winchester   Winter 

prudence,  4th  ed.  Vol.  I.  p.  484.  Ass.   1863.     In  this  case  it  was  decided 

"  Henke,  Zeitschrift,  B.  X.  p.  39.  that    deep    sleep    caused    by  voluntary 

^  1  P.  C.  42,  474.  Levet,  being  roused  drunkenness  is  an  excuse  for  crime.  The 
at  midnight  by  a  servant  with  an  alarm  accused,  while  in  that  state,  kicked  an- 
of  thieves,  took  his  sword,  went  down  other  in  the  abdomen,  causing  death, 
stairs,  and  mortally  wounded  a  friend  of  The  occasion  was  an  attempt  to  rouse 
one  of  his  servants,  whom  he  did  not  the  drunkard  from  his  slumber;  he  re- 
know,  and  who  he  did  not  know  was  in  sisted,  and  in  doing  so  gave  the  mortal 
the  house,  mistaking  this  person   for  a  Avound. 

burglar.     The  act  Wivs  merely  a  mistake,  "''Fain  v.   Com.   78   Ky.   183.   39   Am. 

and  there  is  no  evidence  that  Levet  was  Rep.  213.     A  man  asleep  in  a  bar-room, 

in     a     state    of    somnolentia.     Wharton  but  not  intoxicated,  was  roused  by  the 

cites  this,  however,  as  a  case  in  point,  porter  at  bedtime  with  great  ditliculty; 

It  is  not  quoted  in  this  sense  by  Hale,  so  great    that    after    several    vain    at- 

"  Winslow,    Plea    of    Insanity.     See,  tempts  the  porter  said  the  man  must  be 

also,  Taylor,  op.  eit.  12th  ed.  p.  775,  and  dead.     But   finally,   after   resisting   and 

!Marc,  De  la  Folic,  etc.,  quoted  by  Tay-  expostulating,  the  man  suddenly  pulled 

lor.  out    a    pistol     and     fired    three   shots, 


§  1163] 


SOMNAMBULISM. 


907 


to  be  very  clear,  however,  for  a  defense  has  been  made  on  a  simulated 
condition  of  this  kind.^^  The  condition  can  also  be  confnsed  with  one 
of  real  insanity.^'^ 


wounding  the  porter  so,  that  he  died. 
There  was  no  motive,  for  the  victim  was 
a  stranger  to  the  homicide.  Proof  was 
offered  that  the  accused  was  a  sleep- 
walker, and  had  required  watching  at 
night;  also  that  he  carried  a  pistol  be- 
cause his  life  had  been  threatened,  and 
this  idea  was  in  his  mind  when,  in  hie 
sleep,  he  shot  the  porter.  This  testi- 
mony was  not  allowed.  But  the  su- 
preme court  ordered  a  new  trial,  holding 
that  the  testimony  was  admissible.  "If 
the  prisoner,  when  he  shot  the  deceased, 
was  unconscious,  or  so  nearly  so  that 


he  did  not  comprehend  his  o\vn  situa- 
tion, and  the  circumstances  surroundinjj; 
him,  or  that  he  supposed  he  was  being 
assailed,  and  that  he  was  merely  resist- 
ing an  attempt  to  take  his  life,  or  to 
do  him  great  bodily  injury,  he  should 
be  acquitted." 

■''-Reg.  V.  Jackson,  Liverpool  Aut.  Ass. 
1847.  In  this  case  the  defense  was  a 
sham;  the  act  was  done  designedly,  and 
the  accused  was  convicted. 

^^Reg.  V.  French,  Dorset  Aut.  Ass.  In 
this  case  the  accused  was  insane. 


CHAPTER  LV. 

WILLS. 

1164.  An  artificial  right. 

1165.  Historical  data. 

1166.  Legal  presumptions. 

1167.  The  onus  prohandi. 

1168.  The  witnesses  to  the  wih. 

1169.  Inconsistency  as  to  the  onus  probandL 

1170.  The  presumption  of  sanity. 

1171.  The  presumption  that  insanity  continues. 

1172.  The  presumption  as  to  lucid  intervals. 

1173.  Presumption  is  not  proof. 

1174.  Presumptions  in  .=?cience. 

1175.  A  reasonable  will. 

1176.  Testamentary  capacity  a  broad  and  difficult  subject. 

1177.  Some  reasons  for  the  difficulty. 

1178.  The  distinction  between  civil  and  criminal  cases. 

1179.  The  old  opinion  that  delusion  invalidates  a  will. 

1180.  The  influence  of  the  criminal  law. 

1181.  The  connection  of  the  delusion  with  the  will. 

1182.  The  law  as  now  generally  accepted. 

1183.  Delusion  as  the  only  criterion  of  insanity. 

1184.  Testamentary  capacity  as  afTected  by  delirium. 

1185.  Testamentary  capacity  as  afTected  by  imbecility. 

1186.  Testamentary  capacity  and  epilepsy. 

1187.  Testamentary  capacity  and  suicide. 

1188.  Testamentary  capacity  as  affected  by  moral  insanity. 

1189.  Insane  jealousy  as  proof  of  delusion. 

1190.  Testamentary  capacity  in  old  age. 
1190^.  Undue  influence. 

1191.  A  sound  and  disposing  mind  and  memory. 

1192.  The  legal  definition  of  a  sound  and  disposing  mind. 

1193.  A  scientific  definition  of  testamentary  capacitj'  not  possible. 

1 194.  Evidence  of  testamentary  capacity. 

1164.  An  artificial  right. — The  right  to  make  a  will  is  a  positive, 
not  a  natural,  right.  That  is  to  say,  it  is  a  right  conferred  entirely 
by  the  laws  of  civil  society,  not  by  the  laws  of  nature.^  The  making 
of  a  will  is,  in  fact,  the  making  of  a  law  to  regulate,  after  death,  the 

'  "The  practice  of  testamentary  dispo-  consolation  for  their  mortality."  1  Col- 
sitJon   has   been   adopted   by   men    as   a    linson.  Lunacy,  p.  610- 

908 


§   1164]  WILLS.  909 

property  acquired  during  life-time.  This  is  not  a  natural  right,  for 
no  dead  man  has  any  rights.  Tlie  human  race  are  by  nature  usu- 
fructuaries only.  It  is  society  alone  that  creates  and  protects  the 
right  of  making  a  will.^ 

1165.  Historical  data. — Hence,  if  we  chose  to  follow  the  history  of 
testamentary  laws  (a  subject  which  is  foreign  to  our  purpose),  we 
^hould  find  that  those  laws  have  varied  widely;  and,  indeed,  that 
some  nations  have  had  no  such  laws  whatever.^  The  Romans  seem 
to  have  been  the  first  to  perfect  a  system  of  testamentary  laws.  Be- 
fore their  time,  as,  for  instance,  among  the  Greeks  and  Hebrews, 
such  laws  were  but  rudimentary.'*  But,  by  the  laws  of  the  Twelve 
Tables,  the  testamentary  rights  of  the  father  of  a  Roman  family  were 
recognized;^  and,  according  to  Sir  H,  Maine,*"'  the  English  law  of 
testamentary  succession  to  personalty  is  a  modified  form  of 
the  dispensation  under  which  the  inheritances  of  Roman  citizens 
\vere  administered.  This  seems  to  be  another  instance  of  the  debt  of 
the  common  law  to  the  civil  law."^ 

The  Roman  law  was  strict  in  its  limitation  of  testamentary  rights, 
and  these  rights  were  denied,  among  otliers,  to  the  insane.  Thus, 
according  to  Justinian,^  madmen — furiosi — cannot  make  a  will,  be- 
cause they  are  lacking  in  mind, — quia  niente  caveat.  Nor  is  it 
material,  though  the  madman  afterwards  regain  his  senses,  and  then 
die.  In  other  words,  the  will  made  when  the  testator  was  insane 
does  not  become  valid  by  virtue  of  the  testator  recovering  his  mind ; 
but  if  he  makes  his  will  during  a  lucid  interval,  he  is  a  legal  testator, 
for  it  is  certain  that  a  testament  which  a  man  hath  made  before  he 
was  seized  with  madness  is  good ;  for  a  subsequent  fit  of  frenzy  can 
not  invalidate  a  regular  testament,  or  any  other  regular  transaction. 

^Cooper,  notes  in  liis  edition  of  Jus-  sepli     (Gen.    xlviii.).      Tliese    are    alim 

tinian's  Institutes,  1812,  p.  492.  foundations  for  a  liistor^'  of  wills.     Ac- 

^2  Bl.  Com.  488-492.  cording  to  Markby    (Elements  of   Law, 

*  Following  Blackstone,  it  is  custom-  Oxford,   ]89(),   §§  791-792)    the  riglit  to 

ary   for   legal    writers   to   say  that   the  make   a   will    was   unknown   to   Hindoo 

law     of     Solon    conferred    testamentary  law,  and  the  validity  of  a  Hindoo  will 

riglits  upon  the  Athenians;  the  author-  has    been    questioned    before    the    Privy 

ity  for  which  statement  is  a  passage  in  Council. 

Plutarch's  Life  of  Solon.       There  is  a  ^  Table  V. 

learned    note    on    the    Athenian    law    of  "  Ancient  Law,  Chap.  VI. 

wills  in  Kent's  Commentaries,  Part  VI.  '  By  tlie  law  of  Turkey,  no  subject  of 

Lect.   LXVIII.   ,502,   based   on   Sir   Wil-  that    country   can    make    a    will.     By 

liam   Jones'   Dissertation    on    the   Attic  treaty   between   Great   Britain  and   the 

Laws,  in  his  Isa^us.    As  for  the  Hebrews,  Ottoman    Empire,    an    English    subject 

the  only  semblance  of  such  ancient  law  domiciled  in  Turkey  has  that  privilege, 

or  usage  is  found  in  the  expressed  in-  Maltass  v.  Maltass,  3  Curt.  Eccl.  Rep. 

tention  of  Abram  to  make  his  steward  231. 

his    heir     (Gen.    xv.).    and    Jacob's    be-  "  Institutes,  Lib.  II.  title  XIL  §  1. 
quest  of  a  double  portion  to  his  son  Jo- 


910  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1165 

Tlius  stood  the  Eoraan  law  according  to  Justinian,  and  thus  prac- 
tically stands  Anglo-American  law  to  this  da  v.  These  just  and  sim- 
ple principles  are,  in  fact,  fundamental.  The  only  questions  that 
arise  are  in  the  application  of  these  principles  to  individual  cases.^ 

1166.  Legal  presumptions. — In  its  attempt  to  reduce  everything  to 
general  rules  the  law  has  recognized  a  series  of  presumptions  as  aids 
to  the  detenuination  of  testamentary  capacity.  In  fact,  the  discus- 
sion of  this  whole  subject,  in  the  works  of  many  legal  wTiters,  is  made 
to  rest  upon  these  various  presumptions.  Much  learning,  and  much 
that  is  mere  compilation  and  case-hunting,  is  expended  on  this  gen- 
eral theme,  until  it  looks  indeed  vast  and  appalling,  especially  to  the 
gaze  of  a  layman ;  but  a  strictly  scientific  analysis  of  this  great  accu- 
mulation of  case-reports  brings  it  down,  after  all,  to  a  question  of  a 
few  principles.^^ 

The  present  writer,  even  if  he  had  the  space,  could  not  hope  to  vie 
with  such  learned  writers  as  Shelford,^^  Underbill,^-  and  Kedfield,^"' 
in  explaining  the  law  and  in  accumulating  cases ;  it  would  be  merely 
a  repetition  (for  these  see  ante,  §§  299-302)  to  marshal  all  the  opin- 
ions and  decisions  of  the  courts  in  cases  of  disputed  wills.  It  will 
rather  be  his  aim  in  these  pages  to  discuss  the  principles  and  pre- 
smnptions  of  the  law  from  the  standpoint  of  medical  science. 
I  1167.  The  onus  probandi. — And,  first,  as  to  the  onus  prohandi 
where  a  will  is  produced  for  probate.  It  is  generally  conceded  that 
the  burden  of  proving  testamentary  capacity  is  on  the  proponent  of 
a  will.  Lord  Hardwicke^"*  said  that  it  had  been  determined  over 
and  over  again  that  the  devisee  must  show  the  devisor  to  have  been 
of  sound  and  disposing  mind,  in  a  bequest  of  real  estate.  Thus,  the 
heirs-at-law,  who  may  have  been  disinherited  by  the  will,  are  pro- 
tected, and  have  the  right  to  proof  of  the  testator's  sanity  from  each 

•  By    the    Statute    of  Wills,  34  &  35  lars,  contradictions,  concordances,  meth- 

Hen.  VIII.   chap.   5,   §   14,  the  wills  of  ods,  sums,  practices,  tables,  repertories, 

idiots   or   of  any   persons   de  non   sane  and    books    of    other    kinds    (apparent 

memory    are    not   good.      According    to  monuments  of  their  endless  and  invinci- 

Collinson    (loc.   cit.   §   41),   so  essential  ble   labors),   that,   in  my  conceit,   it   is 

is  sanity  to  the  validity  of  a  will,  that  impossible  for  any  one  man  to  read  even 

a  testament  has  been  set  aside  on  the  the    hundredth    part     of     their    works, 

ground    of    insanity    after    forty    years'  though,  living  an  hundred  years,  he  did 

possession.     Squire  v.   I'ershall,  8   Vin.  intend   none    other    work." — Swinburne, 

Abr.  169.  A    Treatise     of     Testaments    and    Last 

""Great   and  wonderful   is  the  nuin-  Wills,   7th  ed.   1803.      Preface   "To  the 

ber  of  manifold  writers  of  the  civil  and  Reader." 

ecclesiastical   laws,   and   so  huge   is  the  "Lunatics,  1833. 

multitude  of  their  sundry  sorts  of  books,  "^  Wills,  1900. 

as   lectures,    counsels,   tracts,    decisions,  "Wills,  4th  ed.  1870. 

questions,  disputations,  repetitions,  can-  "Wallis  v.  Hodgeson,  2  Atk.  55. 
tela,  clauaules,  common  opinions,  singu- 


S  1167]  WILLS.  911 

■witness.*^  "The  onus  probandi,"  said  Baron  Parke,*®  'lies  in  everv' 
case  upon  the  party  propounding  a  will;  and  he  must  satisfy  the 
conscience  of  the  court  that  the  instrument  so  propounded  is  the 
last  -s^dll  of  a  free  and  capable  testator."  Many  other  authorities 
could  be  quoted  in  support  of  this  rule.^'^ 

1168.  The  witnesses  to  the  will. — In  this  connection  it  may  be  well 
right  here  to  consider  briefly  the  functions  of  the  witnesses.  The  in- 
tention of  the  law  seems  to  be  that  the  witnesses  to  a  will  are  to  be 
something  more  than  mere  observers  of  the  physical  act  of  signing. 
They  are  to  be  judges,  also,  of  the  testator's  mental  capacity.  The 
business,  then,  of  the  w^itnesses  is  not  barely  to  attest  the  corporal 
act  of  signing,  but  "to  try,  judge,  and  determine  whether  the  tes- 
tator is  compos  to  sign."  Sanity  is  the  gTeat  fact  which  the  wit- 
ness has  to  speak  of.^^  According  to  this  view  the  witnesses  to 
a  will,  are,  in  fact,  in  somewhat  the  same  position  as  a  commis- 
sion, for  they  have  to  determine  the  question  of  the  testator's 
mental  state  at  the  moment  of  his  signing  his  will ;  and,  there- 
fore, the  statute  of  frauds,  29  Car,  IL,  chap.  3,  §  5,  required 
that  there  be  three  witnesses  to  a  will  disposing  of  real  estate.  This 
function  of  witnesses  to  wills  should  be  well  understood  by  all  parties 
.-'oncerned,  and  especially  by  medical  attendants,  for  the  gravest  ques- 
tions of  mental  capacity  may  have  to  be  determined  in  great  part  by 
the  testimony  of  these  witnesses.  It  is,  therefore,  of  great  impor- 
tance that  they  should  be  persons  of  intelligence,  although  the  law  is 
not  particular  on  this  point.  The  heirs-at-law,  or  those  who  oppose 
the  will,  have  always  the  right  to  cross-examine  these  attesting  wit- 
nesses as  to  the  sanity  of  the  testator.  To  a  medical  mind  the  fact 
seems  obvious  that  not  a  little  of  the  confusion  in  will-contests  arises 
from  the  incompetency  of  these  witnesses  to  do  what  is  expected  of 
them,  i.  e.,  to  form  a  rational  judgment,  and  to  give  their  reasons 
for  it.  Turthennore,  it  has  even  been  held  that  the  subscribing  wit- 
nesses may  afterwards  be  admitted  to  prove  the  testator  was  insane 
when  he  executed  his  will;^^  although  Lord  Mansfield  held  that  a 
witness  thus  impeaching  his  own  act,  instead  of  finding  credit,  de- 

"  Collinson,  op.  cit.  2,  24,  §  26.  "  Slielford,  op.  cit.  Chap.  VII. 

^^Barry  v.  Butlin,  1  Curt.  Eccl.  Rep.  "  Christian,  footnote    to    2    Bl.  Com. 

637,  2  Moore,  P.  C.  C.  480.  378.     "The     real     question     is   whether 

"  See  Delafield  v.  Parish,  25  N.  Y.  29  these  witnesses  are  to  be  believed  upon 

et  infra,  where  this  subject  is  discussed  this  evidence,  in  contradiction  to  their 

at  some  length.     But  the  rule  seems  to  own  solemn  act  in  the  attestation  of  the 

bfi  comparatively  modern,  for  Swinburne  will  and  codicil." — Chief  Justice  Tindal, 

teaches    just    the    reverse.     On    Wills,  in  Tatham  v.  Wright,  2  Russ.  &  M.  1. 
Part  II.  §§  3,  4,  and  5. 


012 


INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS. 


[§  1168 


served  tlie  pillory;  and  Lord  Eldon  said  that  such  evidence  should 
be  received  wdth  the  most  scrupulous  jealousy.^^ 

1169.  Inconsistency  as  to  the  onus  probandi. — The  fact  that  the 
071US  probandi  is  put  upon  the  proponent  of  a  will  seems  to  the  med- 
ical reader  inconsistent  with  the  legal  presumption  that  every  man  is 
of  soimd  mind  until  the  contrary  be  proved ;  for  if  this  presumption 
held  in  this  case  it  should  not  be  necessary  to  prove  it.  This  is  an 
instance,  evidently,  wherein  the  law  is  not  satisfied  with  its  own  pre- 
sumption. It  arises  out  of  the  jealousy  of  English  law-makers  to  pro- 
tect the  rights  of  property.  The  mere  presumption,  or  theory,  of  the 
law  as  to  sanity  is  swept  aside  without  hesitation  when  it  seems  to 
impose  a  risk  in  the  inheritance  of  real  estate.  If  the  presumption 
of  sanity  is  to  be  reversed  in  the  case  of  testators,  as  it  is  by  the  rule 
in  question,  this  reversal  can  only  be  based  on  the  theory  that  persons 
\vho  are  about  to  make  their  wills  are,  in  the  majority  of  cases,  of  un- 
sound mind;  but  such  a  theory  will  hardly  be  acknowledged  by  the 
courts  any  more  than  by  mankind  in  general. ^^ 

1170.  The  presumption  of  sanity. — In  case  a  will  is  contested,  how- 
ever, the  presumption  of  sanity  at  once  has  full  force,  and  we  have 
tlie  extraordinary  spectacle  of  a  legal  right-about-face ;  for  the  testa- 
tor, who  could  not  pass  unchallenged  at  the  probate,  is  now  presumed 
without  question  to  have  had  a  sound   and   disposing  mind.^^      At 


">  Shelford,  op.  cit.  p.  285.  See  also 
Scribner  v.  Crane,  2  Paige,  147,  21  Am. 
Dec.  81. 

-'  That  tlie  courts  have  felt  the  incon- 
sistency of  putting  the  07iiis  probandi 
on  the  proponent  of  a  will,  while,  at 
the  same  time,  maintaining  the  legal 
presumption  of  sanity  until  the  con- 
trary be  proved,  is  clearly  shown  in 
Red  field's  learned  discussion  of  this 
whole  subject  (1  Wills,  Chap.  III.  §  4). 
We  have  no  intention  of  trying  to  re- 
produce the  arguments  in  these  pages ; 
in  fact,  these  arguments  are  so  labored 
and  involved  as  not  always  to  be  clearly 
intelligible  to  the  scientific  mind,  accus- 
tomed to  plain  statements  of  facts. 
"The  presumption  of  sanity,"  says  Red- 
field,  "seems  not  altogether  consistent 
with  the  requirement  that  the  executor 
shall,  in  his  opening,  put  into  the  case 
positive  proof  of  the  sanity  of  the 
testator.  If  the  law  presumes  san- 
ity, it  surely  requires  no  proof 
of  it  until  there  is  some  adduced 
in       the      opposite      direction.  And 

Mr.  .Justice  Thomas  [in  Croicninshield 
V.  Crouminshield,  2  Gray,  524,  and  Bax- 


ter V.  Abbott,  7  Gray,  71]  is  unques- 
tionably right  in  saying  that  the  court, 
to  be  consistent,  should  recede  from  one 
or  tlie  otiier  of  these  propositions." 
A  leading  opinion  is  by  Chief  Justice 
Tindal,  in  Tatham  v.  Wright,  2  Russ. 
&  M.  1,  in  which  the  reasons  for  the 
rule  in  question  are  laboriously  ex- 
pounded. The  question,  after  all,  is  a 
purely  legal  one,  with  which  the  medical 
jurist  is  not  particularly  concerned,  ex- 
cept as  it  furnishes  an  example  of  the 
futility  of  some  of  the  legal  presump- 
tions concerning  insanity.  Medical  read- 
ers who  may  wish  to  follow  the  subject 
in  detail  are  referred  to  Redfield,  loc. 
cit. 

^  "Every  person  making  a  will  is  pre- 
sumed of  sound  mind,  initil  the  contrary 
be  proved ;  so  that  the  onus  probandi 
lies  on  the  other  side."  2  Collinson. 
Lunacy,  Chap.  XXIV.  §  0.  It  is  to  be 
noted  how  fiatlj'  this  contradicts  th«* 
opinions  of  Lord  Hardwicke,  BaroTX 
Parke,  and  others  quoted  in  the  text. 
See  Baxter  v.  Abbott,  7  Gray,  71,  for  aft 
opinion  as  stated  in  the  text. 


§  1170J  WILLS.  913 

least  this  seems  to  be  the  ruling  of  many  courts.^'  The  very  fact 
that  the  will  has  been  admitted  to  probate  restores  the  legal  presump- 
tion of  sanity,  and  thus  the  burden  of  proof  is  shifted  upon  those 
who  allege  an  unsound  mind.  Reduced  to  a  series  of  logical  for- 
mulae, the  legal  axioms  as  to  mental  capacity  seem  to  work  about  as 
follows:  The  first  step  is  tlie  signing  of  the  will,  which  is  attested  by 
two  or  more  witnesses,  who  act  as  a  sort  of  commission  to  judge  the 
testamentary  capacity  of  the  wull-maker,  and  with  whom,  probably, 
the  legal  presumption  of  sanity  has  full  sway.  The  next  step  is  the 
probate,  where  this  presumption  is  put  aside,  and  the  burden  of  proof 
is  put  upon  the  proponent  of  the  will.  Finally,  on  appeal  and  trial 
the  presumption  of  sanity  is  regarded  as  having  been  restored  by  the 
probate  of  the  will,  and  the  burden  of  proof  now  shifts  to  the 
other  side.  But  if  the  will  has  been  refused  probate,  then,  on  appeal 
and  trial,  the  burden  of  proof  is  still  on  the  proponent.  There  are, 
however,  so  many  exceptions  to  this  somewhat  ideal  statement,  that 
the  whole  doctrine  of  presumptions  as  to  testamentary  capacity  is  left 
in  a  state  of  great  confusion  for  the  scientific  mind. 

For  instance,  RedfiekP^  distinctly  says  that  the  burden  of  proof  is 
on  the  proponent  of  the  will  not  only  at  the  probate,  but  also  upon 
appeal ;  and  he  does  not  make  it  clear  that  there  is  any  distinction 
as  to  whether  the  proponent  is  appellant  or  appellee;  he  cites  many 
cases.  Chief  Justice  Whitman^"^  said  that  the  presumption  that  the 
person  making  a  will  was  at  the  time  sane  was  not  the  same  as  in  the 
case  of  the  making  of  other  instruments ;  but  the  sanity  must  be 
proved.  As  already  observed,  such  a  ruling  is  quite  irreconcilable 
with  the  legal  presumption  of  sanity.^*' 

"^Chandler  v.   Ferris,   1    Harr.    (Del.)  pears     from     Swinburne,    Cliap.    XLV. 
454;  Bell  v.  Buckmaster,  1  Harr.  (Del.)  Part  II.,  §  3,  who  says  that  that  which 
460,  note;  Cubbage  v.  Cubbage,  1  Harr.  is    accounted    notorious    (i.    e.,    sanity) 
(Del.)    461.  note;   Southerlin  v.  M'Kin-  need  not  be  proved. 
neij,   Rice   L.   35;    Tillman   v.   Hatcher,  "*  Op.  cit.  Chap.  III.  §  4. 
Rice.  L.  271;  Runyan  v.  Price,  15  Ohio  "^Gerrish  v.   Nason,   22   Me.   438,  440, 
St.   1,   86   Am.   Dec.   459.     But   Redfield  441.  39  Am.  Dec.  589.     See  also  Cilley 
says    these    are   exceptional    cases.     See  v.  Cilley,  34  Me.  162. 
also  Pettes  v.  Bingham,   10  N.  H.  515;  -""The  question   as   to   the   omis   pro- 
Turner  V.  Checsman,   15  N.  J.  Eq.  243.  bandi,   where  the  issue  is  testamentary 

"In  all  cases  where  the  act  of  a  party  capacity,  has  been  a  great  deal  discussed 

is  sought  to  be  avoided  on  the  ground  l)Gth  by  judges  and  text-writers,  and  has 

of   his   mental    imbecility,   the    proof   of  furnislicd  an  occasion  for  the  display  of 

the  fact  lies  upon   him  who  alleges  it.  much  learning  and  ingenuity.     The  nu- 

and  until   the  contrary  appears,   sanity  merous    decisions    upon    the    subject    in 

is   to   be   presumed."     Jackson    ex   dem.  this  country  are  by  no  means  luiiform. 

Van  Dusen  v.  Van  Dusen,  5  Johns.  144,  and    many    of   tliem    are   in    direct   con- 

4  Am.  Dec.  330.  flict,    so   that   any   attempt   to   reconcile 

This  was  evidently  the  old  l:iw,  as  ap-  tliem  would  be  hopeless." — Judge  Brent 
Vol.  I.  Meo.  Jur. — 58. 


SU  INSANITY— FORMS  AMD  MEDICO-LEGAL  ASPECTS.         [§  1171 

1171.  The  presumption  that  insanity  continues. — In  case  insanity 
has  existed  prior  to  the  making  of  a  will  the  law  presumes  that  sucli/ 
insanity  has  continued,  and  the  burden  of  proof  is  on  him  who  alleges 
that  the  testator  had  recovered  his  mind.  This  is  so,  however,  only 
in  case  the  insanity  has  existed  within  a  comparatively  short  time ; 
for  a  prior  attack  of  insanity  at  a  remote  period  will  not  raise  such 
a  presumption.-'^  Collinson-^  even  says  that  it  is  sufficient  for  tlio 
}:)arty  pleading  tlie  insanity  of  the  testator  to  prove  him  to  have  been 
non  compos  at  any  time  before  he  made  his  will,  although  he  docs  not 
prove  such  a  state  of  mind  at  the  precise  time  of  the  signing ;  but  the 
presmnption  does  not  arise  if  the  attack  has  been  very  brief  or  very 
remote.  There  is  evidently  wide  ground  here  for  diversity  of  opin- 
ion. Much  depends  upon  what  the  court  considers  to  be  a  sufficient 
period.  Thus,  in  England,  even  in  the  case  of  lunatics  under  guard- 
ianship, although  the .  presumption  is  strong  against  their  right  to 
make  a  will,  yet  this  presumption  may  be  overcome  with  proof,  and 
if  the  Lord  Chancellor  is  satisfied  that  a  lunatic  is  so  far  recovered 
as  to  be  competent  to  make  a  will,  he  may  permit  him  to  do  so,  under 
the  supervision  of  an  officer  of  the  court,  without  relieving  him  from 
the  control  of  his  committee.^^  This  is  opening  a  wide  door  for 
lunatics  to  make  their  wills. 

1172.  The  presumption  as  to  lucid  intervals. — The  right  of  an  in- 
sane person  to  make  a  will  during  a  lucid  interval  was  fully  recog 

'  nized,  as  we  have  seen,  in  the  Roman,  just  as  it  is  in  Anglo-American, 
law.  The  burden  of  proof  is  generally  said  to  be  upon  the  person 
alleging  such  lucid  intcrval.^^  On  the  other  hand,  it  has  been  held 
that  if  a  lunatic  has  enjoyed  lucid  intervals,  the  presumption  of  the 
law  is  that  his  wall  was  executed  in  one  of  these  intervals.^^  The 
present  writer  leaves  it  to  others  to  reconcile  these  two  discordant  prin- 
ciples.    In  the  one  case  the  presumption  is  against  such   a  lucid 

in  Higgins  v.   Carlton,  28  Md.   115.   Wti  Also  2  Swinburne,  Wills,  §  3;  Shelford, 

Am.     Dec.     GG6.      See     also    Undorhill.  Lunatics,  Chap.  VII.  p.  290. 

Wills,  Chap.  IV.  §  86.  ^"Redfield,  loc.  cit.  sub-sect.  20. 

^Thompson  v.  Kyner,  G5  Pa.  368.   "An  ""  Redfield,  loc.  cit.  sub-sect.  27 ;  Shel- 

abnorraal  condition  of  mind  is  never  pre-  ford,  op.  cit.  p.  200. 

sumed  when  a  testator  makes  his  will,  =K'ollinson.  op.  cit.  §  12;  Codolph.  25. 

unless  a   previous  aberration   be   shown  The  presumption  in  fsvor  of  a  lucid  in- 

of  such  a  nature  as  may  admit  of  a  pre-  terval  was  fully  supported  by  Hale   (P. 

sumption   of   rccurrir}<^   unsoundness   at  C.  Chap.  IV.),  who  taught  that  such  a 

any  time."     Cases  cited  were  Stevens  v.  presumption    always    arose    in    lunacy, 

Vancleve,  4  Wash.  C.  C.  262;  Halleij  v.  both   in   civil   and   criminal   cases.     See 

Webster,  21   Me.  461  ;    Jackson  ex  dem.  also   Swinburne    (On   Wills,   Part   II.    § 

Van  Dusen  v.  Van  Dusen,  5  Johns.  144,  3),   who   says   that  the   presumption    is 

4  Am.   Dec.   330;    Hoge  v.   Fisher,   Pet.  strengthened  if  the  will  itself  is  reason- 

C.  C.  163,  Fed.  Cas.  No.  6,585.  able. 

"Op.  cit.  Part  II.  Chap.  XXIV.  §  7. 


§   1172]  \\1LI.8.  915 

interval ;  in  tJie  otJior  case  it  is  in  f uvor  of  it.  And  there  cannot  be 
much  doubt  that  some  abuse  has  arisen  from  adhering  to  such  violent 
presumptions,  especially  the  latter ;  as,  for  instance,  where  a  man  had 
had  insane  delusions  on  the  three  days  previous  to  his  signing  his  v^^ill 
and  destroyed  himself  on  the  day  afterwards,  and  yet  his  will  was 
sustained.^^  There  is  no  authority  in  law  as  to  what  the  length  of  a 
lucid  interval  shall  be ;  "whether  an  hour,  a  day,  or  a  month ;  .  .  . 
all  that  is  wanting  is  that  it  should  be  of  sufficient  length  to  do  the 
rational  act  intended."^^  To  the  psychiatrist  this  must  seem  like 
very  hypothetical  science,  for  a  lucid  interval  of  only  an  hour  or  a 
day  is  one  of  the  rarest  things  in  insanity.  But  this  subject  has  been 
discussed  in  these  pages  in  the  chapter  on  "Lucid  Intervals."  {Ante, 
[).  496.) 

1173.  Presumption  is  not  proof. — It  must  never  be  forgotten  by 
medical  experts  that  a  presumption  in  law  is  not  conclusive  proof, 
and  that  it  is  always  open  to  rebuttal.  In  fact,  too  much  importance 
:iiay  be  attached  to  presumptions.  They  are,  at  best,  only  hypotheses, 
a.nd  are  of  use  in  legal  procedures  largely  as  aids  to  establish  the 
argument.  The  main  reliance  is  to  be  placed  on  proof.  The  legal 
•(^resumptions  as  to  testamentary  capacity  are  often  inconsistent,  the 
•  me  wdth  the  other,  as  we  have  now  demonstrated;  and  they  have 
sometimes  led  to  abuse.  The  matter  to  be  decided  is  one  of  fact.^* 
IJut  it  is  not  within  the  province  of  any  court  to  substitute  a  pre- 
sumption for  a  proof,  although  such  is  the  veneration  in  which  these 
ancient  maxims  are  held  by  some  judges,  that  they  are  sometimes 
made  to  take  the  place  of  demonstrated  fact ;  as  in  the  case  of  the  man 
who  was  said  to  be  insane  on  every  other  day,  upon  which  a  Pennsyl- 
vania court  decided,  without  any  adequate  proof,  that  his  contract 
liad  been  signed  on  one  of  the  sane  days !  ^^ 

1174.  Presumptions  in  science. — In  science  there  is  no  presump- 
tion whatever  as  to  lucid  inteiwals  in  insanity,  except  that  they  are  of 
very  uncertain  occurrence,  and  that  each  case  must  be  examined  on 
its  own  merits.  The  statements  of  the  courts  on  the  subject  are  en- 
tirely too  dogmatic,  and  are  not  based  on  j)ersonal  knowledge  of  the 
insane.  Judges  on  the  bench,  having  no  experience  whatever  with 
insanity,  have  not  hesitated  to  announce  the  most  extraordinary  opin- 

^'Chambers  v.  Queen's  Proctor,  2  Curt,  whether  Miss  Blydenburgh  l)ad  a  men- 

Eccl.  Rep.  415;  Shelford,  op.  eit.  p.  GG.  tal  disease  was  a  question  of  fact,  for 

"'  Sir   William   Wynne   in   Cartioright  the  jury,  and  not  a  question  of  law,  for 

v.  Cartioright,  1  Phillim.  Eccl.  Rep.  90.  the  court." 

**  In  Boardman  v.  Woodman,  47  N.  H.  "°  Weaver  v.  Weaver,  28  Pittsb.  L.  J. 

120,    .Justice   Doe    said:    "The   question  X.  S.  367. 


016  INSANITY— fORMS  AND  MEDICO-LEGAL  ASPECTS.  [§   1174 

ions  on  this  most  recondite  subject  of  mental  pathology.  This  is  no 
m(fre  appropriate  than  it  would  be  for  them  to  give  opinions  about 
the  action  of  arsenic  or  tlie  course  of  a  typhoid  fever.  Sir  John 
J^icholF**  laid  dovni  rules  about  tlie  occurrence  of  lucid  intervals  in 
the  delirium  of  fever,  which  make  an  expert  clinician  smile.  Lord 
Chancellor  Thurlow^'^  defined  a  lucid  interval  as  one  in  which  the 
mind,  having  tlirown  off  the  disease,  had  recovered  its  general  habit; 
but  he  neglected  to  tell  us  how  that  differed  from  a  recovery ;  for  such 
a  state  is  nothing  short  of  a  recovery.  Lord  Eldon,^^  who  was  never 
at  a  loss  for  words  to  describe  morbid  mental  states  which  he  had 
probably  never  seen,  held  tliat  the  evidence  of  a  lucid  interval  need 
not  be  as  clear  as  the  evidence  of  the  insanity  itself,  but  he  did  not 
explain  how  one  state  could  be  distinguished  from  the  other  without 
equally  clear  evidence  of  both.  The  desperate  flounderings  of  legal 
writers  in  their  efforts  to  describe  lucid  intervals  are  evidence  that 
these  ^^Titers  have  no  clear  ideas  on  the  subject ;^^  and,  in  fact,  the 
thing  itself — "lucid  inter%^al" — is  largely  a  fiction  of  the  law,  which, 
as  shown  elsewhere,  can  be  traced  back  to  the  old  superstition  that 
''lunacy"  was  caused  by  the  full  moon,  and  that  the  patient  recovered 
his  mind  when  the  moon  changed.'**^ 

1175.  A  reasonable  will. — A  favorite  maxim  of  the  law  has  been 
that  if  a  will  is  reasonable,  it  goes  far  to  raise  a  presumption  in  favor 
of  testamentary  capacity ;  but  we  do  not  see  why  an  insane,  and  espe- 
cially a  feeble-minded,  person,  might  not  be  induced  by  fraud  or  un- 
due influence,  to  sign  a  will  which  might  be  deemed  reasonable,  and 
yet  might  be  unjust,  and  not  express  his  intentions.  Nevertheless,  this 
presumption  is  laid  down  with  much  confidence  in  most  of  the  law- 
books, and  is  evidently  very  old.  Swinburne^ ^  announced  it  several 
centuries  ago ;  but  at  the  same  time  he  took  pains  to  say  that  "if  there 
be  but  one  word  sounding  to  folly,  it  is  presumed  that  the  testator 
was  not  of  sound  mind  and  memory."  This  same  authority  said 
(what,  indeed,  follows  naturally  upon  this  logic)  that  a  lucid  inten'al 
is  presumed  to  have  occurred  if  an  insane  man  make  a  reasonable  will. 
The  whole  test  here  rests,  of  course,  upon  what  is  meant  by  a  reason - 

"Brogden  v.  Broiun,  2   Addanis  Eccl.  '"Halo.   P.   C.   Ch.ap.    IV.     Taylor,   in 

Rep.   441.     Brown,  Med.  Jur.   Insanity,  liis    Medical    Jurisprudence,     defines     a 

p.  270.  lucid   interval   in  the  academic  way,  so 

".4  til/.  Gen.  v.  Parnther,  3  P>ro.  C.  C.  customary   in    the   courts.     But   Taylor 

444.  was  not  an  alienist;   he  was  a  chemist 

^"In   re    Parkinson,   quoted    in    Beck's  and  toxicolo;]fist.     His  excellent  treatise 

Med.  .lurisp.  Vol.  I.  p.  .308,  note.  is  not  hij^h  authority  on  subjects  of  in- 

'"Redfield.  op.  cit.  Chap.  III.  §  13,  on  .sanitv. 

•Lucid  Intervals"  "  2"  Wills,  §§  3,   14. 


§   1175]  WlLLh.  917 

ble  will, — a  question  as  liard  to  be  determined,  in  many  cases,  as  the 
question  of  sanity  itself.  In  fact,  one  is  tlie  complement  of  the 
other;  and  tJierefore  this  test  is  not  so  much  a  test  as  it  is  merely  a 
restatement  of  the  question.'*''''^ 

1176.  Testamentary  capacity  a  broad  and  difficult  subject. — The 
subject  of  testamentary  capacity  is  as  broad  as  the  subject  of  insanity 
itself.  In  fact,  there  is  not  a  form  of  insanity  in  which  this  ques- 
tion cannot  arise  and  has  not  arisen.  Therefore,  to  discuss  it  in 
detail  here  would  require  us  to  traverse  tlie  whole  field  of  clinical 
psychiatry  with  reference  to  this  one  subject.  But,  as  we  have  al- 
ready gone  over  this  wide  field,  the  subject  of  testamentary  capacity 
has  already  been  dealt  with  in  some  detail  in  some  of  those  descrip- 
tions of  mental  disease  (ante,  §§  912,  952,  992,  1012-1019).  This 
should  remind  us  that  the  subject  is  not  a  simple  one, — not  one  that 
can  be  reduced,  as  some  legal  writers  seem  to  think,  to  a  few  tests  and 
formula?.  It  is  by  all  odds  the  most  difficult  subject  in  the  jurispru- 
dence of  insanity, — a  thing  which  is  curiously  shown  in  the  fact  that 
the  great  bulk  of  literature  on  the  subject  is  written,  not  by  scientists, 
but  by  lawyers  and  judges  in  their  vain  attempts  to  reduce  the  ques- 
tion to  something  like  order.  For  surely,  if  it  were  a  simple  subject, 
one  easily  grasped  and  clearly  presented,  we  should  not  see  court 
after  court  expounding  it  in  lengthy  opinions,  too  many  of  which  are 
contradictory,  and  all  of  which  show  the  difficulty  with  which  the 
topic  is  beset  Lord  Chief  Justice  Cockburn'*^  announced  from  the 
bench  that  this  is  not  a  psychological  inquiry;  and  then  proceeded, 
through  many  pages,  to  make  it  such.  If  it  is  not  a  psychological 
inquiry,  it  is  difficult  to  see  what  otherwise  it  is.  It  is  easily  com- 
puted that  several  hundred  courts  in  America  alone  have  tried,  each 
in  its  own  language,  to  define  and  determine  testamentary  capac- 
ity. ^^ 

1177.  Some  reasons  for  the  difficulty. — There  are  good  reasons  why 

<iA  Collinson,  loc.  cit.,  says  that  in-  *^  The  vast  legal  literature  on  testa- 
sanity  apparent  on  the  face  of  the  will  mentary  capacity  is  well  reflected  in  Un- 
may  throw  the  omis  prohandi  on  the  tes-  dea'hill  on  Wills.  That  author  was  a 
tamentary  heir,  as  in  the  case  of  a  man  most  industrious  ease-hunter,  and  has 
who  commanded  by  his  will  that  his  overloaded  his  pai^es  with  long  lists  of 
ashes  be  thrown  into  the  sea.  If  tlie  titles;  but  such  lists  teach  us  little  ex- 
testator  were  proved  sane,  the  will  cept  the  complexity  and  confusion  of  the 
would  pass  without  the  condition  be-  subject.  That  the  subject  has  not  been 
ing  complied  with.  But  commanding  monopolized  by  legal  writers,  however, 
that  one's  ashes  be  thrown  into  the  sea  is  evident  on  a  glance  at  the  Index-Cata- 
is  not  much  evidence  of  insanity.  logue  (article  on  "Wills,"  Vol.  XVI.  pp. 

*^Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  472-474),     where     an     extensive     bibli- 

549,  560,  39  L.  J.  Q.  B.  N.  S.  237,  22  L.  ography  is    given    of    the    writings    of 

T.  N.  S.  813.  physicians  on  this  topic. 


yl8  1N8AMTY— FOKMfe  AND  MEDICO-LEGAL  ASPECTS.         [§   1177 

the  subject  of  testamentary  capacity  is  more  difficult  than  most  ques- 
tions in  the  jurisprudence  of  insanity.  One  of  the  chief  of  these  lies 
in  the  fact  that  the  person  about  whom  the  inquiry  is  made  is  dead. 
In  criminal  cases  we  at  least  have  the  man  before  us,  but  in  will  cases 
be  is  no  more.  Everything  depends  upon  the  testimony  of  persons 
who  knew  him  during  life,  few  of  whom  are  good  observers,  and  some 
of  whom  are  not  disinterested.  Some  of  these  cases,  in  fact,  are  pre- 
sented upon  such  inadequate  proof  on  both  sides  that,  for  a  scientist, 
they  are  worthless;  the  data  for  a  complete  opinion  are  w^anting,  and 
the  decision  of  the  court  is,  at  best,  a  hit-or-miss  one.  If  an  alienist 
were  asked,  in  the  ordinary  run  of  practice,  to  make  a  diag*nosis  in  a 
case  which  he  could  not  examine  personally,  upon  statements  of  more 
or  less  ignorant  persons,  some  of  whom  had  an  interest,  perhaps,  in 
distorting  facts,  he  would  hesitate,  or  even  decline,  to  commit  him- 
self; yet  this  is  often  the  task  set  for  a  court  of  law  in  determining 
testamentary  capacity,  and  it  has,  of  necessity,  to  be  undertaken  by 
a  judge  and  jury  w^ho  are  far  from  having  a  scientific  knowledge  of 
insanity.  A  little  more  tolerance  of  scientific  opinion,  therefore, 
and  a  little  less  dogmatism,  might  be  wished  for  in  some  of  these 
eases. 

1178.  The  distinction  between  civil  and  criminal  cases. — We  need 
not  go  back  to  S\v'inburne  for  tests  of  capacity.^^  Distinctions  were 
early  made  on  this  subject,  and  especially  between  civil  and  criminal 
cases.  Coke'*''  was  one  of  the  first  to  make  this  distinction,  and  ho 
said  that  wliile  a  man  would  not  be  allowed  to  stultify  himself  in  civil 
matters,  this  did  not  hold  in  criminal  affaire,  for  the  act  and  wrong 
of  a  madman  shall  not  be  imputed  to  him:  "Furiosus  solo  furore 
imnitur, — a  madman  is  only  punished  by  his  madness."  This  shoAvs 
more  leniency  towards  insanity  in  criminal  than  in  civil  matters. 
But  Littleton*®  had  already  said  that,  although  a  man  was  not  al- 
lowed to  stultify  himself,  yet  "the  heir  may  well  disable  the  person 
of  his  ancestor  for  his  own  advantage." 

The  distinction  between  civil  and  criminal  cases  was  much  more 
clearly  dra^m  in  a  later  age ;  and,  contrary  to  Coke,  the  wider  import 
came  to  be  given  to  delusions  in  civil  matters.  This  occurred  as  soon 
as  "partial"  insanity,  or  "delusional"  insanity,  came  to  be  fully  recog- 
nized in  English  law. 

**2   Wills,   §   3.     The  witnesses  in\ist  asked  a  question,  tliey  did  see  him  hiss 

ilepose   that   they   saw   the   testator   do  like  a  jrooso.  or  hark  like  a  dog,  or  play 

such  things  as  a  sane  man  would  not  do:  such  oth"r  parts  as  mad  folks  used  to 

'"Namely,  they  did  see  him  throw  stones  do." 

against   the    windows,    or    did    see   him  "  1  Litt.  247o. 

usually  to  spit  in  men's  faces,  or,  being  "Co.  Litt.  Lil).  III.  Chap.  VI.  §  405. 


§   1179]  WILLS.  !)19 

1179.  The  old  opinion  that  delusion  invalidates  a  will. — The  lii?- 

tory  of  judicial  opinion  shows  a  complete  change  of  front  on  the 
subject  of  delusion  as  affecting  testamentary  capacity.  Erskine/" 
in  his  speech  for  Pladfield,  had  defined  delusion  and  its  effects  on 
both  conduct  and  capacity.  In  tlie  clearest  langTiage  he  maintained 
tJiat  the  law  in  civil  cases  avoids  the  act  of  a  man  non  compos,  even 
though  the  act  cannot  be  connected  with  the  delusion ;  but  he  was  by 
no  means  prepared  to  apply  the  rule  in  criminal  cases.  This  opinion 
was  apparently  settled  for  a  long  while  in  English  law.  In  the 
Greenwood  Case,^^  often  quoted,  tlie  testator  had  disinherited  hi:^ 
brother  under  the  influence  of  an  insane  delusion;  and  the  judge  told 
the  jury  that  the  delusion  "would  equally  have  affected  his  testament 
if  the  brother,  instead  of  being  disinherited,  had  been  in  his  gi'ave." 
In  other  words,  it  was  not  necessary  that  the  delusion  should  be 
directly  connected,  as  a  motive,  with  the  making  of  tJie  will.  The 
most  extreme  statement  of  this  dogma  was  made  in  the  celebrated  case 
of  Bellingham.^^ 

But  it  remained  for  the  acute  mind  of  Lord  Brougham  to  state  this 
Vv'hole  subject  of  delusion,  partial  insanity,  and  lucid  intervals,  in 
language  more  nearly  scientific  than  any  that  appears  elsewhere  in 
legal  literature.  The  appearance  of  delusions  being  proved,  said 
Brougham,  and  their  continuance  proved  or  assumed  at  the  date  of 
the  factum,  it  is  wholly  immaterial  that  they  do  not  appear  in  the  will 
itself. ^*^  For  this  learned  chancellor  the  human  mind  is  one  and 
indivisible,  and  an  insane  delusion  is  such  evidence  of  an  unsound 
mind  that  it  invalidates  the  will  under  anv  and  all  circumstances. 
This  opinion  of  Brougham  has  been  accounted  too  radical,  and  is  no 
longer  in  favor  with  the  courts,  but  it  is  based  upon  sounder  scientific 
principles  than  those  of  most  of  his  critics.^^  It  is  a  fact,  and  always 
must  be  a  fact,  that  an  insane  delusion  exposes  the  acts  of  a  man  to 

"Hadfield's    Trial,    27    How.    St.    Tr.  speak  metaplioricallv,  likening  the  mind 

1281.  to  tlie  body,   as  if   it   had   members   or 

*^Greenit:ood  v.  Greenwoo'i,  quoted  by  compartments;  whereas,  in  all  accuracy 

Erskine,  op.  cit.     Found  a.l'^o  in  3  Curt,  of  speech^  we  mean  to  speak  of  the.  mind 

Appendix,  337.  acting  variously;   that  is,  rcnieml)ering, 

*^Bellinfj]tnm's  Case,   1   Collinson,  Lu-  fancying,  reflecting;   the  same  mind  in 

nacy,    636.     See   also   Shelford,   op.   cit.  all  these  operations  being  the  agent." 

p.  44.  "  Redfield    (op.  cit.  p.  81,  note)    con- 

^Waring  v.  Waring,  6  Moore,  P.  C.  C.  demns    Brougham's    opinion,    and    it    ia 

341,   12  Jur.  947.     "For  we  must  keep  also  criticized  in  Dunham's  Appeal.  2T 

always  in  view  that  which  the  inaccu-  Conn.     192-204,     as     an     "innovation.*' 

racy  of  ordinary  language  inclines  us  to  But,  as  is  showni  in  the  text,  an  iniiova- 

forget, — that  the  mind   is   one   and   in-  tion  it  certainly  was  not,  for  it  was  in 

divisible;    that    when    we    speak    of    its  accord  with  the  opinions  of  the  earlies 

different  powers  or  faculties, — as  mem-  courts. 
ory,     imagination,     consciousness,  —  we 


S20  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1179 

grave  suspicion,  and  the  burden  of  proof  should  be  on  those  who 
lightly  assume  to  be  able  to  read  all  the  intricate  motives  in  an  insane 
mind,  and  to  declare  with  positiveness  that  such  a  delusion  does  not 
influence  conduct  or  capacity.^^ 

1180.  The  influence  of  the  criminal  law. — But  the  tendency  soon 
appeared  in  the  courts  to  define  more  closely  the  relation  of  delusions 
to  testamentary  capacity,  and  this  tendency  was  strictly  analogous  to 
what  took  place  in  criminal  cases.  In  fact,  the  influence  of  tlie 
criminal  law  on  this  subject  is  not  to  be  ignored.  Under  the  influ- 
ence of  the  M'Naghten  rules,  in  1843,  insane  dekisions  began  to  be 
defined  with  great  precision ;  they  were  expected  to  be  just  so  and  so 
and  to  do  thus  and  thus.  The  courts  again  exercised  tlieir  preroga- 
tive to  prescribe  rules  for  mental  disease.  A  delusion  in  an  insane 
man's  mind  was  hedged  about  with  many  qualifications ;  it  must  act 
in  a  prescribed  way  in  order  to  conform  to  the  requirements  of  the 
law.  This  process  of  academic  definition,  once  started,  seemed  likely 
to  go  on  without  much  restraint  and  without  much  regard  for  the 
laws  of  nature. 

1181.  The  connection  of  the  delusion  with  the  will. — The  upshot 
of  it  all  was,  that  an  insane  delusion,  in  order  to  impair  testamentary 
capacity,  must  be  proved  to  have  had  a  direct  influence  upon  the  mak- 
ing of  the  will.^"^  The  process  was  exactly  the  same  as  that  which 
occurred  in  criminal  cases,  in  which  it  was  decided  by  the  M'Nagh- 
ten  rules  that  an  insane  delusion  must  be  showm  to  have  been  the 
impelling  motive  for  the  crime.  In  other  words,  let  a  man  be  never 
so  mad, — let  his  mind  be  never  so  harassed  with  insane  suspicions,  or 
buoyed  with  insane  hopes,  or  enfeebled  with  insane  superstitions,  or 
deluded  with  insane  projects,  or  clouded  with  senile  deliria, — let  liim 
be  all  this  and  much  more,  provided  his  bequests  cannot  be  traced  with 
unen-ing  precision  to  some  one  or  other  wandering  and  evasive  delu- 
sion in  his  addled  brain,  and  he  is  a  capable  testator  in  the  eyes  of 
the  law.^^ 

Sir  John  Nicholl^^  gave  a  precise  statement  of  the  law  in  a  form 

'Sryilfh  V.   Tebbitt,   L.   R.   1    Prob.   &  that  it  ought  to  be,  the  law,  that  the 

Div.  398.  30  L.  J.  Prob.  N.  S.  97,  16  L.  mere    existence    of   an    insane    delusion, 

T.  N.  S.  841,  16  Week.  Rep.  18.     In  this  which  does  not  in  fact  influence  particu- 

case  any  degree  of  mental  vmsoundness,  lar  parts  of  the  conduct  of  the  person 

however   unconnected   with   the   will    in  affected  by  it,  has  no  elToct  upon  their 

question,   is  held   fatal   to  the  capacity  legal  character." 

of  the  testator.  "Z)eMj  v.  Clark,  1  Addanis,  Eccl.  Rep. 

62^  See  ante,  §  82.  279.  3  Add.  79.     The  testator  had  disin- 

"  dir     Fitzjames     Stephen      (History  herited   liis  only  child,  a  daughter,  to- 

Crim.  Law,  p.   162)    says:   "It  undoubt-  wards  whom  he  had  had  an  insane  aver- 

edly  is,  and  I  think  it  is  equally  clear  sion  and  delusions  ever  since  her  birth. 


§   1181]  WILLS.  »21 

which  has  ever  since  retained  wide  favor  in  the  courts.  He  decided^ 
in  effect,  that  "partial  insanity"  (by  which  is  meant  monomania,  or 
paranoia,  or  dehisional  insanity)  is  good  in  defeasance  of  a  will 
founded  on  or  upon  such  partial  insanity.  Hence,  partial  insanity 
is  fully  recognized  in  English  law.  On  appeal,  Lord  Chancellor 
Lyndhurst'*^  supported  this  decision,  but  he  used  the  memorable  ex- 
pression, which  he  attributed  to  Nicholl,  that  a  person  could  not  be 
partially  insane  and  sane  at  the  same  moment  of  time ;  to  be  sane  the 
mind  must  be  perfectly  sound,  otherwise  it  is  unsound.  It  is  hard 
indeed  to  reconcile  this  statement  with  the  legal  idea  of  a  partial 
insanity,  in  Mdiich  a  person  might  be  capable  of  making  a  will,  for  it 
distinctly  declares  that  such  a  person  is  of  unsound  mind ;  and  in  law 
unsoundness  of  mind  defeats  a  will.  Practically  Lord  Lyndhurst's 
expression  put  the  subject  back  again  upon  the  ground  where  Lord 
Brougham  had  placed  it^ 

1182.  The  law  as  now  generally  accepted. — The  law  of  wills  as  ap- 
plying to  delusions,  and  as  generally  accepted  now  in  the  courts,  is 
about  as  follows :  Partial  unsoundness,  not  affecting  tlie  general  facul- 
ties, and  not  operating  on  the  mind  of  the  testator  in  regard  to  testa- 
mentary disposition,  is  not  sufficient  to  render  a  person  incapable  of 
disposing  of  his  property  by  will.  The  case  in  which  this  decision 
was  rendered  was  that  of  a  lunatic  who  had  been  confined  in  an 
asylum,  who,  after  his  discharge,  had  remained  insane,  with  delusions 
of  persecution,  and  who  was  epileptic,  and  incapable  of  transacting 
business.^^  So  we  are  forced  to  the  conclusion  that  this  lunatic's  case 
has  supplied  the  data  for  the  most  widely  accepted  modern  doctrine 
of  testamentary  capacity.^'^ 

He  was  also  crazy  on  religious  subjects,  either  of  them,  and  that  antipathy  was 
'^Dew  V.  Clarke,  5  Russ.  Ch.  1G3,  6  L.  the  result  of  morbid  delusion  as  to  the 
J.  Ch.  186.  character  and  conduct  of  these  sisters, 
^Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  the  will  is  void,  altliough  she  may  have 
549,  39  L.  J.  Q.  B.  N.  S.  237,  22  L.  T.  N.  been  sane  in  all  other  respects." 
S.  813.  In  his  opinion  in  this  case  Lord  The  following  was  disapproved  as  not 
Chief  Justice  Cockburn  reviewed  the  sound,  and  not  the  principle  of  law  in 
whole  subject  and  combated  Brougham's  insanity:  "If  the  testatrix  harbored  a 
opinion  in  Waritig  v.  Waring.  The  case  delusion, — that  is,  fancied  things  to  ex- 
is  a  standard  one,  and  has  furnished  ist  which  had  no  existence,  and  of  the 
leading  ideas  to  many  judges  who  have  existence  of  which  she  has  no  reason- 
since  had  to  pronounce  the  law  on  con-  able  evidence, — she  was,  while  harbor- 
tested  wills.  ing  such  delusion,  of  unsound  mind,  and 
■"A  leading  American  case,  much  her  will,  made  at  such  time,  would  be 
quoted,  is  Dunham's  Appeal,  27  Conn,  void."  This,  whicli  was  in  efl'oct  the 
192,  in  whicli  it  was  decided:  '"If  the  same  as  Lord  Brougham's  opinion,  was 
testatrix,  at  the  time  of  executing  the  rejected  because  it  did  not  declare  that 
will,  harbored  an  unnatural,  unreason-  the  delusion  was  connected  with  the 
able  antipathy  towards   her   sisters,  or  will. 


922  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1182 

So  far  as  the  present  writer  can  determine  from  the  examination 
of  numerous  cases,  this  statement  of  the  law  as  laid  down  by  NichoU 
and  by  Cockburn  is  that  which  is  generally  accepted  to-day  in 
America  as  well  as  in  England.  It  arbitrarily  defines  insanity  as 
limited  to  one  specific  act ;  and  its  intent  and  effect  are  to  ignore  the 
wide  range  of  mental  symptoms.  It  is  therefore  not  in  accord  with 
the  actualities  of  disease  in  most  cases  of  monomania,  and  it  is  thus 
fraught  with  many  risks  to  righteous  judgment.  It,  moreover^  en- 
tirely ignores,  what  no  wise  alienist  will  ever  ignore,  the  fact  that  it 
is  oft^n  impossible  to  trace  the  whole  influence  of  delusion  on  conduct. 
It  is  given  to  no  man,  sitting  in  judicial  isolation,  to  determine  pre- 
cisely what  was  the  course,  the  object,  and  the  potency  of  the  delu- 
sions of  a  dead  lunatic. 

1183.  Delusion  as  the  only  criterion  of  insanity. — It  is  a  common 
error  in  courts  to  make  delusion  the  only  criterion  of  insanity;  and 
not  a  few  judges  have  announced  in  most  dogmatic  terms  that  ther(^ 
can  be  no  insanity  in  law  without  delu-sion.^^  There  is  nothing 
either  in  law  or  in  science  to  warrant  such  an  opinion.  So  far  as 
the  laAv  is  concerned,  the  whole  doctrine  of  delusion  has  grown  up 
since  Erskine  introduced  it  in  his  speech  for  Hadfield,  in  1800."'' 
There  is  almost  nothing  on  the  subject  before  his  time,  and  IIale°" 
even  stated  that  "partial,"  or  delusional,  insanity  does  not  excuse  a 
man  for  a  crime.  So  far  was  he  from  recognizing  it,  therefore,  that 
he  even  repudiated  it  in  set  terms. 

In  reference  to  wills,  some  later  courts  have  even  gone  so  far  as  to 
say  that  the  true  criterion  as  to  the  absence  or  presence  of  insanity 
is  the  absence  or  presence  of  delusion. ^^  ISTothing  can  be  more  nearly 
contrary  to  the  facts  of  science,  for  not  a  few  testators  are  incompe- 
tent because  they  are  merely  imbecile  or  senile,  broken  down  and  en- 
feebled in  mind,  devoid  of  memoiy  and  judgment,  but  in  no  wise 
under  the  influence  of  delusions.     To  make  delusion  the  only  test, 

■*  Judjje   Fell    {Com.   v.   Meredith,   17  or  insane  on  such  subject  or  subjects  in 

Phila.    90)     said,   "Insanity    is    always  that    degree.     On    the    contrary,    in    the 

marked  by  delusions."  absence  of  any  such  delusion,  with  what- 

'•^Hadfleld's    Trial,    27    How.    St.    Tr.  ever    extravagance    a    supposed    lunatic 

1281.  may  be  justly  chargeable,  and  how  like- 

'"'  1  P.  C.  Chap.  IV.  soever  to  a  real  madman  he  may  either 

"'Deto  V.  Clark,  3  Addams,  Eccl.  Rep.  speak  or  act  on  some  or  on  all  subjects. 

79.     Sir  John  Nicholl   said:   "In  short,  still,   in  the  absence,   I  repeat,   of  any- 

I  look  upon  delusion,  in  this  sense  of  it,  thing  in  the  nature  of  delusion  so  un- 

and  insanity,  to  be  almost,  if  not  alto-  derstood  as  above,  the  supposed  lunatic 

gether,  convertible  terms;  so  that  a  pa-  is,  in  my  judgment,  not  properly  or  es 

tient,  under  a  delusion,  so  understood,  sentially    insane."     This    dogma    would 

on  any  subject  or  subjects,  in  any  de-  partly  depopulate  the  asylums, 
gree,  is.  for  that  reason,  essentially  mad 


9   1183]  WILLS.  023 

tlierefore,  as  Sir  John  NielioU  did,  is  practically  to  rule  that  any 
idiot,  iml)ecile,  or  person  non  compos  mentis,  or  in  the  delirium  of 
fever,  may  make  a  will,  provided  he  is  not  influenced  by  systenuitized 
delusions ;  as  few  or  none  of  them  are.  This,  as  we  have  said,  is  a 
true  test  neither  in  law  nor  in  science ;  for  the  law  simply  says  that  a 
testator  must  be  ''of  sound  and  disposing  mind  and  memory,"  and 
does  not  limit  this  test  to  a  question  of  delusions;  and  science  rejects 
what  it  knows  is  disproved  in  every  nuid-house."^'''' 

1184.  Testamentary  capacity  as  affected  by  delirium. — Attempts 
have  been  made  by  some  courts  to  formulate  rules  for  febrile  de- 
lirium and  the  delirium  of  extreme  prostration,  such  as  sometimes 
immediately  precedes  death.  It  has  even  been  announced  from  the 
bench  that  lucid  intervals  are  not  uncommon  in  such  delirium.  We 
seem  almost  to  be  listening  to  a  bed-side  lecture  when  we  are  told  that 
"from  tlieir  greater  presumed  frequency  in  most  instances  in  cases  of 
delirium,  the  probabilities  a  priori  in  favor  of  a  lucid  interval  are 
infinitely  stronger  in  a  case  of  delirium  than  in  one  of  permanent, 
proper  insanity ;  and  the  difficulty  of  proving  a  lucid  interval  is  less 
in  the  same  exact  proportion  in  the  former  than  it  is  in  the  latter  case, 
and  has  always  been  so  held  by  this  court."  *'^ 

According  to  this  opinion  the  law  "presumes"  lucid  intervals  in 
cases  of  febrile  delirium,  and  "presumes"  further  that  a  will  signed 
by  such  a  patient  was  signed  in  such  an  interval.  Therefore  the  bur- 
den of  proof  must  be  on  those  who  deny  such  an  interval  to  have  oc- 
curred. Thus  in  one  case^^  the  testator  died  of  pneumonia  three  days 
after  making  a  will ;  he  had  been  delirious,  and  medical  witnesses  tes- 
tified that  he  was  not  competent;  but  the  will  was  sustained  on  the 
ground  that  it  was  a  reasonable  will,  and  that  several  lay  witnesses 
testified  that  the  patient  was  competent. "^^ 

The  presumption  that  lucid  intervals  occur  in  febrile  delirium  is 
entirely  gratuitous  on  the  part  of  the  law,  and  cannot  be  sustained  as 
a  general  rule  by  the  actual  observation  of  such  cases.  The  weight 
of  scientific  evidence  is  against  it.^^     Even  though  lucid  intervals 

61^  The    distinction    between    an    er-  ^Evans   v.   Knight,    1   Addanis.   Eccl. 

roneous  opinion  and  a  delusion  is  made  Rep.  220. 

by   some   courts.     The   belief   in   witch-  "  Brown.   Med.   Jur.   Insanity,   p.  270 

craft  has  been  held  properly  not  to  in-  et  infra. 

validate  a  will.  See  1  Redf.  Wills,,  op.  ""^Hutcliinson,  "Typhoid  Fever,"  in 
cit.  p.  79,  footnote;  and  Re  Vedder,  6  Pepper's  Syst.  of  Medicine.  Vol.  I.  Also 
Dem,  92.  Also  Morgan  v.  Boys  (quoted  tlie  articles  in  the  same  volume  by  lead- 
by  Taylor,  Med.  Jurisp.  p.  657),  for  the  inp:  authorities  on  the  various  infectious 
distinction  between  eccentricity  and  de-  diseases.  "Lucid  intervals"  in  delirium 
hision  are    nfit    mentioned    by    any    of    these 

"Brogden  v.  Brown.  2  Addams,  Eocl.  writers;  the  nearest  approach  is  in  mild 

Rep.  441.  case:-,  in  wliich  the  patient's  mind  might 


924  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1184 

may  occur  in  some  of  these  cases,  their  occurrence  is  not  sufEcientlv 
common  to  establish  a  presumption.  Therefore  the  a  priori  proba- 
bilities are  not  in  favor  of,  but  against,  lucid  intervals  in  febrile 
delirium.  But  why  should  there  be  any  presumption  whatever  in 
the  matter  ?  The  question  is  one  of  fact.  The  mere  fact  that  a  lucid 
interval  has  happened  in  one  case  is  no  evidence  that  such  an  interval 
will  happen  in  another.  Such  a  question  can  only  be  decided  by 
the  evidence. 

Moreover,  it  is  easy  to  mistake  a  slight  remission  of  symptoms  for 
a  lucid  interval  in  febrile  delirium.  Physicians  know  this  fact  fuii 
well ;  and  tliat  the  laity  is  easily  deceived  by  the  specious  appearance 
of  a  few  calm  moments  or  even  by  a  flicker  of  intelligence.  If  such 
cases  are  to  be  discussed  merely  according  to  the  abstract  principie.- 
of  logic,  the  proper  rule  would  seem  to  be  the  a  posteriori  one,  by 
which  each  case  would  be  judged  by  itself,  and  not  according  to  pre- 
sumptions. "^^^ 

1185.  Testamentary  capacity  as  affected  by  imbecility. — It  hns 
been  held  that  "imbecility  of  intellect,  though  short  of  insanity,"  i- 
sufficient  to  invalidate  a  will.^''  On  the  other  hand,  it  has  been  de- 
cided that  "imbeciiity  of  mind  in  a  testator  will  not  avoid  his  Ia?r 
will  and  testament."  *'"  These  tAvo  contradictory  opinions  show  how 
utterly  impossible  it  is  tx)  arrive  at  a  uniform  opinion  about  testa- 
mentary capacity  in  imbeciles.  Opinions  range  at  large  between 
these  two  extreme-s,  and  courts  allow  themselves  the  gi*eatest  latitud" 
in  interpreting  tliis  term.  The  present  writer  cannot  offer  a  soiutior. 
of  this  problem,  based  upon  the  language  of  the  courts.^"^  The  sub 
ject  is  discussed  in  the  chapters  on  "Idiocy"  (ante,  p.  857),  '"'Senile 
Insanity"  (ante,  p.  791),  and  "Aphasia"   (ante,  p.  806). 

1186.  Testamentary  capacity  and  epilepsy. — Epilepsy  raises  no 
presumption  against  the  testamentary  capacity  of  the  patient,  nor  i--: 
it  fair  that  it  should,  unless  it  has  been  the  cause  of  repeated  attacks 

be  temporarily  arrested    for  a   few  mo-        ^'Stcicart  v.  Lispcnard,  20  Wend.  256. 

raents  of  douhtful   oonsoiousness;   or  in  Tlie   decision    in    tin's    ease   is    criticized 

temporary   remissions,   which   are  quite  and   condemned   in   Dclaficld  v.   Parish, 

uncertain    in    their    occurrence   and   de-  25  N.  Y.  27. 
gree.  6  7^  Swinburne    (op.   cit.)    speakin;;  of 

6  54  Wliat   lias   been    said   in   the  text  idiots,    says   tliat   a   "groi^sum   caput,   a 

about  delirium  applies  also,  in  a  meas-  dull  pate  or  a  dunce"  is  not  prohibited 

ure,   to   alcoholic   intoxication:   but   the  to  make  a  will;  also  that  "he  that  can 

subject    is   discussed    in   the   chapter    on  be^et  a  child"    is    not    an    idiot,  or  de- 

"Alcoholic      Insanity,"'     p.      766.     ante,  prived  of  tlie  riirht  to  make  a  will;  but 

Swinburne    (Wills,   Part   II.,    §   6)    says  Swinburne  (piotes    this    to    condemn  it. 

of   the   drunkard,   "if   he   be   not   clean  It  is  tlio  only  instance  in  which  the  teat 

epent,"  he  may  make  his  will.  of  testamentary  capacity  has  been  locat- 

'^McTaffgart  v.  Thompson,  14  Pa.  149.  ed  in  the  testicles. 


§   1186]  WILLS.  92r> 

•of  some  form  of  epileptic  insanity.  In  the  latter  case  the  rule  sIioiiM 
follow  that  laid  down  for  insanity  in  general,  i.  e.,  that  tlie  burden 
•of  proof  should  be  on  the  person  alleging  a  lucid  interval.  It  does 
not  appear,  however,  that  the  courts  in  general  have  recognized  this 
rule  in  cases  of  epilepsy."^  This  subject  is  discussed  in  the  chapter 
on  ''Epileptic  Insanity."     {Ante,  p.  726.) 

1187.  Testamentary  capacity  and  suicide. — jS^either  does  suicide 
create  a  presumption  of  incapacity,  although  in  some  courts  it  has 
been  accepted  as  a  relevant  fact.  This  is  a  just  ruling,  for  although 
suicide  is  not  always  a  proof  of  insanity,  it  is  so  in  some  cases,  and 
the  fact  should  be  admitted  for  what  it  is  worth,  according  to  the 
evidence.^^  This  subject  is  discussed  in  the  chapter  on  "Melan- 
cholia."    {Ante,  p.  625.) 

1188.  Testamentary  capacity  as  affected  by  moral  insanity. — The 
prejudices  of  courts  against  the  doctrine  of  moral  insanity  luive  been 
plainly  shown  in  cases  of  contested  wills.  This  psychosis  has  gener- 
ally not  been  allowed  as  a  proof  of  incapacity.  It  has  been  expressly 
held  that  moral  insanity,  or  the  perversion  of  the  moral  feelings,  not 
accompanied  with  insane  delusion,  is  not  sufficient  to  invalidate  a 
will.'^^  Here,  again,  the  true  test  is  said  to  be  delusion.  ISFo  course 
of  harsh  treatment,  no  sudden  burst  of  violence,  no  display  of  unkind 
or  even  unnatural  feeling  merely,  will  avail  as  proofs  to  set  aside  a 
testament.'^^  Disordered  affections  must  be  proved  to  be  founded  on 
insane  delusions.'^  Anger  towards  a  child  because  of  some  offense 
committed  is  not  ground  for  overthrowing  a  will.^^ 

A  dissenting  opinion  from  all  this  was  given  by  Justice  Doe,''^*  of 

"Underhill   (op.  cit.  p.  157)  gives  the  '"White  v.  Wilson,  13  Ves.  Jr.  88.    In 

following    references;     Re    Rounds,    25  Boardman  v.   Woodman,  47  N.  11.   137, 

Misc.    101,    54    N.    Y.    Supp.    710;    Re  Justice   Sargent   said:    "Some   injustice 

Flanshurgh,  82  Hun,  49,  31  N.  Y.  Supp.  may   possibly  be   done  by   the   rigorous 

177;  Re  Johnson,  7  Misc.  220,  27  N.  Y.  adoption  of  this  principle,  since  delusion 

Supp.  C49;  Re  Rapplce,  66  Hun,  558,  21  may   certainly   enter    into   a   man's   act 

N.  Y.  Supp.  801;   Brown  v.  Riggin,  94  .     .     .     without  one  being  always  able 

111.  560;   Godden  v.  Burke,  35  La.  Ann.  to  discover  it;  but.  after  all,  it  is,  per- 

160;  Foot  V.  Stanton,  Deane  &  S.  19.  haps,  the  most  equitable  way  of  eonstru- 

°*  Underbill,  op.  cit.  p.  150,  with  cita-  ing  the  last  wishes  of  the  dead."     Hence 

tion  of  cases.     See  especially  Re  Kahn,  the   most   equitable   way    is   one   which 

1  Connoly,  510,  5  N.  Y.  Supp.  556.    The  may  work  an  injustice! 

testator    had    delusions    of    persecution,  "Den  ex  dent.  Trumbull  v.  Gibbons,  22 

believed  that  his  daughter  tried  to  poi-  N.  J.  L.   117,  51  Am.  Dec.  253.    Amer- 

son  him,  and  finally  killed  his  wife  and  ican  cases  in  which  the  subject  of  moral 

committed    suicide.      The   will    was    set  insanity  has  been  considered  are  Lucas 

aside.  v.    Parsons,   24   Ga.    640,    71    Am.    Dec. 

^"i^rere  V.  Peacoc/re,  1  Rob.  Eccl.  Rep.  147;    Florey    v.    Florey,    24    Ala.    241; 

442,  in  which  Sir  H.  J.  Fust  delivered  Jenekes  v.  Probate  Court,  2  R.  I.  255. 

the  opinion,  often  quoted  in  this  connec-  ''^Boardman   v.    Woodman,    47    N.    H. 

tion.  140.     Justice  Doe's  opinion  is  discussed 

"Dew  V.  Clark,  1  Addams,  Eccl.  Rep.  at     length     in     the     chapter     on     "The 

m9  M'Naghten  Rules  in  America"  (ante,  p. 


92G  INSANITY— FORilS  AND  MEDICO-LEGAL  ASPECTS.         [§  11*8 

Xew  Hampshire,  who  said  that  the  question  is  one  of  fact)  for  the 
jury,  and  not  of  law,  for  the  court;  that  insanity  is  a  condition  in 
which  the  moral  sentiments  as  well  as  the  intellectual  faculties  are 
deranged;  that  delusion  is  not  always  tlic  test  of  mental  disease;  and 
that  moral  insanity  is  a  form  of  mental  disease  recognized  by  medical 
authorities.  Justice  Doe's  dissenting  opinion  is  not  law ;  but  it  shows 
that  a  scientific  attitude  can  be  taken  by  judges.  Badly  disordered 
emotions,  without  good  and  apparent  cause,  should  raise  a  presump- 
tion of  unsound  mind ;  and  so  they  do  in  the  ordinary  walks  of  life 
as  well  as  in  science,  if  not  in  law.  Whether  it  is  possible  for  dis- 
ordered emotions  to  exist  without  disordered  ideas  is  not  a  mere  aca- 
demic question,  for  in  this  instance  it  is  fraught  with  important 
issues.  The  present  writer  believes  that  it  is  not  possible ;  in  other 
words,  disordered  emotions  are  proof  of  disordered  thoughts."'*^ 

1189.  Insane  jealousy  as  proof  of  delusion. — Jealousy  and  suspi- 
cion are  often  evidences  of  insane  delusions,  although  they  are  not 
always  so.  To  detemiine  this  question  is  a  problem  in  psychiatry, 
and  perhaps  a  very  delicate  one.  But  certainly  UnderhilF^  goes 
too  far  when  he  states  that  the  suspicion  of  marital  infidelity,  even 
Avhen  based  on  evidence  of  the  flimsiest  character,  such  as  facts  which 
are  perfectly  innocent  in  their  bearing,  against  a  wife  of  spotless 
character,  is  not  an  insane  delusion.  Some  of  the  worst  and  most 
dangerous  of  insane  delusions  are  these  insubstantial  suspicions  of  a 

.554).  It  was,  in  effect,  a  protest  against  a  direct  connection  could  be  traced  he- 
legal  tests  for  insanity,  either  in  civil  or  tween  the  item  and  such  a  delusion.  In 
in  criminal  cases.  "Wliether  delusion  other  words,  ordering  one's  intestines 
is  a  symptom,  or  a  test,  of  any  mental  to  be  made  into  fiddle-strings  is  not  per 
disease,  was  also  a  question  of  fact;  se  an  insane  delusion.  So  with  most 
and  the  instructions  given  to  the  jury  eccentricities,  the  distinction  is  usually 
were  erroneous  in  assuming  it  to  be  not  difficult;  although  it  must  be  ac- 
a  question  of  law,"  knowledged  that,  here,  as  elsewhere  in 
'•^i  It  has  not  been  tliouglit  worth  mental  pathology,  the  gradations  from 
while  in  the  text  to  go  into  the  intermi-  health  to  disease  are  sometimes  indis- 
nable  subject  of  eccentricity  as  distinct  tinct.  The  old  lady  who  fed  a  multitude 
from  delusion.  Legal  writers  make  more  of  cats,  and  the  man  wlio  left  his  money 
of  this  subject  than  medical  writers  are  to  found  a  home  for  dogs,  were  not 
apt  to  do,  for  the  reason,  apparently,  necessarily  insane — at  least,  so  far  as 
that  it  seems  more  difficult  to  legal  than  the  cats  and  dogs  were  concerned — and 
to  medical  writers.  Mr.  Schouler  (Wills,  it  seems  like  a  waste  of  printers'  ink 
Part  II.  Chap.  VIII.)  attempts  to  make  to  prove  them  legal  testators, 
the  distinction  clear,  and  has  many  ex-  "Wills,  §  95.  The  lunatic  referred 
cellent  illustrations,  but  liis  discussion  to  in  the  text  had  a  trick  of  fastening 
will  strike  the  practical  alienist  as  being  feathers  in  the  door  and  over  the  win- 
mainly  of  literary  interest.  The  man  dow-frames.  If  these  feathers  were  dis- 
who  ordered  his  intestines  to  be  made  lodged  during  liis  absence,  it  was  sure 
up  into  iiddle-strings  may  have  been  ec-  proof  that  his  Penelope  had  been  ad- 
centric,  or  merely  perverse,  but  he  was  mitting  her  suitors  into  the  house.  "Tri- 
not,  because  of  that  item  in  his  will,  ties  light  as  air  are,  to  the  jealous,  con- 
sufTering  with  an  insane  delusion,  unless  firmation  strong  as  proof  of  holy  writ." 


§   11S9]  WILLS.  927 

vvifo's  honor.  In  chronic  alcoholism,  and  in  some  forms  of  paranoia, 
thev  are  rife.  Why  should  Underhill  or  any  legal  writer,  unfamiliar 
with  the  insane,  lay  down  rules  for  the  incursions  of  insane  jealousy  'i 
I  have  known  a  lunatic  to  spend  all  his  days  and  a  part  of  his  nights 
endeavoring  to  find  the  ''flimsiest  evidence"  of  the  amours  of  a  wife 
who  was  ab,solutely  above  suspicion.  To  be  sure,  Underhill  draws 
a  distinction  between  a  delusion  per  se  and  an  erroneous  belief 
founded  on  nimors.  This  may  be  a  valid  distinction  in  some  cases, 
but  not  in  all.  Insane  men  are  apt  to  distort  rumors.  Eveiything 
is  grist  to  their  mill.^** 

1190.  Testamentary  capacity  in  old  age. — It  is  in  old  age,  perhaps, 
that  the  question  of  testamentary  capacity  most  frequently  arises. 
The  law  is  very  jealous  of  the  rights  of  aged  testators.'^''^  Every  safe- 
guard is  thrown  about  tliese  rights,  and  every  presumption  in  favor 
of  sanity  to  the  last  limit  rises  in  their  defense.  To  break  through 
these  presumptions,  or  prejudices,  of  the  law,  is  well  nigh  impossi- 
ble; because  so  long  as  a  spark  of  memory  and  intelligence  lingers, 
the  court  is  able  to  see  the  evidence  of  a  disposing  mind.  Even  after 
a  man  has  become  incapable,  because  of  mental  infirmity,  of  making 
a  contract,  he  may  still,  in  the  eyes  of  the  law,  be  able  to  make  his 
will.  Although  unfitted  to  buy  or  sell  a  village  lot,  he  is  deemed  com- 
petent to  devise  millions  of  dollars  worth  of  property.  Although  not 
able  to  make  a  lease  for  a  year,  he  can  make  a  will  that  will  tie  up 
property  for  tliree  lives.  For  it  has  been  generally  held  that  a  man 
may  not  have  sufficient  capacity  to  execute  a  valid  contract  (as  sign- 
ing a  deed)  and  yet  be  capable  of  making  a  testament.'^^ 

To  the  alienist  it  may  well  seem  in  some  cases  an  impossible  task 
to  make  these  fine  distinctions  with  scientific  accuracy.  Hence,  no 
alienist  wuU  approach  this  subject  with  the  confidence  with  which  it 
is  sometimes  treated  in  courts  of  law.  The  decisions  are  often  arbi- 
trary, and  expressed  in  language  which  does  not  agree  among  tlio 
various  judges.''^^  And  if  it  be  contended  that  the  motive  of  the 
courts  (as  is  doubtless  the  case)  is  to  preserve  the  rights  of  senile  tes- 

"  See  Re  Smith,  53  N.  Y.  S.  R.  658,  24  that  less  capacity  is  sufficient  to  make 

N.  Y.  Supp.  928.  a  will   than   to   transact  ordinary  busi- 

"6i  Chancellor   Kent   has   said:      "The  ness.     See  also  Converse  v.  Converse,  21 

v.'ill  of  such  an  aj^ed  man   ought  to  be  Vt.  IGS.  52  Am.  Dec.  58.     In  Maryland, 

regarded  with  great  tenderness."      ( Van  however,    the    law    is    different.     Ti/son 

Alst  V.  Hunter,  5  Johns.  Ch.  148.)  v.   Tijson,   37   Md.   567.     The  subject   is 

^'  Schouler,  Wills,  2d  ed.  67.     Am.  &  discussed  also  in  the  chapter  on  "Senile 

Eng.  Enc.  Law,  art.  on  "Testamentary  Insanity"  (oh<p.  p.  791 ) . 
Capacity."  In  Thompson  v.  Kyner,  65  "See  ante,  §§  123-127. 
Pa.   368,    Chief   Justice   Thompson   said 


928  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1190 

tators,  it  may  be  answered  that  the  rights  of  heirs-at-law  (which  are 
iilso  supposed  to  be  protected  by  the  law)  are  sometimes  sacrificed  by 
a  too  nice  regard  for  the  obscure  intentions  of  dotards.  But  no  alien- 
ist will  contend  that  science  has  an  infallible  rule  by  which  these 
■cases  can  be  determined.  Each  case  must  be  studied  by  itself,  in  the 
spirit  with  which  a  difficult  diagnosis  should  always  be  approached. 
The  subject  has  been  discussed  in  the  chapters  on  "Senile  Insanity" 
(ante,  p.  791)  and  "Aphasia"  (ante,  p.  806). 

11901/2-  Undue  influence. — We  are  told  by  good  authority  that 
the  usual  mode  of  attack  on  the  will  of  an  aged  testator  is  hj 
raising  the  issue  of  undue  influence. '^^^  Therefore  it  is  important 
to  understand  what  the  law  means  by  "undue  influence."  In  the 
first  place,  then,  the  law  means  something  more  than  mere  "in- 
fluence," for  by  most  legal  definitions  the  very  essence  of  this  thing 
is  constraint.  Undue  influence  is  defined  as  "that  which  compels 
the  testator  to  do  that  which  is  against  his  will,  from  fear,  the  de- 
sire of  peace,  or  some  feeling  which  he  is  unable  to  resist. "^^^  Ii 
may  be  either  through  threats  or  fraud,  but  however  exercised,  it 
must,  in  order  to  avoid  a  will,  destroy  the  free  agency  of  the  testator 
at  the  time  when  the  instrument  is  made.'^*^ 

Undue  influence  is  thus  readily  seen  to  have  a  much  wider  appli- 
cation than  merely  in  mental  diseases.  Such  influence  can  be  ex- 
ercised upon  minds  that  are  perfectly  sane,  and  therefore  this  sub- 
ject is  not  coextensive  with  the  subject  of  testamentary  capacity,  or 
with  any  other  subject  purely  of  mental  pathology.  It  is  indeed  a 
medico-legal  question  only  within  certain  limits,  and  therefore  re- 
quires only  brief  notice  here.  As  a  purely  legal  subject  it  has 
been  greatly  elaborated  in  courts  of  law,  and  could  easily  be  made 
to  cover  many  pages.'^^'^ 

According  to  some  authorities,  undue  influence  presupposes  tes- 
tamentary capacity,  but  this  capacity  may  be  weak.  And  yet  mere 
weak-mindedness  is  not  necessarily  implied  in  the  legal  idea  of  un- 
due influence ;  in  other  words,  the  law  recognizes  that  persons  not  of 
weak  mind  may,  under  some  circumstances,  succumb  to  undue  influ- 
ence through  fear,  violence,  threats,  etc. '  *®     These  are  nice  ques- 

78a  Chief       Justice       Thompson,       in  "Sd  As    to    effect    of   old   age     coupled 

Thompson  v.  Kyner,  65  Pa.  .308.  with   undue  influence,  see  ante,   §§   87- 

7  8bScliouler,  Wills,  2d  ed.  §  227.  90. 

i^cEckert  v.  Floicry,  43  Pa.  46.     And  7  8e<'That  undue  influence  which  suf- 

in  McMahon  v.  Ryan,  20  Pa.  329,  it  was  flees  to  destroy  an  alleged  will   is  dis- 

defined  as  a  "present  constraint  operat-  tinct  from  weakness,  and  has  no  neces- 

ing  on  the  mind  of  the  testator  in  the  sary  connection  with  it."     McMahon  v. 

very  act  of  making  the  testament."  Ryan,  20  Pa.  329. 


1   1190i]  WILLS.  92S 

uoiis  in  psychology,  and  have  led  some  legal  writers  to  go  to  the  other 
axtreme,  and  claim  that  undue  influence  always  presupposes  soma 
i?egree  of  weakness  of  mind.  The  present  writer  can  only  state,  not, 
-:olve,  these  fine  problems. 

It  is  evident,  however,  that  the  question  of  sanity  or  insanity  must 
enter  into  a  consideration  of  some  of  these  questions  of  undue  influ- 
ence, especially  when  these  questions  arise  in  the  cases  of  the  wills 
-•)f  old  or  feeble-minded  persons.  In  fact,  from  the  purely  scientific 
standpoint,  the  question  then  resolves  itself  into  the  other  question 
')f  mental  soundness;  and  although  the  law  is  able  and  obliged  to 
make  a  distinction  between  these  two  issues  (testamentary  capacity, 
on  the  one  hand,  and  undue  influence,  on  the  other),  it  will  not  often 
be  necessary  or  even  possible  for  scientists  to  do  so. 

The  presumption  of  the  law  is  apparently  against  undue  influence 
m  most  given  cases,  but  some  authorities  take  a  contrary  view  in 
mental  cases,  and  claim  that  the  burden  of  proof  is  on  the  party  op- 
posing the  idea  of  such  influence.  In  other  words,  undue  influence 
is  more  readily  presumed  in  a  case  of  mental  weakness  than  in  a  case 
of  sound  mind.^^*  Such  would  seem  to  be  the  teaching  of  science 
and  of  everyday  experience. 

In  one  case  the  question  has  arisen  of  undue  influence  having 
been  exercised  by  hypnotism,  but  the  decision  was  against  this 
claim,"^^ 

1191.  A  sound  and  disposing  mind  and  memory. — The  term  com- 
monly used  in  law  to  describe  testamentary  capacity  is  a  "sound  and 
disposing  mind."  "^^  Sometimes  the  word  "memory"  is  added.  This 
is  practically  no  definition,  for  it  merely  says  that  testamentary 
capacity  means  a  sound  mind.  It  is  defining  in  a  circle.  It  opens 
the  whole  question  of  sanity  or  insanity;  and  it  leaves  the  problem 
where  it  found  it.  Moreover,  the  courts  qualify  the  definition  so 
variously  that  nothing  much  is  left  of  it.  Certainly  a  "sound  mind" 
is  not  requisite  to  make  a  will,  according  to  the  usage  of  the  courts. 
As  we  have  already  seen,  a  delusional  lunatic  may  make  a  will;  an 
imbecile  may  make  a  will ;  a  delirious  patient  may  make  a  will ;  an 
alcoholic  paranoiac,  with  delusions  of  marital  infidelity,  may  disin- 
herit his  wife  or  his  child ;  a  senile  dement  may  dispose  of  his  es- 

Tit  Walker  v.  Hunter,  17  Ga.  413.  "  Underhill    (op.  cit.  §  87)    says  th&. 

'Ss  Kingsbury    v.  Howard,   quoted  by    this   is   the  invariable  language   of  Im 
Glaister,  Med.  Jurisp.  pp.  377,  378.  statutes. 

Vol.  I.  Mkd.  Jub. — 59. 


930  INSAJvITY— FORMS  AND  IMEDl CO-LEGAL  ASPECTS.         [§   1191 

tate ;  even  a  certified  lunatic  in  an  asylum  uxs.v  de^isfj  his  property.''" 
These  persons  have  not  ''sound  minds"  even  though  the'  have  "dis- 
posing" ones.     Hence  we  must  look  farther  for  a  definition. 

1192.  The  legal  definition  of  a  sound  and  disposing  mind. — Th« 
courts,  enlarging  upon  the  statutes,  define  about  as  follows :  The  tes- 
tator must  understand  the  nature  of  his  business,  the  extent  of  his 
property,  and  the  objects  of  his  bounty.  This  is  the  legal  iripod  upon 
which  stands  the  definition  of  testamentary  capacity.  But  to  deter- 
mine, after  a  testator's  death,  wdiether  he  understood  all  these  things, 
is  practically  to  determine  whether  he  was  sane.  The  problem  is 
only  expressed  in  different  language,  except  that  it  ignores  the  ques- 
tion whether  the  testator  hadwdelusions,  for  a  delusional  lunatic  could 
understand  all  these  tilings,  and  yet  disinlierit  his  whole  family. 
There  is  nothing  left,  therefore,  but  to  say  that  the  determination  of 
testamentary  capacity  is  purely  a  matter  of  diagnosis,  and  usually 
one  of  the  most  difficult  in  psychiatry. 

1193.  A  scientific  definition  of  testamentary  capacity  not  possible. 
— A  definition  of  "testamentary  capacity"  is  impossible,  for  the 
reason  that  the  thing  itself  is  not  clearly  conceived  in  the  legal  mind. 
It  means  one  thing  with  one  court''^  and  another  thing  with  auother.^^ 
With  some  it  is  destroyed  by  a  loss  of  memory ;  with  others  not.*^ 
With  some  it  is  the  ability  to  transact  a  little  business  ;^'*  with  others 
not  even  this.^^  With  some  it  is  not  incompatible  with  a  loss  of  prac- 
tically the  greater  part  of  the  mental  faculties;^®  with  others  it  is 
abolished  by  a  single  delusion  f'  while  with  some  not  even  a  delusion 
Avill  abolish  it,  even  though  it  lead  to  the  disinheritance  of  an  only 
child. ^^     In  fact,  to  the  mind  of  a  scientist,  the  tests  for  "testamen- 

^  Permission    to    do    this    has    been  not  a   "soimd   memory."     The   testator, 

granted  by  the  Lord  Chancellor  in  Eng-  Lowe,  past  eighty,  intemperate,  broken 

land.     Redfield,   Wills,   Chap.   III.   §   4,  down    with    age    and    drunkenness,    had 

Subsect.  20.  harbored  an  aversion  to  his  family,  and 

^^Thompson    v.    Kyner,    65    Pa.    .3GS.  left  all  his  estate  to  a  stranger  to  his 

"What  constitutes  the  want  of  a  sound  blood.     The  will  was  sustained, 

and  disposing  mind  and  memory  is  in-  ''*Tyson  v.  Tyson,  37  Md.  567.     "The 

capable    of    a    definition    suited    to    all  inquiry  must  always  be  whether,  at  the 

cases."  time  of  executing  or  acknowledging  the 

^-Converse  v.  Converse,  21  Vt.  168,  52  will  and  testament,  he  was  capable   of 

Am.  Dec.  58.     "Every  man  will  have  his  executing  a  valid  deed  or  contract." 

own  mode  of  expressing  the  thing."  "  "It  does  not  follow  that  one  who  is 

^^Lowe  V.  'WiUiamson,  2  N.  J.  Eq.  82.  unable  to  conduct  his  ordinary  alTairs 

A  testator  must  have  memory,  but  "his  is  lacking  also  in  testamentary  capaci- 

memory  may  be  very  imperfect;  it  may  ty."     Underhill.  op.  cit.  §  R9. 

Ik-  greatly  impaired  by  age  or  disease;  ^'Stewart  v.  lAspenard,  26  Wend.  25G. 

he  may  not  be  able  at  all  times  to  recol-  "Dew  v.  Clark.  3  Addanis,  Eccl..  Rep. 

lect  tlie  names,  the  persons,  or  the  fami-  79. 

lies  of  those  with  whom  he  has  been  in-  *'/?e  Smith,  53  N.  Y.  S.  R.  658,  24  N. 

limately  acquainted."     This  certainly  is  Y.  Supp.  928.     Smith  waa  an  inebriate 


11U3] 


WILLS. 


931 


tary,  capacity,"  as  given  by  the  judges,  are  mostly  arbitrary  and  un- 
scientific. There  is  no  rule  about  it,  but  every  court  applies  the  test 
in  its  own  way.  To  quote  the  language  of  all  the  courts,  even  if 
space  permitted,  would  not  simplify,  but  rather  confuse,  the  subject 
in  these  pages.  References  to  cases  are  found  in  great  abundance  in 
text-books  and  encyclopedias;  but  this  })reseiit  work  is  not  a  digest.^'-' 
1194.  Evidence  of  testamentary  capacity. — The  proof  of  tcsta- 
uientary  capacity  is  a  legal  rather  than  a  medico-legal  question. 
iS'evertheless,  it  is  well  for  medical  experts  to  know  something  about 
the  rules  governing  such  evidence.  The  law  regards  three  classes  of 
witnesses  in  these  cases :  First,  the  attesting  witnesses  to  the  will. 
These  have  always  been  given  special  credence,  and  may  even  give 
their  opinions  about  testamentary  capacity,  without  stating  the 
grounds  for  them.  However  ignorant  they  may  be,  their  opinions 
have  sometimes  been  accepted  even  before  those  of  experts.  (See 
§  1168,  supra.)  Second,  nonexperts,  who  had  not  attested  the  will. 
These  were  formerly  ruled  out  altogether  at  common  law,  and  their 
testimony  is  still  received  with  many  restrictions,  although  tliey  are 
usually  friends  and   acquaintances  of  exactly  the  same   class  and 


with  delusions  of  marital  infidelity,  and 
disinherited  his  only  son  and  only  child 
under  the  delusion  that  he  was  not  his 
son.  The  testator  had  entertained  this 
dekision  for  thirty  years,  continuing  to 
live  with  his  wife  (as  is  so  common  with 
Alcoholics  in  spite  of  this  delusion). 
This  imnatural  will  was  sustained  by 
.Judoe  Vance  in  an  opinion  in  which  was 
much  ill-contrived  logic  with  little,  if 
any,  scientific  knowledge.  The  delusion 
was  never  mentioned  to  anyone  but  to 
the  wife  and  the  priest,  and  was  espe 
cially  strong  when  the  man  was  intoxi- 
cated. The  court  made  a  futile  attempt 
to  distinguish  between  an  insane  delu- 
sion and  an  erroneous  belief  founded 
on  rumor. 

The  Roman  law  permitted  children 
who  were  disinherited  to  contest  the 
will,  on  the  ground  that  the  parent  was 
insane,  since  it  Avas  not  consistent  with 
the  duty  of  a  parent  thus  to  disinherit 
a  child.  Justinian,  Institutes,  Lib.  II. 
Title  XVIII.  §  2. 

^^  The  cases  which  best  reflect  legal 
opinion  are  Greenwood  v.  Greenwood,  3 
Curt.  Eccl.  Rep.  337,  Appx. ;  Deio  v. 
Clark,  3  Addams,  Eccl.  Rep.  79; 
Waring  v.  Waring,  6  Moore,  P.  C. 
C.  341,  12  Jur.  947;  Smith  v.  Tebhitt, 
L.  R.  1  Prob.  &  Div.  398.  Banks  v. 
Goodfelloio,  L.  R.  5  Q.  B.  Div.  594,  39 
L.  J.  Q.  B.  N.  S.  237,  22  L.  T.  N.  S.  813; 


Ingram  v.  Wyatt,  1  Hagg.  Eccl.  Rep. 
384;  iS'mee  v.  Smee,  L.  R.  5  Prob.  Div. 
84,  40  L.  J.  Prob.  IST  S.  8,  28  Week! 
Rep.  703.  44  J.  P.  220;  Dunham's  Ap- 
peal, 27  Conn.  192;  Steivart  v.  Lispen- 
ard,  26  Wend.  250;  Delafield  v.  Parish, 
25  N.  Y.  9;  Boardman  v.  Woodman,^!, 
N.  H.  120,  and  Lowe  v.  Williamson,  i 
N.  J.  Eq.  82.  These  cases  are  rccom-; 
mended  to  medical  readers  especially.' 
Legal  students  will  require  a  wider 
range.  Of  text-books.  Redfield  on  Wills 
is  probably  the  best  for  the  use  of  i>hy- 
sicians. 

Of  medical  writings  the  following  are 
useful :  Legrand  du  Saulle,  fitude  Med- 
ico-legale  sur  les  Testaments  Contcstes 
pour  Cause  de  Folic,  Paris,  1879;.  also 
Traits  de  M6d.  Legale,  deuxieme  ed.  Pa- 
ris, 1886,  p.  600 ;  Bell,  Medical  Opinion  in 
the  Parish  Will  Case,  N.  Y.  1857;  Beck, 
"On  the  State  of  Mind  Necessary  to 
Constitute  a  Valid  Will.  Case  of  Stew- 
art v.  Lispenard,"  in  Am.  Journ.  Med. 
Sci.  1843,  VI.  p.  507;  Chase,  "Testamen- 
tary Capacity;  a  Protest,  etc."  in  Univ. 
Med.  :\Iag.  1890-91,  Vol.  111.  p.  669; 
IMitcliell,  "Some  of  the  Medico-legal  Re- 
lations of  Insanity  to  Will-niakin£r,"  in 
Edin.  Med.  .Journ.  1872.  Vol.  XVIL  pp. 
673,  865,  1057.  See  Index-CatalogUe, 
Vol.  XVI.  p.  472,  art.  on  "Wills,"  for 
an  extensive  bibliography. 


932 


INSANITY— FORiMS  AND  MEDICO-LEGAL  ASPECTS. 


[§   1194 


standing  as  the  attesting  -witnesses,  and  in  some  cases  their  knowl- 
edge of  the  testator  may  even  be  more  exact  than  that  of  the  latter.^^ 
These  nonexperts  are  usually  required  to  state  explicitly  the  grounds 
for  their  opinions,  but  not  the  opinions  themselves.^*^^  Third,  expert 
witnesses,  who  may  testify  either  from  personal  knowledge  of  the 
testator  or  upon  a  hypothetical  question.  The  courts,  however,  will 
not,  as  a  rule,  permit  even  experts  to  give  their  opinions  as  to  "testa- 
mentary capacity;"  that  is  a  question  for  the  jury.  The  expert?, 
however,  may  testify  as  to  "mental  soundness  or  unsoundness."  Thii 
distinction  is  much  insisted  on  by  some  courts  and  text-writers.  Th'i 
reasons  for  it  are  not  always  clearly  expressed,  but  the  rule  serve's 
to  show  that,  in  the  opinion  of  the  courts,  the  question  of  testamentary 
'capacity  is  not  the  same  as  the  question  of  mental  soundness,  and 
indirectly  proves  that  a  sound  mind  is  not  what  is  sought  for  in  thes^- 
cases,  so  much  as  that  indefinable  hypothetical  condition  called  "testa 
mentary  capacity. "^^ 


^''Boardman  v.  Woodman,  47  N.  H. 
120. 

9«i  Where  testimony  is  contradictory 
and  confusing  it  has  been  held  that  col- 
lateral facts  are  better  than  parol  evi- 
dence. See  opinion  by  Tindal,  C.  J.,  in 
Tatham  v.  Wright,  2  Russ.  &  M.  20.  Also 
Towart  v.  Sellers,  5  Dow  P.  C.  231. 

"Consult  Underbill,  Wills,  §§  100, 
-102. 

A  very  anomalous  state  of  things 
ha^  sometimes  arisen  in  English  prac- 
tice. A  will  devising  real  and  personal 
property,  set  aside  in  a  trial  at  common 
law  as  to  the  real  property,  on  the 
ground  of  insanity,  may  yet  be  good  as 
to  the  personal  property,  unless  de- 
clared invalid  in  the  ecclesiastical 
court;  and  after  a  decision  at  common 
law  against  the  will  as  to  real  property, 
chancery  may  order  the  personal  prop- 
erty to  be  secured  until  the  spiritual 
court  shall  have  oome  to  a  determina- 


tion upon  the  subject.  This  grew  out 
of  the  different  jurisdictions  of  the  two 
courts  as  to  the  two  kinds  of  property, 
and  was  thought  by  Lord  Hardwicke  to 
be  "very  absurd," — an  opinion  in  which 
most  persons  will  agree  with  him.  Ac- 
cording to  this  practice  a  testator  could 
be  insane  as  to  his  real  property  ami 
of  sound  mind  as  to  his  personal  effects! 
Collinson.  Lunacy,  §  54. 

Some  of  the  legal  presumptions  with 
reference  to  wills  do  not  .=eem,  to  a  sci  • 
entitle  mind,  more  reasonable  than  tha^ 
curious  old  doctrine  known  as  the  "Pre- 
sentment of  Englishry."  Afler  tlnj 
Norman  conquest,  if  a  man  was  foun'l 
murdered,  he  was  "presumed"  by  law  t*) 
be  a  Frenchman  until  the  contrary  wa? 
proved,  because  many  Norman  Frenc)i 
oppressors  were  assassinated.  Monal 
and  Bemont,  Medieval  Europe,  p.  451. 
It  is  also  explained  by  Bishop,  Crim- 
Law,  Bk.  X.  Chap.  XXIII.  §  623. 


CHAPTER  LVI. 

THE  CONTRACTS  AND  TORTS  OF  THE  INSANE. 

I.  Contracts. 

1195.  The  ancient  law. 

1196.  The  doctrine  of  nonstultification. 

1197.  This  doctrine  criticized. 

1198.  The  contracts  of  lunatics  not  always  void. 

1199.  A  lunatic  can  contract  for  necessaries. 

1200.  An  exception  based  on  the  doctrine  of  torts. 

1201.  The  real  question  is  often  one  of  capacity. 

1202.  The  question  of  fraud. 

1203.  The  modern  view. 

1204.  The  test  of  capacity. 

1205.  Drunkenness  avoids  a  contract. 

1206.  The  conveyances  of  the  insane. 

1207.  The  proof  of  unsound  mind  in  such  cases. 

1208.  The  finding  of  a  commission  is  only  prima  facie  evidence. 

II.   TOETS. 

1209.  By  law  a  lunatic  is  liable  for  his  torts. 

1210.  The  principle  underlying  this  law. 

1211.  Illustrative  cases. 

1212.  Slander. 

I.   Contracts. 

1195.  The  ancient  law. — According  to  the  Roman  law  a  madman 
eould  transact  no  business,  because  he  did  not  know  what  he  was  do- 
ing.^ Hence^  as  Coke^  interpreted  that  code,  all  acts  done  bv  idiots 
or  persons  non  compotes  mentis  without  their  tutors  or  guardians 
were  utterly  void.  This  was  anciently  the  law  also  in  England,  for 
according  to  Bracton,^  who  copied  Justinian  almost  verhatim,  a  mad- 
man could  not  trade  or  transact  any  business ;  and,  according  to  Brit- 
ton,*  a  man's  contract,  ought  not  to  hold  if  it  was  made  when  he  wa.s 

'  Justinian,  Inst.  Lib.  III.  Title  XX.  *  666.  Britton  says  that  this  is  not  thf 
§  8:  Furiosus  nuUum  nec/otiinn  rjerere  case  with  drunkards.  2d  ed.  London. 
potest,  quia  non  intelliqit  quid  agit.  1640.     Also  the  translation  by  Nichols. 

'Beverley's  Case,  4  Coke,  124.  In  this  respect  the  modern  law  in  moro 

'  De  Legibus,  Lib.  III.  fol.  100;  Furio-    reasonable. 
aus  autem  stipulari  non  potest,  nee  ali- 
quod  negotium  agere,  etc. 

933 


934  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   119o 

not  in  bis  I'iglit  senses.  But  Coke  also  sajs  that  some  persons  crit- 
icized the  English  common  law  for  not  agreeing  in  this  matter  with 
the  civil  law ;  hence,  it  is  evident  that  the  common  law  in  Coke's  time 
no  longer  agTeed  with  the  Roman  law  in  this  matter. 

1196.  The  doctrine  of  nonstultification.^In  fact,  there  had  gi-own 
np  at  some  time  in  the  common  law  a  remarkable  doctrine  of  nonstul- 
tification.  This  doctrine  was  stated  by  Littleton,^  who  said  that  no 
man  was  allowed  to  plead  he  was  insane  when  a  contract  v/as  in 
question,  "for  that  no  man  of  full  age  shall  be  received  in  any  pka 
by  the  law  to  disable  his  o^vn  person."  In  other  words,  a  man  could 
not  plead  hi§  own  insanity  to  annul  his  obligations ;  but,  as  Little- 
ton goes  on  to  say,  a  man's  heir  could  "disable  the  person  of  his  an- 
cestor for  his  o^^m  advantage."  Consequently,  the  heir  was  not  de- 
barred from  pleading  his  ancestor's  insanity  in  order  to  avoid  the  con- 
sequences of  that  ancestor's  obligations. 

1197.  This  doctrine  criticized. — This  doctrine,  that  a  man  was 
not  allowed  to  stultify  himself,  was  fully  recognized  by  the  old  com- 
mon-law sages,  such  as  Coke^  and  Hale,"  who  seem  merely  to  have 
followed  Littleton.  Thus,  Hale  says  that,  according  to  the  law  of 
England,  no,  man  can  avoid  his  own  act  by  reason  of  insanity,  though 
his  heir  or  executor  may  do  so.  But  this  ancient  rule  of  the  common 
law,  we  are  told  by  later  writers,  must  now  be  considered  as  entirely 
exploded.^  Blackstone,^  indeed,  is  unsparing  in  his  criticism  of  it, 
and  says  it  rested  originally  on  "loose  authorities,"  dating  back  to  the 
time  of  Edward  III.  One  reason  for  it,  as  stated  by  the  learned 
commentator,  was  highly  characteristic  of  the  legal  way  of  looking  at 
insanity,  for  it  -was  asked  how  a  man  could  remember  his  contract  if 
out  of  his.  senses  when  he  gave  it?  In  other  words,  if  a  man  remem- 
bojed  having  given  a  contract,  he  could  not  have  been  insane !  But 
although  Blackstone  and  other  writers  tell  us  that  this  doctrine  of 
nonstultification  is  no  longer  the  law,  it  would  not  be  difficult  to 
show  that  similar  ideas  still  linger  in  the  courts.  (See  chapter  on  "In- 
sanity and  the  Law,"  p.  504,  ante.)'^'''^ 

1198.  The  contracts  of  lunatics  not  always  void. — Indeed,  nothing 
could  be  further  from  the  truth  than  to  say,  without  qualification,  that 
the  contracts  of  lunatics  are  always  void  at  common  law.  There  are 
found  so  many  exceptions  to  this  ancient  rule,  and  so  many  ways 

» Co.  Litt.  Lib.  in.  Cap.  VI.  §  405.  "  2  Com.  291,  292. 

'  I  Litt.  247.  'H  Pope     (Law    and    Practice    of    Lu- 

'P.  C.  Chap.  IV.  iiacy,  2(1  ed.  Bk.  II.  Chap.  I.)    has  sub- 

'Aiiiorican   editor   of  Hale,   P.   C.   loc.  jected    this    whole    subject    to    a    very 

cit. ;   footnote,  ,witli  many  references  to  learned  criticism. 

this  maxim. 


§  ll&S]'  CONTRACTS  AND  TORTS  OF  THE   INSANE.  935 

of  evading-  it,  that  the  contrary  is  more  likely  to  be  the  result  in 
any  given  case.  The  subject,  indeed,  is  not  so  simple  as  it  looks ;  for 
it  often  involves  grave  questions  of  justice  to  other  persons  than  the 
lunatic.  A  man  may  innocently  bargain  with  an  insane  person ;  he 
may  not  know  that  the  other  party  is  insane ;  he  may  buy  of  him  and 
sell  to  him ;  he  may  enter  into  contracts  with  him,  and  embark  large 
sums  of  money  or  valuable  goods;  and  he  may  engage  in  projects, 
which  cannot  be  revoked  and  everything  be  restored  to  its  condition  be- 
fore the  contract.  If  a  man  honestly  docs  these  things,  or  any  of 
them,  and  is  threatened  with  los-s  because  the  other  party  is  dechired 
technically  insane,  it  seems  far  from  just  that  he  should  be  made  to 
bear  that  loss.  There  are  two  sides  to  the  case,  therefore,  and  the 
courts  have  often  had  to  decide  nice  questions  in  adjusting  the  claims 
of  innocent  parties  against  the  insane.  It  is  due  to  the  courts  to  say 
that,  in  deciding  these  cases  a  system  of  rules  has  been  evolved  by 
which,  in  the  main,  substantial  justice  is  done.  These  rules  will  now 
be  discussed  briefly  seriatim. 

1199.  A  lunatic  can  contract  for  necessaries. — It  is  an  old  rule  of 
the  common  law  that  a  lunatic  can  contract  for  the  necessaries  of  life. 
Idiots  and  persons  non  compotes  mentis  are  often  classed  with  in- 
fants as  being  allowed  to  contract  for  necessaries,  and  in  being  held 
liable  under  such  contracts.^"  An  executor  of  a  lunatic  has  been  held 
liable  for  necessaries  furnished  before  a  commission  de  lunatico  had 
issued,  and  after  such  commission  had  issued  and  before  the  appoint- 
ing of  a  committee  ;^^  but  he  would  not  be  liable  for  improper  articles 
furnished  said  lunatic.  The  question  of  what  constitutes  improper 
articles  is  for  the  court;  and  in  the  case  of  an  English  nobleman  it 
was  held  that  the  hire  of  carriages  suitable  to  his  rank  was  a  proper 
charge.^"  This  rule  is  for  the  protection  of  lunatics,  and  is  meant 
to  insure  to  them  the  necessaries  of  life.  It  is  therefore  just;  but  it 
is,  of  course,  in  direct  conflict  with  the  principle  that  a  lunatic  can 
never  contract.  It  opens  the  door  very  wide  for  many  exceptions  to 
that  principle. ^'"^ 

1200.  An  exception  based  on  the  doctrine  of  torts. — x\nother  im- 
portant exception  arises  from  the  principle  that  a  lunatic  is  liable 

^"Manhry  v.  Scott,  1  Sid.  Pt.  1.  p.  17S.  7  Dowl.  &  R.  614,  5  Barn.  &  C.  170. 
109  (1659)  :  "Et  notre  ley  allow  plusois  "In  {^tucL-c//  v.  ^lathes,  24  Hun,  401. 
persons  de  faire  contracts  in  cases  de  it  was  hold  of  a  marriafje  contract  be- 
necessity  qneux  de  liir  mesmes  sont  dis-  twecn  a  lunatic  and  a  sane  Moman,  to 
able."  See  also  Seaver  v.  Phelps,  11  bo  not  void,  but  voidable ;  that  its  valid- 
Pick.  304,  22  Am.  Dee.  372.  ity  oould  not  be  impeached  collaterally 

"  La  Rue  v.   Gilkyson,  4  Pa.  375,  45  in  an  action  for  the  price  of  necessaries 

Am.  Dec.  700.  furnished  to  the  wife. 

^"^  Baxter  v.  Eortsmouth,  2  Car.  &  P. 


936  INSANITY— FOKN^IS  AND  MEDICO-LEGAL  ASPECTS.         [§   1200 

for  his  torts.  In  other  words,  if  a  lunatic,  even  without  malice  (for 
in  law  a  lunatic  is  presumed  to  be  incapable  of  malice),  causes  dam- 
ages by  trespass  or  otherwise  to  an  innocent  party,  he  is  held  liable. 
It  is  but  a  short  step  from  this  doctrine  to  the  conclusion  that  if  the 
contract  of  a  lunatic  causes  loss  or  damage  to  another  person,  he 
should  pay  for  it.  This  is  so  even  though  the  contract  was  not  for  nec- 
essaries. Most  courts  have  not  usually  expressed  the  principle  in  this 
way,  but  some  of  them  have  done  so.  For  instance.  Chief  Justice 
Redfield^^  held  that  in  a  supposed  case  in  which  the  contract  had  been 
duly  executed,  and  the  lunatic  had  enjoyed  the  goods,  and  the  condi- 
tions could  not  be  restored  as  they  were  before  the  contract,  the  case 
should  be  considered  as  similar  to  one  of  torts ;  for  the  lunatic,  hav- 
ing inflicted  an  injury,  should  be  held  liable.-^ ^ 

1201.  The  real  question  is  often  one  of  capacity. — In  some  of  these 
cases  the  legal  principles  are  saved  in  appearance  only;  while  the 
real  question  in  the  mind  of  the  court  is  merely  a  question  of  capacity 
(just  as  in  the  case  of  wills)  ;  and  although  the  court  acknowledges 
the  general  principle  that  a  lunatic  cannot  contract,  yet,  in  the  par- 
ticular case  of  A.  B.  it  is  practically  decided  that  he  is  not  a  lunatic 
in  that  sense.  This  opening  of  the  whole  question  of  capacity  gives 
ample  opportunity  for  declaring  that  an  alleged  lunatic  was  capable 
of  making  a  contract  so  long  as  he  understood  the  nature  of  the 
act.^^^  In  other  words,  it  becomes  a  question,  not  of  scientific  diag- 
nosis, but  of  legal  definition.  Thus,  in  a  case  in  which  an  alleged  lu- 
natic was  sued  on  a  promissory  note  which  had  been  discounted  in  his 
favor,  the  decision  was  against  him,  but  neither  on  the  principle  of 
torts  nor  of  necessaries.^*^  The  court  evidently  held  that  the  defend- 
ant had  capacity  to  understand  what  he  was  doing,  in  spite  of  the  fact 
that  he  was  technically  a  lunatic.  The  finding  of  a  commission  de 
lunatico  is  only  prima  facie  evidence  of  insanity  in  these  cases.  The 
old  principle  that  a  man  shall  not  be  allowed  to  stultify  himself  in 

^*Lincoln  v.  Buckmaster,  32  Vt.  652,  casioned  it."  This  was  a  suit  to  re- 
Judge  Redfield  also  said:  "It  is  evident,  cover  the  value  of  certain  goods  pur- 
from  a  careful  examination  of  the  de-  chased  of  a  lunatic  by  the  defendant, 
cided  cases,  that  the  law  is  not  fully  set-  and  paid  for  in  other  goods,  charged 
tied  as  to  the  extent  of  the  liability  of  at  exorbitant  rates, 
lunatics,  arising  out  of  contracts."  is}.  In    the    case    of   Professor    Short- 

"  In  Beats  v.  See,  10  Pa.  50,  49  Am.  lidge,  who  had  killed  his  wife,  and  had 

Dec.  573,  it  was  held  by  Chief  Justice  been  acquitted  on  the  ground  of  insanity. 

Gibson  that  "as  an  insane  man  is  civ-  the  court,  in  Media,  Pa.,  recently  held 

illy  liable  for  his  torts,  he  is  liable  to  that  an   assignment  of   a   life-insurance 

bear  the  consequences  of  his  infirmity,  policy,  made  by  Sliortlidge  while  he  was 

as  he  is  liable  to  bear  his  misfortunes,  a  patient  in  the  Norristown  Hospital  for 

on  the  principle  that  where  a  loss  must  the   Insane,  was  valid, 
be   borne   by   one   of   two    innocent   per-        ^"Lancaster     County     j\^a«.     BanJc^   v. 

sons,  it  shall  be  borne  by  him  who  oc-  Moore,  78  Pa.  407,  21  Am.  Rep.  24. 


§  1201]  CONTRACTS  AND  TORTS  OF  THE  INSANE.  937 

order  to  avoid  his  obligations,  while  not  expressed  in  so  many  words, 
was  closely  followed. 

1202.  The  question  of  fraud. — The  courts  have  usually  laid  stress 
upon  the  question  whether  the  party  contracting  with  a  lunatic  knew 
that  he  was  a  person  of  unsound  mind.^'^  Therefore  upon  the  ques- 
tion of  fraud ;  for  if  it  appears  that  a  person,  knowing  another  to  be 
non  compos,  took  an  unfair  advantage  of  him  in  a  trade,  the  court 
would  not  be  likely  to  sustain  his  suit.^^  If,  however,  the  contract 
was  fair  to  the  lunatic,  the  result  might  be  different,  especially  if  the 
contract  had  been  executed,  and  the  conditions  could  not  be  restored 
as  they  were.^'* 

The  courts  cannot  perform  impossibilities,  and  imdo  things  that 
have  been  done,  as  in  a  case  where,  without  fraud,  a  contract  has  been 
executed,  and  the  insane  person  has  had  the  full  worth  of  his 
mo.ney.^^^ 

Thus,  a  court  of  equity  will  not  interfere  to  set  aside  a  contract, 
overreached  by  an  inquisition  of  lunacy,  if  fair,  and  without  notice 
of  the  insanity,  especially  when  the  parties  cannot  be  reinstated.-** 
The  court  might  even  find  that  the  alleged  lunatic  was  acting  in  a 
''lucid  interval"  when  he  bought  the  goods.  Thus,  the  delicate  ques- 
tion of  a  lunatic  contracting  is  avoided  by  the  convenient  fiction  of  a 
lucid  interval, — a  fiction  which  can  do  service  in  these  cases  as  well 
as  in  others.^'^^ 

"  Byles,   Bills,   63.     A   person   cannot  executory  contract  of  a  lunatic  than  one 

set  up  his  ovvTi   insanity  unless   it  was  that    has    been   executed.     See   Cook   v. 

known  to  the  other  party.  Parker,  4  Phila.  265. 

"A  security  obtained  by  a  Methodist        1942  Greenl.  Ev.  16th  ed.  §  369.     In 

preacher  from  a  woman  who  was  in  a  a  footnote  it   is   said   that   the   distinc- 

state  of  religious  delusion  was  set  aside  tion    between    executed    and    executory 

by  Tjord  Chancellor  Northington.  Tsiorton  contracts    is    "of    little    or    no    value." 

V.  lielhj,  2  Eden,  286.     It  was  set  aside  "Insanity  is  no  defense  in  an  action  on 

apparently  on  the  ground  of  fraud.   The  a  contract  unless  the  other  party  knew, 

opinion   of  the  Lord  Cliancellor   is  par-  or  had  reason  to  know,  of  the  insanity." 

ticularly    spicy    in    its    observations    on  Cases   cited    are   Imperial   Loan    Co.   v. 

spiritual  advisers  who  obtain  money  by  Stone  [1892]   1  Q.  B.  599,  61  L.  J.  Q.  B. 

undue    influence.     "]\Ien    who   go   about  N.  S.  449,  66  L.  T.  N.  S.  556,  56  J.  P. 

in    the    Apostles'    language,    and    creep  436;  Creekmore  v.  Baxter,  121  N.  C.  31, 

into   peoples'   dwellings,   deluding   weak  27  S.  E.  994. 

women;  men  who  go  about  and  diffuse        '"Niell  v.  Morley,  9  Ves.  Jr.  478.     In 

their    rant,    etc.     .     .     .     And    shall    it  this    case    the    plaintiff    bouglit    large 

be   said   that  this   court   cannot   relieve  quantities  of  goods  at  a  public  auction, 

against  the  glaring  impositions  of  these  paying     large     sums.       He     acted     so 

men?"  strangely  that  some  one  present  told  the 

"  The  law  distinguishes  in  these  cases  auctioneer  he  was  crazy.     He  was  after- 

between  an   "executed"  and   an  "execu-  wards  found  to  be  a  lunatic  by  a  com- 

tory"  contract.     The  latter  diff"ers  from  mission.     The  Master   of  the  Rolls  de- 

the  former  in  that  nothing  has  yet  been  clined  to  interfere,   but  said   Niell   had 

done,  and  the  parties  stand  in  the  same  a    remedy    at    common    law.      Xiel    was 

position  as  when  the  contract  was  made,  jirobably  a  general  paretic. 
The  courts  can  more  readily  annul  an        20^  Bracton    (De    Legibus,    fols.    420, 


938  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1203 

1203.  The  modern  view. — Therefore,  from  a  careful  sifting  of  ju- 
dicial opinion,  it  seems  that  the  modern  view  is  clear.  It  was  ex- 
pressed by  Chief  Baron  Pollock-^  in  a  leading  case,  to  wit:  that  un- 
soundness of  mind  is  a  good  defense  to  an  action  upon  a  contract, 
but  only  in.  case  it  can  be  shown  "that  the  defendant  was  not  of  ca- 
pacity to  contract,  and  the  plaintiff  knew  it."  What  is  this  but  a 
clear  statement  that,  after  all,  the  question  turns  upon  the  matter  of 
"capacity  ?  "  That  same  eminent  judge  expressed  it  even  more  plain- 
ly when  he  said  that  when  a  person,  apparently  of  sound  mind,  and 
not  known  to  be  otherwise,  enters  into  a  contract  for  the  purchase  of 
property,  which  is  fair  and  bona  fide,  and  which  is  executed  and  com- 
pleted, and  the  property,  the  subject-matter  of  the  contract,  has  been 
paid  for  and  fully  enjoyed,  and  cannot  be  restored  so  as  to  put  the 
parties  in  statu  quo,  such  contract  cannot  afterwards  be  set  aside. 

In  other  words,  the  court  supposes  that  an  alleged  lunatic  who 
makes  a  reasonable,  bona  fide  contract,  and  enjoys  the  advantages  of 
it,  is,  by  that  very  fact,  proved  to  be  competent,  and  does  not  fall 
within  the  legal  definition  of  a  non  compos,  whose  contracts  are  nec- 
essarily void.  It  is  practically  the  same  thing  as  in  the  matter  of 
wills;  for  the  law  holds  that  one  of  the  strongest  proofs  that  a  man 
has  testamentary  capacity  is  that  he  makes  a  reasonable  will.  The 
two  cases  are  exactly  on  a  level,  although  legal  writers  are  not  in  the 
habit  of  saying  so.^^ 

1204.  The  test  of  capacity. — This  being  so,  it  seems  useless  to  dis- 
cuss, as  lawyers  are  wont  to  do,  with  so  much  learning  and  nicety, 
the  old  legal  principles  involved,  for  they  are  often  not  involved  at 
all;  since  the  courts  decide  these  cases  merely  on  the  question  of  the 
person's  capacity.  Thus,  if  it  be  shown  that  there  was  no  fraud,  and 
that  the  other  party  had  no  idea  that  the  alleged  lunatic  was  non  com- 
pos, and  the  whole  transaction  was  in  good  faith,  and  reasonable,  and 
the  contract  executed,  it  is  taken  as  evidence  that  the  alleged  lunatic 
k-iew  what  he  was  about,  and  the  contract  is  sustained.     This  has 

421)    says:     "But  what  has  been  trans-  Car.  &  P.  679,  the  court  charged:  "It  is 

acted  witli  such  persons  at  a  time  wlien  not  sufficient  that     .     .     .     Lady  Kirk- 

they  enjoy  lucid  intervals  shall  be  rati-  wall    was    of    unsound    mind,    but    you 

fied."    This  is  a  very  early  statement  of  must  be  satisfied  that  the  plaintiff  knew 

this  doctrine  in  this  connection.  it,  and   took   advantage  of  it;"  and  in 

'^Molton  V.  Camroux,  2  Exch.  487.  the  case  of  Broton  v.  Jodrell,  3  Car.  & 
This  is  a  standard  case,  teeming  with  P.  30,  bloody  &  ]M.  105,  Lord  Tenter- 
references.  Gurney,  for  the  defendant,  den  said:  "I  think  the  defense  (im-, 
claimed  that  there  is  no  case  in  which  soundness  of  mind)  will  not  avail,  un- 
an  executed  contract  of  a  lunatic,  made  less  it  be  shown  that  the  plaintiff  im- 
for  valuable  consideration,  and  with-  posed  on  the  defendant."  In  other 
out  notice  of  fraud,  has  been  held  void,  words,   if  the  lunatic  was  not  imposed 

**  In  the  case  of  Dane  v.  Kirkwall,  8  on,  that  fact  proves  capacity. 


§   1204]  CONTRACTS  AND  TOKT«  OF  THE  INSANE.  <jJ9 

been  the  almost  universal  rule;  and  to  the  mind  of  an  alienist  it 
seems  clear  that  it  is  merely  avoiding  the  old  principle,  e.  g.,  that  a 
lunatic  cannot  contract,  in  favor  of  the  law  described  by  Coke  and  by 
Hale, — that  a  man  is  not  to  be  allowed  to  stultify  himself  in  order 
to  avoid  his  obligations. 

In  case  this  rule  ever  works  a  hardship,  the  friends  of  the  insane 
person  may  reflect  that  they  have  themselves  largely  to  thank  for  it 
in  not  having  taken  measures  to  prevent  the  lunatic  from  thus  en- 
tering into  a  contract.  Cases  sometimes  occur,  as  in  general  paretics, 
in  which  extravagant  and  foolish  purchases  are  made.  Such  a  case 
is  referred  to  elsewhere  of  a  general  paretic  who  purchased  in  one 
day  a  large  number  of  pianos,  and  sent  them  home ;  or  of  another  who 
bought  a  wagon-load  of  snow-shovels.  In  such  a  case,  as  the  property 
could  be  restored,  the  courts  might  possibly  decide  that  the  insane 
person  was  not  liable,  the  purchases  being  unreasonable  and  clear 
evidence  of  a  want  of  capacity.^^  So  in  cases  of  contracts  which 
have  not  been  executed ;  the  courts  may  decide  on  the  principle  that 
a  lunatic  cannot  contract. 

1205.  Drunkenness  avoids  a  contract. — Drunkenness  has  the  same 
affect  as  lunacy  in  avoiding  a  contract.  It  was  formerly  argued  that 
drunkenness  in  itself  is  a  crime,  and  cannot  be  urged  as  an  excuse  for 
other  crimes  or  for  avoiding  a  cdvil  contract.-*  But  that  rule  is  now 
relaxed,  as  is  also  the  rule  that,  to  make  drunkenness  a  defense,  it 
must  be  shown  to  have  been  brought  about  by  the  fraud  or  contri- 
vance of  the  other  party.  The  modern  ruie  is  that  drunkenness  frees 
from  liability  for  contracts,  but  the  degTee  of  intoxication  must  have 
been  sufficient  to  render  a  man  incapable  of  knowing  what  he  was 
doing.  Hence  the  test  here,  too,  is  one  of  capacity.  Baron  Parke  thus 
held,  as  also  that  a  person  who  takes  an  obligation  from  another  un- 
der such  circumstances  is  guilty  of  actual  fraud;  and  Baron  Al- 
derson,  in  the  same  case,  said :     "It  is  just  the  same  as  if  the  dc- 

^Lincoln  v.  Buckmaster,  32  Vt.  652,        ^Beverley's  Case,  4  Coke,  1236.   Also, 

was  such  a  case,  the  insane  person  hav-  in  an  okl  case,  Johnson  v.  MedJicott.  3 

ing  purchased  a  large  number  of  horses  P.  Wms.  130,  note,  it  is  written:     "The 

at    exorbitant    rates,    without    previous  having  been  in  drink  is  not  any  reason 

experience    in    such    business.     He    was  to  relieve  a  man   against  any  deed  or 

probably  in  the  early  stage  of  general  agreement    gained    from    him    when    in 

paresis.    Tlie  court  decided  in  his  favor,  those    circumstances,    for    this    were    to 

It    was    also    held    that    a    lunatic   may  encourage       drunkenness;        secus,       if 

sometimes   be   incapable   of   contracting  tlirough  the  management  or  contrivance 

even   if  his   infirmity   is   not  known   to  of  him  who  gained  the  deed,  the  party 

the  other  party, — a  most  important  opin-  from  whom   such  deed  has  been  gained 

ion  aa  concerns  general  paretics.  was  drawn  into  drink."' 


940  INSANITY— FORMS  AND  Mf^DI CO-LEGAL  ASPECTS.         [§   1205 

fendant  had  written  his  name  upon  the  bill  in  his  sleep,  or  in  a  state 
of  somnambulism."  ^^ 

1206.  The  conveyances  of  the  insane. — It  seems  that,  by  the  com- 
mon law,  a  deed  made  by  a  now  compos  is  voidable,  and  not  void.^^^ 
At  least,  this  opinion  is  based  on  high  authority.^^  But,  according  to 
another  authority,  the  deed  of  a  non  compos  was  not  merely  voidable, 
but  void.^'^  Whichever  of  these  opinions  we  take,  it  is  evident  that 
the  law  is  not  satisfied  with  the  deed  of  a  lunatic.  In  fact,  a  luna- 
tic's conveyance,  is  absolutely  void  in  Pennsylvania,^®  and  doubtless 
in  other  states.  A  person  may  avoid  his  deed  by  proof  that  he  was 
non  compos  at  the  time  of  its  execution.^^ 

1207.  The  proof  of  unsound  mind  in  such  cases. — But  in  this  con- 
nection it  is  important  to  consider  what  constitutes  proof  of  lunacy, 
or  that  one  is  non  compos  mentis.  It  is  all  very  well  to  say  that  the 
deed  of  a  lunatic  is  void;  but  the  mere  declaration  of  that  principle 
will  not  upset  the  title  to  real  estate  as  readily  as  might  be  supposed. 
The  opinions  of  the  courts  as  to  what  constitutes  an  unsound  mind 
in  such  cases  may  differ  widely  from  the  opinions  of  scientists;  and, 
just  as  in  the  case  of  wills  and  of  contracts,  so  here:  the  question 
of  capacity  will  be  uppermost  in  the  minds  of  the  courts.  A  person 
very  far  from  being  of  sound  mind  can  make  a  will  if  he  is  deemed  to 
have  "testamentary  capacity;"  and  so  a  person  very  far  from  being 
sane  may  make  a  deed,  if  the  court  is  satisfied  that  he  knew  what  he 
was  doing. 

1208.  The  finding  of  a  commission  is  only  prima  facie  evidence. — 

^Gore  V.  Gibson,  13  Mees.  &  W.  623,  tlie  contract  of  a  lunatic;  but,  under 
14  L.  J.  Exch.  N.  S.  151,  9  Jur.  140.  conceivable  circumstances,  such  a  mar- 
This  is  a  leading  case  on  the  subject  riage  could  only  be  avoided  on  proof  by 
of  drunkenness.  The  defendant,  while  a  trial  at  law;  hence  it  would  be  "void- 
drunk,  had  indorsed  a  bill  of  exchange,  able."  All  results  flowing  from  such  a 
The  authorities  have  also  been  collected  "void"  marriage  are  said  to  be  illegal, 
in  Kent's  Commentaries,  Vol.  II.  p.  451.  or  nonlegal ;  hence  children  born  of  such 
Barrett  v.  Buxton,  2  Atk.  (Vt.)  1G7,  16  a  union  are  illegitimate;  but  this  might 
Am.  Dec.  691,  is  an  early  American  case  be  a  difficult  rule  to  apply  in  case  of 
in  which  the  older  authorities  are  ex-  executed  contracts,  and  especially  in  the 
amined.  See  also  Kerr,  Inebriety  or  case  of  some  of  the  contracts  of  luna- 
Narcomania,  Chaps.  XXVII.  and  tics,  and  yet  all  contracts  of  lunatics 
XXVIII.  for  a  full  discussion,  with  ci-  are,  in  the  theory  of  the  law,  "void." 
tation  of  many  authorities  in  England  "These  are  words  of  very  uncertain 
and  America,  up  to  a  very  recent  date,  meaning,"    says    Markby    {Elements    of 

25^  The     distinction    between     "void"  Law,  §  274),  and  he  criticizes  them  in 

and  "voidable"   is  often   made  by  legal  somewhat  the  same  way  as  is  done  here, 

writers,  but  it  is  not  always  clear.    The  But  see  Arnold  v.  Richmond  Iron  Works, 

two  words  contain  much  the  same  fun-  1  Gray.  4.'j7. 

damental  idea.     If  a  contract  (such  as  a  -"2  Kent,  Com.  p.  451 ;  2  Bl.  Com.  291. 

marriage   or   a   deed)    is   "voidable,"   it  -'Thompson  v.  Leach,  3  Mod.  301. 

must  be  because  it  is  essentially  "void."  *'  9  Pepper  &  T^wis,  Digest,  14,492. 

Thus  the  marriage  of  a  child  under  the  ^^Crawford   v.   Scovcll,   94   Pa.   48,   39 

legal  age  is  said  to  be  "void."  just  as  is  Am.  Rep.  766.    . 


§  1208]  CONTRACTS  AND  TORTS  OF  THE  INSANE.  941 

This  is  shown  by  the  estimation  in  which  the  finding  of  a  commission 
(le  lunatico  inquirendo  is  held  by  the  courts  as  proof  of  a  person  being 
noil  compos.  As  is  well  known,  these  findings  often  reach  backward 
over  a  considerable  period  of  time.  Thus,  a  man  may  be  found  to 
have  been  non  compos  from  a  date  far  anterior  to  the  date  of  the 
commission.  In  such  a  case  the  findiiig  might  overreach  the  making 
of  a  contract  or  the  execution  of  a  deed ;  in  other  words,  it  might  sup- 
posably  upset  contracts  and  titles  to  real  estate.  For  instance,  if  a 
man  gives  a  deed  in  June,  and  is  found  in  September,  by  a  commis- 
sion de  lunatico,  to  have  been  no7i  compos  since  March,  he  becomes 
technically,  in  the  eye  of  the  law,  incapable  of  making  a  deed ;  and 
that  incapacity  extends  back  beyond  and  includes  the  date  upon  which 
his  deed  was  given.^^  But  in  all  civil  suits  (just  as  in  criminal 
ones)  the  courts  regard  such  findings  of  a  commission  as  only  prima 
facie  evidence  of  unsoundness,  and  hold  that  these  findings  can  be 
rebutted  by  proof. '^^  Hence,  the  mere  fact  that  a  man  is  technically 
of  unsound  mind  is  not  enough  to  upset  his  contracts  or  his  convey- 
ances.^^ ^  The  question  must  be  threshed  out  in  a  trial  at  common 
law ;  and,  whatever  the  legal  principles  may  be,  the  decision  will  de- 
pend largely  on  the  question  of  capacity.'^^  This  proof  of  capacity, 
as  we  have  already  said,  follows  similar  lines  to  those  laid  down  in 
the  case  of  wills ;  although,  in  some  states,  less  capacity  is  required  to 
make  a  will  than  to  make  a  deed.  (Ante,,  §  1190,  note  77.) 

It  is  true  that  in  Pennsylvania  a  person  who  has  been  found  non 
com,pos  by  inquisition  is  thereby  conclusively  rendered  incompetent 
to  enter  into  a  subsequent  contract  which  will  bind  his  real  estate.'"'** 
The  statute  contemplates  a  complete  transfer  of  his  property  to  the 
custody  of  the  law ;  and  the  committee  is  substituted  for  the  lunatic 
or  habitual  drunkard,  and  a  lucid  interval  can  avail  nothing,  for  the 

*•  In  Re  Whittaker,  4  Myl.  &  C.  441,  8  But  in  Leonard  v.  Leonard,  14  Pick.  280, 

L.  J.  Ch.  N.  S.  313,  3  Jur.  693,  a  wife  it  was  held  that  the  appointment  of  a 

opposed  the  carryinf^  of  an  inquisition  guardian    for   a   lunatic  was   conclusive 

back  to  a  certain  date,  upon  which  her  evidence  of  insanity,  and  money  paid  to 

husband,  the  alleged  lunatic,  had  made  the  lunatic  on  a  promissory  note  was  not 

his  will.  a  discharge  of  the  debt.    Thus  there  are 

^^Bowrnan    v.    Van    Baum,    17    Phila.  conflicting  views.     Pope  (Lunacy,  2d  ed. 

G33;    Lancaster    County    Nat.    Bank    v.  London,   1892,  pp.   428,  429)    states  the 

Moore,    78    Pa.    407,    21    Am.   Rep.    24;  law  in  a  series  of  formula;. 

9  Pepper  &  Lewis,  Digest,  14492.     This  ^- In    some    circumstances,    also,    the 

work  gives  in  great  abundance  the  rul-  finding  of  the   inquisition   can   be  trav- 

ings  of  the  courts  as  to  the  conveyances  ersed    by   parties    interested    in    proving 

of  the  insane.  that  the  alleged  non  compos  was  com- 

31^  An     inquisition     overreaching     a  ])ctent  at  the  time  of  executing  a  deed. 

contract  is  admissible  evidence,  but  by  (lensemer's  Estate,   170  Pa.  96,  32  Atl. 

no    means    conclusive.      Lord    Ellenbor-  5G1. 

ough,  in  Faulder  v.  Silk,  3  Campb.  126.  ^  9  Pepper  &  Lewis,  op.  cit.  14,485. 


942  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1208 

non  compos  lias  nothing  in  respect  to  which  to  contract.'*  ITeverthe- 
less,  the  inquisition  and  retrospective  finding  are  only  prima  facie 
evidence  of  incapacity,  and  may,  in  turn,  be  rebutted  by  evidence  that 
the  nonsane  party  was  sane  at  the  very  time  of  contracting.''^  Such 
is  the  flexibility  of  the  law  in  this  matter  of  the  contracts  and  deeds 
of  insane  persons:  the  principles  are  rigid,  but  the  application  of 
them  is  not  always  uniform. ^^ 

II.  Touts. 

1209.  By  law  a  lunatic  is  liable  for  his  torts. — This  means  that  he 
is  liable  for  damages  by  trespass  or  negligence  which  he  may  com- 
mit. "Insanity  is  no  defense  to  actions  for  those  torts  in  which  a 
wrongful  and  malicious  intent  is  not  an  essential  element."  ^^  The 
element  of  intent  or  malice  is  important,  for,  in  the  eyes  of  the  law, 
an  insane  man  cannot  have  a  criminal  intent,  and  therefore  he  is  not 
held  responsible  for  crime ;  but,  in  a  civil  action  for  an  injury  done 
to  the  person  or  property  of  another,  the  intent  is  generally  immate- 
rial, and  the  rule  is  that  an  insane  person  is  liable  for  his  torts  the 

^Tozer  v.  Saturlee,  3  Grant,  Gas.  162.  would  be  to  allow  a  monomaniac,  with  a 
"  9  Pepper  &  Lewis,  op.  eit.  14,490.  few  systematized  delusions,  to  mortgage 
'^The  decisions  of  the  courts  do  not  his  property,  obtain  the  money,  spend 
seem  to  liave  been  uniform  with  refer-  it,  and  then  be  absolved  from  all  obliga- 
once  to  the  proof  of  unsoundness  ot  tion,  and  his  property  be  free.  Need- 
mind  -.  in  cases  of  deeds  and  contracts,  less  to  say,  few  courts  will  uphold  such 
There  is  a  learned  note  on  the  subject  a  doctrine.  This  case  also  illu.strates 
l)y  the  American  editor  of  Byles,  Bills,  how  some  courts  have  had  in  mind  to 
Sth  ed.  63.  The  finding  of  a  commis-  draw  a  distinction  between  contracts  af- 
sion  de  lunatico  is  full  proof  until  over-  fecting  real  and  those  affecting  personal 
powered.  (Rogers  v.  Walker,  G  Pa.  property.  At  common  law  a  lunatic 
371,  47  Am.  Dec.  470.)  But  the  acts  of  cannot  bind  himself  by  sealing  and  de- 
a  lunatic  before  office  found  are  not  livery.  Again,  an  exception  seems  to 
void,  but  voidable  (Jackson  ex  dem.  be  made  of  matters  of  record.  But,  as 
Merritt  v.  Giimaer,  2  Cow.  552)  ;  after  Judge  Hare  said,  the  whole  subject  is  a 
office  found  they  are  void  (Pearl  v.  dirticult  one.  In  Bensell  v.  Chancellor, 
M'Doicell,  3  J.  J.  Marsh.  658,  20  Am.  5  Whart.  3.71,  34  Am.  Dec.  501,  it  was 
Dec.  199).  The  fact  that  the  proof  foi-  said:  A  grantor  "may  avoid  his  acts, 
lows,  in  the  main,  the  presumptions,  as  except  those  of  record  and  contracts  for 
in  the  case  of  wills,  seems  clear,  excepc  necessaries,  ...  by  allegation  and 
for  the  onus  probandi  being  put  on  the  proof  of  insanity."  It  is  hard  to  see 
proponent  of  the  will.  why  an  exception  should  be  made  of  acts 
,  It  has.  however,  been  decided  (Cook  of  record  if  the  party  was  really  in- 
V.  Parker,  4  Phila.  265)  that  a  mort-  competent.  Moreover,  the  finding  of  a 
gage  by  a  lunatic  is  voidable,  and  can-  commission  de  lunatico  is  a  matter  of 
not  be  enforced  against  him,  even  when  record,  and  yet,  as  we  have  seen,  such  a 
the  delusion  imder  which  he  is  laboring  finding  is  held  to  be  only  prima.facie  evi- 
is  confined  to  one  class  of  subjects,  and  dencc.  See  also  Lancaster  County 
does  not  impair  his  power  of' transact-  l^at.  Bank  v.  Moore,  78  Pa.  407,  21  Am. 
ing  business.  This  is  quite  the  reverse  Rep.  24. 
of  the  ride  in  cases  of  wills,  and  is  a  "  See  ante,  §§  264-276. 
very    exceptional     opinion:      Its    effect 


§   1209il  CONTRACTS  AND  TORTS  OF  THE  INSANE.  9«S 

.same  as  a  sane  person.''^     But  he  is  only  liable  for  compensatory, 
not  for  punitive,  daniag-es. 

1210.  The  principle  underlying  this  law. — The  principle  involved 
is  that  when  a  loss  must  be  borne  by  one  of  two  innocent  persons,  it 
shall  be  borne  by  him  who  occasions  it.  This  is  essentially  just,  for 
it  is  not  right  that  an  innocent  person  should  suffer  loss  through  the 
insane  conduct  of  another.  It  may  seem,  at  first  thought,  unreason- 
able to  hold  an  insane  person  responsible  for  anything, — his  torts 
any  more  than  his  crimes;  but  a  moment's  reflection  must  convince 
a  fair-minded  critic  that  if  a  lunatic  does  an  injury,  and  is  able  to 
])ay  for  it,  he  should  be  obliged  to  do  so.^^  Why  should  an  innocent 
])arty  suffer  the  loss  of  an  eye  from  the  assault  of  a  madman,  or  have 
his  house  burned  down  by  a  delusional  lunatic,  and  not  receive 
compensation,  if  the  insane  person's  estate  can  afford  it? 

If  this  seems  to  work  a  hardship,  let  the  friends  of  the  patient,  as 
already  said,  thank  themselves  for  their  lack  of  oversight.  The  moral 
responsibility,  at  least,  is  on  them  in  the  majority  of  such  cases. 
In  fact,  salutary  lessons  are  sometimes  needed  by  the  friends  of  the 
insane  for  disregard  of  medical  advice  and  ordinary  prudence  in  let- 
ting tbesf  patients  be  at  large.  It  is  true  the  friends  are  not  mulcted, 
but  the  next  worst  thing  for  them  is  doubtless  to  have  their  insane 
relative  mulcted.  But  perhaps  a  more  ethical  statement  would  be 
that  the  insane  person  himself,  if  ever  restored  to  his  reason,  would 
approve  the  rule  which  had  obliged  him  to  pay  for  an  injury  which 
he  had  done  when  not  in  his  right  mind.  The  law,  in  this  case,  acts 
as  the  custodian  of  his  conscience.  ^  ^ 

1211.  Illustrative  cases. — There  are  not  a  few  cases  which  illus- 
trate the  law  on  this  subject.  An  insane  man.  threw  vitriol  in  the 
face  of  another  person,  destroying  one  eye,  and  was  acquitted  in  a 

■'"  In  Haycraft  v.  Greasy,  2  East,  92,  6  for    injuries."     But    this    is    not    good 

Revised  Rep.  380,  it  was  said:     "There  Anglo-American   law,   whatever   it  may 

was  a  distinction     .     .     .     between  an-  be  on  the  continent, 

swering     civiliter    or     criininaliter    for  And    according    to    Casper    (Forensic 

acts  injurious  to  others:     in  the  latter  Medicine,  Vol.  IV.  p.  99,  translated  by 

case  the  maxim  applies  actus  non  facit  Balfour,  London,  1865),  it  is  not  good 

reum  nisi  mens  sit  rea;  but  it  was  oth-  law    in    Prussia.      He   quotes   the    Gen. 

erwise  in  civil  actions,  where  the  intent  Common  LaM',  Part  I.  Tit.  VI.  §  41. 

was   immaterial,   if  the   act   done   were  *"  The  law  itself  is  stated  in  Coke  on 

injurious  to  another."  Litt.  247,  289:  2  Inst.  284,  414;  1  Hale, 

■^^Hoffbauer,    quoted    by    Ray     (Med.  P.  C.  15,  16;  Hawk.  P.  C.  Chap.  I.  §  5. 

Jur.   of   Insanity,   p.   294 ) ,   strenuously  Hawkins  says :     "If  one  who  wants  dis- 

opposed   this   doctrine.     If  a  patient  is  cretion    connnit   a   trespass   against   the 

"so  deranged  that  he  is  no  longer  mas-  person  or  possession  of  another,  he  shall 

ter  of  his  actions,  he  is  under  no  respon-  be  compelled,  in  a  civil  action,  to  give 

aibility,  nor  obliged  to  make  reparation  satisfaction  for  the  damage." 


644  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1211 

criminal  trial,  on  the  ground  of  insanity ;  but,  in  a  civil  suit  for  dam- 
ages, the  court  charged  against  him,  and  the  jury  rendered  a  verdict 
of  $3,700  for  the  plaintiff.^^  In  a  case  in  which  an  insane  man 
set  fire  to  his  own  barn,  the  verdict  was  in  favor  of  the  insurance 
company,  which  resisted  payment.^^  An  insane  person  has  been 
held  civilly  liable  for  an  injury  caused  by  a  defective  doorstep  on 
property  of  which  he  was  the  owner. '*^  On  the  other  hand,  the  mas- 
ter of  a  sailing  vessel,  who  was  alleged  to  have  become  insane  as  a 
result  of  trying  to  save  his  ship  in  a  terrible  storm,  was  held  not  lia- 
ble for  the  consequences  of  negligence  caused  by  such  insanity.'*^ 
A  very  tragic  case  was  that  in  which  $2,800  was  recovered  from  an 
insane  man  for  killing  another  in  a  paroxj'sm  of  maniacal  excite 
ment."*^ 

1212.  Slander. — In  the  matter  of  slander,  it  has  been  held  that  in- 
sanity may  be  shown  in  mitigation  of  damages;  and  where  the  in- 
sanity is  so  great  and  notorious  that  the  speaking  of  the  words  by 
the  insane  person  would  have  no  effect  on  the  hearers,  it  will  afford 
a  complete  defense.  ■*  *" 

".S'/iepard   v.   Wood,    1    Lane.   L.   Rev.  *^WiUiams  v.  IJays,  157  N.^.  .541,  4.'J 

175.     Judge  Hare  in  this  case  said  that  L.  R.  A.  253,  68  Am.  St.  Rep.  797,  52  N. 

there  was  no  case  reported  in  Pennsyl-  E.  589,  reversing  the  lower  court   (Jus- 

vania     that     satisfactorily    decided    the  tice  liartlett  dissenting), 

point  involved.  "  Am.     .Tourn.     of    Insan.    1849-1850, 

*'Mutual  F.  Ins.  Co.  v.  Showalter.  40  Vol.  VI.  pp.  92-95. 

VV.  N.  C.  80.  "  See  ante,  2G4. 

^■^Morain  v.   Devlin,   132  ilass.  87,  42 
Am.  Rep.  423. 


CHAPTEK  LVIL 

THE  TRIAL  OF  THE  INSANE  FOR  CRIMEA 

I.  In  general. 

1213.  The  humane  principles  of  the  common  law. 

1214.  An  insane  person  is  exempt  from  trial. 
121.5.  Methods  for  determining  the  question. 

1216.  Statutory  law  on  the  subject. 

1217.  No  certainty  about  the  application  of  these  laws. 

1218.  The  proper  test  of  insanity  in  these  cases. 

1219.  The  proper  question  to  be  tried. 

1220.  Insanity  pleaded  in  bar  of  sentence. 

1221.  A  tiew  trial  may  be  granted  because  of  present  insanity. 

1222.  Insanity  acts  to  stay  execution. 

1223.  Drunkenness  exempts  a  man  from  trial. 

1224.  The  exercise  of  judicial  discretion. 

1225.  A  preliminary  trial  is  not  an  inalienable  right. 

II.  The  old  rule  denying  counsel  to  a  prisoneb  on  trial  fob  nis  ufk 

1226.  A  matter  of  historic  interest. 
III.  Expert  testimony. 

1227.  A  difficult  problem. 

1228.  Truth  may  be  elusive. 

1229.  The  province  of  an  expert  witness. 

1230.  The  uncertainty  of  expert  testimony. 

1231.  The  ethics  of  the  subject. 

1232.  Proposed  remedies. 

1233.  Memoranda  for  experts. 

I.  In  general. 

1213.  The  humane  principles  of  the  common  law. — It  has  well  been 
said  by  an  eminent  writer  on  the  medical  jurisprudence  of  insanity^ 
that  the  disabilities  imposed  by  the  common  law  on  the  insane, 
both  in  criminal  and  civil  matters,  are  founded  in  the  most  humane 
and  enlightened  views,  and  have  for  their  object  the  promotion  of 
the  highest  welfare  of  this  unfortunate  class.  This  was  saying  much 
on  the  part  of  a  writer  who  was  noted  as  a  rather  severe  critic  of  the 
courts.      Ray's  criticisms  were   not  so   much  directed  against   the 

*  Rav,    Med.    Jur.    of    Ins.    5th    ed.    i). 
294. 

Vol.  I.  Med.  Jur.— CO.  945 


946  IXSAXITY— FOiniS  AND  MEDICO-LEGAL  ASPECTS.         [§   1213 

principles  of  the  common  law  as  against  the  methods  of  judicial  pro- 
cedure bj  which  those  principles  w^ere  applied,  or  misapplied.  In  the 
present  chapter  we  shall  examine  briefly  the  principles  and  meth- 
ods of  the  common  law  as  relating  to  the  trial  of  persons  of  unsound 
aiind.  And  we  shall  premise  that  we  are  in  accord  with  Ray  in  our 
admiration  of  those  princii^les,  with  some  few  exceptions,  to  be 
noted.^ 

1214.  An -insane  person  is  exempt  from  trial. — It  was  a  part  of  the 
old  common  law  that  an  insane  person  was  not  only  exempt  from 
the  penalties  of  crime,  but  also  that  he  should  not  even  be  put  on 
trial  for  his  alleged  crime  so  long  as  his  insanity  endured.  There  is 
no  possibility  of  denying  this  statement.  All  that  the  law  demanded 
was  clear  proof  of  the  insanity;  that  proof  being  furnished,  it  fol- 
lowed, as  a  matter  of  course,  that  the  madman  was  not  to  be  subjected 
to  a  trial  at  law.  However  far  the  later  courts  may  have  deviated 
from  this  rule,  the  rule  itself  is  clear  and  unmistakable. 

Coke'^  says :  "If  a  man  commit  treason  or  felony  and  confesseth 
the  same,  or  be  thereof  otherwise  convict,^  if  afterward  he  become 
de  non  sane  memorie  {qui  patitur  exilimn  mentis)  he  shall  not  be 
called  to  answer;  or,  if  after  judgment  he  become  de  non  sane  mem- 
orie, no  shall  not  be  executed,  for  it  cannot  be  an  example  to  others." 
Coke  was  here  commenting  on  the  statute  of  treason  (25  Ed.  III.) 
which  has  ever  been  held  by  English  lawyers  to  be  the  safegiiard  of 
the  citizen  against  arbitrary  and  tyrannical  trials  for  that  offense. 
But  a  later  statute,  33  Hen.  YIII.,  chap.  20,  had  provided  that 
if  a  person,  being  of  sound  mind,  should  commit  high  treason,  and 
afterwards  fall  into  madness,  he  might  be  tried  in  his  absence,  and 
executed  as  if  he  were  sane.^  This  infamous  statute,  so  abhorrent 
to  the  equitable  spirit  of  the  common  law,  has  been  condemned  by 
all  the  best  authorities,*'  and  was  repealed  even  in  the  reign  of  Bloody 
Mary  by  the  statute  1  &  2  Philip  and  Mary,  chap.  10.  It  so 
roused  the  ire  of  Coke  that  he  said  that  this  "cruel  and  inhuman  law 
lived  not  long,  but  was  repealed ;  for  in  that  point  also  it  was  against 

' The  common  law  has  been  defined  a^  *  It  dots  not  appear  from  Coke  how 

the     perfection     of     liuman    reason.     It  he  would  be  "otherwise  convict"  before 

has  seemed   to  the  present  writer  that  his  trial. 

not  a  few  of  its  wisest  maxims  on  the  "  The  object  of  this  law  was  "to  avoid 

subject  of  insanity  it  owes  to  the  Ro-  all  sinister,  counterfeit,  and  false  prac- 

man    law.     Some   of   the   definitions    of  tices    and    imaginations    that    may   be 

Bracton  (as  shown  elsewhere)  are  in  al-  used  for  excuse  of  punishment  of  high 

most   the   exact   wording   of   Justinian,  treason."     This  was   the  sixteenth  cen- 

This  fact,  however,  does  not  detract  from  turv   way   of   describing   the   shamming 

its  excellence.  of  insanity. 

^.3  Tnst.  4.  '4  Bl.  Com.  25. 


§   1214]'  TKIAL  OF  THE  INSANE  FOR  CRIMES.  947 

the  common  law,  because,  by  iutendment  of  law,  the  execution  of 
the  offendier  is  for  example,  ut  poena  ad  paucos,  metus  ad  omnes  pen 
veniat,  .  .  .  but  so  it  is  not  when  a  madman  is  executed,  but 
should  be  a  miserable  spectacle,  both  against  law,  and  of  extreme  in- 
humanity and  cruelty,  and  can  be  no  example  to  others."  There  is 
no  mistaking  this  terse  and  clear  language  of  the  great  jurist." 

Sir  Matthew  liale'^  is  even  more  explicit.  If  a  man  of  sound 
memory,  says  Hale,  commits  a  capital  offense,  and,  before  his  arraign- 
ment, becomes  absolutely  mad,  he  ought  not  by  law  to  be  arraigned 
during  such  his  phrensy,  but  be  remitted  to  prison  until  that  inca- 
pacity be  removed.  The  reason  given  is  because  he  cannot  advisedly 
])lead  to  his  indictment.  And  this  holds  even  though  the  delinquent, 
in  his  sound  mind,  had-  confessed  the  offense  before  his  arraign- 
ment. And  if  such  a  person,  after  his  plea,  and  before  his  trial, 
become  insane,  he  shall  not  be  tried ;  or  if  after  his  trial  he  become 
insane,  he  shall  not  receive  judgment;  or  if  after  judgment  he  become 
insane,  his  execution  shall  be  spared  ;  for  were  he  of  ^'sound  memory," 
he  might  allege  somewhat  in  stay  of  judgment  and  execution.®  In 
this  passage  Hale  has  reference  merely  to  the  question  of  present  in- 
sanity, or  insanity  at  the  time  of  trial.  And  in  a  following  passage 
he  says  that  "if  a  person  of  non  sane  memorie  commit  homicide  dur- 
ing such  his  insanity,  and  continue  so  till  the  time  of  his  arraignment, 
such  person  shall  neither  be  arraigned  nor  tried,  but  remitted  to  gaol, 
there  to  remain  in  expectation  of  the  King's  grace  to  pardon  him." 

Thus  precise  and  careful  was  the  common  law  at  every  stage  of  the 
legal  procedure,  and  thus  it  contemplated  an  immediate  suspension  at 
every  step  in  favor  of  an  insane  man.  From  the  moment  of  his  in- 
dictment to  the  very  moment  of  his  execution,  the  proof  of  insanity 
was  admissible  to  stay  the  proceedings;  and  this  was  so  whether  the 

'  Coke's   wrath   was   easily   roused   in  they  had  a  chief  justice  to  their  ances- 

defense  of  the  common  law  against  acts  tor." — Disraeli,    Curiosities    of    Litera- 

of  Parliament    (Pollock.   First  Book  of  ture,  Vol.  IIL  p.  290. 
Jurisprudence,  p.  250).     As  Lord  Chief        M  P.  C.  34,  35. 

•Tustice  he  was  practically  forced  off  the        "See  also  4  Bl.  Com.  24,  395..  396:    1 

King's   Bench   by   James   I.    because   he  Hawk.   P.   C.   Chap.   I.   §   3;    1    Chitty, 

would  not  serve  that  monarch  with  sat-  Criui.  Law,  701.     Chitty  takes  pains  to 

isfactory  opinions.     See  Foss,   Lives  of  tell   us  that  the  reason  for  this  lenity 

the    Judges,    for    an    interesting   sketch  is  not  that  an  insane  man  is  not  a  fit 

of   his   life.     Whatever   may   have   been  object  of  punishment,  but  for  the  mere-  ' 

the  infirmities  of  his  character,  he  had  ly  technical  reason  that  he  is  incapable 

a    rugged    strength    and    independence  of  saying  anything  in  bar  of  execution, 

that  call  for  admiration.    When  his  sue-  or  of  assigning  any  error  of  judgment, 

cessor,    the    new    chief    justice,    sent    to  This   is  a   slightly  different  logic   from 

Coke  to  purchase  his  collar  of  S.  S.,  Coke  that  which  held   in   civil   oases,   that  a 

returned  for  answer,  that  "he  would  not  man   sliould  not  be  allowed   to  stullif\ 

part  with   it,   but   leave   it  to  his   pos-  himself    by    alleging    his    own   lunacy, 

terity,  that  they   might  one   day  know  Ilere  it  is  just  the  reverse. 


948  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1214 

prisoner  was  sane  or  insane  when  he  committed  the  deed.  It  is  safe 
to  say  that  never  was  another  code  devised  by  man  that  threw  such 
safeguards  about  the  person  of  a  lunatic. 

1215.  Methods  for  determining  the  question. — There  were  several 
methods  for  determining  this  question  at  common  law.  First,  it  might 
be  tried  by  inspection  of  the  court,  and  the  judge,  in  his  discretion, 
might  discharge  the  jury,  and  remit  the  prisoner  to  gaol,  to  be  tried 
after  the  recovery  of  his  understanding.  Second,  it  might  be  tried 
by  the  jury  charged  to  try  the  indictment.  Third,  being  a  collateral 
issue,  the  fact  might  be  pleaded  ore  tenus,  and  a  venire  awarded,  re- 
turnable instanter,  in  the  nature  of  an  inquest  of  office;  in  this  case 
the  sheriff  called  a  special  jury.  This  latter  method  is  regarded 
by  Hale  as  the  more  prudent  course  in  such  cases. ^'*  These  methods 
are  jireliminary  to  and  independent  of  the  trial  itself  on  the  plea 
of  not  guilty,  and  do  not  interfere  with  the  defense  of  insanity  in 
case  that  trial  afterwards  proceeds.  It  is  to  be  noted  also  that  this 
preliminary  trial  has  to  do  simply  with  the  question  of  present  in- 
sanity,— i.  e.,  insanity  at  the  time  of  the  inquiry, — and  the  bear- 
ing of  the  present  insanity  upon  the  question  of  insanity  at  tht' 
time  of  the  factum,  or  crime  itself,  is  another  matter.  ^"^ 

1216.  Statutory  law  on  the  subject. — These  rules  of  the  common 
law  have  been  embodied  in  statutes  both  in  England  and  America. 
Thus,  by  statute  39  &  40  Geo.  III.,  chap.  94,  §  2,  it  is  pro- 
vided that  when  an  insane  man  is  indicted,  and  cannot  be  tried  on  ac- 
count of  his  insanity,  and  the  insanity  is  found  by  a  jury  impaneled 
for  that  purpose,  he  is  to  be  confined  during  his  Majesty's  pleasure. 
In  Xew  York  the  law  reads :  "]^o  insane  person  can  be  tried,  sen- 
tenced to  any  punishment,  or  piuiished  for  any  crime  or  offense 
Avhile  he  continues  in  that  state."  ^^  In  Pennsylvania  the  law  is 
stated  in  almost  the  exact  language  of  the  English  statute.'^  Other 
states  have  similar  statutes.^^ 

1217.  No  certainty  about  the  application  of  these  laws. — Rnt  while 
these  rules  of  the  common  law  are  so  admirably  contrived  in  theory 

"  1    H.-xle.   P.   C.   33,   35,   3G ;    Fitzher-  "  4  Rev.  Stat.  Chap.  I.  title  VII.  §  2. 

bert,  Nat.  Brev.  517;  3  Bacon,  Abr.  81;  "Act  of  June  13.  1830,  §§  58.  59,  P. 

1    Hawk.   P.   C.   Chap.   I.   §   4.   footnote;  L.   003,   and   ajjain   in  act  of  March   30, 

Foster,    C.    L.    40;     1     Wharton,  Crim.  1800.  §§  00.  07. 

Law.  lOtli  ed.  §  58.  "  An  abstract  of  the  hnvs  of  the  sov- 

lOAIIale    clearly    indicates    in    a   sep-  oral   American   states,    by    Dr.    Folsom 

arate    passajje     (1    P.    C.    33)     how    the  and  Mr.  Bailey,  is  published  as  an  ap- 

question  of  insanity  at  the  time  of  llie  pendix     to     the     American    edition    of 

crime  is  to  be  tried:     '"Upon  liis  pica  of  Clouston's  Lectures  on  Mental  Diseases, 

not   ;Tuiity,   by   the   jury,    upon    his   ar-  See    also    the    digest    by   Macdonald    in 

raignment."  Haines  and  Peterson's  Legal  Med. 


§   1217]  TRIAL  OF  THE  INSANE  FOR  CRIMES.  9^9 

to  protect  the  insane,  there  is  no  certainty  in  any  case  that  they  will 
be  put  in  practice.  This  matter  is  left  entirely  to  the  discretion  of 
the  court.  The  judge  has  absolute  power  to  determine  off-hand 
whether  the  case  is  one  that  warrants  the  favor  of  a  preliminary  in- 
quiry. There  is  no  appeal  from  his  decision  in  this  matter  in  some 
jurisdictions.^"*  The  existence  of  the  doubt  as  to  the  prisoner's  in- 
sanity at  the  time  of  trial  is  a  matter  to  be  determined  by  the  court 
itself.  Up  to  the  time  of  pleading  there  is  no  other  tribunal  that  has 
the  prisoner  in  charge,  and  can  say  whether  there  is  a  doubt  upon  the 
subject.  It  is  one  of  the  functions  which  must  be  intrusted  to  the 
court,  and  the  law  presumes  that  it  will  not  be  abused. ^^  But  this 
presumption  of  the  law  is  not  always  justified  by  the  facts,  for  cases 
have  occurred  in  which  trial  judges  have  used  a  most  arbitrary  pow- 
<iT  in  refusing  the  preliminary  trial  which  is  contemplated  by  the 
common  law.  Judges  have  swept  aside  such  requests  without  taking 
proper  pains  to  determine  whether  the  facts  warranted  such  a  pre- 
liminary trial ;  and  have  thus  defeated  the  wise  provisions  of  the 
law.  But  this  has  not  always  been  the  case,  as  the  records  in  Eng- 
land and  America  amply  show. 

1218.  The  proper  test  of  insanity  in  these  cases. — The  test  of  in- 
sanity in  these  preliminary  trials  is  not  the  knowledge  of  right  and 
wrong,  but  the  ability  of  the  prisoner  to  understand  the  details  of  the 
trial.  Herein,  again,  the  law  accommodates  itself  to  the  infirmity 
of  the  accused.  In  the  case  of  a  deaf  and  dumb  idiot,*  ^  charged 
with  a  capital  felony,  an  English  judge.  Baron  Alderson,  ordered 
a  special  jury  to  be  impaneled  to  try  whether  he  was  mute  by  malice 
or  by  the  visitation  of  God ;  the  jury  found  the  latter.  They  were 
then  sworn  to  try  whether  he  was  able  to  plead;  the  jury  found 
that  he  was  able,  and  the  prisoner,  by  a  sign,  pleaded  not  guilty. 

"Freeman  v.   People,   4   Denio,   9,   47  that  the  court  is  authorized  to  enter  a 

Am.  Dec.  216.  plea  of  not  guilty.     These  cases  of  oh- 

^^Vebher  v.  Com.  119  Pa.  223,  237,  4  stiiiaLe    mutism    were    provided   for   in 

Am.  St.  Rep.  634,  13  Atl.  427.  statute  7   &   8   Geo.   IV.   chap.  28,   §   2, 

^^h'ex  V.  Prit chard,  7  Car.  &  P.  303.  except  that  tlie  statute  did  not  pro- 
See  also  I  Hawk.  P.  C.  Chap.  I.  §  4.  vide  how  the  question  was  to  be  de- 
The  same  kind  of  a  case  was  that  of  termined;  and  the  court,  in  the  above 
Rex  V.  Dyson,  7  Car.  &  P.  305,  in  which  case,  decided  tliat  it  could  only  be  done 
a  deaf  and  dumb  woman  was  charged  by  a  special  jury.  It  is  equivalent  to. 
with  murdering  her  bastard  child.  A  a  trial  of  the  question  of  insanity, 
special  jury,  under  direction  of  Jus-  In  Com.  v.  Bralcy,  I  Mass.  103.  it 
tice  Parke,  found  her  not  sane  because  was  held  that  if  a  special  jury,  impan- 
not  able  to  understand  the  proceedings  elcd  for  the  purpose,  finds  that  a  pris- 
in  court.  In  case  a  prisoner  stands  oner  neglects  to  plead  by  the  visitation 
mute,  as  in  Peg.  v.  Israel,  2  Cox,  C.  C.  of  God.  the  court  will  not  procee<l  to 
263,  a  jury  miist  be  impaneled  to  try  try  liim  upon  the  indictment.  The  jury 
the  question  of  malice;  and  it  is  only  so  found,  and  the  prisoner  was  re- 
upon   their   finding    in     the    affirmative  manded  to  jail. 


1)50  JXSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1218 

The  jury  were  then  sworn  for  the  third  time  to  try  whether  the  pris- 
oner was  then  sane,  and  the  court  directed  the  jury  to  consider 
whether  the  prisoner  had  sufficient  intelligence  to  comprehend  the 
course  of  the  pleadings,  so  as  to  make  a  proper  defense,  to  challenge 
any  juror,  and  to  comprehend  the  evidence,  and  if  not,  to  find  him 
not  of  sane  mind.  The  jury  found  him  not  of  sane  mind,  and  the 
judge  ordered  him  detained,  under  the  statute  39  &  40  Gpo.  III., 
chap.  74,  §  2.  The  decision  in  this  case  was  strictly  in  ac- 
cord with  the  letter  and  spirit  of  the  old  conmion  law.  ^^'-  The  no7t 
compos  was  not  obliged  to  stand  trial  for  his  alleged  crime.  The  same 
points  have  been  determined  in  an  American  case,^^  in  which  it  was 
held  to  be  error  for  the  jury,  in  a  preliminary  trial,  to  find  the  pris- 
oner competent  to  stand  trial  because  he  was  able  to  distinguish  right 
and  wrong.  The  real  question  was  held  to  be  whether  he  was  com- 
petent to  make  his  defense.  If  not,  he  was  insane  within  the  mean- 
ing of  the  law,  and  should  not  even  have  been  arraigned.^  ^ 

1219.  The  proper  question  to  be  tried. — The  distinction  between 
the  question  of  insanity  at  the  time  of  trial  and  the  question  of  in- 
sanity at  the  time  of  the  alleged  crime  is  clearly  indicated  in  these 
cases.  The  preliminary  trial  is  to  determine  the  former  question 
alone.  This  is  plainly  stated,  as  we  have  seen,  by  Hale,  who  recog- 
nizes that  a  compos  mentis  might  commit  a  crime  and  afterwards  be- 
come insane  before  trial.  This  is  not  a  common  occurrence,  but  its 
possibility  is  contemplated  by  the  law.  This  was  stated  by  Lord 
Kenyon,^^  who,  when  he  granted  a  preliminary  trial,  said  it  was  not 
necessary  to  inquire  what  effect  the  present  insanity,  i,  e.,  insanity  at 
the  time  of  trial,  might  have  on  the  question  of  insanity  at  the  time 
of  the  act.     The  law  keeps  these  two  questions  entirely  apart,  and 

16^  Blackstone     (4    Com.     324,     Z1'^)  sane    witliin    tlie    meaning   of   the    rule, 

states  the  law  rather  differently,  for  he  thougli  on  some  subjects  his  mind  be  dt 

says  that   if  a  jury  impaneled   for  the  ran.ired."     See  also   Gvaganao   v.   State, 

purpose  find  the  accused  mute  ex  visita-  41  Tex.  62G;   Reg.  v.  Kcanj,  13  Cox,  C. 

tione    Dei,    "the    judges    of    the    court  C.  143. 

.  .  shall  proceed  to  the  trial,  and  "In  Com.  v.  Hathaica;/  (1816)  13 
examine  all  points  as  if  he  had  pleaded  Mass.  299,  the  prisoner,  indicted  for 
not  guilty.  But  whether  judgment  of  murder,  showed  strong  marks  of  men- 
death  can  be  given  against  such  a  pris-  tal  derangement,  interrupting  the  pro- 
.oner  who  hath  never  pleaded  and  can  ceedings  "by  wild  and  incoherent  re- 
*say  nothinir  in  arrest  of  judgment,  is  a  marks,  and  from  his  whole  manner  dis- 
point  3'et  undetermined."  He  refers  to  covered  that  he  was  under  the  influence 
2  Hale,  P.  C.  317.  f>f  -i  religious  frenzy."  A  jury,  im- 
^'Frecman  v.  People  (1847)  4  Denio.  paneled  for  the  purpose,  found  him  in- 
9.  4  Am.  Dec.  21G.  "One  capable  of  sane,  and  he  was  remanded  to  jail, 
rightly  comprehending  his  own  condi-  ^"l-'rith'si  Case,  22  How.  St.  Tr.  307. 
tion  in  reference  to  the  proceedings  Frith  v.as  very  insane,  and  was  so 
iigainst  him,  and  of  conducting  his  de-  found  by  the  jury  in  a  preliminary 
fense   in   a   rational   manner,  is  not  in-  trial.     The  case   is  a  striking  one. 


§   1219]  TRIAL  OF  THE  JNSANE  FOR  CRIMES.  'J.")! 

logically  so;  for  it  contemplates  the  possibility  of  the  prisoner  being 
put  on  trial  for  his  act  if  he  should  afterwards  recover  his  reason.-" 
Practically,  however,  this  is  not  likely  to  be  done,  and  in  fact  nevfi- 
has  been  done,  so  far  as  the  present  Avritcr  knows,  for  the  finding  of 
a  prisoner  insane  at  the  time  of  his  trial  seems  to  raise  a  strong  pre- 
sumption of  his  having  been  insane  when  he  committed  the  net,  ;il- 
though  some  courts  might  rule  otherwise.  In  one  case"^  it  was  lichl 
competent  to  prove  insanity  at  the  time  of  the  trial  with  a  view  t<> 
establish  insanity  at  the  time  of  the  act.  This  must  mean  that  it 
raises  a  presumption.^- 

1220.  Insanity  pleaded  in  bar  of  sentence. — As  we  have  seen  from 
Hale,  it  is  also  competent  for  a  j^risoncr  to  prove  insanity  after  judg- 
ment. Insanity  has  thus  been  pleaded  in  bar  of  sentence.^''  It  i.'^ 
within  the  discretion  of  the  court  to  say  how  this  question  shall  bt' 
determined.  In  the  Laros  Case,  here  referred  to,  the  court  dccliued 
to  impanel  a  special  jury  to  try  the  question,  but  proceeded  by  the 
method  called  'inspection ;"  that  is  to  say,  the  judge  called  the  pris- 
oner to  the  bar  and  asked  him  a  few  questions  as  to  his  age  and  other 
familiar  matters.  Having  thus  "satisfied  his  conscience,"  the  judge 
proceeded  to  sentence.  This  method  of  inspection  in  open  court  is 
liable  to  serious  objections  and  to  grave  abuse.  It  presumes  that 
the  judge  is  an  expert  in  insanity,  and  that  he  can  do  in  a  few  mo- 
ments what  a  trained  alienist  might  well  hesitate  to  attempt  under 
the  circumstances. 

1221.  A  new  trial  may  be  granted  because  of  present  insanity. — 
The  question  of  tlie  prisoner's  insanity  at  the  time  of  his  trial  has 
been  made  the  ground  for  a  motion  for  a  new  trial.     In  the  case  of  a 

**  Hale,  loc.  cit.  says  that  the  prisoner  cording   to   Hale   and   the   old    common 

is  to  bo  "remitted  to  prison  until  that  law,  and  is  the  general  practice  of  tlie 

incapacity  be  removed."  courts.     See    also    Shtiltz    v.  State,   13 

'•'^Freeman   v.    People,    4    Dcnio,    9,    4  Tex.   401,   in   which   the  supreme   court 

Am.  Dee.  216.  decided  that  the  lower  court  was  clearly 

"  In  Gruber  v.  State,  3  VV.  Va.  699,  right  in  charging  the  jury  that  they 
the  two  questions  were  not  kept  dis-  had  nothing  to  do  with  "the  question 
tinct,  for  the  court  of  appeals  decided  cf  the  prisoner's  then  sanity.  That 
that  "if  it  had  been  found  that  the  ac-  question  had  been  very  properly  previ- 
cused  was  insane  at  the  time  of  the  ously  submitted  to  a  jury,  as  a  collat- 
trial,  the  jury  impaneled  on  the  ques-  eral  issue,  and  it  had  been  found  that 
tion  of  the  sanity  of  the  accused  lie  was  sane.  There  was  no  question 
should  have  inquired  whether  or  not  raised  as  to  the  sanity  of  the  prisoner 
he  was  insafie  at  the  time  of  the  al-  at  the  time  the  murder  was  alleged  to 
leged  ofl'ense."  This  was  an  exception-  liave  been  perpetrated." 
al  opinion.  But  in  Welher  v.  Com.  -'Trial  of  Allen  C.  Laros.  at  Easton, 
119  Pa.  223,  4  Am.  St.  Rep.  034,  13  Atl.  Pa.  in  1876;  reported  by  Edgar,  p.  235 
427,  it  was  held  that  the  question  of  el  infra.  The  authorities  are  mar- 
insanity  at  the  time  of  the  offense  must  shaled  in  gi'eat  number  by  Mr.  Scott 
be  tried  by  the  jury  charged  with  the  (now  Judge  Scott)  of  counsel  for  the 
trial    of    the    indictment.     This    is    ac-  prisoner. 


952  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1221 

man  tried  and  found  guilty  of  perjury,  a  preliminary  inquest  had 
been  refused,  and  upon  motion  for  a  new  trial  in  the  United  States 
circuit  court,  upon  the  allegation  that  the  prisoner  was  insane  and 
had  been  insane  when  tried,  Judge  Blodgett  had  a  jury  impaneled  to 
try  the  question  of  present  insanity.  *'If  found  insane  by  your  ver- 
dict," said  the  court,  "the  verdict  now  standing  against  him  will  be 
set  aside."  He  was  thereupon  found  to  have  been  insane  at  the  time 
of  his  trial  on  the  indictment.^'*  Here  the  question  was  not  so  much 
one  of  present  insanity  as  of  insanity  at  the  time  of  a  former  trial. 
This  ease,  therefore,  seems  to  be  an  exceptional  one. 

1222.  Insanity  acts  to  stay  execution. — A  person  under  sentence  of 
<leath  cannot  be  executed  while  insane.^^  This  rule  of  the  common 
law  has  been  embodied  in  statutes  in  some  of  our  American  states; 
as,  for  instance,  in  California. ^^  And  in  Georgia  the  sheriff,  with 
the  concurrence  of  the  ordinary,  may  summon  a  jury  to  determine 
the  question.^^  In  case  of  insanity  occurring  after  the  trial,  the 
burden  of  proof  is  on  the  defendant.^*  In  Pennsylvania  the  supreme 
court  refused  to  appoint  a  commission  to  examine  into  the  alleged  in- 
sanity of  a  condemned  man  on  the  day  before  his  execution.^^ 

1223.  Drunkenness  exempts  a  man  from  trial. — Drunkenness  acts 
in  the  same  way  as  insanity  to  exempt  a  man  from  trial  so  long 
as  that  condition  endures.  The  drunkenness  of  a  defendant  at  the 
time  of  the  inquest  has  been  held  to  be  ground  for  granting  a  new 
trial;  and  if  few  such  cases  are  on  record,  it  is  because  there  are 
few  courts,  indeed,  that  would  permit  a  trial  to  proceed  under  such 
scandalous  circumstances.  We  must  go  to  Arkansas  for  an  example ; 
and  it  is  gratifying  to  read  the  vigorous,  if  ungrammatical,  denun- 
ciation by  the  supreme  court  of  that  state  of  such  a  frontier  pro- 
cedure.^*^ 

1224.  The  exercise  of  judicial  discretion. — The  question  of  what 
constitutes  judicial  discretion  in  the  matter  of  a  preliminary  inquest 
is  apt  to  be  a  burning  one.  As  we  have  seen,  it  is  left  to  the  judge 
to  determine  whether  a  doubt  exists  of  the  prisoner's  present  insanity 

^*Vnited  States  v.  Lancaster,   7   Biss.  v.  State,  100  Ga.  554.  38  L.  R.  A.  577, 

440,   Fed.    Cas.    No.    15,555.      For    rules  28  S.  E.  68. 

as  to  the  burden  of  proof  in  such  cases,  "^State  v.  Paine.  49  La.  Ann.  1092,  22 

see    1     Russ.    Crimes,    p.    29,    flth    ed.  So.   316;   State  v.   Patton,   12  La.  Ann. 

There  have  been  conflicting  opinions  on  288. 

tlip   subject.  ^"E.T  parte  John  McGinnis,  14  W.  N. 

="4  Bi.  Com.  395,  396.  C.  221.     The  law  in   Pennsylvania  pro- 

'^People  V.   Schmitt,    106   Cal.   49,   39  vides  for  such  a  commission,  but  leaves 

Pac.   204.  the   matter   of   its   appointment   to   the 

^'Nohles  V.  Georgia,  108  U.  S.  398,  42  discretion  of  the  court. 

L.  ed.  515,  18  Sup.  Ct.  Rep.  87;  Baughn  "^Taffe  v.  Slate,  23  Ark.  34. 


i  1224] 


TRIAL  or   THE  INSANE  FOR  CRIMES. 


05.1 


when  he  is  called  for  trial.  Is  the  judge  to  constitute  himself  a 
commission  in  lunacy  for  determining  this  question  ?  Is  he  to  as- 
sume the  role  of  an  expert  in  insanity,  and  to  test  the  prisoner's  men- 
tal soundness  by  calling  him  to  the  bar  and  asking  him  his  name, 
his  age,  and  the  day  of  the  week?  Is  he,  from  the  judgment  seat, 
merely  to  glance  at  the  prisoner  in  the  dock,  and,  taking  a  prison 
physician's  word  for  it,  to  decide  that  the  accused  man,  who  may  have 
been  kept  in  chains  as  a  dangerous  lunatic,  is  a  fit  subject  to  stand 
trial  ?  Is  he  to  decline  to  hear  the  evidence  which  the  prisoner's 
counsel  stands  ready  to  produce,  and  thus  to  defeat  the  humane  pro- 
visions of  the  old  common  law?  Lord  Chief  Justice  Hale  said  that 
the  prudent  course  was  to  summon  a  jury,  and  try  the  question  of 
ihe  prisoner's >  present  insanity.^^ 

1225.  A  preliminary  trial  is  not  an  inalienable  right. — The  counsel 
in  the  Webber  Case  made  an  ingenious  argiinient  to  prove  that  it  was 
die  prisoner's  "inalienable  right"  to  have  a  preliminary  trial  of  the 
question  of  his  present  insanity;  but  such  a  plea  has  never  been 
allowed  in  any  case  so  far  as  the  present  writer  knows. 


"  In  People  v.  Lake,  2  Park.  Grim. 
Rep.  215,  Justice  Dean,  in  replying  to 
the  objections  raised  by  tlie  district  at- 
torney to  a  preliminary  trial,  said: 
"If  the  public  or  anyone  who  represents 
it,  desires  to  see  anyone  hung  without 
an  opportunity  to  know  whether  he  is 
in  a  proper  state  of  mind  to  be  tried, 
or  a  fit  subject  of  punisliment,  they 
must  not  ask  me  to  assist  at  the  exe- 
cution." The  prisoner  had  been  tried 
and  found  guilty;  a  new  trial  had  then 
been  granted  by  the  supreme  court; 
then  a  preliminary  trial  was  granted  to 
try  the  question  of  present  insanity. 
This   jury   found   Lake  insane. 

In  People  v.  Ah  Ying,  42  Cal.  18,  the 
supreme  court  held:  ''If,  at  any  time, 
a  doubt  arose  as  to  the  sanity  of  the 
defendant,  it  was  the  duty  of  tlie  court, 
of  its  own  motion,  to  suspend  the  trial 
or  further  proceedings  in  the  case  at 
whatever  stage  the  doubt  arose,  until 
tlie  question  of  sanity  was  determined." 

A  far  different  course  was  pursued 
in  tlie  case  of  Webber,  in  Philadelpliia, 
in  1887.  The  prisoner  was  considered 
so  dangerous  that  he  had  been  kept 
chained  to  the  floor  in  Moyamensing 
jail,  awaiting  trial.  He  was  a  delu- 
sional lunatic.  Judge  Arnold  declined 
peremptorily  to  grant  a  preliminary 
trial  to  determine  the  question  of  pres- 
ent  insanity,   although    Webber's   coun- 


sel were  ready  with  the  proof  in  great 
abundance.  The  court  took  its  cue 
from  the  prison  officials,  who  warned  to 
see  the  man  convicted ;  and  instructed 
the  jury  that  if  tiiey  found  the  prisoner 
guilty  of  tlie  offense,  but  insane  at  the 
time  of  trial,  they  could  say  so  in  their 
verdict, — thus  confusing  the  two  ques- 
tions of  present  insanity  and  insanity 
at  the  time  of  the  alleged  crime.  Jus- 
tice Sterrett  of  the  supreme  court,  in  a 
dissenting  opinion  {Webber  v.  Com.  119 
Pa.  223,  4  Am.  St.  Rep.  634,  13  Atl. 
427 ) ,  criticized  this  action  of  the  lower 
court  in  language  that  is  worth  read- 
ing. After  reviewing  tiie  testimony 
which  Judge  Arnold  had  declined  to 
hear,  he  said:  "If  that  was  an  exor- 
cise of  sound  judicial  discretion,  it 
would  be  difficult  indeed  to  say  wliat,  in 
a  legal  sense,  constitutes  abuse  of  dis- 
cretion." 

In  the  Freeman  Case,  4  Denio,  9,  4 
Am.  Dec.  216,  it  is  said  that  the  trial 
judge,  in  his  capacity  as  examiner  in 
insanity,  went  to  the  jail  himself  and 
examined  the  prisoner.  (So  stated  by 
the  district  attorney  in  the  Webber 
Case. ) 

For  an  important  discussion  of  this 
whole  subject,  see  an  opinion  by  Jus- 
tice Brannon  in  State  v.  Harrison,  36 
W.  Va.  729,  18  L.  R.  A.  z2i.  15  S.  E. 
982. 


954  INSANITY- FORMS  AND  MEDICO-LEGAL  ASPECTS,         [§   1226 

II.   The  old  rule  DE^"YIXG  couxsel  to  a  prisoxer  ox  trial  for 

HIS   LIFE. 

1226.  A  matter  of  historic  interest. — It  is,  perhaps,  a  matter  of 
mere  historic  interest  to  note  how,  in  former  times,  a  man  on  trial 
for  his  life  was  not  allowed  to  have  counsel.  When  the  accused  hap- 
pened to  be  insane,  as  was  not  seldom  the  case,  the  extraordinary  sjdcc- 
tacle  was  presented  of  a  lunatic  conducting  his  own  defense,  and  try- 
ing to  prove  his  own  insanity.  This  rule  does  something  to  temper  our 
admiration  of  the  old  common  law, — a  law  which  in  theory  was 
wise  and  humane,  but  which  in  practice  was  severe  and  unreasonable. 
Blackstone  attempts  to  apologize  for  this  rule  of  law,  but  only  make.> 
the  matter  worse ;  for  he  tells  us  that  the  theory  of  the  common  law 
was  that  the  judge  was  of  counsel  for  the  prisoner,  —  a  statement 
which  will  cause  a  smile  in  alienists  of  the  more  cynical  type."*^  When 
a  reader  of  to-day  tries  to  think  of  Judge  Jefferies  acting  as  counsel 
for  a  prisoner  on  trial  before  him  for  treason  to  the  house  of  Stuart, 
he  gives  up  the  attempt  as  vain.^^  So,  too,  when  he  tries  to  imagine 
an  American  judge,  prejudiced  against  the  ''insanity  dodge,"  acting 
as  counsel  for  a  paranoiac  on  trial  for  his  life.^^ 

In  the  Case  of  Bateman^^  an  insane  man,  of  whom  it  was  said 
at  the  time  that  he  ought  never  to  have  been  tried,  much  less  exe- 
cuted, the  prisoner's  son  was  allowed  to  help  him  in  his  defense ;  but 
in  those  days  it  was  considered  to  be  a  misdemeanor  to  help  a  prisoner 
on  trial,  even  by  whispering  a  word  to  him. 

At  the  trial  of  Edward  Arnold,^^  in  172-4,  for  shooting  at  Lord 
Onslow,  an  effort  was  made  to  have  a  solicitor  at  the  prisoner's  side 
*%  call  his  witnesses  only ;"  but  it  was  most  vehemently  fought  by 
the  four  lawyers  for  the  Cro^^^.^.  They  contended  that  the  judge  was 
"of  counsel  for  the  prisoner,"  and  that  the  attempt  to  prove  him  a 

"4   Com.   355.     Blackstone  speaks  of  her   to  be   beheaded   instead   of   burned 

*'tliat  noble  declaration  of  the  law,  when  at   the   stake.     .JefTeries   told   the   jury, 

rightly  understood,  that  the  judge  shall  after  the  verdict,  that  he  himself,  if  on 

be  counsel   for  the  prisoner."     But  the  the  jury,   would  have  voted  to  convict 

learned    commentator    did    not    approve  her,  'if  she  had  been  my  own  mother." 

s>i  the  law,  and  he  attempts  to  explain  Jiy  special    act    of    Parliament  her  at- 

it  away.  tainder    was    afterwards    removed,  and 

"  See  the  report  of  the  trial  of  Lady  Jefferies   denounced. 

Alice    Li-sle    before    the    notorious    Jef-  '^\  Judge    Arnold,   of   Philadelphia,    in 

feries    (4  Hargrave,  St.  Tr.   106).     She  the   Webber   trial,   announced   from   the 

was  aged  and  infirm,  and  so  deaf  that  bench,   in   a   threatening   tone,   that   he 

she  could  not  hear  what  was  going  on  would   allow  no  repetition  of  the   Gui- 

at    her    trial.     Her    "crime"   had   been  teau  Case  in  his  court.    This  was  at  an 

entertaining    a    nonconformist  minister  early  .stage  of  the  trial,  and  in  response 

who  was   said    to    have    been   in  JNIon-  to  an  excited  remark  by  the  prisoner, 

mouth's    rebellion.      James    II.    refused  "4  Harg.  St.  Tr.  20G. 

to  pardon  her,  although  he  did  allow  "^  16  How.  St.  Tr.  695. 


5   1220J:  TRIAL  OF  THE  1NSAXJ-:   FOR  CRIMES.  9.3.-, 

lunatic  "was  a  design  to  forestall  justice."  This  was  before  a  word 
of  testimony  had  been  heard.  "And  the  man,  to  my  sight,"  said 
the  leading  lawyer  for  the  Crown,  "seems  as  sensible  as  myself  or 
any  person  in  court."  This  snap  diagnosis  by  "inspection"  nmst 
nave  been  agreed  to  by  the  court,  for  Justice  Tracy  decided  against  al- 
lowing the  prisoner  any  counsel,  but  said  that  he  himself  would 
give  him  all  the  assistance  in  his  power.^^  This  was  the  case  in  which 
the  "wild  beast"  theory  of  insanity  was  advanced  by  the  court,  as  an 
assistance  to  the  prisoner. 

How  could  a  fair  trial  of  such  a  grave  question  as  insanity  be  ob- 
tained in  such  a  court?  When  this  poor  wretch  attempted  to  ask 
questions  of  the  witnesses,  he  was  badgered  by  the  Crown  lawyers. 
To  prove  himself  insane  he  would  have  had  to  be  more  than  usually 
sane.  He  was  convicted,  but  was  never  executed.  Lord  Onslow  himself 
appealing  in  his  belialf. 

The  trial  of  Earl  Ferrers,"^  for  the  murder  of  his  steward,  was 
held  in  the  House  of  Lords,  amidst  great  pomp  and  ceremony,  and  the 
defense  was  conducted  by  the  Earl  himself,  because  he  was  not  al- 
lowed counsel.  It  was  an  extraordinary  procedure.  The  case  was 
probably  one  of  alcoholic  insanity,  with  delusions  of  persecution,  in- 
duced on  an  hereditary  basis.  The  evidence  of  chronic  alcoholism 
was  very  strong:  the  Earl  usually  began  the  day  by  drinking  brandy 
in  his  tea,  and  drank  constantly  and  to  excess.  There  had  been  a 
move  once  to  have  him  declared  a  lunatic,  and  his  uncle  and  prede- 
cessor in  the  earldom,  as  well  as  an  aunt,  had  been  insane.  Here  was 
a  lunatic  on  trial  for  his  life,  trying  to  prove  himself  a  lunatic  by 
questioning  the  witnesses  about  his  own  lunacy.**^ 

It  is  needless  to  say  that  the  law  has  been  changed,  and  that  the  de- 
fendant in  a  criminal  trial  is  now  allowed  counsel."''''^ 

^■^  In  spite  of  this,  it  seems  from  the  said  to  the  Lords:   "I  have  been  driven 

report  that  a  solicitor  did  occasionally  to  the  miserable  necessity  of  proving  my 

take    part.     The    account    is    somewhat  own    want    of    understanding;    and    am 

confused,   but   it   appears   that,   on   the  told,  the  law  will  not  allow  mc  the  as- 

uffidavit    that    Arnold    was    insane,    he  sistance    of    counsel    in    this    case,    in 

\\'as  allowed  a  solicitor.  which,  of  all  others,   I  should  think  it 

"'  10  How.  St.  Tr.  886.  most  wanted."     Earl  Ferrers,  like  other 

^^  Some    of    Earl    Ferrers's    questions  insane  persons,  was  opposed  to  making 

were  as   follows:     "Have  you  seen  any  a  defense  of  insanity,  and  said  it  was 

instances    of   anytiiing   like    insanity    in  forced   on   him   by  his  family.     His   de- 

me?"     "Do  you  remember  any  instance  fense  and  speech  were  very  remarkable; 

where  I  appeared  to  be  out  of  my  mind,  the  evidence  was  very  clear  of  insanity, 

and  wliatV"     To  one  question,  "Do  you  and  yet  this  lunatic  conducted  his  own 

look  upon  me  as  afflicted  with  any  and  case  by  trying  to  prove  his  own  derange- 

what    distemper?"    the    witness    replied  ment.     In  his  case  a  man  was  allowed 

very    frankly:    "Indeed,    I    have    looked  to   stultify  himself.     He   was   convicted 

upon    your    lordship    as    a    lunatic    for  by  his  peers,  and  hanged, 

many  years."     In   his   summing   up   he  3S^  it  is  not  inappropriate  here  to  re- 


950  INSANITV— lORMS  AND  -MEDICOLEGAL  ASPECTS.         [§   1227 

III.  Expert  testimony. 

1227.  A  difficult  problem.—  The  problem  presented  by  expert 
testimony  in  mental  and  nen^ous  diseases  is,  beyond  question, 
one  of  the  "most  intricate  of  those  that  come  before  the  courts  of 
law.  To  the  physician  there  should  be  nothing  remarkable  about  this 
fact,  and  instead  of  deploring  that  for  which  there  is  a  very  obvious 
reason,  he  should  take  firmer  ground  than  he  usually  does  to  point 
out  the  reasons,  and  to  defend  himself  and  his  specialty  from  the  crit- 
icisms that  are  too  commonly  uttered  against  both  by  persons  who  are 
either  unthinking  or  not  sufficiently  informed  to  arrive  at  a  just  judg- 
ment. It  seems  to  be  the  understanding  of  both  the  courts  and  the 
public  that  a  medical  expert,  when  he  goes  on  the  stand,  should  have 
arrived  at  his  decision  in  the  case  with  all  the  certainty  that  attends 
the  demonstration  of  a  mathematical  problem.  He  is  to  have  no 
doubts  and  but  little  latitude  for  variations  of  opinion.  As  he  is 
called  in  order  to  help  to  establish  some  momentous  fact,  upon  the 
determination  of  which  may  depend  the  question  of  life,  liberty,  or 
estate,  it  seems  to  be  considered  that  unless  he  can  arrive  at  a  deter- 
minative opinion,  his  expert  testimony  is  without  value;  and  in  case 
he  is  opposed  by  another  expert,  who  is  equally  as  eminent  and  cred- 
ible as  himself,  the  conclusion  is  that  one  or  both  of  them  are  either 
lacking  in  intellectual  honesty  or  scientific  attainment. 

fer  to  the  cruelty  of  the  old  criminal  la^\  land  in  one  year  for  highway  robbery 
of  England,  because  it  tends  to  throw  a  than  the  whole  number  executed  in 
sidelight  upon  the  treatment  of  the  crim-  France  in  seven  years;  and  irr  the  reign 
inal  insane.  A  footnote  to  Hale's  P.  C,  of  Henry  VIIL  seventy-two  thousand 
Am.  ed.,  Vol.  I.,  p.  749_,  gives  a  most  thieves  were  lianged,  being  at  the  rate 
graphic  statement  on  this  subject.  The  of  two  thousand  a  year.  This  unmiti- 
punishment  of  death  was  inllicted  for  gated  ferocity  seems  to  have  been  a  char- 
stealing  from  tlie  person  property  of  acteristic  of  English  law  for  centuries; 
the  value  of  five  shillings, — tliat  is,  for  and  the  .spirit  of  it  was  active  in  the 
picking  pockets;  or  for  stealing  from  m  cases  of  lunatics,  as  the  savage  and 
shop  to  the  same  amount, — that  is,  for  precipitate  trial  and  execution  of  Bel- 
shoplifting.  The  act  of  William  JIL  lingham  showed.  The  same  spirit  is 
inflicting  this  penalty  for  such  a  trivial  very  evident  in  America  even  to  our  day, 
offense  was  described  by  Sir  Samuel  — especially  in  the  fury  for  lynching  men 
Romilly  as  "the  most  sanguinary"  in  without  trial,  and  in  deriding,  amidst 
England.  As  recently  as  1785  no  less  popular  clamor,  a  scientific  defense  in 
than  ninety-seven  persons  were  execu-  some  cases  of  lunacy;  as,  for  instance, 
ted  in  London  for  this  ofTense  alone;  in  the  case  of  Guiteau.  It  seems  impos- 
and  the  dreadful  spectacle  was  exhibited  sibie  when  public  feeling  is  aroused,  and 
of  twenty  suffering  at  the  same  time,  tlie  cry  of  vengeance  is  once  started,  tu 
In  181G  a  child  not  ten  years  old  was  secure  a  rational  and  dispassionate  hear- 
lying  in  Xewgate  under  sentence  of  death  ing  for  the  defense  of  insanity.  The  old 
for  such  petty  thieving,  and  the  judge,  Anglo-Saxon,  and  the  more  recent  An- 
or  recorder,  announced  tliat  the  law  glo-Americnn,  tendency  to  raise  a  hue- 
would  be  enforced.  and  cry  nfter  a  hunted  man  or  a  hunted 

It  is   related   by  this  same  autliority  animal   is  irrepressible, 
(op.   cit.)    that,   in   the   time   of   Henry        Illustrative  of  the  barbaritj'  of  Eng- 

VI.,  more  persons  were  executed  in  Eng-  lisli  law  was  the  sentence  of  Christopher 


§   122S]  TRIAL  or  THE  INSAXE   KOK  CKIMK.S.  957 

1228.  Truth  may  be  elusive.— But  this  is  Ji  cnide  view.  In  the 
first  phice,  truth  is  not  always  a  fixed  quantity,  to  be  arrived  at  by  a 
rule  of  thumb.  If  it  were,  there  would  be  no  necessity  for  our  judges 
and  juries :  any  man  could  determine  it  for  himself.  No  one  knows 
fhis  fact  better  than  the  magistrates  and  officials  in  our  courts  of  law. 
The  whole  system  of  trial  by  jury  is  based  on  this  very  obvious  fact; 
the  whole  machinery  of  the  court  is  fashioned  to  give  to  confusing 
iind  conflicting  testimony  that  nice  balance  that  shall  point  unerr- 
ingly, in  the  fiction  of  the  law,  to  the  truth.  If  this  is  so  in  the  vast 
majority  of  cases  that  come  before  the  courts, — if,  for  instance,  the 
<letails  of  a  street  brawl,  a  petty  larceny,  the  division  of  an  estate,  the 
settlement  of  a  disputed  election,  or  the  granting  of  a  liquor  license, 
all  present  problems  of  uncertainty,  about  which  even  judges  and  ju- 
ries cannot  always  agree;  and  if,  as  is  the  case,  these  problems  are 
naturally  regarded  in  the  courts  as  perplexing,  and  no  especial  com- 
ment is  excited  by  this  fact;  and  if  it  is  also  a  fact  that  honest  wit- 
nesses differ  in  their  testimony,  and  distinguished  lawyers  appear 
with  equal  earnestness  and  positiveness  on  opposite  sides, — if  all  this 
is  so,  how  much  more  should  it  be  expected  that  the  intricate  prob- 
lems presented  by  the  diseases  of  the  human  body,  and,  above  all,  of 
the  human  mind,  will  lead  to  variations  of  opinion  that  are  strictly 
A- i  thin  the  bounds  both  of  honesty  and  experience. 

Layer  (6  How.  St.  Tr.  2G5),  who  was  Salmon  so  dangerously  wounded  in  the 
tried  at  the  King's  bench,  and  found  head  that  it  was  thought  impossible  he 
;j;uilty  of  high  treason,  in  1722:  ''To  be  could  recover.  Whatever  punishment 
hanged  by  the  neck,  but  not  till  you  they  might  deserve  from  the  law,  it  is 
are  dead,  but  you  are  to  be  cut  down  certain  they  ought  not  to  be  killed 
alive,  and  your  bowels  to  be  taken  out,  through  the  rage  of  the  populace.  And 
and  burnt  before  your  face.  Your  head  we  find  tliat  April  11,  1732,  Edward  Bal- 
ls to  be  severed  from  your  body,  and  ton  and  Richard  Griffiths  were  tried  at 
your  body  to  be  divided  into  four  quar-  the  Old  Bailey  for  the  murder  of  John 
ters;  and  that  your  head  and  quarters  Waller  in  the  pillory  by  pelting  him 
be  disposed  of  where  his  Majesty  shall  with  cauliflower-stalks,  etc.,  and  found 
think  fit."  It  is  to  be  hoped  that  he  was  guilty,  and  both  executed  at  Tyburn." 
dead  by  the  time  his  head  was  severed  19  How.  St.  Tr.  809. 
from  his  body,  unless  he  was  like  St.  Mr.  Yellowplush  says,  "Laws  was 
Denis,  who  walked  about  after  his  laws  in  the  year  ten,  and  they  screwed 
martyrdom,  carrying  his  head  in  his  chaps' nex  for  nex  to  nothink."  (Tliack- 
hands.  eray's  Yellowplush   Papers.) 

Death  in  the  pillory  from  fury  of  the  Barbarity  in  the  criminal  law  sup- 
populace  sometimes  occurred.  John  plies,  in  a  sense,  its  own  remedy:  the 
Egan,  convicted  in  the  Old  Bailey  of  pimishments  are  so  atrocious  that  in 
being  an  accessory  to  a  felony  before  time  they  are  evaded  both  by  judges  and 
the  fact,  was  sentenced  to  stand  in  the  juries.  One  expedient  in  England  was 
pillory.  He  and  another  convict  named  for  the  jury  to  find,  in  face  of  the  fact, 
Salmon  stood  in  Smithfield  in  March,  that  the  stolen  property  was  not  worth 
1756.  "They  were  instantly  assaulted  five  shillings.  Finally,  at  every  assizes 
with  showers  of  oyster  shells,  stones,  a  large  number  of  criminals  who  were 
etc.,  ana  had  not  stood  above  half  an  clearly  guilty  of  these  minor  offenses 
Lour  before  Egan  was  struck  dead,  and   would   be  solemnly  sentenced  to  death, 


95S  INSANITY— l-'ORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  1229 

1229.  The  province  of  an  expert  witness.— In  the  second  place,  it 
is  not  the  province  of  an  expert  Avitness  to  decide  the  case.  It  is  too 
much  the  custom  to  regard  him  in  that  light;  and,  unfortunately,  he 
is  too  apt,  in  some  cases,  to  regard  himself  in  that  light.  In  a  trial 
for  murder,  in  which  a  defense  of  insanity  is  made,  his  province  is 
nothing  more  than  to  make  a  diagnosis ;  with  the  bearings  of  this  di- 
agnosis upon  the  issue  at  large  ho  has,  or  should  have,  nothing  to  do. 
For  making  this  diagnosis  he  may  have  less  opportunity  and  less  re- 
liable data  than  a  physician  may  have  in  the  sick  room  for  diagnosing 
an  ordinary  case  of  pneumonia  or  croup.  His  opinion,  therefore, 
should  not  be  demanded  from  him  as  a  dogmatic  statement  of  fact, 
but  as  an  indication,  merely,  of  his  belief.  It  is  from  ignoring  this 
function  that  some  expert  witnesses  degenerate  into  advocates.  Fear- 
ful that  they  shall  be  regarded  as  vacillating  or  ignorani:,  they  be- 
come trenchant  and  intolerant;  but  I  do  not  hesitate  to  say  that  the 
fault  for  this  is  partly  in  the  courts,  who  allow  both  counsel  and  wit- 
nesses to  have  and  to  make  the  impression  that  the  whole  onus  of  du- 
case  falls  on  the  expert.  It  should  be  better  understood  that  a  pbysi- 
cian  on  the  witness  stand  can,  without  detriment  to  his  reputatio]i, 
decline  to  follow  into  all  the  pitfalls  and  quagmires  of  cross-examina- 
tions and  hypothetical  questions.^® 

and   then   respited.     Thus  the  law   was  and    probably    in    an    access    of   mclan- 

made   ridiculous.  cholia.      For   some  embittered   and   dis- 

The  reform  of  the  criminal  law  in  graceful  allusions  to  him  by  Lord  By- 
England  was  largely  due  to  Sir  Samuel  ron,  after  Romilly's  death,  see  the  poet's 
Piomilly,  and  it  is  his  best  monument,  works  recently-  published  by  ]\Iurray,  of 
He  had  to  contend  against  entrenched  London.  Byron  hated  him  for  the  pan 
prejudice  both  in  Parliament  and  in  the  he  took  as  legal  counsel  in  the  separa- 
courts.  His  bill  was  several  times  re-  tion  from  ]>ady  Byron.  The  bard  liad 
jected  by  the  House  of  Lords;  and  Lord  no  love  for  either  lawyers  or  doctors  aft- 
Ellenborough  and  Lord  Eldon,  two  of  er  the  attempt  that  some  of  them  made 
the  highest  judges,  were  particularly  to  prove  him  insane,  at  the  instigation 
hostile  to  it.  The  Lord  Chief  Justice,  of  his  wife.  Consult  Byron's  Works. 
Ellenborough,  "lamented  that  any  at-  edited  by  E.  H.  Coleridge, 
tempts  were  made  to  change  the  estab-  ^'' Lord  Chief  .Justice  Cockburn  (Irish 
lished  and  well-known  criminal  law  of  Law  Times,  1874)  deplored  the  abuse 
the  country,  which  had  been  found  so  of  cross-examination  in  English  courts, 
well  to  answer  the  ends  of  justice;"  "The  way  in  which  we  treat  our  wit- 
and  Lord  Chancellor  Eldon  declared  for  nesses  is  a  national  disgrace  and  a  seri- 
"the  wisdom  of  the  principles  and  prac-  ous  obstacle,  instead  of  aiding  the  ends 
tice  by  which  our  criminal  code  was  of  justice.  In  England  the  most  honor- 
regulated."  Nothing  could  more  clearly  able  and  conscientious  men  loathe  the 
prove  how  extreme  conservatism  is  deaf  witness  box.  ]\Ien  and  women  of  all 
even  to  the  appeals  of  justice  and  hu-  ranks  shrink  with  terror  from  subject- 
manity;  and  the  fear  is  not  groundless  ing  themselves  to  the  wanton  insult  and 
that  it  has  sometimes  been  equally  deaf  bullying  misnamed  cross-examination  in 
to  the  teachings  of  science.  our   English   courts.     ...     I   remem- 

Sir  Samuel  Romilly's  (!nd  was  tragic  bcr  to  have  seen  so  distinguished  a  man' 

and  mournful  in  the  extreme.     He  com-  as  the   late   Sir   Benjamin   Brodie    (the 

mitted  suicide  under  the  burden  of  do-  eminent  surgeon)    shiver  as  he  entered, 

irlestic   sorrow    (the  los&  of  his   wife),  the  witness  box.     .     .*  .     Witnesses  are  ' 


§  1230]  TRIAL  OF  THE  INSANE  FOR  CRIMES.  951. 

1230.  The  uncertainty  of  expert  testimony. — In  the  third  place, 
instead  of  (Jeferriiii;'  so  much  to  the  erilicisin  that  expert  testiinonj-  is 
valueless  because  it  is  uncertain  and  contradictory,  experts  may 
fairlv  sliift  this  opprobrium  by  reminding  judges  and  practitioners 
at  the  bar  that,  in  their  own  provinces,  they  are  equally  uncertain. 
There  would  be  no  supreme  court  if  there  were  no  lower  courts  whose 
decisions  it  is  necessary  to  correct  and  control.  Some  years  ago,  in 
Philadelphia,  a  notorious  politician  who  had  killed  a  man  was  sent 
to  the  Eastern  Penitentiary,  but  was  almost  immediately  released  by 
the  supreme  court,  who  found  grave  error  in  the  trial  below.  Tlii-> 
was  not  a  question  of  insanity,  but  a  question  simply  of  who  fired  thr 
pistol.  Oscar  Hugo  Webber,  a  plain  case  of  delusional  lunacy,  for 
whom  the  writer  testified,  was  found  guilty  in  Philadelphia,  and  sen- 
tenced to  be  hanged  in  spite  of  the  clearest  evidence  of  his  insanity; 
but  the  supreme  court  gave  at  least  one  dissenting  voice  in  the  person 
of  an  eminent  jurist  who  was  afterwards  chief  justice  of  the  state,'*^ 
and  the  governor  was  never  elected  who  was  willing  to  take  it  on  his 
eonscience  to  hang  the  condemned  man.^^^ 

1231.  The  ethics  of  the  subject. — As  for  assuming  opposite  sides, 
and  contending  against  one  another  for  the  establishment  of  the 
truth,  medical  experts  have  the  brilliant  example  of  their  colaborers 
at  the  bar.  Carlyle's  description  of  an  advocate  is  so  well  known  that 
one  may  forbear  to  quote  it.  It  is  difficult  to  see  wherein 
the  ethics  of  a  physician's  position  differ  from  that  of  a  lawyer  who 
takes  indiscriminately  either  side  of  a  case,  provided,  of  course,  the 
attempt  is  made  to  establish,  and  not  to  distort,  the  truth.  ]^o  two 
cases  of  mental  disease  are  just  alike,  no  two  persons  were  ever  in- 
jured in  exactly  the  same  way  in  a  trolley  accident,  no  two  lunatics 
probably  ever  made  the  same  kind  of  a  will.  In  most  cases  something 
can  be  said  on  both  sides,  and  in  a  case  in  which  something  can  be 
said  on  only  one  side,  each  party  thinks  that  that  side  is  his  owli. 
This  latitude  for  varying  opinions  was  never  so  strikingly  shown  as 
in  the  case  of  the  assassin  Gaiteau.  Many  who  advocated  his  hanging 
believed  he  was  at  least  partly  insane ;  leading  minds  in  this  conntrj'- 

just  as  necessary  for  the  administration        4i-j"A     judj^inent     once     entered     in 

of  justice  as  judges  or  jurymen,  and  are  court  was,  in  pure  feudal  law,  irrcvoea- 

entitled   to   be    treated    with    the    same  ble;    the    loser    had   but    one    uncertain 

consideration."  resource,  which  was  to  declare  tliat  the 

,  "Chief    Justice   Sterrett    (Weiber   v.  sentcTice    pronounced    against    him    was 

Co?n.   119  Pa.  223,  4  Am.  St.  Rep.  634,  false   and   bad,   and   challenge   each    one 

13   Atl.   427).     This   opinion    should   be  of    liis   judges,    in    succession,    to    single 

read  by  all  who  are  in  search  of  a  good  combat." — ^Monod    and    B^niont,    Mcdie- 

judjcial    pronouncement   on    the   subject  val  Europe,  p.  432. 
of  insanity  as  a  defense. 


<JGO  IXSAXITY— I'ORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   123] 

took  part  for  and  against  him ;  the  criminal  himself  contended  that  he 
was  sane,  and  yet  a  large  number  of  his  near  relatives  had  been  in 
asylums.  Much  depended  upon  the  point  of  view;  the  definition  of 
responsibility ;  the  heat  of  popular  passion ;  the  expediency  of  poli- 
tics; and  the  prejudices  of  opposing  sides.  The  case  was  finally  de- 
cided and  disposed  of  in  a  way  that  calls  to  mind  the  remark  of  an 
unscientific  critic:  "Call  these  cranks  sane  or  call  them  insane,  but 
kill  them  all  like  rattlesnakes." 

1232.  Proposed  remedies. — From  this  standpoint,  considering  the 
limitations  of  human  judgment,  the  intricacies  of  science,  and  the 
uncertainties  of  legal  processes,  the  writer  has  never  fully  sympa- 
thized with  those  who  are  casting  about  for  a  panacea  for  these  ills. 
It  is  not  probable  that  a  state  commission  of  alienists,  or  a  board  of 
experts  appointed  by  the  judges,  or  a  consultation  of  experts  agTced 
upon  by  opposing  counsel,  would  eliminate  the  defects.  There  would 
remain  the  same  grounds  for  variations  of  opinion,  the  same  inalien- 
able right  of  the  prisoner  to  call  his  own  witnesses.  The  best  that  can 
be  hoped  for — and  it  is  enough — is  that  experts  will  strive  more  and 
more  fully  to  recognize  their  moral  and  scientific  obligations,  and  to 
have  an  eye  single  to  the  justice  that  is  founded  on  truth.  Those  who 
ignore  this  rule  of  conduct  will  inevitably  suffer  in  their  reputations, 
and  thus  weaken  their  position  in  court.  Hence  the  evil  tends  to 
correct  itself.  Their  services  will  be  cheapened  and  no  longer  sought. 
The  expert  testimony  given  in  this  country  to-day  is,  as  a  rule,  of  a 
high  order.  This  standard  can  only  be  maintained  by  the  activity  of 
the  medical  conscience  and  by  medical  training,  as  reflected  in  our 
best  schools ;  and  it  cannot  be  achieved  by  an  act  of  legislature  or  the 
decree  of  a  court. '^^ 

1233.  Memoranda  for  experts. — Finally,  medical  experts  on  the 
witness  stand  should  never  forget  that  they  are  far  better  acquainted 
with  the  subject  in  hand  than  the  lawyer  who  attempts  to  cross-exam- 
ine them ;  and  the  lavf^'er,  too,  should  never  forget  this  fact.  ■*  ^  ^^   Morc- 

"Mr.  David  Dudley  Field    (7  Alb.  L.  Admiralty     upon     eases     of     collision." 

J.  273)    made  a  very   important  state-  Tiiis    opinion,    from    such    an    excellent 

ment  in  his  paper  on  emotional  insanity,  source,    is   quoted   here   for   what   it   is 

"And  I  must  also  think  that  whonevor  worth. 

the  administration  of  tlio  law  is  brought  ^-i  Lord     Lyndhurst's    method,    when 

to   tliat   state   to   which    our    advancint,'  he  was  chancellor,  of  selecting  a  judge, 

civilization  must  bring  it.  the  question  was  very  simple:     "I  look  out  for  a  gen- 

of  insanity  will  be  separated  from  other  tleman.  and  if  he  knows  a  little  law,  so 

questions,  and  medical  men  will  sit  with  much    the    better  "      This    might    be    n. 

the  judges,  as  assessors,  or  exports,  to  good   prescription   both   for   lawyer   and 

aid  in  the  decision,  in  some  such  manner  expert, — they  sJiould  be  gentlemen ;  and 

as  nautical  men  now  sit  in  the  English  if  the  one   knows  a  little  law  and   the 


5   1233] 


TKTAL  OF  THE  INSANE  FOR  CRIMES. 


901 


over,  the  expert  should  not  permit  the  lawyer  both  to  ask  tlie  question 
and  to  answer  it.  This  is  attempted  sometimes  by  the  lawyer  insist 
ing  that  the  question  should  be  answered  in  a  certain  way.  It  is  the 
[)rovinee  of  the  expert  to  answer  the  question  according  to  his  own 
knowledge  and  opinion ;  and  if  the  attempt  be  made  to  force  or  be- 
guile him  to  do  otherwise,  he  should  refuse.  In  most  cases  he  will  be 
sustained  by  the  court,  as  the  writer  knows  from  experience.  Neither 
should  an  expert  submit  willingly  to  be  cross-examined  about  the 
books  and  printed  opinions  of  so-called  authorities :  he  should  never 
do  so  without  demanding  to  see  the  book.  If  he  disagrees  with  the 
book,  let  him  say  so  emphatically.  The  courts  will  never  force  him 
to  subscribe  to  other  men's  opinions,  and  he  will  gain  rather  than  lose 
credit  by  having  opinions  of  his  own.^^ 


otlier  a  little  science,  so  much  the  bet- 
ter. See  Sergeant  Ballantine's  Expe- 
riences, p.  125. 

*^Mr.  Francis  L.  Wellman  (The  Art 
of  Cross-Examination,  N.  Y.  1903,  p. 
82)  an  expert  trial  la^vJ•e^  of  the  New 
York  bar,  says  that  "experience  has  led 
me  to  believe  that  a  physician  should 
rarely  be  cross-examined  on  his  own 
specialty,  unless  the  importance  of  the 
case  has  warranted  so  close  a  study  by 
the  counsel  of  the  particular  subject 
under  discussion  as  to  justify  the  ex- 
periment    .     .     ." 

Chief  Justice  van  Brunt,  of  New 
York,  is  reported  to  have  said,  in  refer- 
ence to  a  well-known  expert,  "Any  law- 
yer who  attempts  to  cross-examine  Dr. 
is  a  fool."  (From  Mr.  Well- 
man's  book.) 

Mr.  Wellman  relates  the  instance, 
however,  of  a  Philadelphia  expert  who 
testified  in  the  Carlyle  Harris  Case  that 
an  instance  was  on  record  of  a  patient 
with  morphia  poisoning  having  inequal- 
ity of  the  pupils;  but  the  expert  was 
forced  to  acknowledge,  on  cross-exami- 
nation, that  he  had  overlooked  the  fact 
that  this  patient  had  one  glass  eye! 
Vol.  I.  Med.  Jue. — 61. 


In  his  interesting  paper  on  "The  In- 
sanity of  King  George  III."  (Am.  Journ. 
of  Insanity,  Vol.  XII.  July.  1855,  p.  1), 
Dr.  Isaac  Ray  gives  us  a  glimpse  at  pro- 
fessional amenities  on  cross-examination 
as  displayed  at  that  time.  Parliament 
appointed  a  committee  to  call  and  ex- 
amine the  King's  pliysicians  as  to  his 
case.  The  leading  phj'sician  (he  was 
also  a  clergyman)  was  Willis.  In  the 
examination  of  Willis  by  Sheridan,  the 
former,  at  the  very  beginning,  ex- 
claimed: "Pray,  sir,  before  you  begin, 
be  so  good  as  to  snufT  the  candles,  that 
we  may  see  clear,  for  I  always  like  to 
see  the  face  of  the  man  I  am  speaking 
to."  Sheridan  was  so  confounded  at 
this  speech  of  the  basilisk  doctor  that 
he  could  not  get  on  in  his  examination, 
and  for  once  in  his  life  was  posed. 

When  Burke  asked  Willis  what  he 
should  have  done  if  the  King  had  be- 
come violent,  "I  would  have  looked  at 
him  thus,  sir,  thus!"  Whereupon  Burke 
instantly  averted  his  face,  and  made  no 
reply. 


CHAPTER  LVIIL 

THE  EXAMINATION  AND  CERTIFICATION  OF  THE  INSANE. 

I.  In  general. 

1234.  The  precautions  of  the  law. 

1235.  The  old  method  by  inquisition. 

1236.  The  modern  method  by  certification. 
1236i.  The  certification  of  habitual  drunkards. 

II.  Duties  of  physicians  with  reference  to  certifying  insanity. 

1237.  Tlie  responsibility  of  physicians. 

1238.  Details  of  the  legal  requirements. 

1239.  The  grounds  for  certification. 

1240.  Concealed  insanity. 
III.  The  liabilities  of  physicians. 

1241.  Negligence. 

1242.  Conspiracy. 

1243.  Trespass  and  malicious  arrest. 

1244.  A  certificate  of  insanity  is  merely  a  written  opinion, 

1245.  The  legal  status  of  a  certificate. 

1246.  A  certificate  may  be  a  libel. 

1247.  The  power  to  detain  and  to  discharge. 

1248.  Habeas  corpus. 

I.   In  General. 

1234.  The  precautions  of  the  law. — The  law  has  ever  been  careful 
to  protect  persons  from  being  falsely  declared  insane.  As  early  as 
the  reign  of  Edward  VI.  (a.  d.  1548)  it  was  enacted  that  "if  any 
person  be,  or  shall  be,  untruly  founden  lunatic,  idiot,  or  dead,"  he 
shall  have  a  right  to  traverse  the  inquisition  at  his  pleasure.^  The 
law  seems  here  to  have  looked  upon  an  inquisition  of  insanity  as  be- 
ing little  better  than  a  coroner's  inquest.  In  either  case  the  aggrieved 
party  had  a  right  to  demonstrate  to  the  world  that  he  was  not  insane, 
or  not  dead,  as  the  case  might  be.  ^  ^* 

1235.  The  old  method  by  inquisition. — The  process  for  finding  a 
man  insane  is  very  old  in  English  law,  as  we  have  shown  elsewhere. 

'  2  &  3   Kd.  VI.  chap.  8,  §  6.  ing  is  the  uncertain  continuance  of  rea 

1^  "Of  the  uncertainties  of  our  pros-    son." — Dr.  Johnson,  Rasselas. 
ent  state,  the  most  dreadful  and  alarm- 

9G2 


§  1235]         EXAMINATION  AND  CERTIFICATION  OF  JNSANE.  90:5 

The  oldest  writ  was  de  idiota  inquirendo,'  for  in  the  early  days  the 
term  ''idiot"  seems  to  have  been  used  in  this  process  for  all  forms  of 
mental  disease.  Later  this  old  writ  was  almost  supplanted  by  the 
writ  de  lunatico  inquirendo,  for  reasons  elsewhere  explained.  Tlic 
original  motive  for  legally  declaring  a  lunatic  or  idiot  to  be  such  arose 
from  the  necessity  of  looking  after  his  property,  as  was  shown  in  the 
earliest  extant  statute  on  this  subject, — the  statute  De  Prerogativa 
Rcgis.^  But  it  was  early  a  part  of  tlie  law  that  not  only  his  property, 
but  also  his  person,  was  to  be  taken  in  charge  by  his  committee,^  and 
when  this  charge  involved  the  profitable  administration  of  a  good 
estate,  as  it  sometimes  did,  this  privilege  was  much  esteemed  and 
even  sought  after;  so  that  the  expression  arose  of  ''buying  a  fool." 
The  common  law  and  the  early  legislation  on  this  subject  have  been 
discussed  elsewhere  in  these  pages.   (Chapters  XXIV.,  XXVI.) 

It  is  not  within  the  province  of  the  present  writer  to  describe  the 
machinery  of  the  law  for  conducting  an  inquisition  in  lunacy.  That 
is  a  purely  legal  subject,  and  a  very  extensive  one.  The  medico-le- 
gal subject  has  reference  merely  to  the  question  of  sanity  or  insanity. 
There  are  some  special  points,  however,  which  it  is  well  for  the  medi- 
cal expert  to  know  and  to  bear  in  mind. 

The  alleged  lunatic  has  the  right  to  be  present;  and  the  proceed- 
ings have  been  set  aside  because  he  was  not  summoned  in  time  to 
cross-examine  the  witnesses,  but  was  brought  in  only  for  purposes  of' 
exhibition,  and  was  again  excluded  wdien  the  finding  came  up  for 
consideration.^^  In  Pennsylvania  it  has  been  held,  following  the 
English  chancery  practice,  that  the  finding  must  be  specifically  "un- 
sound mind"  or  no)i  compos  mentis,  and  the  proceedings  have  repeat- 
edly been  set  aside  where  this  rule  was  not  observed. ^^ 

The  original  motive  for  the  inquisition,  as  stated  in  the  old  statute 
De  Prerogativa  Eegis,  was  the  care  of  the  lunatic's  estate ;  and  this 
motive  has  been  dominant  in  these  proceedings  all  through  the  cen- 
turies, and  still  prompts  the  language  of  the  courts.  Thus,  it  has 
been  held  that  the  proper  question  on  the  traverse  of  an  inquisition 
is  whether  the  mind  is  deranged  to  such  an  extent  as  to  disqualify 
the  alleged  lunatic  from  managing  and  disposing  his  own  affairs ;  al- 

^  Fitzlicrbert,   Nat.   Brev.   232;    1    Bl.  Lunatics;     and    Pope,    Lunacy,    2d    ed. 

Com.  303,  304.  1802. 

M7  Edw.  II.  chap.  9.  Sa/i'c  7/j«c/man,  4  Clark  (Pa.)   184. 

*  It    is    the    practice    of    the    English  '•>i>Com.  v.  Tiecvef!,  140  Pa.  258,  21  AtL 

Chancery  to  appoint  two  committees, —  315;  Re  Beaumont,!   Whart.  52,  29  Am. 

one  of  the  person,  the  other  of  the  es-  Dec.  33;  Heft's  Case,  8  Pa.  Dist.  R.  99; 

tate.  Re  Gaul,  7  W.  N.  C.  522. 

'  See  also  Collinson,  Lunacy ;  Shelford, 


964  INSANITY— FOKMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1235 

though  the  inquirj  also  includes  whether  he  is  capable  of  conducting 
himself  with  safety  to  himself  and  others."^''  The  right-and-wrong 
test  is  not  usually  proposed  in  these  proceedings.  "The  protection 
of  property  is  one,  if  not  the  main,  object  of  the  statute." ^"^  A  de- 
lusional lunatic  with  hallucinations  of  hearing  has  been  declared  by 
a  jury  to  be  sane,  in  a  suit  raised  by  the  traverse  of  an  inquisition.^® 

Finally,  it  has  been  held  by  the  courts*  that  the  finding  of  an  inqui- 
sition is  only  prima  facie  evidence  of  insanity  when  the  question  is 
raised  of  the  responsibility  or  liability  of  the  lunatic  in  criminal  or 
civil  proceedings.^' 

1236.  The  modern  method  by  certification. — With  the  growth  of 
the  modern  insane  asylums  an  elaborate  system  of  jurisprudence  has 
arisen  to  control  the  admission  and  detention  of  insane  persons  in 
these  institutions.  Both  in  England  and  America  the  old  method  by 
inquisition  on  a  ^Yrit  or  a  commission  de  lunatico,  which  is  cumber- 
some and  costly,  is  not  necessary  for  committing  lunatics  to  asylums, 
although  this  method  still  prevails  for  the  control  of  the  lunatic's 
estate.  The  method  now  generally  in  vogaie  in  Great  Britain  and 
America  is  by  a  process  of  certification,  which,  in  the  main,  is  simple, 
and  at  the  same  time  acts  as  a  safeguard  against  the  unjust  detention 
of  any  person  in  an  asylum.  But  the  laws  are  necessarily  elaborate, 
and  they  vary  in  our  different  states ;  so  it  is  not  practicable,  with  our 
limited  space,  to  describe  them  in  these  pages.® 

^cM'Elroy's  Case,  6   Watts  &  S.  45L  oeCom.    v.    Meredith,  41     Phila.  Leg. 

The  opinions  in  this  case,  both  in  the  Int.   (54.     Tlie  issue  was  defined  by  the 

supreme  and  lower  courts,  were  admir-  court  to  be  whether  the  mind  was  so  im- 

ably  clear  and  instructive.     The  old  def-  paired  as  to  render  the  party  incapable 

inition.  that    insanity  meant    a    "total  of  oroverning  his  body  and  estate, 

deprivation"  of  understanding  and  mem-  5f  Pepper  &  Lewis,  Digest,  loc.  cit.    Sec* 

ory.  was  condemned.  also   chapter   on   "Contracts   and   Torts 

5i3(7om.  ex  rcl.  EucJienberg  v.  Schnei-  of  the  Insane,"  in  the  present  work   (§ 

der,  59  Pa.  .328.     It  was  held  that  the  1208). 

state  of  unsoundness  of  mind  which  in-  The  Penn.  act  of  June  25.  1805,  allows 

capacitates    a   person    from    taking   care  the  court  to  appoint  a  guardian   for  a 

of  his  person  or  business  is  the  condi-  "weak-minded"   person,   to  take  care  of 

tion  prescribed  by  the  act  of  Assembly,  h.is  ])roperty;  but  apparently  this  act  is 

The  real  test  is  inability  to  care  for  his  not  intended  to  supersede  the  old  inqui- 

property,    rather    than    for    his    person,  sition    in    lunacy.       It   distinguishes    in 

The    following    opinion     by     the     lower  effect,  however,  between  a  lunatic  and  a 

court  was  rejected,  and  a  new  trial  or-  weak-minded    person :    and    therefore    is 

dered:      "Until    the    mind     is     entirely  not  based  on  scientific  principles,  but  is 

blotted  out,  j)ersons  must  be  left  to  tht  a   reversion  to  old-fashioned  legal   psy- 

management  •  of    their    own  affairs.     As  chiatry. 

long  as  there  is  a  spark  of  intelligence  For  the  proceedings  in  lunacy,  see  El- 
left,  the  law  does  not  permit  their  lib-  mer,  Limacy;  Buswell,  Insanity,  Bos- 
erty  to  manage  them.selves  or  propert}  ton.  1885;  Pope,  Lunacy,  2d  ed.  London, 
to  be  taken  from  them."  See  also  1802;  Wood  Renton,  Law  of  and  Prac- 
Smith's  Case,  12  Pa.  Super.  Ct.  G49;  and  tice  in  Lunacy,  Edinburg  and  London, 
Pepper  &  Lewis,  Digest,  Vol.  IX.  14,38.",  1806. 
et  seq.  *A  useful  abstract  of  the  lunacy  laws 


§   i23GJ]        EXAMINATION  AND  CERTIFICATION  OF  INSANE.  9G5 

1236V2-  The  certification  of  habitual  drunkards. — In  some  states 
Ihe  chronic  inebriate  is  on  the  same  ground,  in  the  contemplation  of 
the  law,  as  the  insane  patient;  and  provisions  are  made  for  certify- 
ing and  committing  him  to  an  asylum  or  hospital.  This  shows  the 
progress  that  has  been  made  in  the  law  towards  a  scientific  view  of 
inebriety.  In  Pennsylvania,  by  act  of  Assembly,  passed  in  1903,  the 
habitual  dnmkard  or  tlie  narcomaniac  may,  on  proper  evidence,  be 
committed  by  a  judge  of  the  quarter  sessions  or  other  magistrate, 
and  detained  in  a  hospital  for  a  period  not  exceeding  one  year.  This 
law  follows  the  pattern  of  the  English  lunacy  law  of  1890-91,  by 
which  the  patient  is  regularly  committed  by  a  magistrate ;  and  dif- 
fers from  the  rather  more  lax  laws  in  some  of  our  American  states, 
in  which  no  such  formal  commitment  is  required  in  the  case  of  in- 
sane patients.  ^^ 

11.  Duties  of  physicians  with  eefebence  to  certifying  insan- 
ity. 

1237.  The  responsibility  of  physicians. — In  this  process  of  certifi- 
cation the  laAv  places  the  main  burden  of  responsibility  upon  the  phy- 
sicians. The  medical  men  make  the  diagiiosis  and  determine  the 
necessity  for  a  commitment.  Although  it  is  usually  necessai-y  for 
some  responsible  person,  as  a  relative  or  friend,  to  join  in  the  legal 
formalities,  and  a  magistrate  is  required  to  put  his  seal  on  the  paper 
(although  he  does  not  act  as  a  committing  judge),  nevertheless  these 
functions  are  largely  formalities,  and  it  is  to  the  medical  certificates 
that  the  law  looks  practically  for  a  warrant  for  the  proceedings.' 

in  our  several  American  states,  by  Dr.  91,  the  legal   formalities  were  changed. 

Charles  F.  Folsom,  of  Harvard  Univer-  The  order  admitting  the  patient  to  the 

nity,   and  ]\Ir.   Hollis  R.   Bailey,   of  the  asylum    is   now    signed   by   a  justice   of 

Massachusetts   Bar,   is   published   as  an  the     peace     or     other     judicial     officer 

appendix    to    the    American    edition    ot  named.    In  order  to  secure  this  commit- 

Clouston's  Clinical  Lectures  on  INIental  ment  a  relative  or  friend  of  the  lunatic 

Diseases.     The  present  writer  must  con-  petitions  the  magistrate  for  the  order, 

tent  himself  Avith   a  mere  reference   to  and  submits  the  certificates  of  two  phy- 

that    abstract.      See    also    MacDonald,  sicians.     Thus,  the  medical   certificates 

"Laws     Relating     to     the     Insane,"     in  are  merely  written  opinions,  or  evidence, 

Haines     and     Peterson's     Text-Book     of  upon   whicli   the  committing  magistrate 

Leg.  Med.  and  Tox.  Vol.  II.  p.  194;  and  in  part  bases  his  order.  From  the  purely 

Tuke's    History    of    the    Insane    in    the  legal    standpoint    tliis    seems    to    be    a 

British  Islands,  London,  1882.  more  correct  method  than  the  one  pre- 

6i  Act    of    Assembly,  approved    April  vailing     in     many     of     our     American 

Ifi,    1903,   P.   L.    153.     See  also   §   9521,  states.      It     makes     the    procedure    ap- 

and  footnote  57  in  the  chapter  on  Alco-  pear  more  like  an  inquest;   in  fact,  the 

holic  Insanity,  of  the  present  work.  magistrate  has  full  power  even  to  have 

'  By  the  English  lunacy  law  of  1890-  the  alleged  lunatic  brought  before  him 


[«GG  INSANITY— J  ORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1237 

Therefore,  in  view  of  the  jealousy  with  which  the  law  guards  the  lib- 
erty of  the  citizen,  a  great  trust  is  here  imposed  upon  physicians,  for 
they,  in  effect,  have  the  power  to  commit  a  person  to  a  place  of  deten- 
tion. (§§  1244-45.)  There  are,  in  fact,  few  more  responsible  duties 
assumed  by  a  physician  than  to  sign  a  certificate  of  insanity.** 

The  law  does  not  require  that  the  physician  who  signs  a  certificate 
of  insanity  should  be  a  specialist  It  is  enough  for  him  to  be  in  good 
standing  and  repute ;  i.  e.,  a  properly  qualified  practitioner.  But 
when  two  physicians  are  required  to  sign,  it  is  not  uncommon  for  one 
of  them,  at  least,  to  be  an  expert.  This,  in  fact,  is  a  good  rule  for 
general  practitioners  to  adopt, — to  secure  the  services  of  a  specialist 
to  join  in  the  signing.  In  Pennsylvania,  and  probably  in  some  other 
states,  the  law  requires  that  the  examinations  be  made  separately ;  but 
the  reason  for  this  rule  is  not  clear,  unless  it  be  to  prevent  collusion, 
or  conspiracy  to  deprive  people  of  their  liberties, — a  supposition 
which  is  not  complimentary  to  the  doctors,  and  a  rule  which  could 
not  prevent  such  a  conspiracy  if  such  were  contemplated.  Like  some 
other  details  of  the  law,  tliis  is  finical ;  but  it  should  be  scrupulously 
obeyed.  In  fact,  every  detail  should  be  strictly  obeyed,  for  the 
signer  has  to  qualify  under  oath  or  affirmation ;  and  he  may  be  called 
to  account  later  for  all  that  he  has  done. 

1238.  Details  of  the  legal  requirements. — The  Pennsylvania  law, 
which  may  serve  as  an  example,  although  it  is  not  identical  with  the 
laws  of  all  the  other  states,  requires  that  the  physicians  be  residents  of 
the  state;  that  they  separately  examine  the  patient  within  one  week 
prior  to  the  signing;  that  they  believe  that  the  patient  is  not  only  in- 
sane, but  that  the  disease  is  of  a  character  that  requires  that  the  pa- 
tient be  placed  in  a  hospital  or  other  establishment  where  the  insane 
are  detained  for  care  and  treatment;^  that  they  have  actually  been  in 

and  examined.     J3ut  it   is  cumbersome,  alienist).      "Sir,"     said     Willis,     "our 

and    it   is    likely   to   dejrenerate    into   a  Saviour  himself  went  about  healing  the 

mere  formality,'  the  medical  certificates  sick."     "Yes,"  answered  the  King,  "but 

being,  after  all.  the  pivot  of  the  whole  He  had  not  £700  a  year  for  it."     Lord 

business.     See  Tuke,  Diet.  Psych.  Med.  Malnisbury's  Diaries,   IV.  317. 

art.  on   "The   Law   of  Lunacy."     ]\Iuch  "Great   stress   is   laid   by   some   legal 

useful     information    can    be    found    in  writers    upon    this    detail.     It    is    not 

Tuke's  History   of    the    Insane    in    the  enough   that  the  patient  be  insane:   his 

British   Islands.     London,    1882.  insanity  must  be  of  such  a  kind  that  it 

*  Wlien  George  111.  was  insane,  lie  was  requires  his  commitment  either  for  his 

placed  in  the  care  of  Rev.  Dr.   Francis  own    welfare    or    for    the    protection    of 

Willis,  who  was  a  clergyman  as  well  as  others.     A  somewhat  similar  test  is  re- 

a  specialist  in  mental  diseases.    It  is  re-  quired  in  the  inquisition  de  lunatico,  ex- 

lated  that  the  King  asked  Willis,  when  cept    that    more    importance    is    there 

he  entered  the  room,   if  he,  who  was  a  placed  upon  the  question  of  business  ca- 

clorgyman.  was  not  ashamed  of  himself  ])ncity.     M'Elroy's  Case,  6  Watts  &  S. 

for    exercising    such    a    profession     (as  451. 


§   1238]  EXAMINATION  AND  CKIITIFICATION  OF  INSANE.  967 

the  practice  of  medicine  for  at  least  five  years;  that  they  be  not  re- 
lated by  blood  or  marriage  to  the  patient;  and  that  they  be  not  offi- 
cially connected  with  the  institution  in  which  the  patient  is  to  be 
treated.  These  requirements  are,  in  the  main,  reasonable  enough, 
and  are  supposed  to  insure  care  and  a  due  sense  of  responsibility. 

1239.  The  grounds  for  certification. — In  some  jurisdictions  the 
physicians  are  required  to  state  their  reasons  for  believing  the  patient 
to  be  insane.  This  rule  often  taxes  the  descriptive  power  of  a  physi- 
cian, especially  if  he  is  not  very  conversant  with  mental  diseases.  It 
is  bes-t  to  confine  the  description  to  a  simple  statement  of  the  chief 
symptoms,  and  not  to  indulge  in  flights  of  descriptive  rhetoric.  The 
error  is  sometimes  committed  of  attempting  too  much.  Such  symp- 
toms as  change  of  character  and  habits,  delusions,  hallucinations, 
maniacal  excitement,  melancholic  depression,  loss  of  memory,  of  the 
power  of  attention,  inability  to  work  or  to  engage  in  the  usual  occu- 
pations, failure  of  mental  power,  suicidal  or  homicidal  impulses, 
destructive  or  filthy  habits,  stupor,  confusion,  or  delirium,  are  the 
commonest  and  the  most  easily  described.  The  law  does  not  demand 
a  complete  clinical  history,  nor  speculative  or  imaginative  dis- 
courses.^** 

1240.  Concealed  insanity. — Some  patients  conceal  their  insanity. 
This  is  true  especially  of  delusional  patients,  who  may  be  suspicious 
of  a  design  to  send  them  to  an  asylum.  This  power  of  concealment 
is  no  proof  that  the  patient  is  not  insane ;  in  fact,  he  may  be  very 
insane,  even  dangerously  so.  Erskine,  in  his  speech  for  Hadfield,^^ 
referred  to  the  case  of  a  man  who  had  concealed  his  delusion  through 
a  long  cross-examination,  but  was  finally  induced  to  exclaim  in  open 
court:  "I  am  the  Christ."  A  somewhat  similar  case  happened  be- 
fore Lord  Mansfield,  and  another  before  Lord  Lyndhurst,  in  a  man 
who  finally  announced  that  he  was  the  prophet  Ezekiel.  A  delusional 
lunatic  may  believe  that  a  whole  neighborhood  is  in  leagTie  against 
him ;  that  his  wife  is  faithless  to  him ;  and  he  may  hear  voices  telling 
him  so;  and  yet  he  may  so  deceive  a  physician  that  the  latter  pro- 
nounces him  sane.  ^  ^  Great  tact  and  patience  are  often  required  to 
unearth  these  cases,  and  a  full  history  of  the  case  should  be  obtained 

"Much    could   be    wi'itten    about    the  months)."   "Reads  his  Bible,  and  is  anx- 

ludicrous    statements    which    sometimes  ious   about   the   salvation   of  his   soul." 

appear     on      certificates     of     insanity.  The  last,  as  a  symptom  of  insanity,  will 

Clouston  gives  the  following  specimens:  strike    some     devout     readers     as     far- 

"He    is    incoherent   in   his   appearance."  fetched. 

"Eyes   restless   and  wandering,  but  fol-  ^'^  Had  field's    Trial,    27    How.    St.    Tr. 

lowing  the  usual   occupation   of  break-  1281. 

ing  stones."     "She   says   she   is   in   the  ^"Com.    ex   rel.    Rtihright   v.    Western 

family  way    (she  had  a  baby  in  a  few  Pennsylvania    Hospital,    3    Pittsb.    2'.)9, 


i/GS  INbANllY— rolvMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1240 

before  attempting  the  examination.^^  Insane  persons  will  often  not 
stand  prodding  on  the  subject  of  their  delusions;  therefore  skilful 
and  suggestive  questions  will  often  start  the  full  flood-tide  of  their 
confidences.^* 

It  is  not  well,  as  a  rule,  to  resort  to  tricks  or  subterfuges  with  these 
patients,  and  it  is  generally  best  for  the  examiner  not  to  conceal  the 
fact  that  he  is  a  physician.  This  matter,  however,  must  be  left  to 
the  judgment  of  the  individual  in  each  case.  To  give  intoxicating 
drinks,  in  order  to  make  an  insane  man  more  voluble,  is  an  unprofes- 
sional act.  An  expert  who  cannot  detect  insanity  without  the  aid  of 
alcohol  is  no  expert  at  all ;  he  is  better  fitted  to  be  a  police  detective. 

In  brief,  the  task  of  a  physician  when  he  examines  a  patient  for 
certification  is  to  make  a  diagnosis.  If,  for  any  reason,  he  is  not 
able  to  make  a  diagnosis,  he  should  not  sign  the  certificate.  The 
whole  art  of  diagnosis  may  be  involved  in  the  case,  and  there  is  no 
rule  for  it  except  to  have  a  reliable  loiowledge  of  insanity.^^ 

III.   The  liabilities  of  piiysicians. 

Let  us  consider  now  a  subject  that  is  rather  more  appropriate  to 
these  pages ;  namely,  the  liabilities  of  physicians  under  the  law  when 
they  sign  a  certificate  declaring  a  person  insane. 

1241.  Negligence. — The  law  will  not  presume,  in  case  a  physician 
has  signed  a  certificate  for  a  person  who  is  afterwards  found  to  have 
been  sane  at  the  time,  that  such  a  physician  has  acted  in  bad  faith. 
Therefore,  an  action  for  trespass  or  for  conspiracy  will  not  neces- 
sarily lie  against  him.  The  evidence  must  be  clear  that  he  has  not 
acted  bona  fide.  If  he  has  acted  in  good  faith,  the  most  that  can  be 
sustained  against  him  is  a  charge  of  negligence.  Moreover,  if  he  has 
taken  due  care  in  his  examination,  and  has  merely  committed  an 
error  of  judgment,  it  has  been  held  that  he  is  not  even  guilty  of  neg- 
ligence.    This  question  has  l>een  decided  in  not  a  few  cases. 

An   excellent   opinion   Avas   delivered   in  when   it   was   found   tliat  ho   had   a  de- 

tliis  case  by  Jud^re  Stowe.  who  took  a  lusion  that  he  was  followed  in  church 

clearly  scientific  view  of  the  disease.  by   Jews,   who    made   grimaces    at   him 

"  It  was  a  saying  of  TIeinroth's  that  and    interrupted    him    in    his    prayers, 

lunatics  never  denj''  a  delusion,  nitliough  Tuke.  Diet.  Psych.  Med.,  Vol.  11.  p.  690. 
tliey  may  abstain   from   speaking  of  it.         "  Spitzka.     Insanity.     1883.     p.     322; 

Tliis  distinction  is  not  absolute,  liut  it  Cliapin,  Compendium  of  Insanity,  p.  210; 

is,  in  general,  true.     See  an  article  on  Sankey,    Lectures    on    Mental    Disease. 

"Larvated  Insanity"  in  the  Journal   of  p.  420. 

Mental  Science,  April,  188(i.  for  curious        '''  Bucknill.    "On    Medical    Certificates 

instances.      Cases  of  prolonged   conceal-  of  Insanity,"  in  the  Journ.  of  Ment.  Sci 

ment  of  delusions  have  occurred.     One  Vol.   VII.   p.   70;    Ordoneaux.   "Judicial 

man    never    v/ent    to    the    same    church  Problems    Relating    to    tlie    Disposal    of 

twice  in  succession,  but  no  reason  could  Insane    Criminals,"    in    the   Crim.    Law 

be    discovered    until    after    some    years,  Mag.  Sept.  1881,  pp.  591  and  729. 


§  1241]  EXAMINATION  AND  CERTIFICATION  OF  INSANE.  909 

In  a  leading-  English  case^*'  tlie  judge  declared  that  the  "true 
gTound  of  the  complaint  is  the  negligence  of  the  defendant,  and  the 
want  of  due  care  in  the  discharge  of  the  duty  thrown  upon  him." 
It  has  even  been  provided  in  the  act  16  &  17  Vict.  chap.  96, 
that  if  any  action  shall  be  brought  against  any  person  for  anything 
done  in  pursuance  of  the  act,  the  defendant  may  give  the  statute  in 
evidence,  and  that  the  same  was  done  in  pursuance  and  by  author- 
ity of  that  act.  This  statute  was  evidently  intended  to  protect  physi- 
cians who  act  honestly  and  with  due  care  in  sigTiing  certificates  of 
insanity.^'^  In  Pennsylvania  the  supreme  court  held  that  no  pre- 
simiption  of  negligence  arose  from  the- mere  fact  that  the  defendants 
were  mistaken  as  to  the  fact  of  insanity  ;^^  the  burden  of  proving 
negligence  was  on  the  plaintiff.  From  these  opinions  it  is  clear  that 
the  courts  will  not  willingly  see  a  physician  mulcted  in  damages,  pro- 
vided he  has  not  been  negligent.  A  mere  error  of  opinion  is  not 
evidence  of  such  negligence. 

1242.  Conspiracy. — Conspiracy  to  confine  a  sane  person  in  an  asy- 
lum is,  of  course,  a  crime  which  the  law  fully  recognizes,  and  the 
courts  will  be  vigilant  to  protect  from,  and  to  punish  for,  such  an 
offense.  But  the  evidence  of  mala  fides  must  be  clear.  The  mere 
signing  a  certificate,  as  already  said,  does  not  raise  such  a  presump- 
tion. Action  will  lie  against  laymen  as  well  as  against  physicians, 
as  in  the  case  of  two  men  convicted  of  conspiring  to  confine  the  wiie 
of  one  of  tliem  in  an  asylum.^ ^  A  suit  for  conspiracy  against  a  su- 
perintendent of  an  asylum  has  failed  under  the  following  circum- 
stances: After  commitment  to  the  asylum,  the  patient  was  found 
insane  by  a  commission  de  lunatico;  she  afterwards  petitipned  that 
the  committee  be  discharged,  as  she  had  recovered  her  reason ;  and 
this  was  done.  She  then  brought  suit  against  the  physician  for  con- 
spiracy. It  was  held  that  her  petition  had  been  a  confirmation,  or 
acknowledgment,  by  her  of  her  lunacy,  and  she  could  not  recover  for 
conspiracy  to  confine  her  during  the  period  covered  by  the  inquest.-*^ 

^^Hall   V.   (temple,   3   Post.   &   F.   337.  ^Willimns   v.    Le   Bar,    141    Pa.    149. 

"It  is  not  that  a  medical  man  is  bound  21   Atl.   525.     "Tlie  most  the   case  dis- 

to  form  a  riijht  judgment,  so  as  to  be  closes  is  an  error  of  judgment  to  which 

liable  to  action  if  he  does  not.     .     .     .  the  most   careful   ana   skilful    pliysieian 

It  would  be  dreadful  if  a   man  were  to  is  liable  in  a  mysterious  disease  like  in- 

be  visited,  in  cases  of  this  kind,  for  con-  sanitj'."     A  judgment  had  been  given  in 

sequences  arising    from    mere    error  of  favor  of  the  defendants,  and  it  was  sus- 

judgment  or  mistake  in  fact."  tained  by  the  supreme  court. 

"Lord    Chief    Justice    Campbell    held  ^"Com.  v.  8pi7ik,  137  Pa.  255,  20  Atl. 

that  the  person  signing  the  order    (not  680. 

the  physicians)    is  not  protected  by  the  '^"Johnston  v.  Given.  14  W.  N.  C.  32G. 

statute.     Fletcher  v.  Fletcher,   1   El.  &  In   this   case   contradictory   views   were 

El.  420,  28  L.  J.  Q.  B.  N.  S.  134,  5  Jur.  held  by  opposing  sides  as  to  the  force 

N.  S.  678,  7  Week.  Rep.  187.  of   an    inquisition    as   proof   of   lunacy. 


970  INSANITY— i'UKMS  AND  x\lEJ)lCU-LEGAL  ASPECTS.         [§  1243 

1243.  Trespass  and  malicious  arrest. — The  questions  of  trespass 
and  of  malicious  arrest  have  arisen  in  these  cases. ^"^  We  have  said 
elsewhere  (§  1237,  supra)  that,  in  effect,  the  physicians'  certificates 
act  as  a  sort  of  warrant  for  the  commitment  to  the  asylum.  But  al- 
though this  may  be  so  practically,  so  long  as  the  case  is  not  disputed, 
it  is  not  technically  so  in  law.  Moreover,  there  is  a  clear  distinction 
between  signing  a  certificate  of  insanity  and  taking  the  patient  bodily 
to  the  asylum.  With  the  latter  act  physicians,  as  a  rule,  have  noth- 
ing to  do.  Therefore,  they  are  not  liable  for  trespass  in  causing  the 
arrest  of  the  patient  merely  because  they  signed  a  certificate,  un- 
less, indeed,  they  took  part  in  conducting  the  patient  to  the  door  of 
the  asylum.-^ 

1244.  A  certificate  of  insanity  is  merely  a  written  opinion. — A  phy- 
sician's certificate  of  insanity  is  nothing  more  than  his  written  opin- 
ion tliat  the  person  is  insane  and  a  proper  subject  for  commitment. 
It  is  not  a  warrant  nor  a  binding  order  on  any  person  to  commit  or 
to  detain  the  lunatic.  So  true  is  this,  that  the  authorities  of  the  asy- 
lum, or  the  committee  of  lunacy,  can  discharge  the  patient  at  any 
time,  even  within  an  hour  of  his  admission,  if  they  deem  him  an 
improper  subject  for  detention.  Hence,  from  the  moment  he  enters 
the  asylum,  the  authorities  alone  are  responsible  for  detaining  him; 
the  physicians  who  signed  his  certificate  have  absolutely  no, power 
over  him,  and,  of  course,  are  not  legally  responsible  for  him  or  his 
detention.  Their  opinion,  as  a  matter  of  necessity,  is  not  asked 
about  his  discharge.  How,  then,  can  they  be  held  responsible  for  his 
imprisonment  ?  "^ 

One  side  h^ld  that  the  finding,  being  a  certificate.  The  certificate  was  not  an 
matter  of  record,  could  not  be  ques-  order  for  her  arrest,  nor  did  it  contain 
tioned;  the  other  side  held  that  the  any  request  to  any  other  person  to  de- 
finding  was  only  prima  facie  evidence  prive  her  of  her  liberty.  The  person 
of  insanity.  Many  authorities  were  upon  whose  petition  she  was  admitted 
cited.  See  also  Cotti.  cx  rcl.  Mintzer  v.  to  the  asylum  might  have  made  use  of 
Sheriff,  8  Phila.  645 ;  Palmer  v.  Buck,  this  certificate  to  efl"ectuate  his  purpose, 
83  Mich.  528,  47  N.  W.  355.  but  the  certificates  of  all  the  doctors  in 

20^  Times  have  changed  since  the  days  the  land  would  not,  of  themselves,  have 

of  whicli  Lord  Campbell  wrote  (Lives  or  restrained    her    of   her    freedom    in    the 

the  Lord  Chancellors).     "It  was  a  good  least  degree."     So  in  Ball  v.  Semplc,  3 

plea  in  those  days  to  an  action  for  as-  Fost.  &  F.  337,  it  was  held:  "A  medical 

sault,  battery,  and  false  imprisonment,  man  who  has  merely  signed  a  certificate 

that  the  plaintiff"  was  a  lunatic,  and  that  .     .     .     and  has  done  nothing  more  to- 

therefore     the     defendant   had    arrested  wards   causing   the    confinement   of   the 

liim,  confined  him,  and   whipped   him."  alleged   lunatic,   is  not   liable   for   tres- 

See  Tuke,  History  of  the  Insane  in  the  pass."      See   also    ^yil!iams   v.   Lc   liar, 

British   Isles,  p.   41,   for  this  and   some  141  Pa.  149,  21  Atl.  525.     For  a  difTer- 

other  curious  information.  ent  kind  of  ca.se,  see  Dobbyn  v.  Decow, 

"Force  v.  Prohasco,  43  N.  J.  L.  539.  25  U.  C.  C.  P.  18. 
The     court    held     that    the    physicians        "-  In   Ba-eon   v.    Bacon,    76    Miss.    458, 

"could   not   have   caused   her   arrest   by  24   So.   9G8,  the  court  took  a  diff"erent 

the  mere  making  and   filing  of  a  false  view,  for  it  held  that  all  persons  who 


§  1245]  EXAMINATION  AND  CERTIFICATION  OF  INSANE.  971 

1245.  The  legal  status  of  a  certificate. — The  exact  legal  status  of  a 
certificate  of  insanity  is  hard  for  a  lay  writer  to  define.  It  is  not  a 
binding  order,  neither  (so  say  the  courts)  is  it  a  warrant;  and  yet  it 
is  essential  for  the  admission  of  a  patient,  will  he,  nil  he,  into  a  place 
of  detention.  Whatever  it  may  be,  the  man  who  signs  it  assumes  a 
large  responsibility;  all  the  larger,  perhaps,  because  of  the  very  un- 
certainty of  the  legal  status. 

1246.  A  certificate  may  be  a  libel. — It  has  even  been  held  that  a 
certificate  of  insanity  is  a  libel.  The  supreme  court  of  New  York^^ 
announced  that  it  was  libelous  to  publish  of  a  person  that  he  was  "in- 
sane, and  a  fit  person  to  be  sent  to  the  lunatic  asylum ;"  and  that  the 
libelous  character  of  the  publication  was  not  destroyed  by  the  fact 
that  the  person  uttering  it  w^as  a  physician,  who  gave  it  as  a  profes- 
sional opinion.  Such  a  publication  is  not  a  privileged  communica- 
tion by  reason  of  being  certified  to  before  a  justice  of  the  peace.  This 
appears  to  have  been  an  exceptional  case.  It  seems  odd  that  a  paper 
which  is  prescribed  by  the  law  to  be  signed,  under  given  circum- 
stances, should  be  held  by  the  law  to  be  libelous. 

1247.  The  power  to  detain  and  to  discharge. — The  power  to  detain 
and  to  .discharge  a  lunatic  is  lodged,  as  we  have  said,  in  the  authori- 
ties of  the  asylum,  who  are  under  the  control,  in  most  states,  of  a 
committee  of  lunacy,  which  is  a  part  of  the  executive  of  the  state,  as 
can  be  seen  by  referring  to  the  various  state  laws.  A  superintendent 
of  an  asylum  has  been  sued  for  damages  for  detaining  a  sane  person, 
although  duly  certified,  and  the  superintendent  acted  in  good  faith 
in  believing  the  person  insane;  and  in  one  case  the  supreme  court  of 
Michigan  could  not  agree :  two  of  the  judges  deciding  that  if  the  of- 
ficial acted  in  good  faith  he  Avas  not  liable,  and  the  other  two  Judges 
deciding  that  he  was  liable  even  if  he  acted  bona  fide.^*  Agaiu,  the 
power  of  determining  at  what  period  a  patient  has  recovered,  there- 
fore at  what  time  his  detention  begins  to  be  illegal,  must  be  lodged 
somewhere,  and  this  power  rests  with  the  superintendent  or  the  com- 
mittee of  lunacy,  which  thus  has  great  power  in  this  matter ;  unless, 
indeed,  the  confinement  is  terminated  by  a  court,  on  a  writ  of  habeas 
corpus. 

secured    the   commitment   Avere    equally  Tn  this  case  a  long  and  technical  expla- 

responsible,  although   the  law  in  Miss-  nation  was  given  of  what  constitutes  a 

issippi  distinctly  says  that  the  author-  "privileged    communication."     The    ap- 

ities    "shall    have    authority    to    detain  peal   from  an  order  setting  aside  a  de- 

him,  but  in  all  cases  they  shall  act  at  murrer  to  the  plaintiff's  complaint  was, 

their  peril  if  the  person  be  sane."    This  in  its  turn,  set  aside, 
certainly  does  not  include  the  signers  of        ^'T/nn  Deusen  v.  l^ewcomer,  40  Mich. 

the  certificate,  who  have  nothing  to  dc  00.     The  subject  was  discussed  at  great 

with  the  detention.  length. 
^Perkins   v.    Mitchell,   31    Barb.   461. 


972  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1248 

1248.  Habeas  corpus. — Patients  are  sometimes  released  from  asy- 
lums by  the  courts  on  a  writ  of  habeas  corpus.  As  one  of  the  bul- 
warks of  liberty  the  right  to  appeal  by  this  writ  is  apt  to  enlist  the 
sympathies  of  the  judges,  and  these  cases  are  not  always  decided  in 
accord  with  the  ideas  of  alienists.  Such  a  proceeding  imposes  on 
the  court  the  necessity  of  making  a  diagnosis.  "This  question  of  san- 
ity or  insanity,"  said  Judge  Brewster,-^  "perhaps  the  most  difficult 
of  all  inquiries,  is  the  very  last  to  be  welcomed  by  a  judge."  And 
yet  he  discharged  the  patient  from  custody  with  the  remark  that  if 
he  was  dangerous,  his  friends  could  proceed  against  him  as  a  crim- 
inal ;  or  if  he  required  restraint,  they  could  have  a  commission  de 
lunatico ! 

But  the  proceedings  under  a  writ  of  habeas  corpus  do  not  need  to 
be  discussed  here,  for  they  simply  involve  the  trial  of  the  question  of 
insanity, — a  subject  wdiich  has  already  been  described  in  these 
pages.^°  In  these  cases,  however,  some  courts  show  a  prejudice 
against  detaining  a  person  undei:  a  mere  certificate  of  insanity,  and 
are  in  favor  of  the  old  method  de  lunatico.  Judge  Brewster  said 
that  a  jury  should  always  stand  between  a  citizen  and  an  asylum ; 
but,  as  we  all  know,  this  is  not  really  necessary  in  law. 

The  test  of  insanity  in  habeas  corpus  cases  is  likely  to  be  the  wel- 
fare of  the  patient  and  the  safety  of  others.  Few  judges  have  done 
as  Judge  Brewster  did  in  the  case  above  cited, — discharge  the  pa- 
tient, and  let  society  take  its  chances  with  him  as  a  criminal  lunatic. 
Even  where  technical  defects  in  the  commitment  have  been  proved, 
courts  have  not  been  willing  to  discharge  the  patient,  if  he  was 
likely  to  be  dangerous.-'^ 

^Com.   ex   rel.    Nyce   v.    Kirkhride,   2  but  tlie  writ  was  dismissed,  as  the  pa- 

Brewst.    (Pa.)    400.     See  also   Com.   ex  tient  was   not  believed   to  be  safe.     In 

rel.  Ruhright  v.   Western  Pennsylvania  Ex  parte  Greenwood,   1  Jur.  N.  S.  522, 

Hospital,   3    Pittsb.   299;    Com.    ex  rel.  the     patient    was     discharged    because, 

Stewart  v.  Kirkhride,  2  Brcwst.    (Pa.)  among  other   reasons    (some  technical) 

419.  he   was   harmless;    but   if  he   had   been 

^  A  clear  account  of  the   passage   of  dangerous,  he  would  not  have  been  dis- 

the  habeas  corpus  act   in   tlie   reign   of  charged   on   a   technicality',   such   as   an 

Charles  II.  is  given  by  ITallam,  Consti-  error     in     the     certificate.      See     also, 

tutional  History,  Cliap.  XIII.     Medical  Clrcsh's  Case,  12  Pa.  Co.  Ct.  295;   Com. 

readers,  who  sometimes  see  the  working  v.   Chapin,   45   Phila.   Leg.   Int.   434;    9 

of  this  historic  measure  in  lunacy  cases.  Pepper  &  Lewis,  Digest,  14,517.     In  the 

will  find  Hallam's  account  most  instruc-  Pennsylvania  law  of  Apr.  20,   18G9,  the 

tive  and  not  too  long.  ground    for   detaining   a   lunatic   is   de- 

"  In  King  v.   McLean  Asylum,  26  L.  fined  as  the  "welfare  of  the  patient  or 

R.   A.   784,    12   C.  C.   A.    145,   21   U.   S.  tlie  safety   of  others."     For  a   case   in- 

App.   481,   64   Fed.   331,   defects   in   the  volving    some    other    questions,    see    lie 

commitment  were  alleged,  and  the  quos  Rust,  177  Pa.  340,  35  Atl.  623. 
tion  also  of  jurisdiction  was  discussed; 


CHAPTER  LIX. 

MODIFIED  RESPONSIBILITY  IN  THE  INSANE. 

1248*.  Tliis  doctrine  has  usually  been  denied  in  law. 

1249.  But  it  has  also  been  recognized. 

1250.  Nothing  unreasonable  in  such  a  doctrine. 

1251.  The  courts  not  always  agreed. 

1252.  Degrees  of  guilt  in  crime  and  in  disease. 

1253.  Guilt  modified  by  age. 
12531.  Guilt  modified  by  alcoholism. 

1254.  The  degrees  of  murder. 

1255.  The  meaning  of  "premeditation." 

1256.  Alienists  as  well  as  lawyers  oppose  the  doctrine. 

1257.  As  to  monomania. 

1258.  The  boundaries  of  insanity  not  easily  settled. 

1259.  Not  a  purely  speculative  question. 

12481/2.  This  doctrine  has  usually  been  denied  in  law. — It  is  a  some- 
what remarkable  fact  that,  as  a  rule,  mental  disease  is  not  recognized 
in  law  as  having  various  degrees ;  or,  if  it  has  such  degrees,  that  these 
can  act  in  mitigation  of  the  degTee  of  guilt.  Circumstances  often 
suggest  that  an  insane  person  is  neither  wholly  responsible  nor  wholly 
irresponsible. 

This  unwillingness  in  the  courts  is  all  the  more  remarkable  because 
the  law  recognizes  several  degTees  of  guilt  in  the  sane  mind.  There 
is  never  a  murder  case  on  trial  that  the  court  does  not  proceed  with 
infinite  pains  and  with  much  refinement  in  definition  to  explain  to 
the  jury  the  mysterious  distinctions  between  murder  in  the  first  de- 
gree, murder  in  the  second  degree,  and  manslanghter.  The  sane 
mind  is  recognized  as  having  various  gTades  of  responsibility,  and 
these  grades  are  based  upon  some  very  subtle  adumbrations.  In 
fact,  they  are  so  subtle  that  even  the  courts  confuse  them  at  times; 
and  Mr.  Bishop,  a  learned  legal  writer,  after  wrestling  with  them  in 
vain,  frankly  acknowledged  that  he  was  not  able  to  define  the  crime 
of  murder.^ 

^  2  Crim.  Law,  7th  ed.  Chap.  XXIII.  language  has  no  words  in  which  it 
§  735.  "The  idea  itself  is  complex  and  could,  in  a  single  sentence,  be  conveyed." 
artificial;    and,    if   it   were   not   so,   tlie 

973 


»74  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.       [§   1248^ 

But  in  the  insane  mind  no  such  grades  are  recognized.  So  soon 
as  it  is  alleged  that  a  man  is  insane,  just  that  soon  does  the  law  de- 
clare that  he  is  not  subject  to  variations  or  grades  of  responsibility, 
and  that  he  is  either  Avholly  guilty  of  the  highest  gTade  of  crime,  or 
vs  not  guilty  at  all.  In  other  words,  his  insanity  mil  not  act  to 
.nsduce  the  grade  of  his  crime. 

1249.  But  it  has  also  been  recog^iized. — Sir  Joseph  Jekyll, 
in  the  Duchess  of  Cleveland's  Case,^  said:  ''The  law  will  not 
measure  the  sizes  of  men's  capacities  so  as  they  be  compos  mentis/' 
But  the  law  does  measure  the  sizes  of  them  when  it  distinguishes  two. 
degTces  of  murder.  At  least  one  case  has  been  decided  in  a  Pennsyl- 
vania court  in  which  a  lower  than  the  first  degree  of  murder  was  ac- 
cepted because  of  insanity.^  In  other  words,  the  doctrine  of  a  partial 
responsibility"  on  account  of  insanity  has  been  recognized  in  law. 

1250.  Nothing  unreasonable  in  such  a  doctrine. — There  would 
seem  to  be  nothing  unreasonable  in  the  claim  that  mental  disorder 
may,  under  some  circumstances,  act  in  mitigation  of  the  degree  of 
guilt.  As  there  are  various  degrees  of  mental  impairment,  so,  one 
would  suppose,  there  may  be  various  degrees  of  responsibility.  This 
is  a  common-sense  and  practical  view,  and  one  that  is  in  accord  with 
every-day  experience  with  the  insane.  All  these  patients  are  not 
equally  irresponsible  for  their  acts,  and  there  is  not  an  asylum  in  the 
land  w^here  this  principle  is  not  avowed  every  day  in  practice  if  not 
in  words.  From  a  purely  academic  standpoint,  however,  this  is  not 
a  popular  doctrine  either  in  medicine  or  in  law.  Insanity  is  insan- 
ity,— it  must  be  either  one  thing  or  another;  there  is  no  half  way 
of  looking  at  it.  Like  the  theologians,  who  mil  not  acknowl- 
edge a  "dividual  essence"  in  sin,  so  the  lawyers  and  the  doctors  will 
not  readily  acknowledge  that  there  can  be  such  a  thing  as  a  "partial" 
responsibility  in  insanity.  The  lawyers  say:  "He  must  be  wholly 
responsible  or  nothing."  The  doctors  re-echo  the  cry,  with  a  slight 
variation:     "If  he  is  insane,  he  is  wholly  irresponsible."^'* 

1251.  The  courts  not  always  agreed. — Obviously,  there  can  be  no 

'  Quoted    by     Erskine     in     Fladfield's  mission  of  lunacy  as  a  "borderline"  case. 

Tritil,  27  How.  St.  Tr.   1282.  A     dangerous     lunatic    was     thus     dis- 

"Com.  V.  Lynch,  25  Pittsb.  L.  J.  193.  charged    almost    red-handed    upon    the 

» Partial   insanity,   in   the   sense   of  a  community, 

partial  responsibility,  was  discussed  by  "J  "Insane  or  not  Insane."  as  a  legal 

.Judge  Cox  in  the  Guilcau  Case,  10  Fed.  jjrinciple,    was    contested    by  Yellowlees 

182."  That  this  plea  may  be  abused  was  at  a  recent  meeting  of  the  British  ]\Ied. 

evident   in   tlie   Case  of  Brush,   3   Abb.  Asso.     He  said  that  there  have  been  at 

N.'  C.   225,  who  attempted  homicide  in  least  three    cases    in    the    Scotch    law 

the    delusion    that    his    food    was    being  courts  in  which  the  principle  of  a  iiiiKii- 

drugged.     After  a  short  detention  in  an  fied   responsibility  had  been   recognize*!. 

a-svUrm  he  was  discliarged   by  the  com-  Medical  News,  Dec.  17,  1904,  p.  119G. 


§  1251]  MODIFIED  RESPONSIBILITY  IN  THE  INSANE.  975 

ouo  general  rule  laid  down  to  govern  this  question,  and  no  such  a  pri- 
ori statements  as  the  foregoing  should  be  allowed.  The  question  has 
been  presented  to  the  courts  a  number  of  times,  and  the  decisions 
have  not  been  unanimous.  In  Penusvlvania  it  is  held  as  a  princnple"* 
that  insanity  cannot  be  urged  in  mitigation  of  the  degree  of  guilt. 
"Insanity  is  either  a  complete  defense  or  none  at  all."  Thus  Justice 
Dean^  held  it  was  error  to  contend  that  evidence  tending  to  show  in- 
sanity, although  considered  by  the  jury  insufficient  to  establish  the 
same,  might  have  the  effect  of  reducing  the  degree  of  murder.  The 
same  judge  in  another  case^  held  it  was  no  error  not  to  instruct  the 
jury  that  insanity  might  reduce  the  degree  of  murder.  Nevertheless, 
and  to  show  how  contradictory  are  the  judges,  it  w^as  charged  by 
Judge  Stowe'^  of  Pittsburg,  in  the  case  of  a  man  who  had  killed  his 
own  child,  that  the  jury  could  render  a  verdict  of  murder  in  the  sec- 
ond degree  if  they  thought  the  prisoner's  mental  condition  warranted 
it.s 

1252.  Degrees  of  guilt  in  crime  and  in  disease. — If  the  law  ac- 
knowledges several  shades  of  guilt  in  the  sane  mind,  thus  making 
murder  to  consist  of  several  degrees,  by  which  distinction  are  im- 
plied various  shades  of  accountability,^  why  should  not  the  insane 
mind  be  judged  with  equal  discrimination  ?  Why  docs  it  require  a 
more  subtle  act  of  psychological  analysis  in  one  case  than  in  the 
other?  Justice  Dean  said:  "From  the  very  nature  of  mental 
disease,  there  can  be  no  grading  of  it  by  degrees,  so  as  to  accord  with 
a  degree  in  crime."  But  what  scientific  ground  had  Justice  Dean 
for  such  a  statement?  In  every  disease  there  are  variations  in  in- 
tensity.    In  typhoid  fever  the  disease  may  be  so  mild  in  one  case  as 

*  19  Pepper  &  Lewis,  Digest,  14,579.  responsibility     for     the     higher     crime 

*Com.   V.   Wirehaclc,    190   Pa.    138,   70  .     .     ."     The  whole  cliarge  is  a  sugges- 

Am.  St.  Rep.  625,  42  AtL  542.  tion  to  the  jury  to  convict  in  the  second 

"Co??!.   V.   Hollinger,    190   Pa.    155,   42  degree,  because  of  the  prisoner's  mental 

Atl.  548.  condition.     It  is  as  contradictory  as  can 

'  25  Pittsb.  L.  J.  193.  be  conceived  jto  the  opinion   of  Justice 

"  Judge  Stowe's  language  in  his  Dean, 
charge  in  Lynches  Case  is  worthy  of  be-  In  Com.  v.  Elvin,  5  Pa.  Dist.  R.  593, 
ing  quoted  more  at  length  than  there  the  judge,  in  granting  a  new  trial,  said 
is  room  for  here.  It  is  almost  entirely  of  the  prisoner :  "While  not  insane,  yet 
<levoid  of  the  usual  judicial  distinc-  his  mind  was  so  beclouded  as  to  deprive 
tions  about  right  and  wrong,  and  it  at-  liim  of  reflection  and  deliberation.  It 
tempts  to  present  the  case  in  a  scien-  they  [the  jury]  .should  have  reached 
tific  way.  "Upon  general  principles,"  such  a  conclusion  from  the  testimony, 
says  he,  "I  have  come  to  the  conclusion  then  the  prisoner  could  only  have  been 
— in  the  light  of  modern  science — that  convicted  of  murder  in  the  second  de- 
there  are  many  cases  which,  while  not  gree." 

justifying   a   jury   in   acquitting   of   all  See  also  Nevling  v.  Com.  98  Pa.  322. 

crime,  would  justify  and  perhaps  make  °  The  law  makes  allowance  for  human 

it  their  duty  to  consider  the  mental  con-  passion.     Fost^  C.  L.  295. 
dition  of  a  man   upon   the   question   ol 


97 G  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1252 

not  to  affect  the  intelligence,  and  so  severe  in  another  as  to  throw  the 
patient  into  a  complete  delirium.  Between  these  extremes  are  all 
degrees  of  involvement.  This  is  just  as  true  of  insanity  as  it  is  of 
typhoid  fever..  To  state  a  priori  that  such  and  such  a  thing  cannot 
exist,  when  experience  proves  that  it  does  exist,  is  not  scientific, 
even  if  it  be  legal. 

1253.  Guilt  modified  by  age. — In  a  case  referred  to  by  Judge 
Stowe  in  the  charge  above  cited,  the  age  of  the  prisoner  (thirteen 
years)  was  accepted  as  modifying  the  degree  of  guilt,  although  the 
boy  had  deliberately  poisoned  his  victim  with  arsenic.  It  is  difficult 
to  see  on  wdiat  ground  age  can  modify  guilt  unless  insanity  can  do  the 
same,  yet  this  boy  was  convicted  in  the  second  degree  only.  He  was 
shown  a  leniency  on  account  of  his  age  which  he  would  not  have  ob- 
tained for  a  mild  grade  of  mental  disordai",  and  yet  a  boy  of  thirteen 
is  quite  as  capable — nay,  more  capable — of  knowing  right  and  wrong 
as  is  a  mild-grade  imbecile. 

12531/2.  Guilt  modified  by  alcoholism. — We  have  already  discussed 
this  aspect  of  the  subject  in  the  chapter  on  Alcoholic  Insanity.  Sir 
Matthew  Hale^^  recognized  chronic  alcoholism  as  a  disease,  and  said 
that  it  exempted  a  man  from  responsibility.  Many  of  the  modern 
courts  have  gone  even  further,  and  declared  that  in  cases  in  which 
a  specific  intent  is  essential  to  constitute  a  crime,  acute  intoxication 
is  a  matter  for  consideration,  and  is  competent  evidence  on  the  ques- 
tion whether  the  defendant  was  capable  of  forming  such  an  intent 
or  purpose  at  the  time  the  act  was  done ;  and,  in  line  with  this  ruling, 
it  has  also  been  decided  that  drunkenness  may  operate  to  reduce  the 
grade  of  crime. ^'^  Here  is  a  clear  recognition  of  the  fact  that  there 
are  various  degi'ees  of  responsibility  in  mental  impairment;  for 
drunkenness  is  only  a  temporary  form  of  mental  impairment.  ^"^ 

1254.  The  degrees  of  murder. — Judge  Simonton,^*^  in  a  charge  to 
the  jnrj,  said :  "The  courts  do  not  ask  the  jury  to  undertake  the  im- 
possible task  of  discriminating  between  degrees  of  insanity."     And 

9a  1  p.  C.  32.  cannot  have  the  effect  of  reducing?  the 

91j  17   Am.   &   Eng.   Ene.   Law,   2d   ed.  def^ree  of  murder  seems  to  rest  largely 

art.  "Intoxication,"    p.    398.    for    refei-  on   tlie   two   Pennsylvania   cases  quoted 

ences  to  cases.     Also,  N.  Y.  Penal  Code,  in   the   text.      {Com.   v.   HoUinger,   and 

§  22.  Com.  v.  ^yirehaclc,  op.  cit. )      These  are 

9c  See  ante,  chapter  on  "Alcoholic  In-  the  only  two  cases  referred  to  on  this 

sanity,"   for    a    discussion,   with    refer-  subject    in    the    IG    Am.    &    Eng.    Enc. 

ences.     Also    Sullivan,    Brit.    Journ.  of  Law.  p.  021.     If  the  principle  has  been 

Inebriety,  Oct.   1904,   who  argues   for  a  discussed   in   other   cases   at   any   gi-eat 

modified   responsibility  in  alcoliolic  pa-  length,  I   have  not  had  the   fortune   to 

tients.  meet  with  sucli  cases.     In  the  iit.cj)ham 

^"Com.  V.   Hollinger,   190  Pa.    IGO,  42  Case,  in  New  York,  for  murder,  the  ver- 

Atl.   548.     The   principle   that   insanity  diet  was  second  degree. 


§   1254]  MODIFIED  RESPONSlBlLiTY  IN  THE  INSANE.  977 

jet  the  jury  is  asked  to  detect  and  measure  the  varying  and  elusive 
shades  of  moral  accountability  as  involved  in  the  distinction  between 
murder  in  the  first  and  murder  in  the  second  degree. 

What  can  be  a  finer  psychological  point  for  a  jury  to  have  to  deter- 
mine than  whether  a  man  acts  with  premeditation  or  without  it? 
And  yet  the  whole  distinction  between  murder  in  the  first  and  second 
degrees  rests  upon  this  point.  What  is  "premeditation  ?"  and  what 
sort  of  a  criminal  act  can  be  conceived  of  without  premeditation  ? 
The  answer  of  the  law  is,  that  if  a  man  acts  passionately  or  emotion- 
ally, on  the  spur  of  the  moment,  and  under  provocation,  he  does  not 
disjjlay  that  degree  of  premeditation  which  constitutes  murder  in  the 
first  degree.-*^  In  other  Avords,  allowance  is  made  for  a  mental  in- 
firmity which  is  not  pathological,  and  for  which  a  man  should  be 
much  more  responsible  than  for  a  mental  impairment  that  depends 
upon  disease.  In  the  former  cases  degrees  of  guilt  are  recogTiized, 
while  in  the  latter  cases,  which  range  over  the  whole  field  of  mental 
pathology,  no  such  degrees  are  allowed  to  exist.  Why  is  a  man  un- 
der the  influence  of  transitory  ungovernable  passion  guilty  in  a  less 
degree  than  a  man  who  suffers  with  some  slight  permanent  defect  of 
his  mind  ?  If  the  latter  knows  the  difference  between  right  and 
wrong,  so  does  the  former.  If  the  former  is  not  able  to  control  him- 
self, neither  may  be  the  latter. 

1255.  The  meaning  of  "premeditation." — When  the  attempt  is 
made  to  analyze  the  word  "premeditation,"  the  difiiculty  is  fully 
seen.  Courts  have  given  all  sorts  of  interpretations  to  this  word.^^ 
Thus,  the  fact  that  a  man  was  drunk  has  been  held  in  Pennsylvania^^ 
to  exclude  malice  or  premeditation,  and  therefore  to  determine  mur- 
der in  the  second  degree  only.     Thus  Justice  Thompson,  of  the  su- 

"  Blackstone  (4  Com.  190,  191)  makes  any  better   than    they   could   determine 

the    distinction    between    murder     and  decrees  of  responsibility  in  the  insane? 

manslaughter  to  be  that  the  latter  rises  Judge  Rush  said,  in  the  case  of  Richard 

from  "sudden  heat  of  the  passions:"  the  Smith,  tried  in  1816,  for  the  murder  of 

former    from    "the    wickedness    of    the  Captain  Carson,  "No  time  is  too  sliort 

heart."      And    he    says    that    "the    law  for  a  wicked  man  to  frame  in  his  mind 

pays  that  regard  to  human  frailty,  as  the   scheme   of   murder."     And   yet   the 

not  to  put  a  hasty  and  a  deliberate  act  jury  must  decide  that  even  in  an  instant 

upon  the  same  footing  with   regard   to  of  time  the  deliberation  to  kill  was  or 

guilt."  was  not  present,  in  order  to  differentiate 

"  In  the  case  of  Com.  v.  O'Hara,  tried  between  the  two  degrees  of  murder.  Even 
in  1797,  Chief  Justice  McKean,  of  Penn-  scientific  men,  with  instriunents  of 
sylvania,  said :  "If  he  had  time  to  think,  greatest  precision,  find  it  hard  to  de- 
then  he  had  time  to  think  he  would  kill  terniine  t!ie  rapidity  of  thought.  But  a 
.  .  .  If  he  had  time  t*  think,  and  did  jury,  often  of  very  ignorant  men,  is  es- 
intend  to  kill,  for  a  mi»»te  as  well  as  pected  to  decide  such  a  question  in  psy- 
an  hour  or  a  day,  it  is  sufficient."  But,  chology  off-hand,  even  if  a  man  hang  for 
it  may  be  asked,  can  the  average  jury  it. 

determine  such   fine  points  to  a  nicety,        '■'  9  Pepper  &  Lewis,  Digest,  14,582. 
Vol.  1.  Mei>.  Jur. — G2. 


978  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§   1255 

preme  court,  held^*  that  a  degTee  of  drunkenness  which  rendered  the 
mind  incapable  of  deliberation  would  reduce  the  homicide  to  the  sec- 
ond degree.  In  other  words,  the  jury  must  determine  the  exact 
amount  of  drunkenness  that  would  render  a  mind  incapable  of  delib- 
eration. But  a  jury  that  can  perform  such  a  psychological  feat  as 
this  should  also  be  capable  of  determining  the  several  shades  of  re- 
sponsibility in  mental  disease.  Wherein  is  the  one  task  more  diffi- 
cult than  the  other  ?  Both  tasks  are  exactly  of  a  piece,  and  consist  in 
measuring  the  amount  of  "malice  aforethought"  in  disordered  minds ; 
the  only  difference  being  that  in  one  case  the  disorder  is  caused  by  al- 
cohol, in  the  other  by  disease.^^ 

1256.  Alienists  as  well  as  lawyers  oppose  the  doctrine. — Some  ali- 
enists are  not  less  averse  than  the  lawyers  to  the  idea  of  a  partial  re- 
sponsibility in  insanity.  For  them  the  term  "insanity"  is  equivalent 
to  "irresponsibility."  And  yet  there  is  hardly  a  more  common  term 
among  alienists  than  the  "borderland"  of  insanity.  This  is  a  wide 
territory,  and  its  boundaries  are  nowhere  fixed.  It  is  meant  to  im- 
ply that  sanity  shades  into  insanity  by  such  imperceptible  degrees 
that  the  exact  line  of  demarcation  cannot  be  determined.  This  is  a 
thoroughly  scientific  conception,  and  is  in  accord  with  what  is  ob- 
served in  all  forms  of  disease.  There  is  no  hard  and  fast  line  of  di- 
vision between  health  and  ill-health.  This  fact  is  patent  to  all  men. 
Natura  non  operatur  per  saltwn, — nature  does  not  act  by  leaps  and 
bounds.     Everything  in  her  domain  is  by  gi'adations. 

Dr.  Maudsley^*^  has  a  whole  chapter  on  the  "borderland"  of  insan- 
ity, in  which  he  enlarges  on  the  fact  that  the  "insane  temperament" 
may  show  itself  in  a  great  variety  of  degrees.  He  does  not  spare  the 
philosophers  nor  even  the  Hebrew  prophets,  for  he  puts  some  of  them 
in  this  borderland ;  but  he  would  have  written  more  to  the  purpose  if 
he  had  told  us  wherein  responsibility  is  modified  in  this  obscure  ter- 
ritory. The  conclusion  seems  irresistible  from  his  writing  that,  as 
insanity  thus  shades  by  imperceptible  degrees  into  mental  health,  so 
docs  irresponsibility  from  mental  disease  have  many  and  indefinable 
degrees.     The  demonstration  is  almost  syllogistic. 

^^Warren  v.  Com.  37  Pa.  45.  subject  is  also  discussed  at  great  length 

"  In  the  case  of  Jones  v.  Com.  75  Pa.  in   Nevling  v.   Com..  98  Pa.  322.    These 

403,  it  was  hold  that  intoxication  is  no  two  cases  exhibit  the  difficulties  of  ap- 

excuse  for  crime,  but  if  it  deprives  the  plying   the   principle,   that   intoxication 

Intellect  of   power   to  think   and  weigli  may  determine  only  a  partial  responsi- 

tlie  nature  of  the  act,  it  may  prevent  a  bility,   but   they  show  clearly   that  the 

conviction  of  murder  in  the  first  degree,  principle  is  recognized  by  the  supreme 

This  language  is  self-contradictory,  for,  court  of  Pennsylvania, 

under   the  given  circumstances,  intoxica-  "*  Responsibility    in    Mental    Disease, 

tion  df>cs  act  as  an  excuse  for  crime  to  New  York,  1881. 
tlic  extent  of  lowering  the  degree.     The 


§  1257]  MODIFIED  RESPONSmiLITY   IN  TIllC  INSANE.  979 

1257.  As  to  monomania. — Monomania,  paranoia,  or  delusional  in- 
sanity, is  the  most  common  type  seen  in  the  criminal  insane,  but  thia 
disease  is  seldom,  if  ever,  of  sudden  onset.  Spitzka,^"^  who  has  given 
the  best  description  of  it  in  the  English  language,  shows  how  it  is  of 
gradual  onset,  and  is  developed  on  a  constitutional  or  neurotic  basis. 
In  many  of  these  cases  it  would  be  quite  impossible,  if  their  life-his- 
tories were  carefully  studied,  to  say  just  where  they  passed  over  the 
borderline;  in  other  words,  just  where  they  became  insane  and  irre- 
sponsible. The  inference  is  that  their  irresponsibility,  like  their 
disease,  has  been  by  gradations. 

1258.  The  boundaries  of  insanity  not  easily  settled. — Dr.  San- 
key,^  ^  a  very  judicious  writer,  says  that  the  first  source  of  dissension 
between  doctors  and  lawyers  is  in  the  fact  that  the  "lawyer  claims  the 
right  of  settling  the  boundaries  of  sanity  and  insanity."  Dr.  Sankey 
liere  indicates  the  difficulty  that  surrounds  this  very  subject  of  re- 
sponsibility :  the  courts  insist  on  sharply  limiting  what  is  not  sliarply 
limited  by  nature.  The  result  can  only  be  confusion,  and  even,  in 
some  cases,  injustice.  When  Sir  Fitzjames  Stephen^^  says  that  he 
limits  the  word  "responsibility"  merely  to  responsibility  to  the  law  of 
the  land,  he  does  not  avoid  this  dilemma ;  he  merely  states  the  prob- 
lem from  a  different  view-point.  There  is  no  way  sharply  to  define 
responsibility  so  that  the  definition  will  apply  to  all  insane  persons 
(equally,  whether  with  reference  to  human  law  or  to  general  law. 
This  fact  is  recognized  in  sane  persons,  and  hence  various  degTees  of 
murder  are  defined  for  them,  but  it  is  not  recognized  in  the  insane. 
Dr.  Sankey's  comment  goes  to  the  root  of  the  matter.  ^  ^^ 

1259.  Not  a  purely  speculative  question.— From  the  purely  specu- 
lative standpoint  there  is  not  much  to  be  made  out  of  this  question  of 
a  partial  responsibility,  except  to  fall  back  on  the  opinions  of  the 
moralists  and  philosophers,  some  of  whom  claim  the  absolute  freedom 
of  the  human  will,  while  others  deny  it  entirely.  ^^  If  the  will  is  al- 
ways and  absolutely  "free,"  there  can  be  no  such  thing  as  a  partial  or 
modified  responsibility;  and  if,  on  the  other  hand,  there  is  no  such 
thing  as  free  will,  there  can  be  no  such  thing  as  responsibility  at  all. 

"Insanity:    Its    Classification,    Diag-  Mcrcicr,     '"Criminal     Responsibility     of 

nosis,  and  Treatment,  New  York,   1883.  the  Insane,"  in  N.  Y.  Med.-Leg.  Journ., 

^' Lectures  on  Mental  Disease,  London,  Sent.  1898;  Hitchcock.  "Mental  Respon- 

1884,  p.  408.  sibility."    in    Trans.    Am.    Med.    Psych. 

"History  Crim.  Law.  Asso.  1900;  McDonald,  "Mental  Respon- 

i«J  See  also  Punton,  "Are  the  Insane  sibility,"  ibid.,  1901. 
Responsible  for  Criminal  Acts?"  in  the  -"See  A  Manual  of  Moral  Philosophy, 
Medical  News,  Oct.   15,   1904;   Richard-  by  William  Fleming,  for  a  clear  discus- 
son,     "Graduated     Responsibility,"     in  sion  of  the  subject. 
Trans.    Am.    Med.    Psych.    Asso.    1901; 


ItSO  INSANITY— FORMS  AND  MEDICO-LEGAL  ASPECTS.         [§  125* 

But  this  is  merely  academic;  the  practical  sense  of  mankind  claims 
to  be  able  to  discover  that  the  will  is  free :  the  whole  theory  of  human 
responsibility  is  based  upon  it.  But  science,  while  not  denying  this 
thesis,  can  find  ample  reasons  for  claiming  that  the  will,  or  liberty  of 
choosing,  is  modified  and  controlled  in  various  ways,  and  in  no  way 
more  variously  than  by  mental  disease.  In  this  connection  it  is  odd 
to  hear  a  distinguished  Scotch  judge  and  philosopher,  the  eminent 
Lord  Kames,^^  deny  the  freedom  of  the  will,  and  impute  this  belief 
to  a  delusion.  "Though  man  in  truth  is  a  necessary  agent,"  says  he, 
'S'et,  this  being  concealed  from  him,  he  acts  wdth  the  conviction  of 
being  a  free  agent."  It  is  difficult  to  see  how  Lord  Kames,  if  he  be- 
lieved thus,  could  ever  have  passed  judgment  on  a  prisoner.  A  still 
more  eminent  philosopher,  Leibnitz,  likened  the  human  will  to  the 
magnetic  needle,  which  seems  to  act  freely,  but  yet  obeys  an  insen- 
sible magnetic  fluid.  Bavle  likened  the  mind  to  a  conscious  weather- 
cock, — conscious  of  its  movements,  but  not  responsible  for  them. 
But  science  points  to  a  middle  view  as  the  safest  to  follow  on  this  sub- 
ject,—-tn  medio  tiitissimus  ibis.  The  human  mind  is  subject  to  laws 
in  this  as  in  everything;  the  element  of  choice  arises  in  the  midst  of 
the  activities  of  these  laws ;  and  the  will,  or  the  responsibility,  is  mod- 
ified in  numerous  waysby  the  actions  of  various  forces,  among  which 
is  mental  disease. 

"  Essays    on    Morality    and    Religion,  Kirk   that   he   retracted   in   a   measure. 

Edinburgh,   1751,  p.  206.     Lord  Kamcs'  The  Kirk  in  those  days  Avas  a  high  court 

doctrine  brought  down  upon   him   sucli  that  %vas  respected  even  by  a  judge  of 

vigorous    disapproval    from   the    Scotch  the  Sessions. 


INDEX. 

(References  arc  to  seetiona.) 

A 

ACCELERATION, 

of  ideas  as  a  symptom  of  mania.  622. 

ACCIi)Ex\T  INSURANCE, 

.  efi'ect  of  insanity  of  insured,  256. 
efTcct  of  intoxication  of  insured,  262. 

VCTION, 

mental  capacity  to  maintain,  281. 

right  of  insane  person  to  maintain  action  for  divorce,  54. 

ACUTE  INSANITY.     See  Coxfusional  Insanity;   Delirium,   Acute;   Mania; 
Melancholia;  Stuporous  Insanity. 

ADOLESCENCE, 

insanity  peculiar  to,  see  Dementia  Precox. 

ADULTERY, 

killing  of  adulterer  under  great  mental  stress  not  insanity,  636,  637. 

AGE, 

influence  of,  on  insanity,  586. 

See  also  Old  Age. 

AGENCY', 

termination  of  by  insanity  of  party,  19. 

AGORAPHOBIA, 

an  obsession  of  fear.  829. 

AGRAPHIA.     See  Aphasia. 

AIDOIMANIA.     See  Erotomania. 

ALCOHOL, 

as  an  e.Kciting  cause  of  insanity,  589, 

ALCOHOLISM, 

relationship  of  alcoholism  with  crime,  590. 
as  cause  of  epilepsy,   866. 

981 


9S2  INDEX. 

(References  are  to  sections.) 
ALCOHOLISM—  ( continued). 

as  cause  of  general  paresis,  888. 

iii'^dical  aspects  of  alcoholic  insanity — poisonous  effects  of  alcohol,  921. 

simple  acute  poisoning,  923. 

delirium  tremens,  924. 

the  subacute  insanity  of  some  habitual  drinkers,  925. 

alcoholic  melancholia,  926. 

)i,ii7iia  a  poiu,  927. 

the  chronic  effects,  928. 

cJironic  alcoholic  insanity,  929. 

alcoholic  general  paresis,  930. 

epilepsy  in  alcoholism,  931. 

dipsomania,  932. 

alcoholic  dementia,  933. 

the  pathology  and  morbid  anatomy  of  chronic  alcoholism,  934. 
in  old  age,  978. 
the    legal    aspects    of    alcoholic    insanity    viewed    from    medical    standpoint. 

935-9521/,. 
legal  eflfect  of  drunkenness  or  intoxication,  see  Drunkenness;  Intoxication. 

ANGER, 

not  mania.  030. 

APHASIA, 

medical  aspects  of — definition,  998. 
function  of  speech  analyzed,  999. 
history  of,   1000. 
various  forms  of,  1001. 

function  of  hearing  in  the  acquisition  of  language,  1002. 
function  of  speaking  in  the  acquisition  of  language,  1003. 
the  function  of  seeing  in  the  acquisition  of  language,  1004. 
the  function  of  writing  in  the  acquisition  of  language,  1005. 
the  four-fold  faculty  of  language,  lOOG. 
principal  varieties  of  aphasia,  1007. 

motor  aphasia,   I007a. 

auditory  aphasia  or  word-deafness,  1007b, 

visual  aphasia  or  word-blindness,  1007c. 

agraphia,   1007d. 
dependence  of  thouglit  on  language,   1009. 
words  as  symbols  of  things,  1010. 
diseases  which  cause  aphasia,  lOIl. 
medico-legal   aspects  of  aphasia  from  medical    point   of  view — testamentary 
capacity,  1012. 
impairment  of  motor  aphasia,  1013. 
impairment  in  auditory  aphasia,  1014. 
imi);urment  in  verbal  l>]indncss  of  visual  aphasia,  1015. 
impairment  in  agraphia,  1016. 

APOPLEXY. 

accoiiipanying  paresis.  896. 


INDEX.  983 

(References  are  to  section*.) 
APPEAL, 

from  order  appointing  guardian,  152, 

ASSAULT, 

effect  of  intoxication  upon  responsibility  for,  238. 

ASYLUM.     See  Confinement. 

ATTORNEYS, 

effect  of  undue  inlluence  upon  gifts  by  will  to,  89. 


BACTERIOLOGY, 

as  a  field  for  investigation  of  mental  diseases,  605. 

BANKRUPTCY, 

wliat  incapacity  affects  validity  of  proceedings,  286. 

BLOOD  INFECTION, 

as  a  cause  of  melancholia,  G68. 

BRAIN, 

injury  to,  as  cause  of  insanity,  595. 

as  cause  of  epilepsy,  806. 
malformation  of,  in  case  of  idiocy  or  imbecility,  1075. 

diseases  of;  dementia  as  constituting  an  evidence  that  insanity  is  a  physical 
disease,  701. 

bee  also  Pathology  of  Insanity. 

BURDEN  OF  PROOF.     See  Evidence. 

BURGLARY, 

effect  of  intoxication  upon  responsibility  for,  231. 

BUSINESS  CAPACITY, 

as  test  or  evidence  of  testamentary  capacity,  63,  113. 


CARRIERS, 

duty  and  liability  of  carrier  toward  intoxicated  passenger,  27L 

CAUSES, 

of  insanity,  576-597. 

of  acute  delirium,  963. 

of  dementia  praecox,  1062. 

old  age,  as  cause  of  insanity,  972. 
See  also  Confusional  Insanity  ;  Dementia  ;  Mania  ;  Melancholia  ;  Stupobous 

Insanity. 


984  INDEX. 

(References  are  to  sections.) 

CEREBL'O-SPINAL  FEVER, 
as  cause  of  insanity,  591. 

CERTIFICATION  OF  INSANE.     See  Comjiission  of  LunacT 

CHANGE  OF  CHARACTER  OR  DISPOSITION, 
as  evidt-nce  of  mental  incapacity,  111. 

CHILDBIRTH, 

confusional  insanity,  7.35,  730. 

See  also  Puerperal  Mania. 

CHILDISHNESS, 

as  evidence  of  incapacity,  109. 

CHILDREN, 

crimes  committed  l)y  juvenile  paranoiacs,  lOV-s. 
insanity  peculiar  to,  see  Deme^jtia  PB/ECOX. 

CHLORAL.     See  Narcomama. 

CHOREA, 

description  of,  818. 

mental  disorder  in,  819. 

fatal  cases  may  occur,  820. 

chronic  insanity  not  common  after,  821. 

medico-legal  aspects  of,  822-824. 

CHRISTIAN  SCIENCE, 

as  constituting  insane  delusion  invalidating  will.  8ft 

CHRONIC  INSANITY, 

distinguished  from  acute  or  primary  insanity,  743. 

varieties  of,  744. 

progressive  weakness  of  mind,  745. 

symptoms  become   fixed,   74(3. 

weakening  of  the  emotions,   747. 

keynote  to,  is  weakness,  748. 

exacerbations  occur,  749. 

conduct  of  patient,  750. 

habits  and  tendencies  of  patient,  751. 

commission  of  crime  by  chronic  lunatics,  752. 

chronic  cases  distinguished  from  acute  cases,  753. 

presumption  in  favor  of  irresponsibility,  754,  755. 
distinction  between  chronic  lunatics  and  paranoiacs,  756. 
epilepsy  and  chronic  insanity,  757. 
cases  which  are  to  be  called  chronic,  758. 
commission  by  chronic  insane  of  offenses  against  decency,  759t 
tendency  toward,  of  periodical  insanity,  771. 
See  also  Dementia. 

CIRCULAR  INSANITY.     See  Pebiodical  Insanitt. 


INDEX.  »86 

(References  are  to  scctiont.) 
CIVIL  LAW.     See  Roman  Law. 

CLASSIFICATION  OF  INSANITY, 

Coke's  attempts  at,  as  viewed  from  medical  standpoint,  463-467. 

classification  cannot  be  ignored,  607. 

there  are  varieties  of  insanity,  COS. 

methods  of  classification,  609,  610. 

heredity  as  supplying  a  hint  for  classification,  61 L 

idiots  as  constituting  a  class,  612. 

acquired  insanity,  613. 

organic  changes  in  brain,  614. 

Krafl't-Ebing's  scheme,  G15. 

criticisms  of  Krafi't-Ebing's  scheme,  610,  617. 

classification  not  a  medico-legal  subject,  618. 

CLAUSTROPHOBIA, 

an  obsession  of  fear,  829. 

CLIMATE, 

influence  of,  on  insanity,  .587. 

COCAINE.     See  Narcomania. 

<;OCOMANIA, 

as  a  form  of  insanity,  1121. 

See  also  Naucoaiania. 

COMMISSIONS  OF  LUNACY  AND  DRUNKENNESS, 

process  of  determining  lunacy  by  commission,  140. 

jurisdiction,  141. 

manner  of  issuing,  142. 

nature  and  necessity  of,  143. 

nature  of  issue  to  be  determined  by  commission,  144. 

tests  of  want  of  capacity,  145. 

age,  disease,  and  weakness  as  ground  for,  140. 

eccentricity  or  partial  unsoundness  as  ground  for,  147. 

questions  for  jury,  148. 

proof  to  establish  incompetency,   149. 

conclusiveness  and  efifect  of  finding  as  evidence  of  mental  incapacity,  150. 

efl'cct  of  finding  on  acts  occvirring  during  pendency  of  inquisition,  151. 

right  to  traverse,   152. 

evidence  necessary  to  rebut  inquisition,  153. 

setting  aside  proceedings  where  they  are  irregular  or  inequitable,  154. 

superseding  commission  upon  recovery,   155. 

drunkenness  warranting  inquisition,  156. 

conclusiveness  and  effect  of  inquisition  of  habitual  drunkenness,   157. 

discharge   of   committee   and   restoration   of   property   upon   reformation   of 

drimkard,  158. 
conclusiveness  of  finding  on  question  of  confinement  of  person  in  asvlum,  159. 
contracts  void,  and  not  merely  voidable,  after  finding  of  lunacy,  4. 
only  prima  facie  proof  of  incapacity  as  to  third  parties,  38. 


986  INDEX. 

{References  are  to  sections.) 

COHIMISSIONS  OF  LUNACY  AND  DRUNKENNESS— (continued). 

as  evidence  of  incapacity  to  marry,  45. 

admissibilitj^  of  adjudications  and  certificates  of  lunacy,  832. 
examination  and  certification  of  the  insane  viewed  from  medical  standpoint 
—in  general,   1234-1230. 
duties  of  physicians  with  reference  to,  123014-1239. 

concealed  insanity,  1240. 
liabilities  of  physicians — negligence,   1241. 
conspiracy,   1242. 

trespass  and  malicious  arrest,  1243. 

certificate  of  insanity  is  merely  a  written  opinion,  1244. 
the  legal  status  of  certificate,  1245. 
certificate  may  be  a  libel,  1246. 
the  power  to  detain  and  to  discharge,  1247. 
habeas  corpus,  1248. 

COlSIMITTEli:, 

of  incompetent,  see  Commission  or  Lunacy. 

COM]VIUNICATED  INSANITY, 

insanity  transferred   from  one   person  to  another,    1126. 
mental  contagion,    1127. 

is  practically  always  a  delusional  insanity  or  a  paranoia,  1128. 
insanity   in  twins,    1130. 

CONDUCT, 

as  evidence  of  incapacity,  36, 

CONFESSIONS, 

made  by  intoxicated  person,  337. 

CONFIDENTIAL  RELATIONS, 

validity  of  contract  made  by  one  occupying  position  of,  17. 
efVect  of,  upon  questions  of  testamentary  capacity,  undue  influence,  or  fraud, 
89. 

CONFINEMENT, 

right  to  confine  incompetent  persons,  159, 
discharge  from  confinement,  160. 
in  case  of  habitual  drunkards,  IGl. 

CONFUSIONAL  INSANIT\', 

medical  aspects  of — statement  of  the  disease,  722. 
its  history,  723. 
similar  to  delirium,  724. 
causes  of  the  disease,  725. 
hallucinations  are  common,  726. 
the  emotional  disturbance,  727. 
the  intelligence  involved,  728. 
impulsive  acts,  729, 
physical  state,  730. 


INDEX.  987 

(.References  are  tc  sections.) 

CONFUSIONAL  INSANITY— (continued) . 
various  forms,  731. 
duration  iiiid  prognosis,  732. 
the  pathology  is  not  entirely  unknown,  733. 
the  scientific  interest  in  these  cases,  734. 
medico-legal  aspects  of,  735. 
loss  of  responsibility,  736. 
abuse  of  the  word  "impulse,"  737. 
the  defense  of  impulsive  insanity,  738. 
suicide  in  these  patients,  739. 
disturbance  of  the  emotions  denied,  740. 
the  evil  passions,  741. 
impulsive  acts  not  always  dangerous,  742. 

CONSIDERATION, 

for  conveyance  by  person  of  weak  mind,  effect  of  inadequacy  of,  14. 
inadequacy  of,  as  an  element,  16. 
inadequacy  of,  as  evidence  of  incapacity,  36. 

GONSPIEACY, 

to  confine  sane  person  in  asylum,  1242. 

CONTAGIOUS  INSANITY.     See  Cosimunicated  Insanity, 

CONTRACTS, 

efl'ect  of  mental  unsoundness  in  general,  1. 
by  early  authorities  lunacy  no  ground  for  avoidance  of,  2. 
subsequent  tendency  to  hold  all  contracts  with  lunatics  void,  3. 
voidable,  but  not  void,  under  modern  rule,  4. 

rule  limited  in  some  jurisdictions  to  cases  where  lunacy  is  not  judicially 
determined,  4. 
those  executed  in  good  faith  will  be  sustained,  5. 

conflict  of  authorities  as  to  whether  deeds  are  voidable,  and  not  void,  6. 
on  rescission,  parties  to  be  placed  in  ftatu  quo,  7. 
incompetent  person  liable  for  necessaries,  8. 
executed  during  lucid  intervals,  9. 
prevailing  modern  rule — test  as  to  capacity,  10. 
delusion  as  test  of  capacity,  11. 
time  of  application  of  tests,  12. 

necessity  that  insanity  affect  particular  subject-matter  involved,  13. 
fraud  coupled  with  mental  debility,  14. 

better  opinion  that  contracts  by  lunatics  are  voidable  at  option,  15. 
what  weakness  incapacitates,  16. 
abuse  of  confidential  relation,  17. 

subsequent    lunacy    which   will    terminate    continuing    contract — partnership 
contracts,  IS. 

agency,  19. 
intoxication,  unless  excessive  no  ground  for  avoiding  contract,  20. 

otherwise  when  combined  with  fraud,  21. 

^*st3  as  to  intoxication,  22. 


988  INDEX. 

(References  are  to  sectiona.) 
CONTRACTS—  ( conUnued ) . 

effect  of  intoxication  upon  conveyances,  23. 

rule  iu  equity,  24. 

drunkard  liable  for  necessaries,  25. 

discharge  of  servant  for  drunkenness,  26. 
effect  of  morphinism  and  other  like  addictions,  27. 
avoidance  by  personal  representatives  or  heirs,  28. 
avoidance  by  guardian,  committee,  curator,  or  assignee  in  lunacy,  29. 
avoidance  by  party  upon  restoration  to  sound  mind,  30. 
parties  entitled  to  dissolve  partnership  on  ground  of  insanity,  31. 
proof  of  incompetency — sufficiency  in  general,  32. 

condition  of  mind  both  previous  and  subsequent  to  making  of  contract, 
33. 

age,  weakness,  and  disease,  34. 

rationality  of  act  itself,  35. 

conduct  of  party,  3(5. 

belief  in  j-piritualism,  36. 

conduct  of  others,  37. 

inqiiisition  only  prima  facie  proof  as  to  third  parties,  38. 

other  adjudication  of  unsoundness,  39. 
contractual  capacity  distinguished  from  testamentary  capacity,  64. 
capacity  of  paretic  viewed  from  medical  standpoint,  912. 
the  law  relating  to  capacity  to  make,  and  validity  of,  reviewed  from  medicaJ 

standpoint,  1 19.5-1 20S. 
See  Makriage. 
Evidence  as  to  insanity  or  intoxication  in  general,  see  Evidence. 

CONVULSIONS.     See  Epilepsy;  Hysteria. 

CORONERS'  J  CRIES, 

findings  in  cases  of  suicide,  697. 

CRIMINAL  INSANITY, 

it  has  been  recognized  in  a  few  courts,  1058. 

CRIMINAL  RESPONSIBILITY.     See  Responsibility  fob  Crimb. 

CURTESY, 

right  to.  where  one  of  parties  to  marriage  was  insane,  40. 


D 

DEAF  MU'lES, 

capacity  to  marry,  43. 

as  viewed  from  medical  standpoint,  1099. 
testamentary  capacity  of,  130. 
means  of  eliciting  testimony  of,  292. 
originally  regarded  as  idiots,  10S6. 

the  civil  law  relating  to,  viewed  from  medical  standpoint,  1094. 
the  legal  presumption    with  relation  to,  viewed  from  medical  standpoint,  1Q95. 


i 


INDEX.  989 

(References  are  to  sections.) 

DEAF  MUTES — (continued). 
mental  capacity  of,  1097. 
as  witnesses,  1100. 
distinguished  from  acquired  doiviness  and  from  aphasia,  1102. 

DECEPTION.     See  Simulation  of  Insanity. 

DEEDS, 

conflict  of  authority  as  to  whetlier  deeds  are  voidable,  and  not  void,  6. 

tests  as  to  capacity  to  execute,  10-12. 

undue  influence  or  fraud  in  procuring  deed  from  person  of  mental  weakness, 

14. 
cxeoiited  by  drunkard  or  intoxicated  person,  23. 
proof  of  incompetency  to  execute  deeds  and  contracts  generally,  32-39. 

»  See  also  Contracts;  Evidence. 

DEFINITION, 

of  insanity  must  come  from  courts,  not  experts,  167. 
medical  objection  to  legal  definition  of  insanity,  555. 
difficulty  of  defining  insanity,  390. 
proposed  definition  of  insanity,  391. 

objections  to  same,  394. 
first  legal  definition  of  insanity,  446,  447. 
by  Hale,  4G9. 
of  delusion,  395. 

distinction  between  illusion,  hallucination,  and  delusion,  396. 
of  hallucination,  398. 
origin  of  the  term  "lunatic,"  401. 
later  use  of  the  term  "lunatic,"  402. 
in  United  States  of  the  term  "lunatic,"  403. 
origin,  development,  history,  and  meaning  of  term  won  compo/^  mentis,  404- 

427. 
distinction  between  idiots  and  lunatics,  408. 
origin  and  meaning  of  term  "lucid  interval,"  428-445. 
distinction  between  moral  and  legal  wrong,  517. 
so-called  legal  tests  criticized  from  the  bench,  556. 
early  attempts  to  analyze  and  deline  mental  phenomena,  567. 
of  illusion,  597. 

medical  definition  of  "manLa,"  619. 
of  stuporous  insanity,  713. 
secondary  or  chronic  insanity,  743. 
hypochondria,  794. 
obsessions,  826. 
epilepsy,  853. 
aphasia,  99S. 
paranoia,  1020. 
moral  insanity,  1055. 
dementia  praecox,  1059. 
idiocy  and  imbecility,  1074, 
iomnambulism,  1144. 


990  INDEX. 

{Referencen  are  to  sections,} 

DEGENERATES, 

moral  insanity  of..  10.57. 

DELIRIUM, 

compared  with  confusional  insanity,  724. 

effect  upon  testamentary  capacity  viewed  from  medical  standpoint,  1184. 

DELIRIUM,  ACUTE, 

statement  of  the  disease,  953. 

history,  954. 

severity  of,  955. 

fatality,  950,  959,  960. 

variation  in  cases,  957. 

post-febrile,  958. 

post-maniacal  condition,  961.  « 

meningitis,  962. 

absence  of  theory  for  the  disease,  96.3. 

infection  as  a  cause,  964. 

action  of  microbes,  965,  966. 

medico-legal  questions  not  likely  to  arise,  967. 

many  grades  of  the  affection,  968. 

DELIRIUM  TREMENS, 

effect  upon  responsibility  for  crime,  224.  225. 

medical  aspects  of,  924. 

mania  a  poiu,  927. 

alcoholic  insanity  in  general,  see  Alcoholism. 

drunkenness  and  intoxication  in  general,  see  Drunicenness  ;  Intoxication. 

DELUSION, 

existence  of,  as  shov/ing  incapacity  to  contract,  11. 

defined,  80,  182,  399. 

effect  upon  testamentary  capacity,  81-83. 

as  viewed  from  medical  standpoint,  1179-1183. 
insane  delusion  distinguished  from  mere  mistaken  notion,  83. 
insane  delusion  distinguished  from  mere  prejudice  or  eccentricity,  85. 
speculative  beliefs,  86. 

weight  and  sufficiency  of  evidence  as  to,  100. 
invalidating  gift  inter  vivos,  137. 
question  for  jury  as  to  whether  delusion  will  authorize  finding  of  lunacy,  148, 

149. 
distinction  between  objective  and  subjective  delusions,  185. 
effect  upon  criminal  responsibility',  183-188. 
as  affecting  comjietency  of  witness,  288. 
varieties  of,  400. 
rules  in  ]\I'i\aghten  case  discussed  and  analyzed  from  medical  standpoint,  50S- 

529. 
M'Naghten  case  one  of  delusional  insanity,  506. 

authority  and  application  of  rules  of  M'Naghten  case  in  America,  530-557. 
of  puerperal  patients,  652. 


INDEX.  t»l 

(References  are  to  sections.) 

DEILUSIQN—  ( contitiued ) . 

in  melancholia — in  •jjeneral,  656. 
sexual  delusions,  657. 
reiif^ious  delusions,  658. 
varieties  uf  delusions,  659. 

as  to  persecution  entertained  by  melancholiac,  distinguished  from  those 
entertained  by  paranoiac,  665. 
of  hysteria,  809,  811. 
of  narcomania,  1112. 
of  paresis,  893. 

of  grandeur,  crimes  inspired  by,  904. 
in  the  aged,  976. 
as  a  test  for  insanity,  1043-1045. 

See  also  Paeanoi.4.;  RESPONsiuiLiTy  for  Crime. 

DEMENTIA, 

distinguisLed  from  stuporous  insanity,  713.  " 

medical  aspects  of — ^nature  of,  760. 

as  an  evidence  that  insanity  is  a  physical  disease,  761. 

analysis  of  the  disease,  762. 

variovis  forms  of,  763. 

primary  dementia,  76314. 

a  common  legal  error  relating  to,  764. 

only  dements  are  totally  deprived  of  understanding  and  memory,  765. 

tendency  to\vard,  of  periodical  insanity,  771. 

syijhilitic  dementia,  918. 

alcoholic  dementia,  933. 

senile  dementia,  975. 

legal  aspects  of  senile  dementia  viewed  from  medical  standpoint,  981-997. 

simulation  of,  1138. 

See  also  Dementia  Precox. 

DEMENTIA  PR.^COX, 

medical  aspects  of — definition,  1059. 

ideas  underlying  this  term,  1060. 

history  of,  1061. 

the  causes,  1062. 

the  objection  to  this  term    1063. 

hebephrenia,  1064. 

katatonia,  1065. 

the  paranoid  form,  1066. 

a  criticism  of  the  term,  1067. 

juvenile  insanity  not  always  incurable,  1068. 
legal  aspects  of,  viewed  from  medical  standpoint,  1069-1072. 

DEMONOMANIA.     See  VVitcuckaft. 

DIPSOMANIA, 

distinguished  from  true  mania,  633. 
as  an  obsession,  851. 
nature  and  cnect  of,  932. 


992  INDEX. 

(References  are  to  sections.) 

DISEASE, 

as  evidence  of  incapacity  to  execute  deed  or  other  contract,  34, 
as  constituting  testamenta,ry  incapacity.  72. 
combined  with  intemperance  as  constituting  incapacity,  112. 
as  evidence  of  want  of  testamentary  capacity,  12 S. 
as  ground  for  appointment  of  committee  or  guardian,  140,  149. 
influence  of  infectious  diseases  upon  insanity,  591. 
insanity  as,  370. 

insanity  as  a  disease  of  the  brain,  31)5. 

insanity  viewed  as  a  disease  from  the  scientific  standpoint,  574,  575. 
See  also  Pathology  of  Insanity. 

DIVORCE, 

action  for,  cannot  be  considered  as  one  to  have  marriage  annulled,  44. 

mental  incapacity  at  time  of  marriage  as  ground  for,  44. 

allowance  for  alimoiiy  and  counsel  fees,  47. 

insanity  occurring  after  marriage  as  a  grovmd  for,  50. 

insanity  at  time  of  marriage  as  ground  for,  50. 

on  ground  of  adultery  where  guilt j^  P^rty  is  insane,  51. 

insanity  as  defense  to  divorce  on  ground  of  desertion,  52. 

insanity  as  defense  to  divorce  on  ground  of  cruelty,  53. 

right  of  insane  person  to  maintain  action  for,  54. 

drunkenness  as  ground  for,  55. 

drunkenness  as  defense  to  action  on  ground  of  desertion,  56. 

efl'ect  of  drunkenness  on  cruelly  as  a  ground  for,  57. 

somnambulism  as  giound  for,  1159. 

DOMICIL, 

capacity  as  aft'ecting  power  to  choose,  278. 

DOWER, 

right,  to,  where  one  of  parties  to  marriage  was  insane,  40. 

determination  in  suit  for  dower  of  mental  capacity  of  parties  to  marriage,  44 

DREAJMS, 

as  constituting  a  disorder  of  the  mind,  392. 

DRUGS, 

effect  of,  upon  responsibility  for  crime,  245.  • 

See  Nakcomania. 
DRUNICENNESS, 

effect  upon  contracts  and  conveyances,  20-20. 
as  viewed  from  medical  standpoint,  1205. 
as  ground  for  divorce,  55. 

as  defense  to  action  for  divorce  on  ground  of  desertion,  56. 
eflfect  of,  on  cruelty  as  a  ground  for  divorce,  57. 

efTect  upon  retponsibility  for  crime  as  viewed  from  medical  standpoint,  93S- 
952i. 

See  also  Alcoholism;  Intoxication. 

DUE  PROCESS  OF  LAW, 

denial  of,  by  confinement  of  insane  person,  159. 


INDEX.  M3 

{References  are  to  sections.) 

E 

KCCENTRICITY, 

as  destroyinii;  testamentary  capacity,  85. 

as  evidence  of  insanity,  109. 

as  ground  for  appointment  of  committee  or  guardian,  147,  149. 

effect  upon  validity  of  judgment,  28-1. 

EMOTIONAL  CAUSES, 
of  insanity,  594. 

EMOTIONAL  INSANITY, 

as  a  product  of  metaphysics,  568. 
distinguished  from  mania,  630-638. 

EMOTIONS, 

disturbance  of,  in  confusional  insanity,  740. 
weakening  of,  in  chronic  insanitj',  747. 

EPILEPSY, 

as  evidence  of  incapacity  to  execute  deed  or  contract,  34. 
rendering  person  susceptible  to  excitement,  eflfect  upon  criminal  responsibil- 
ity, 194. 
testamentary  capacity  of  epileptics  viewed  from  medical  standpoint,  881. 
marriage  of  epileptics  viewed  from  medical  standpoint,  881^. 
distinguished  from  transitory  mania,  641. 
compared  to  chronic  insanity,  757. 
the  medical  aspects  of  epileptic  insanity — definition,  853. 

a  disease  of  many  names,  854. 

the  epileptic  fit  is  of  several  grades,  855. 

physical  symptoms  of  epilepsy,  856. 

the  mental  symptoms,  S57. 

the  symptoms  before  the  fit,  858. 

epileptic  automatism,  859. 

varieties  of  the  aura,  860. 

ocular  symptoms  in  epilepsy,  860. 

the  mental  derangement  during  a  fit,  861. 

concealed  or  masked  epilepsy,  862. 

the  mental  symptoms  following  the  fit,  863. 

the  permanent  effects  of  epilepsy,  864. 

the  epileptic  status  and  other  complications,  865. 

Causes  of  epilepsy,  866. 
the  legal  aspects  of  epileptic  insanity  viewed  from  medical  standpoint,  867- 

882. 
psychical  epilepsy,  872. 
accompanying  paresis,  896. 
in  alcoholism,  931. 
epileptic  idiots,  1081. 
simulation  of,  1142. 
and  somnambulism  compared,  1150. 

possibility  of  its  being  confounded  with  somnambulism.  1157. 
Vol.  T.  Med.  Jttr. — 63. 


994  INDEX. 

(References  are  to  sections.) 
EROTOMANIA, 

definition  and  nature  of,  201. 

delusions  of,  1031. 

ERYSIPELAS, 

as  a  cause  of  insanity,  591. 

EVIDENCE, 

of  subscribing  witness  to  deed,  32. 

of  witnesses  present  at  execution  of  deed  or  contract,  32. 
age,  weakness,  and  disease  as  evidence  of  incapacity,  34. 
as  to  fairness  and  rationality  of  the  transaction  complained  of,  35. 
belief  in  spiritualism  as  evidence  of  incapacity,  36. 
conduct  of  party  to  transaction,  36. 
conduct  of  others,  .37. 

conclusiveness  and  effect  of  finding  in  lunacy  proceedings.  150. 
necessary  to  rebut  effect  of  inquisition,  153. 
discharge  from  asylum  as  prima,  facie  evidence  of  sanity,  160. 
presumption  and  burden  of  proof — presumption  of  sanity.  296. 
burden  of  proof  in  miscellaneous  matters,  297. 
burden  of  proof  in  criminal  cases,  298. 
coniiicting  rules  as  to  burden  of  proof  in  will  Ci^ses,  299. 
shifting  of  the  burden  resting  with  the  proponent,  300. 
svifficiency  of  evidence  to  satisfj^  or  shift  the  burden  in  will  cases,  301. 
burden  of  proof  after  probate,  302. 
burden  of  proof  in  case  of  suicide  of  insured,  303. 

from  medical  standpoint,  696,  700. 
of  continuance  of  habitual  insanity,  304. 
temporary  insanity,  305. 

habitual  and  temporary  insanity  distinguished,  306. 
as  to  continuance  of  lucid  intervals,  307. 
nature  of  presumption  of  continuance,  308. 
of  mental  incoTupetency  arising  from  intoxication,  318. 
of  continuance  of  insanity  arising  from  intoxication,  319. 
to  show  good  faith  in  making  contract  with  lunatic,  5. 
as  to  incapacity  where  next  friend  has  been  appointed  to  institute  action, 

39. 
as  to  sanity  of  witness,  289. 

effect  ^lpon  burden  of  proof,  of  finding  in  lunacy  proceedings,  150, 
of  finding  of  habitual  drunkenness,  157. 
measure  of  proof — civil  cases,  309. 
in  case  of  intoxication,  320. 
criminal  cases — beyond  a  reasonable  doubt,  310. 
to  the  satisfaction  of  the  jury,  311. 
by  a  preponderance  of  the  evidence,  312. 
what  is  a  sufficient  preponderance,  313. 
clearly  pro\  cd,  reasonable  certainty,  314. 
reasonable  doubt  of  sanity,  315. 
what  constitutes  reasonable  doubt.  316. 
in  case  of  intoxication.  320. 


INDEX.  995 

(Refcrcnce.3  are  to  sections.) 

EVIDENCE—  ( continued) . 

suinniary  as  to  measure  of  proof,  317. 
weight  and  sufliciency  to  show  incompetency  of  witness,  291. 
to  show  incompetency  to  make  contract  in  general,  32-39. 
to  establish  negligence  where  one  of  the  parties  was  intoxicated,  275. 
to  esta!)lish  insanity  of  insured  committing  suicide,  259. 
to  estalilish  incompcLency,  149. 

to  establish  lucid  intervals  for  purpose  of  upholding  will,  133. 
to  invalidate  marriage  on  ground  of  insanity,  45. 

to  establish  int^anity  as  a  defense  to  criminal  prosecution,  see  Respon- 
sibility VOR  CniME. 
to  shov/  incompetency  of  testator,  see  Wills. 
competency  and  admissibility — previous  and  subsequent  condition,  33,  45,  115, 
116,  321. 
the  act  itself  as  evidence,  322. 
declarations  and  admissions  of  the  party,  323. 
declarations,  admissions,  and  acts  of  third  persons,  324. 
documentary  evidence,  325. 
acts  and  conduct,  320. 
surrounding  circumstances,  327. 
relationship  between  parties.  328. 
physical  and  mental  condition,  329. 
hereditary  insanity,  330. 
reputation  and  hearsay,  331. 
adjudications  and  certilicates  of  lunacy,  332. 
the  fact  of  intoxication,  333. 
general  character  and  habits  of  person  as  to  drunkenness  or  sobriety, 

334. 
previous  and  subsequent  intoxication,  335. 
acts  and  conduct  of  intoxicated  person,  336. 

confessions,  admissions  and  declarations  of  intoxicated  person,  337. 
opinion  evidence  with  reference  to  lunacy,  338-371. 
opinions  of  experts — admissibility  in  general,  338. 

definition  of  insanity  must  come  from  courts,  not  experts,  107. 
application  of  doctrine  as  to  privilege  of  witnesses,  339. 
opinions  formed  from  observations  or  examination,  340. 
opinions  based  on  evidence,  341. 

opinions  on  hypothetical  questions  or  statements,  342. 
qualifications  of  experts,  343. 
basis  of  facts  or  reason  for  opinions,  344. 
scope  of  testim.ony  in  general,  345". 
scope  as  to  time,  346. 
cross-examination  of  experts,  347. 

weight  and  effect  to  be  given  expert  opinion — in  general,  149,  348. 
as  aflfected  by  facts,  opportunity  to  observe,  character,  etc.,  349- 
as  compared  with  other  opinions,  350. 
a  question  for  jury,  351. 
expert    testimony,    reviewed    from    medical    standpoint — a    difficult    problem, 
1227. 
truth  may  be  elusive,  1228. 


996  INDEX. 

(References  are  to  sections.) 

EVIDENCli^- ( continued) . 

ino\  incc  of  expert  witness,  1229. 
uncertainty  of  expert  testimony,  1230. 
the  ethics  of  the  subject,  1231. 
proposed  remedies,  1232. 
memoranda  lor  experts,  1233. 
opinions  of  nonexperts — in  general,  352. 
grounds  of  admissibility,  353. 
eflect  of  rules  as  to  privilege  of  witnesses,  354. 
qualifications  of  nonexpert  witnesses,  355. 
the  acquaintance  and  observation  necessary,  356. 
facts  and  reasons  as  a  basis  of  opinion,  357. 
scope  of  testimony  of  nonexpert  witnesses — in  general,  358. 
limitation  of  scope  in  2>'^iticular  states,  359. 
scope  as  to  time,  3G0. 
cross-examination,  rebuttal,  and  impeachment,  361. 

weight  and  elTect  to  be  given  opinions  of  nonexpert  witnesses — in  general, 
362. 
as  aflected  by  character,  capacity,  and  opportunity,  363. 
as  affected  by  facts  and  reasons  stated,  364. 
opinions  of  subscribing  witnesses — admissibility  in  general,  365. 
necessity  of  giving,  366. 

scope  of  testimony  of  subscribing  witnesses,  367. 
weight  and  effect  of  opinions  of  subscribing  witnesses,  368. 
opinions  covering  the  issue — general  and  prevailing  rule,  369. 
application  to  particular  classes  of  cases,  370. 
the  contrary  rule,  371. 
opinion  evidence  with  reference  to  drunkenness — who  may  give,  nature  of, 

372. 
admissibility  of  medical  books  and  scientific  works,  373. 

EXALTATION, 

is  a  prominent  symptom  of  mania,  621. 

EX.\MINAT10N  OV  INSANE.     See  Commission  of  Lunacy. 

EXCESSES, 

in  mania,  626. 

EXECUTORS  AND  ADMINISTRATORS, 

early  doctrine  as  to  right  to  avoid  contract  of  insane  decedents.  2. 
avoidance  of  contract  of  decedent,  28. 
mental  incapacity  as  a  disqualification,  276. 
habitual  drunkenness  as  ground  for  removal,  277. 

EXEMPLARY  DAMAGES, 

liability  of  insane  person  for,  264. 

EXPERI'  TESTIMONY.     Sec  Evidence. 


INDEX.  St97 

(References  are  to  sections.) 

F 

FEEBLENESS, 

as  evidence  of  mental  incapacity,  109. 

FEIGNED  INSANITY.     See  Simulated  Insanity. 

* 
FEVER, 

delirium  of,  as  constituting  a  temporary  form  of  insanity,  391. 
See  also  Delirium,  Acute. 

FICKLENESS, 

as  evidence  of  incapacity,  109. 

FILTHY  HABITS, 

as  evidence  of  mental  incapacity,  109. 

FITS.     See  Epilepsy. 

FRAUD, 

in  dealing  with  person  of  mental  wealcness,  14. 

no  presumption  of,  16 

effect  of,  when  combined  with  intoxication  of  party  to  contract,  21. 

combined  with  incapacity,  eiVect  as  invalidating  marriage,  42. 

coupled  with  mental  weakness  of  testator — effect  upon  validity  of  will,  87. 

must  amount  to  restraint,  88. 

effect  of  confidential  relations,  89. 

question  is  one  of  capacity  to  resist,  90. 
sufficiency  of  proof  where  fraud  is  combined  with  mental  weakness,  118. 

where  fraud  is  combined  with  drunkenness,  119. 

FRIGHT, 

as  cause  of  insanity,  594. 


G 

GENERAL  PARESIS.     See  Paresis. 

GIFTS, 

capacity  to  make  valid  gift,  inler  vivos,  137. 
testamentary  capacity  to  make  valid  gift  causa  mortis,  138. 
effect  of  habitual  drunkenness  upon  validity  of  gift,  139. 
evidence  as  to  insanity  or  intoxication  in  general,  see  Evidencsb. 

GOOD  FAITH, 

in  dealing  vdth  lunatic,  effect  upon  validity  of  contract,  5, 

GRANDEUR, 

delusions  of,  1027,  1031c. 

GREEKS, 

view  of,  as  to  insanity.  384. 


998  INDEX. 

(References  are  to  sections.) 
GRIEF, 

as  cause  of  insanity,  594. 

GUARDIAN, 

validity  of  deed  executed  by  lunatic  after  appointment  of,  6. 
action  against,  for  necessaries  furnished  lunatic,  S. 
avoidance  of  contract  by,  29. 

effect  of  undue  influence  upon  gifts  to,  by  will,  89. 
8ee  also  Commission  of  Lunacy. 

GUARDIAN  AD  LITEM, 

for  party  alleged  to  be  of  unsound  mind,  149» 


HABE.\S  CORPUS, 

conclusiveness  upon,  of  finding  in  lunacy  proceedings,  150. 

to  review  commitment  to  asylum,  1242. 

to  bring  witness  from  insane  asylum  to  testify,  29? 

HALLUCINATION, 

defined,  398. 

in  mania,  625. 

in  melancholia,  660. 

in  confusional  insanity,  72G. 

in  hysteria,  809,  811. 

in  delirium  tremens,  924- 

in  paranoia,  1036. 

compared  with  obsessions,  837. 

HEAD, 

injury  to,  as  cause  of  insanity,  595. 

HEBEPHRENIA, 

a  forin  of  juvenile  insanity,  1064. 

HEBRAIC  LAW, 

as  to  insanity,  383. 

HEIRS, 

avoidance  of  contract  of  ancestor,  2.  4,  28. 

HEREDITY, 

hereditary  tendencies,  competency  of  evidence  as  to,  330. 

as  oonstitutin'T  proof  of  testamentary  incapacity,  117. 

as  affecting  criminal  responsibility  of  accused,  221. 

weight  of  testimony  as  to,  on  commission  of  lunacy,  149. 
as  a  cause  of  insanity,  576. 

as  cause  of  insanity,  statistics  not  always  reliable,  578. 
the  difBcultv  of  ascertain  ins  hcroditv.  577. 


INDEX.  9ii: 

[References  are  to  sections.) 
HEREDITY—  ( oontin  ued ) . 

two  modes  of  traiisuiittintr  insanity,  579. 

is  not  a  iixcd  rule,  5S0. 

to  he  traced  through  all  the  linesi  of  descent,  581. 

relation  of  criminality  to  insanity.  582. 

no  distinct  type  of  liercditar\'  insanity,  583. 

relation  of,  to  insanity,  a  matter  of  statistics,  584. 

an  obscure  problem  of  pathology  of  insanity,  602. 

as  a  subdivision  in  the  classification  of  insanity,  611. 

hereditary  chorea,  S24. 

as  cause  of  juvenile  insanity,  1062. 

HIGHWAYS, 

liability  for  injuries  to  intoxicated  person,  272. 

HOMESl'EAD, 

competency  of  insane  person  to  abandon  homestead  right,  2,  n. 

HOMICIDAL  MANIA, 

lasting  but  a  few  moments  during  which  time  homicide  is  sommitted,  640, 

HOMICIDE, 

effect  of  intoxication  upon  responsibility  for,  232-237. 
may  be  committed  by  melancholiac,  708. 

deliberation  and  premeditation  in  these  patients,  709. 

homicidal  impulses  in  melancholia,  710. 

complicated  motives  that  may  lead  to  homicide,  711. 
during  periodical  insanity,  792. 
as  a  result  of  obsessions,  848. 
somnolentia  as  a  defense,  1163. 

HYDEOPHOBIA, 

fear  of,  as  a  form  of  hypochondiia,  798. 

HYPNOTISM, 

and  hysteria  compared,  813. 

and  somnambulism  compared,  1145. 

HYPOCHONDRIA, 

defined,  794. 

distinguished  from  melancholia,  795. 
distinguished  from  neurasthenia,  798. 
distinguished  from  par.inoia,  797. 
various  forms  of,  798. 
suicide  of  hypochondriac,  800. 
errors  in  diagnosis,  801. 
sexual  hypochondria,  799. 

HYSTERIA, 

origin  of  the  term,  803. 
symptoms  of,  804. 

the  inter-paroxysmal  symptoms.  805. 


1000  INDEX. 

{References  are  to  sections.) 

HYSTERIA—  ( continued) . 
in  the  Middle  Ages,  806. 
the  paralyses  caused  by,  807. 
other  bodily  symptoms,  SOS. 

the  paroxysmal  symptoms  of  hysteria  are  those  which  occur  in  connil- 
sive  attacks,  809. 
the  hysterical  fit  has  several  stages,  810. 
medico-legal  aspects  of  hysterica!  insanity,  811-817. 


IDIOCY, 

effect  on  capacity  to  make  will,  59. 

efTi?ct  upon  responsibility  for  crime,  173. 

legal  aspects  of,  viewed  from  medical  standpoint,  1083-1093. 

as  constituting  a  form  of  insanity,  393. 

distinction  between  idiots  and  lunatics,  408. 

as  constituting  a  class  in  tiie  classification  of  insanity,  612. 

medical  aspects  of — distinguished  from  insanity,  1073. 

idiocy  and  imbecility  defined,  1074. 

malformation  of  the  biain,  1075. 

various  kinds  of  idiocy,  1076. 

the  intelligence  always  involved  in  idiocy,  1077. 

the  other  mental  faculties  involved,  1078. 

the  moral  faculties  also  involved,  1079. 

moral  imbeciles,  1080. 

ei)ileptic  idiots,  1081. 

the  pathology  and  morbid  anatomy  of  idiocy,  1082. 
See  also  Imuecility. 

ILLUSION, 

defined,  397. 

IMBECILITY, 
defined,  1074. 
effect  upon  contract,  1. 

accompanied  by  fraud  of  person  dealing  with  imbecile,  14. 
effect  of  undue  influence  or  fraud  upon  validity  of  will,  87-90. 
marriage  of  imbeciles,  viewed  from  medical  standpoint,  1090. 
See  also  Idiocy. 

IMPULSES, 

impulsive  criminal  act  by  periodical  lunatic  as  evidence  of  return  of  insanity, 

790. 
obsessions  not  ordinary  criminal  impulses,  841. 
not  all  insane  impulses  due  to  obsessions,  849. 
impulsive  acts  of  maniac,  628. 
in  confusional  insanity,  737-742. 

See  also  Irkesistible  Impulse. 


INDEX.  1001 

(References  are  to  sections.) 

IMPULSIVE  INSANITY, 

distinguished  from  mania,  639. 

See  also  Neurasthenia. 

INFECTION, 

as  a  cause  of  acute  delirium,  964. 

INFECTIOUS  DISEASES, 

influence  of,  upon  insanity,  591. 
as  cause  of  epilepsy,  860. 

INFLUENZA, 

as  cause  of  insanity,  591. 

INQUISITION  IN  LUNACY.     See  Commissiox  of  Lunacy. 

INSANE  ASYLUM, 

commitraent  to,  as  evidence  of  incapacity,  39. 

INSAN^TY, 

scientific  nature  of  medical  jurisprudence  relating  to,  374. 

to  be  defined  by  courts  not  experts,  167. 

to  be  studied  in  hospitals  rather  than  courts,  375. 

as  constituting  a  question  of  fact,  and  not  one  of  legal  definition,  548. 

it  is  a  disease,  376. 

of  the  brain,  395. 
it  is  not  a  crime,  377. 
medical  and  legal  aspects  of  subject,  378. 
literature  relating  to,  380,  381. 
history  of  medical  jurisprudence  of,  382. 
among  the  ancients,  383. 
tlie  Greeks,  384. 
Roman  law,  385,  3 SO. 
the  Middle  Ages,  387. 
history  of  demonomania,  or  witchcraft,  388. 
the  subject  obscured  by  demonomania,  389. 
distinguished  from  idiocy,  1073. 
See  also  Classification  of  Insanity;  Definition;  Metaphysical  Conception 

OF  Insanity;  Tathology  of  Insanity. 
For  various  forms  of  insanity  or  mental  weakness,  see  Alcoholism;  Chorea; 
Chronic  Insanity;  Communicated  Insanity;  Confusional  Insanity; 
Delirium,  Acute;  Dementia;  Df.mentia  Pr.ttcox;  Dipsomania;  Epilep- 
sy; Hypochondria;  Hysteria;  Idiocy;  Imbecility;  Kleptomania; 
Mania;  Melancholia;  Moral  Insanity;  Narcomania;  Neurasthenia; 
Paranoia;  Paresis;  Periodical  Insanity;  Plerperal  Mania;  Pyro- 
MANi;  Senile  Insanity;  Somnambulism;  Stuporous  Insanity;  Syphi- 
litic Insanity. 

INSANITY  AND  THE  LAW, 

as  viewed  from  medical  standpoint — original  definition  of  insanity,  446. 
early  crude  ideas,  447. 


1002  INDEX. 

(References  are  to  sectiona.) 
INSANITY  AND  THE  LAW— ( continued). 
insanity  in  the  Middle  Ages,  448. 
tradition  and  common  law,  449. 
old  and  fanciful  opinions,  4i50. 
very  few  old  authorities,  451. 
the  writings  of  Bracton,  452,  453. 

his  dependence  on  the  civil  law,  454. 
Justinian,  455. 
Britton.  456. 

the  statute  de  prerogativa  regis,  457. 
Littleton,  and  the  doctrine  of  nonstultification,  458. 
the  reason  for  refusing  to  allow  a  man  to  stultify  himself,  459, 
Coke  and  the  Beverley  Case,  460. 
insanity  in  high  treason,  461. 

the  early  prejudice  against  the  insane  regicide,  462. 
Coke's  attempts  at  a  classification  of  insanity,  463. 

his  scheme  of  classification,  464. 
Coke's  distinction  between  civil  and  criminal  insanity,  465. 
unworthiness  of  Coke's  scheme,  466. 
Coke's  ideas  of  lunacy,  467. 
the  writings  of  Hale,  468. 

his  definitions,  469. 
Hale  on  t«sts  for  insanity,  470. 

his  own  test,  471. 
Hale's  "partial"  insanity  and  "total"  insanity,  472. 
what  is  "partial"  insanity,  473. 
what  is  "total"  insanity,  474. 

the  terms  "partial"  and  "total"  insanity  criticized,  475. 
Hale's  erroneous  definition  of  a  lunatic,  476. 
the  right-and-wrong  test,  482. 

Hawkins  and  the  right-and-wrong  test,  477. 
this  test  not  satisfactory  to  all  legal  minds,  483. 
test  rejected  by  Erskine,  487. 

rule  not  properly  applied  in  Beilingham's  Case,  495. 
effect  of  judge-made  law,  478. 
the  Arnold  case,  479. 
the  wild  beast  theory,  480. 
case  of  Earl  Ferrers — an  insane  man  forced  to  conduct  his  own  defense, 

481. 
Erskine  and  the  case  of  Hadfield,  484.  - 
the  test  of  delusion,  485. 

Erskine's  distinction  between  civil  and  criminal  cases,  486. 
distinction  between  civil  and  criminal  insanity  made  by  attorney-general 

in  Beilingham's  case,  496. 
BO  such  thing  as  total  madness,  488. 
the  importance  of  Erskine's  speech,  489. 
the  statute  law  of  England,  490. 

no  tests  required  by,  491. 
Beilingham's  case,  493. 
the  test  of  delusion  rejected,  494. 


INDEX.  1063 

(References  are  to  sections.) 
INSANIIT  AND  THE  LAW— (continued). 
the  cases  of  Parker  and  Bowler,  497. 
the  case  of  Oilord,  408. 

the  cases  of  Bellingham  and  OAord  compared,  499. 
the  case  of  Oxford — a  step  in  advance,  500. 
the  formative  period,  oOl. 
madness  not  to  be  reduced  to  fixed  rule,  502. 

INSURANCE, 

insanity  as  a  breach  of  vrarranty,  246. 

killing  of  insured  by  insane  person  as  constituting  a  breach  of  condition,  247. 
killing  of  insured  by  insane  beneficiary  as  constituting  a  forfeiture,  247. 
condition  in  policy  against  liability  in  case  of  suicide — general  rule  as  to  ef- 
fect, 249. 
degree  of  capacity,  t«st  of  consciousness  and  intent,  250. 
responsibility  for  criminal  acts  as  test,  251. 
capacity  to  understand  moral  character  of  act  as  test,  252. 
validity  and  efi'ect  of  condition  against  liability  for  suicide,  even  though  tha 

insured  be  insane  at  the  time,  253. 
validity  of  policy  in  case  of  suicide  in  absence  of  condition  against  suicide, 

254. 
suicide  not  included  in  proviso  against  death  of  insured  "in  the  known  vio- 
lation of  the  law,"  254. 
rule  in  case  of  assigned  policies,  255. 
effect  of  insanity  upon  accident  insurance,  256. 
efTect  of  insanity  upon  mutual  insurance,  257. 
method  of  determining  existence  of  insanity,  258. 
sufficiency  of  evidence  to  establish  insanity,  259. 
effect  of  drunkenness  as  a  breach  of  warranty  or  condition,  260. 
"effect  of  subsequently  acquired  habits  of  intoxication,  261. 
effect  of  intoxication  upon  accident  and  mutual  insurance,  262. 
existence  of  intemperate  habits  a  question  for  the  jury,  263. 
burden  of  proof  in  case  of  suicide,  303. 

from  medical  standpoint,  696. 
the  law  relating  to  suicide  and  life  insurance  viewed  from  medical   stand- 

point,  689-695. 
evidence  as  to  insanity  or  intoxication  in  general,  see  Evidence, 

INTERMITTENT  INSANITY.     See  Periodical  Insanity. 

INTOXICATION, 

effect  upon  validity  of  contract  in  general,  3. 

effect  upon  contracts  and  conveyances,  20-26. 

degree  of  intoxication  which  will  invalidate  marriage,  49. 

as  ground  for  divorce,  55. 

as  defense  to  action  for  divorce  on  ground  of  desertion,  56. 

effect  of,  on  cruelty,  as  a  ground  for  divorce,  57. 

as  affecting  responsibility  for  crime,  222-245,  see  also  Responsibilitt  fob 

Ckime. 
statute  of  Texas  as  to  effect  of  intoxication  ujion  criminal  responsibility,  24L 


1004  IMDEX. 

(.References  are  to  sections.) 
LNTOXICATION—  ( continued ) . 

involuntarj-  intoxication  as  an  excuse  for  crime,  243. 

of  person  against  whom  crime  is  committed,  244. 

degree  of,  affecting  testamentary  capacity,  91. 

coupled  with  undue  influence,  92. 

testamentary  capacity  not  necessarily  destroyed  by  habitual  drunkenness,  93. 

considered  as  merely  evidence  of  want  of  testamentary  capacity,  94. 

consideration  of  character  of  will  in  connection  with  its  attack  on  ground  oi", 
108. 

in  connection  with  conduct  and  circumstances,  as  evidence  of  want  of  testa- 
mentary' capacity,  112. 

as  evidence  of  want  of  testamentary  capacity  where  business  capacity  is  not 
impaired,  114. 

effect  of.  either  previous  or  subsequent  to  the  act  involved,  116. 

weight  and  sufficiency  of  evidence  where  fraud  is  combined  with  drunken- 
ness, 119. 

necessity  for  proof  that  intoxicated  testator  knew  contents  of  will,  128. 

effect  of  habitual  drunkenness  upon  validity  of  gift  causa  mortis,  139. 

as  ground  for  finding  of  lunacy,  149. 

warranting  inquisition  of  drunkenness,  156. 

operation  and  efTect  as  evidence  of  inquisition  of  habitual  drunkenness,  157. 

discharge    of   committee   and   restoration   of   property   upon   reformation   of 
drunkard,  158. 

permanent  insanity  produced  by,  222. 

effect  as  a  breach  of  warranty  or  condition  of  insurance  policy,  260. 

effect  upon  validity  of  insurance  policy  of  subsequently  acquired  habits  of  in- 
toxication, 26 1. 

elTect  of,  upon  torts  committed  by  or  upon  intoxicated  person,  266-275,  see 
also  Torts. 

as  ground  of  incapacity  of  public  officer,  277. 

as  ground  for  removal  of  administrator,  277. 

which  will  prevent  running  of  statute  of  limitations,  280. 

eflect  on  competency  of  witness,  295. 

presumption  and  burden  of  proof  arising  from,  318,  319. 

sufficiency  of  proof  as  to  want  of  mental  capacity,  320. 

admissibility  of  evidence  wuth  reference  to,  in  general,  333. 

admissibility  of  evidence  as  to  general  character  and  habits,  334. 

admissibility  of  evidence  as  to  previous  and  subsequent  intoxication,  335. 

admissil)ility  of  evidence  of  acts  and  conduct  of  person,  337. 

opinion  evidence  as  to,  372. 

INVENTORS, 

as  paranoiacs,  1037. 

IRRESISTIBLE  IMPULSE, 
defined,  ISO. 

as  afTecting  responsibility  for  crime,  190-194. 
when  caused  by  evil  passions,  741. 

legal  prejudice  against,  viewed  from  medical  standpoint,  843. 
legal  decisions  on  subject  viewed  from  medical  standpoint,  844-847. 


INDEX.  100.:^ 

iJteferenccs  are  to  scciions.) 

J 

JUDGMENT, 

conclusiveness  of  determination  as  to  mental  incapacity,  38,  39. 

effect  of  incapacity  upon,  in  general,  282. 

rights  of  purchasers  under  judgments  against  insane  persons,  283. 

degree  of  insanity  which  will  aflcct  judgment,  284. 

opening,  vacating,  and  reviewing  judgment  against  insane  person,  285. 

JUDICIAL  SALES, 

riglits  of  purchasers  undur  judgments  against  insane  persons,  283. 

JURISDICTION, 

of  commissions  in  lunacy,  14L 

JURY, 

on  lunacy  commission,  143. 

trial  by,  of  question  of  insanity  of  accused  at  time  of  trial,  207. 

insanity  as  afiecting  qualifications  of  jurors,  287. 

JUVENILE  INSANITY.     See  Dkmentia  Precox. 


K 

KATONTA, 

a  form  of  juvenile  insanity,  10G5. 

KLEPTOMANIA, 

definition  and  nature,  200. 
distinguished  from  true  mania,  633. 
as  an  obsession  of  impulse,  832. 
as  result  of  morphinism,  1113. 

KNOWLEDGE, 

validity  of  contract  where  party  to  it  did  T>.ot  know  of  incapacity  of  the  other 

party,  5. 
of  insanity,  as  estopping  party  to  marriage  from  denying  valivlity  of,  40. 
of  testator  as  to  contents  of  will,  efTect  as  bearing  on  testamentary  capacity, 

120,  121. 

KRAlET-EJilNG'S  SCHEME.     See  Classification  of  Insanity. 


L 

LARCENY, 

elYect  of  intoxication  upon  responsibility  for,  231. 
by  general  paretics,  905. 

See  also  Rlsponsibility  fob  Cbime, 

LAVISHNESS, 

as  evidence  of  mental  incapacity,  109. 


1006  INDEX. 

{References  are  to  sections.) 

LEAD  POISONING, 

■as  cause  of  delirium,  593. 

LEGATl!iSS, 

setting  aside  contract  of  insane  testator,  4. 

LIBEL  AND  SLAxNDER, 

liability  of  insane  person  for,  264. 

effect  of  intoxication  upon  liability  for,  266. 

LIF^:  INSURANCE.     See 'Insukance. 

LIMITATION  OF  ACTIONS, 

degree  of  incapacity  which  will  prevent  running  of,  279. 
drunkenness  which  will  prevent  running  of,  280. 

LOCOMOTOR  ATAXIA, 

relationship  to  general  paresis,  900. 

LUCID  INTERVAL, 

ratification  of  contract  during,  4. 

validity  of  contracts  executed  during,  9. 

validity  of  marriage  contracted  during,  40. 

admissibility  of  evidence  of,  for  purpose  of  controverting  insanity  of  person 

under  guardianship,  150. 
presumption  as  to  continuance  of,  307. 

testamentary  capacity  during,  viewed  from  medical  standpoint,  785. 
legal  abuse  of  doctrine  criticised  from  medical  standpoint,  787. 
presumption  and  burden  of  proof  as  to  existence  of,  reviewed  from  medical 

standpoint,  1172-1174. 
origin,  development,  and  meaning  of  t«rm  "lucid  interval,"  428-445. 
remissions  not  the  same  as  lucid  intervals,  442. 
the  danger  of  the  doctrine,  444. 

short  interval  in  circular  insanity  not  a  true  "lucid  interval,"  780. 
difficulty  of  determining  existence  of,  786. 
in  senile  insanity,  990. 

See  also  Pebiouical  Insanitt. 

LUNATIC, 

meaning  and  use  of  word,  401-403. 
distinction  between  idiots  and  lunatics,  40Jj. 
See  also  Insanity. 

LYSSOPHOBIA, 

as  a  form  of  hypochondria,  798. 


M 

M'NAGHTEN  CASE, 

authority,  effect,  and  analysis  of  rules  in.  viewed  from    medical    standpoint, 
503-529. 


INDEX.  1007 

(References  are  to  sections.) 

M'NAGHTEN  CASE—  ( continued ) . 

operation  and  effect  in  America  of  M'Naghten's  rules  viewed    from    medical 
standpoint,  530-557. 

MALARIA, 

as  cause  of  insanity,  591. 

MANIA, 

medical  aspects  of  mania — definition,  619. 

mania  the  opposite  of  melancholia,  620, 

distinction  between  mania  and  melancholia  ignored,  621. 

exaltation  is  a  prominent  symptom  of  mania,  621. 

acceleration  of  ideas  in  mania,  622. 

the  moral  faculties  in  mania,  623. 

motor  excitement,  624, 

hallucinations  in  mania,  625. 

eiTect  upon  conduct,  626. 

physical  disorder,  627. 

impulsiA'e  act,  628. 

severe  cases,  629. 

mode  of  onset  and  preliminary  symptoms,  630. 

termination,  632. 

examples  of  the  abuse  of  the  term,  633, 
medico-legal  aspects  of  mania — incipient  stages,  634. 

a  much  abused  term  in  medical  jurisprudence,  635. 
its  greatest  abuse,  636, 

emotional  insanity,  6-37. 

emotional  disturbance  not  necessarily  mania,  638. 

impulsive  insanity  and  mania,  639, 

transitory  mania  and  homicidal  mania,  640, 

epilepsy  and  mania,  641, 

alcoholism  and  mania,  642. 
contrasted  with  melancholia,  653. 

weakening  of  emotions  upon  mania  becoming  chronic.  747. 
occurrence  of  exacerbations  in  chronic  mania,  749, 
development  of  acute  delirium,  961, 
in  old  age,  974. 
simulation  of,  1140. 

alternations  of  mania  and  melancholia,  see  Periodical  Insanity 
circular  insanity,  see  Periodical  Insanity, 
periodical,  see  Periodical  Insanity. 
See  also  Dipsomania;  Kleptomania;  Puerperal  Mania;   Pyeomania. 

MANIA  A  POTU, 

from  excessive  alcoholism,  927. 

MARRIAGE, 

distinctive  rule  as  to  competency  of  insane  persons  to  marry,  40. 

ratification  upon  restoration  to  sanity,  40. 

test  as  to  capacity,  41. 

traud  and  incapacity  combined,  42. 


1008  INDEX. 

(References  are  to  secticna.) 
AIAflRIAGE — (continued) . 

deaf  mutes  maj*  marry  when  compos  mentis,  43. 

proceedings  in  whicii  capacity  may  be  determined,  44. 

sufficiency  of  proof  to  invalidate  marriage  on  ground  of  insanity,  45. 

necessity  of  decree  of  annulment,  4G. 

jurisdiction  and  procedure  to  annul,  47. 

effect  of  insanit}'  of  party  upon  duties  and  liabilities  of  the  other  party  to 
the  marriage,  48. 

efl'ect  of  annulment  upon  legitimncj'  of  children,  48. 

eflect  of  annulment  upon  property  rights,  48. 

degree  of  intoxication  which  will  invalidate  marriage,  49. 

of  epileptics  view  from  medical  standpoint,  88H. 

imprudent  marriages  by  paretics,  911. 

MASTER  AND  SERVANT, 

discharge  of  servant  for  drunkenness,  2G. 

liability  of  master  for  acts  of  habitually  intoxicated  servant,  2G7. 
where  injury  results  to  fellow  servant,  268. 

MEASLES, 

suicide  during  delirium  of,  739. 

MEDICAL  BOOKS, 

admissibility  in  evidence,  373. 

MEDICINES, 

use  of,  destroying  testamentary  capacity,  Ooj  128. 
eflect  of,  upon  responsibility  for  crime,  245. 

See  also  Narcomania. 

MELANCHOLIA, 

medical  aspects  of  melancholia,  G53-66S. 
contrasted  with  mania,  G20,  G21,  G53. 
sense  of  personal  unworthiness,  C54. 
essential  features  of  the  disease,  655. 
delusions  in  melancholia,  G56. 

sexual  delusions,  G57. 

religious  delusions,  G58. 

varieties  of  delusions,  G59. 

delusions  as  to  persecution  entertained  by  melancholiac  distinguished 
from  those  of  paranoiac,  665,  1025. 
hallucinations,  GGO. 
the  bodilj'  conditions,  G61. 
forms  of  melancholia,  G62. 

agitated  melancholia,  663. 

stuporous  melancholia,  664. 

hypochrondriacal  melancholia,  G65. 
termination,  666. 
chronic  melancholia,  C67. 
infection  as  a  cause,  668. 
weakening  of  the  emotions  upon  melancholia  becoming  chronic,  747. 


INDEX.  1009 

(Ifetercnces  are  to  sections.) 

AIEIiANCHOLIA—  ( continued ) . 

exacerbations  occurring  in  chronic  melancholia,  749. 
hypochondria  as  a  phase  of  melancholia,  794. 
distinguished  from  hypochondria,  795. 
alcoiiolic  melancholia,  92G. 
senile  melancholia,  973. 
medico-legal  aspects  of,  6l)8i-712. 
a  form  of  partial  insanity,  G084. 
suicide  as  a  common  danger  in  melancholia,  0(19. 
the  mental  state  in  suicides,  G70. 

the  right-and-wrong  test  as  applied  to  suicides,  G71. 
the  real  problem  in  suicidal  melancholia,  G99. 
presumption  of  sanity,  700. 
relation  of  suicidal  act  to  delusion,  701. 
present  doctrine  of  English  law,  702. 

difliculty   from   medical   standpoint  of   diagnosis   in  cases  of  insane 
suicides,  704. 
liomicide  may  be  committed  by  melancholiac,  708. 

deliberation  and  premeditation  in  these  patients,  709. 
criminal  motives  in  suicidal  patients,  712. 
homicidal  impulses  in  melancholia,  710. 
complicated  motives  that  may  lead  to  homicide,  711. 
periodical  melancholia,  see  Periodical  Tn-sanity. 
circular  insanity,  see  PiiKioDtcAi,  Insanity. 
alternations  of  mania  and  melancholia,  see  PEraoDicAL  Insa^itt. 

ME^MOPvY, 

failure  of,  effect  upon  testamentary  capacity,  73,  123. 
effect  upon  validity  of  gift  causa  mortis,  138. 

MENINGITIS, 

accompanying  acute  delirium,  9G2. 

MENTAL  PATHOLOGY.     See  Pathology  of  Insanity. 

MERCURY, 

poisoning  by,  as  cause  of  delirium,  593. 

METAPHYSICAL  CONCEPTION  OF  INSANITY^ 

the  spiritual  theory,  558. 
among  the  ancients,  559. 

the  wide  prevalence  of  the  spiritual  conception,  560. 
the  distinction  between  body  and  mind,  5G1. 
metaphysical  impulse,  502. 

effect  of  metaphysical  questions  upon  medical  science,  563. 
in  English  law,  5GG. 

early  attempts  to  analjve  and  define  mental  phenomena,  567. 
emotional  insanity,  5GS. 

artificial  psychiatry  not  confined  to  lawyers  and  the  courts,  569. 
monomania  as  an  invention  of  the  etymologists,  570. 
moral  insanity  as  a  product  of  the  dialectics,  571. 
insanity  not  an  abstraction,  but  a  disease,  573. 
Vol.  I.  Med.  Juk. — 64. 


1010  INDEX. 

{References  are  to  scctiona.) 

MILITARY  SERVICE, 

as  cause  of  insanity,  59G, 

MISERLINESS, 

as  evidence  of  mental  incapacity,  100. 

MONOMANIA, 

defined,  74,  179. 

legal  existence  and  recognition  of,  75. 

conflict  in  decisions  reconciled  by  theory  of  mental  twilight,  76. 

as  invalidating  contract,  13. 

effect  on  testamentary  capacity,  77. 

effect  upon  criminal  responsibility,  180-188, 

even  morbid  derangement  need  not  incapacitate,  79. 

weight  and  sufficiency  of  evidence  as  to,  100. 

as  an  invention  of  the  etymologists,  570. 

terms  "paranoia"  and  "monomania"  compared,  1022. 

and  "partial  insanity"  compared,  1023. 
See  also  Mobal  Insaniiy;  Paranoia;   Partial  Insanity;  Responsibiuty  fob 

CSIME. 

MORAL  FACULTIES, 

impaired  in  mania,  623. 

MORAL  IMBECILES, 

characteristics  of,  1080. 

MORAL  INSANITY, 
defined,  78,  195. 

effect  upon  testamentary  capacity,  78. 
effect  upon  responsibility   for   crime,    19C-I99,   see   also    RESPONSIBILITY  FM» 

Crime. 
hysteria  distinguished  from,  817. 
this  term  is  not  to  be  taken  too  literally,  1052. 
term  criticized,  1053. 

confusion  among  those  who  describe  this  affection,  1055. 
difficulties  of  the  subject,  1056. 
the  criminal  degenerates,  1057. 

MORMON  ISM, 

as  constituting  insane  delusion  invalidating  will,  86. 

MORPHINISM.     See  Narcomania. 

MOTOR  EXCITEMENT, 
in  mania,  524. 

MUSCULAR  MANIA, 

motor  funetionfl  of  brain  involved  in  mania,  624. 

MYSOPHOBIA, 

aa  obsession  of  fear,  829. 
desoribed,  830. 


INDEX.  ion 

{References  are  to  sectlcns.) 

N 

NARCOMANIA, 

meaning  of  the  term,  1104. 

morphinism,  effect  upon  validity  of  contract,  27. 

effect  upon  testamentary  capacity,  136. 

effect  of,  upon  responsibility  for  crime,  245. 

as  ground  for  divorce,  55. 
the  legal  aspects  of  the  opium  habit  from  medical  point  of  view,  1114,  1115.. 
medical  aspects  of  the  opium  habit — historical  data,  1105. 

peculiar  features  of  morphinism,   1106. 

various  forms  of  the  opium  habit,  1107. 

the  opium  habit  becomes  a  disease,  1108. 

physiological  action  of  opium,  1109. 

the  chronic  effects  of  the  drug,  1110. 

moral  preversions,  1111. 

the  narcomaniac's  unreal  world,  1112. 

the  mental  changes,  111.3. 
medical  aspects  of  the  cocaine  habit — abuse  of  the  drug,  1116. 

cocaine  as  a  powerful  poison  to  the  nervous  system,  1113. 

tragic  history  of  the  victims,  1118. 

symptoms  of  cocaine  poisoning,  1119. 

various  forms  of  the  disorder,  1120. 

cocomania  is  a  form  of  insanity,  1121. 
legal  aspects  of  cocaine  habit  viewed  from  medical  standpoint,  1122,  1123. 
the  chloral  and  other  drug  habits,  1124,  1125. 

NATIONALITY, 

influence  of,  on  insanity,  585. 

NECESSARIES, 

contracts  of  lunatics  for,  validity  of,  3. 
liability  of  lunatics  for,  8. 
liability  of  drunkard  for,  25. 

NEGLIGENCE, 

effect  of  intoxication  upon  defense  of  contributory  negligence,  269. 

effect  of  intoxication  upon  liability  of  railroad  companies  to  trespassers  upon 

or  persons  crossing  tracks,  270. 
application  of  last  clear  chance  doctrine  where  injured  person  is  intoxicated, 

273. 
liability  of  insane  or  intoxicated  person  for,  see  TOBTS. 
of  physicians  in  certifying  insanity,  1241. 

NERVOUSNESS, 

as  showing  insanity,  109. 

as  evidence  of  want  of  testamentary  capacity,  128. 

effect  upon   criminal   responsibility,    194. 

NEURASTHENIA, 

varieties  of  obsessions,  727. 
hypochondria  as  a  phase  of,  794. 


1012  INDEX. 

(References  are  to  sections.) 
NEURASl'HENIA—  ( continued ) . 

distinguished  from  hypochondrifi.  79G. 

origin  and  nature  of  tenn,  825. 

fixed  ideas,  morbid  impulses,  or  obsessions,  826. 

obsessions  of  doubt,  828. 

morbid  fears  or  obsessions  of  fear,  829. 

mj^sophobia  is  a  type,  830. 
obsessions  of  impulse,  831. 

criminal  impulses  such  as  kleptomania  and  pyromania,  832. 

suicidal  and  homicidal  impulses  sometimes  take  the  form  of  genuine  ob- 
sessions, 832. 
critical  analysis  of  obsessions,  834. 
intelligence  may  be  afiected,  835. 
pathological  nature  of  obsessions,  836. 
obsessions  and  hallucinations  compared,  837. 
medico-legal  aspects  of  obsessions,  838-8.52. 

NEUROSES, 

the  chief  neuroses  in  general,  802. 

See  Chorea;  Epilepsy;  Hysteria;  Neurasthenia. 

NOCTAMBULISM.     See  Somnambllism. 

NON  COMPOS  MENTIS, 

origin,  development,  history,  and  definition  of  term  non  compos  mentis,  404  • 
427. 

NUNCUPATIVE  WILLS, 

strict  proof  of  testamentary  capacity  and  intent  of  testator  required,  134. 

NYMPHOMANIA, 

as  constituting  insanity  preventing  divorce  on  ground  of  adultery,  51. 


O 

OBSESSIONS, 

described,  826. 
varieties  of,  827. 
of  doubt,  828. 
of  fear,  82!). 

mysophobia  is  a  tj-pe,  S30. 
of  impulse,  831. 

criminal  impulses  svich  as  kleptomania  and  pyromania,  832. 

suicidal   and   homicidal    impulses   sometimes   take   the   form   of  genuine 
obsessions,  832. 
critical  analysis  of,  834. 
intelligence   may  be   affected,   835. 
pathological  nature  of,   836. 
compared   with   hallucinations,    837. 
medico-legal  aspects  of,  833-852. 


INDEX.  101  ;i 

(References  are  to  nections.) 

OCCUPATION, 

influence  of,  on  insanity,  5S7. 

OFFICERS, 

mental  incapacity  as  a  disqualification.  276. 
drunkenness  as  a  ground  for  incapacity,  277. 

ni.D  AGE, 

as  affecting  capacity  to  make  contract,   10. 

as  evidence  of  incapacity  to  execute  deed  or  other  contract,  34. 

efTcct  upon  testamentary  capacity,  72,  123-127. 

viewed  from  medical  standpoint,   1190. 
eitect  of  undue  influence  or  fraud  on  validity  of  will,  87-90. 
together  with  habitual  drunkenness,  as  evidence  of  mental  incapacity,  112. 
efl'ect  upon  validity  of  gift  causa  mortis,  138. 
as  ground  for  appointment  of  committee  or  guardian,  146,  149. 
as  preventing  running  of  statute  of  limitations,  279. 
presumption  of  mental  incapacity  arising  from,  296. 
as  cause  of  insanity,  972. 

See  also  Paresis  ;  Senile  Insanity. 

DPJNION  EVIDENCE.     See  Evidence. 

OPIUM.     See  Narcomania. 


PAIN, 

existence  of,  efl'ect  on  testamentary  capacity,  128. 

PARALYSIS, 

caused  by  hysteria,  807. 

See  also  Paresis. 
PARANOIA, 

medical  aspects  of — definition,  1020. 

systematized  and  fixed  delusion,  1021. 
the  terms  "paranoia"  and  '•monomania"  compared,   1022. 
monomania  and  partial  insanity,  1023. 
two  kinds  of  systemati?ed  delusions,  1024. 
distinction  between  paranoia  and  melancholia,  1025. 
distinguished  from  hypochondria,  797. 
delusions  of  persecution,  1020. 
delusions  of  grandeur,   1027. 

systematized  delusion  made  the  criterion  of  monomania.  1028. 
degeneration,  1029. 
the  stigmata  of  degeneration,   1030. 
paranoia  has  several  stages,  1031. 
the  first  stage,  1031a. 

the  second  stage,  or  stage  of  persecution,  1031b. 
the  third  stage,  or  stage  of  grandeur,  1031c. 


1014  INDEX. 

{References  are  to  sections.) 

PARANOIA—  ( continued ) . 

paranoia  is  a  primary  affection,  1032. 

various   forms  of  paranoia,   1033. 

common  types  of  the  disease,  1034. 

the  persecutory  form  is  the  most  dangerous,  1035. 

hallucinations  in  paranoia,  1036. 

the  religious  paranoiacs,   1037. 

insane  inventors,  1038. 

the  erotomaniacs,  1039. 
medico-legal  aspects  of,  treated  from  medical  standpoint — criminal  paranoiacs, 
1040. 

Sir  Matthew  Hale's  "partial  insanity,"  1041. 

ahuse  of  the  term  "partial  insanity,"  1042. 

delusion  as  a  test  for  insanity,  1043. 

the  test  of  delusion  defined,   1044. 

connection  of  delusion  with  the  act,  1045. 

delusions  to  be  judgf?d  as  though  they  were  real,  1046. 

the  knowledge  of  right  and  wrong,  1047. 
the  clear  statement  of  the  rule,  1048. 
the  rule  not  logically  enforced,   1049. 

the  distinction  between  delusion  and  erroneous  belief,  1050. 

the  defense  of  insanity  resented  by  the  prisoner,  1051. 
juvenile  paranoiacs,  1006. 

PAEESIS, 

medical  aspects  of  general  paresis — synonyms,  883. 
history  of,  885. 
the  underlying  process,  887. 
syphilis  and  general  paresis,  888. 
course  of  the  disease,  889. 
four  stages  of  general  phresis,  890. 
the  prodromal  stage,  891. 
the  second  stage,  892. 

delusions  of  grandeur,  893. 
the  sense  of  well-being,  894. 
physical  changes,  895. 
the  third  stage,  89G. 
the  fourth  stage,  897. 
effect  of  sex  and  race,  898. 
varieties  and  complications,  899. 
locomotor  ataxia  and  general  paresis.  900. 
the  pathology  and  morbid  anatomj',  901. 
remissions  in  this  disease,  902. 
the  legal  aspects  of  general  paresis  viewed  from  medical  standpoint,  903-914. 
the  crimes  inspired  by  delusions  of  grnndeur,  904. 
thefts  by  general   paretics,  905. 
stealing  by  paretic  as  a  morbid  act,  907. 
otht-r  crinii'^i  committed  by  general  paretics,  910. 
imprudent  marriages,  911. 
question  of  testamentaiy  capacity  viewed  from  medical  standpoint,  912. 


INDEX.  1015 

{References  are  to  ncctions.) 

PARESIS — (continued) . 

acts  of  violence  by  paretics,  913. 

resemblance  between  syphilitic  and  general  paresis,  919. 

alcoholic  general  paresis,  i)V>0. 

See  also  Old  Age. 
PARTIAL  INSANITY, 

Hale's  distinction  between  "partial"  and  "total"  insanity  viewed  from  med- 
ical standpoint,  472. 
medical  view  of,  473,  475. 
melanciiolia  as  a  form  of,  6(i8i/^.. 

See  also  Monomania;  Paranoia. 

partial  responsibility,  see  Rksponsibility  for  Crime. 

PARTIAL  RESPONSIBILITY.     See  Responsibility  for  Crime. 

PARTNERSHIP, 

lunacy  as  ground  for  termijiation  or  dissolution  of,  18. 

persons  who  may  procure  dissolution  of,  on  ground  of  insanity  of  partner,  31. 

PASSION, 

as  a  mitigating  element  in, responsibility  for  crime,  194. 

PATHOLOGY  OF  INSANITY, 

technical  nature  of  subject,  598. 

functional  and  organic  diseases,  599. 

progress  of  mental  pathology,  600. 

the  morbid  anatomy,  601. 

heredity  an  obscure  problem,  602. 

organic  changes  in  brain,  603. 

general  law  of  mental  pathology,  604. 

bacteriology  in  insanity,  605. 

pathological  nature  of  obsessions,  836. 

of  confusional  insanity  is  not  entirely  unknown,  733. 

of  general  paresis,  901. 

of  chronic  alcoholism,  934. 

of  idiocy,  1082. 

PERIODICAL  INSANITY, 

tendency  to  periodicity  observed  in  some  forms  of  mental  disease,  768. 

periodicity  in  mental  pathology  has  long  been  observed,  767. 

a  sign  of  degeneration,  768. 

traits  and  characteristics  of,  769. 

intervals  between  attacks,  770. 

nature  of  the  attack,  771. 

may  assume  several  types,  772. 

periodical  mania,  773. 

acts  and  offenses  committed  during,  773. 
simple  primary  mania  distinguished  from  periodical  mania,  774. 
periodical   mel.ancholia,    775. 
circular  insanity,  776. 

is  a  special  form  of  mental  disease,  776. 


1016  INDEX. 

{References  are  to  sections.) 

PERIODICAL  INSANITY—  ( continued) . 

disease  consists  of  a  complete  cycle  of  four  periods — mania,  short  inter 

vals,  melancholia,  long  intervals,  778. 
the  maniacal  period  in  circular  insanity,  779. 
the  short  interval  is  not  a  true  "lucid  interval,"  780. 
the  period  of  melancholia  in  circular  insanity,  781. 
the  periodicity  and  sameness  are  distinguishing  marks,  782. 
varieties  of  circular  insanity,  783. 
medieo-legal  aspects — lucid  intervals  in  circular  insanity,  784. 
testamentary  capacity  in  these  cases,  785. 
difficulty  of  determining  a  lucid  interval,  786. 
legal  abuse  of  doctrine  of  lucid  intervals,  787. 
legal  maxim  of  civilians,  788. 
every  case  must  be  studied  by  itself.  789. 
insane  impulses  as  symptoms  of  enduring  alienation  during  so-called  lucid 

intervals,  790. 
no  special  characteristics  of  criminal  acts  of  the  periodical  insane,  791. 
suicide  and  homicide  not  periodical   insanity,   792. 
period  of  transition  from  one  attack  to  another  not  necessarily  a  lucid 

interval,  792. 

PERSECUTION, 

delusions  of,  1026,  1031b. 

entertained  hj  melancholiac,  665. 

distinguished  from  those  entertained  by  paranoiac,  665. 
as  the  most  dangerous  form  of  paranoia,  1035. 

PETITION, 

for  commission  of  lunacy,  142. 

PHYSICAL  APPEARANCE, 
of  maniac,  627. 

of  person  suflering  from,  stuporous  insanity,  717. 
in  melancholia,  661. 
in  confusional  insanitj',  730. 
of  epileptic,  So6. 
of  paietic,  S95. 

physiological   action   of   opium,    1 101. 
effect  upon  testamentary  capacity,  72,  128-130. 

physical   weakness   as   ground    for   appointment   of   committee   or   guardian, 
146,  149. 

PHYSICIANS  AND  SURGEONS, 

duties  of,  with  reference  to  certifying  insanity,  12361A-1240. 

liabilities  of  physicians  with  reference  to  certifying  insanity,  1241,  1242. 

efTect  of  undue  inlluence  upon  gifts  to,  by  will,  89. 

PLEAD, 

capacity  oi  insane  person  to,  204. 

PNEUMONIA, 

as  cause  of  insanity,  591.  ■ 


INDEX.  1017 

(References  are  to  sections.) 
PRECOCIOUS  DEMENTIA.     See  Dementia  Pr^ecox. 

PREJUDICE, 

effect  upon  test-aniontary  capacity,  85. 

PRESUMPTION, 

as  to  continuance  of  insanity  or  delusion,  13. 

fraud  not  presumed,  1(3. 

of  capacity  arising  from  evidence  of  prudence  and  judgment  manifested  in 

the  transaction,  35. 
finding  in  lunacy  proceeding  as  raising  presumption  of  incapacity,  150. 
arising  from  inquisition  of  habitual  drunkenness,   157. 
as  to  sanity  of  witness,  2Sy. 

in  favor  of  irresponsibility  of  chronic  lunatic,  754,  755. 
See  also  Evidence. 

PRIMARY  INSANITY.      See  Confusional  Insanity;   Mania;   Melancholia; 
Stuporous  Insanity. 

PRINCIPAL  AND  AGENT, 

revocation  of  agency  by  insanity  of  principal,  19. 
gift  from  principal  to  agent — mental  capacity,   137. 

PROSTRATION, 

as  causing  testamentary  incapacity,  129. 

PSYCHICAL  EPILEPSY, 

nature  of,  and  effect  upon  responsibility  for  crime,  872. 

PSYCHOLOGY, 

evil  clTects  en  jurisprudence  of  metaphysical  discussions,  565. 
see  also  Metaphysical  Conception  of  Insanity, 

PUERPERAL  MANIA, 
nature  ol,  043. 

sudden  onset  of  insanity  after  childbirth,  644. 

causes  of  puerperal  insanity,  645. 

from  medico-legal  aspect  puerperal  mania  a  grave  affection,  646. 

responsibility  in  child-bearing  woman,  647. 

responsibility  varies,  648. 

the  social  penalty,  649. 

insane  impulses  in  piierperal  insanity,  650. 

false  accusations,  651. 

the  delusions  of  puerperal  patients,  652. 

PYROMANIA, 

diitinguislu'd   from   true  mania,   633. 
as  an  obsession  of  impulse,  832. 


1018  INDEX. 

(References  are  to  sections.) 

Q 

QUARRELSOjMENESS, 

as  evidence  of  insanity,  109. 

QUESTIC^XS  OF  LAW  AKD  FACT, 
sufficiency  of  eA^idenee  for  jury,  32. 

as  to  whether  acts  of  inebriety  destroy  mental  capacity,  94. 
as  to  existence  of  testamentary  capacity,  96-98. 
arising  on  commission  of  lunacy,  148. 

theory   that   insanity   as   it  aflects   criminal   responsibility   is  a  question   of 
fact,  104. 

objections  to  this  view,  105. 

eileot  of  indefmitoness  and  vagueness  of  term  "mental  disease,"   166. 

jury  not  qualified  to  decide  question  of  law,    169. 

question  therefore  rests  with  the  judges,  170. 

relative  functions  of  court  and  jury,  171. 
as  to  eiiect  of  partial  insnnity  or  monomania  upon  criminal  responsibility, 

181. 
as  to  sanity  of  insured,  258. 
as  to  intemperate  habits  of  insured,  203. 
as  to  ejection  of  intoxicated  passenger,  274. 
as  to  eliect  of  intoxication  upon  liability  for  injury,  274. 
as  to  weight  and  efi'ect  of  opinion  evidence,  351. 


R 

RAILROADS, 

effect  of  intoxication  upon  liability  of  railroad  companies  to  trespassers  upon 

or  persons  crossing  tracks,  270. 
application  of  hist  clear  chance  doctrine  where  injured  person  is  intoxicated, 

273. 

RAPE, 

effect  of  incapacity  of  female,  202. 
tests  as  to  incapacity,  203. 
intoxication  of  accused,  239. 

RATIFICATION, 

contract  after  recovery  or  during  lucid  interval,  4. 

of  deed  made  by  lunatic,  6. 

of  marriage  before  restoration  to  sanity,  40. 

by  testator,  of  will,  as  evidence  of  testamentary  capacity,  122. 

RECURRENT  MANIA.      See  Pebiodical  iNSANrrv. 

RELIGION, 

often  a  potent  cause  of  insanity,  58S. 

RELIGIOUS  BELIEFS, 

as  constituting  insane  delusion  invalidating  will,  86. 


INDEX.  1010 

(References  are  to  sections.) 
RELIGIOUS  FANATICS, 
as  paranoiacs,  1037. 

REMORSE, 

a3  cause  of  insanity,  594. 

RESIDENCE.  See  Domicil. 

RESPONSIBILITY  FOR  CRIME, 

general  rules— criminal  responsibility  in  general,  162. 

what  constitutes  insanity  in  general,  163. 

insanity  as  a  question  of  fact,   164. 

objections  to  this  view,  165. 

term  "mental  disease"  includes  every  phase  of  disorder,  166. 

definition  of  insanity  is  for  the  court,  and  not  experts,  167. 

must  be  legal,  and  not  medical,  insanity,  168. 

jury  not  qualified  to  decide  question  of  law,  169. 

question  tiierefore  rests  with  the  judges,  170. 

relative  functions  of  court  and  jury,  171. 
enumeration  of  exceptions,  172. 
idiocy  and  general  mania — what  deprivation  sufficient,  173. 

tests  of  earlier  times,  174. 

tests  of  right  or  wrong  as  to  the  particular  act,  175. 

test-o  of  knowledge  of  nature  of  act,  176. 

right  and  wrong  tests  genernlly  satisfactory,  177. 

time  vv'hen   tests  are  applied,    178. 
partial  insanity  or  monomania — definitions,   179. 

criminal  resi)onsibi!ity,  180. 

question  for  jury,  181. 

delusions  defined,  182. 

effect  on  responsibilitj'  generally,  183, 

delusion  must  be  objective,  184. 

distinction  between  objective  and  subjective  delusions,   185. 

where  reason  can  dispel  subjective  delusions  responsibility  exists,  186. 

delusion  must  be  such  as  to  excuse  if  true,  187. 

effect  on  degree  of  crime,  188. 
irresistible  impulse — definition,  189. 

insane  uncontrollable  impulse  recognized  in  many  states,  190. 
limit   of  irresponsibility,    191. 

contrary  rule  in  North  Carolina  and  other  states,  192. 
test  of  respon.vibility  under  the  contrary  rule,  193. 
passion  as  a  mitigating  element,  194 
moral  insanity — definition,  195. 

rule  in  England,  196. 

rule  in  some  of  the  United  States,  197. 

the  contrary  rule,  198. 

rule  applied  with  caution,  199. 
kleptomania — definition  and  nature,  200. 
erotomania — definition  and  nature,  201. 
insanity  at  or  aft«r  trial  — effects  generally,  204. 


1020  INDEX. 

(References  are  to  sections.) 

RESPONSIBILITY  FOR  CRIME— (continued) . 

mcLliods  of  raising  question,  205. 

tests,  206. 

deterniination  as  to  submission  of  the  issue,  207. 

disposition  of  tlie  issue,  208. 

effect  of  determination,  209. 

insanity  after   the  verdict,   210. 

insanity  after  judgment,  211. 

appeals  or  reviews,  212. 

effect  of  recovei-j',  213. 
proof  required  to  establish — general  rules,  214. 

previous  and  subequent  conditions,  215. 

nature  of  crime,  216. 

motive,  217. 

acts  and  conduct,  218. 

personal  characteristics,  219. 

causes  of  insanity,  220. 

hereditary  insanity,  221. 
insanity  produced  by  intoxicatiou — permanent  insanity,  222. 

degree  of  insanity  from  drunkenness  which  will  excuse,  223. 

nature  of  delirium  tre'neus,  224. 

responsibility  in  delirium  tremens,  225. 

effect  of  particular  susceptibility  to  ini=;anity  from  drink,  226. 
effect   of   present   intoxication — mere   drimkenness   does   not   avoid   responsi- 
bility, 227. 

this  view  necessary  to  public  safetj',  228. 

proof   of   intoxication    for   purpose   of   indicating  noncommission   of   the 
offense,  229. 

effect  upon  question  of  intent,  230. 

intent  in  larceny,  burglary,  robbery,  etc.,  231. 

intent  in  homicide  cases,  232. 

intent  in  assault,  cases,  238. 

intent  in  attempt  to  commit  suicide,  240. 

degree  of  intoxication  necessary  to  affect  intent,  233. 

deliberation  and  premeditation  in  homicide  cases,  234. 

degree  of  intoxication  necessary  to  affect  deliberation,  235. 

provocation,  230. 

self-defense,  237. 

Texas  statute  as  to  intoxiciition,  241, 

drinking  for  the  purpose  of  preparing  for  crime,  242. 

involuntary  intoxication,  243. 
intoxication   of   person   injared — effect  of,   244. 
effect  of  addiction  to  use  of  drugs,  245. 
burden   of  proof  as  to  criminal   respojisibility,   298. 
rule  f.H  to  measure  of  proof  necessary  to  show  want  of,  310-317. 

in  case  of  intoxication,  320. 
presumption  and  burden  of  proof  as  to  incapacity  due  to  intoxication,  318. 
presumption  of  continuance  of  insanity  arising  from  intemperance,  319. 
Coke's   distinction   between   civil    and   criminal   cases,   viewed   from   medical 
standpoint,  465. 


indp:x.  1021- 

(References  are  to  sections.) 

RESPONSIBILITY  FOR  CRlMYr- (continued) . 

right-and-wrong  tost  viowed  from  medical  standpoint,  477,  482,  483,  487,  40'). 

Erskiue'fc  distinction  botwcen  civil  and  criminal  cases,  486. 

rules  in  INI'^Naghten's  case  discussed  and  analyzed  from  medical  standpoint, 

5U3-o2(). 
authority  and  application  of  rules  of  M'Naghten  case  in  America,  530-557. 
resi)onsibility  of  paretics  viewed  from  medical  standpoint,  904-013. 
drunkenness  as  si  defense,  viewed  from  medical  standpoint,  935-952 '/(;. 
responsibility  of  senile  persons  viewed  from  medical  standpoint,  986. 
responsibility  of  imbeciles  or  idiots  viewed  from  medical  standpoint,  1093. 
responsibility  of  somnambulist,  1153. 

doctrine  of  partial  responsibility  viewed  from  medical  standpoint — doctrine 
has  usually  been  denied  in   law,   12481/0. 

but  it  has  also  been  recognised,  1249. 

notliing  unreasonable  in  such  a  doctrine,   1250. 

tlie  courts  not  .always  agreed,  1251. 

degrees  of  guilt  in  crime  and  in  disease,  12.52. 

guilt  modified  by  age,  1253. 

guilt   modified  by   alcoholism,   12531/^. 

the  degrees  of  homicide,  1254. 

the  meaning  of  premeditation,  1255. 

alienists  as  well  as  law^'ers  oppose  the  doctrine,  1256. 

as  to  monomania,  1257. 

boundaries  of  insanity  not  easily  settled,   1258. 

not  a  purely  speculative  question,  1259. 
evidence  to  show  Avant  of  capacity,  see  Evidence. 

RESPONSIBILITY  FOR  TORTS.     See  Torts. 

RESTRAINT. 

rigiit  to  confine  incompetent  person,  155. 

discharge  from  confinement,   160. 

in  the  case  of  habitual  drunkards,  161. 

RIGHT-AND-WRONG  TEST, 

as  test  of  criminal  responsibility,  175,  177. 

discussed  from  medical  standpoint  in  connection  with  M'Naghten  case,  503- 

557. 
as  applied  to  suicides,  671. 

parauoiac'a  knowledge  of  right  and  wrong,   1047. 
a  clear  statement  of  the  rule,  1048. 
the  rule  not  logically  enforced,  1049. 

ROBBERY, 

eflect  of  intoxication  upon  responsibility  for,  231. 

HOMAN  LAW, 

as  to  insanity,  385,  386. 


1022  INDEX. 

(References  are  to  sections.'^ 

s 

ST.  VITUS'  DANCE.     See  Chorea. 

SCIENTIFIC  WORKS, 

admissibility  iu  evidence,  373. 

SECONDARY  INSANITY.     See  Chronic  Insanity. 

SECRET  SOCIETIES, 

opposition  to,  as  constituting  insane  delusion,  86. 

SEDUCER, 

killing  of,  under  great  mental  stress,  not  insanity,  637. 

SELF-DEFENSE, 

efTect  of  intoxication  upon  defense  of  self-defense,  237. 

SENILE  INSANITY, 

medical  aspects  of, — in  general,  969. 
causes  of,  970. 

weakness  as  characteristic  ot  old  age,  971. 
old  age  as  a  cause  of  insanity,  972. 
senile  melancholia,  973. 
mania  in  old  age,  974. 
senile  dementia,  97.5. 
delusions  in  the  aged,  976. 
accidents  and  episodes,  977. 
alcoholism  and  drug  habit  in  old  age,  978. 
completeness   of  the   brain   destruction,   979. 
stages  and  varieties,  980. 
medico-legal  aspects  of  senile  insanity  viewed  from  medical  standpoint,  981- 
997. 

See  also  Old  Age. 

SENTENCE, 

of  accused  who  becomes  insane  after  verdict  or  judgment,  210,  211. 

SETTLExMENT, 

capacity  as  affecting  power  to  choose,  278. 

SEX, 

influence  of,  on  insanjty,  586. 

SEXUAL  OFFENSES, 

by  general  paretics,  910. 

SHAME, 

as  cause  of  insanity,  594. 

SHOCK, 

as  cause  of  insanity,  594. 


INDEX,  lOM 

{References  are  to  sections.) 

SIMULATED  INSANITY, 

popular  errors  on  tlio  subject,  1131. 

historic  instances,  1132. 

simulation  of  insanitj'  is  not  common,  1133. 

neither  is  simulated  insanity  easy,  1134. 

motives  for,  1135. 

mode  of  onset  to  be  scrutinized  carefully,   1136. 

overacting  the  part,  1137. 

dementia  is  commonly  simulated,  1138. 

loss  of  memoiy  not  unfrecjuently  feigned  by  criminals,   1139. 

tlie  simulation  of  mania,  1140. 

violent  conduct,  1141. 

the  simulation  of  epilepsy,  1142. 

injurious  efiects  of  feigning,  1143. 

hysteria  distinguished  from,  815,  816. 

of  insanity  in  juvenile  cases,  1070. 

SLEEPINESS, 

as  evidence  of  mental  incapacity,  112. 

SLEEP-DRUNKENNESS.     See  Somnolentia. 

SLEEP-WALKING.     See  Somnambulism. 

SMALLPOX, 

suicide   during   deliriimi   of,   739. 

SOLITARY  CONFINEMENT, 
as  cause  of  insanity,  596. 

SOMNAMBULISM.     See  Somnolextia. 
medical  aspects  of — delinition,  1144. 

unconsciousness  in  somnambulism,  1145. 

self -absorption  of  sleep-walker,  1146. 

two  kinds  of  somnambulism,   1147. 

somnambulism  and  liypnotism  compared,  1148. 

the  intluence  of  susgestion,  114!). 

somnambulism  and  epilepsy.  1150. 
medico-legal  aspects  of — not  usually  described  as  insanity,  1151, 

soumambulism  and  hypnotism  as  medico-legal  topics,  1152. 

responsibility  in  somnambulism,   1153. 

the  case  of  Eraser,  1154. 

is  somnambulism  technical  insanity,  1155. 

somnambulism  is  a  form  of  insanity,  1156. 

possibility  of  epilepsy  being  confounded  with  somnambulism,  1157 

sexual  assaults  on  somnambulists  and  by  somnambulists,  1158. 

somnambulism  and  divorce,  11. lO. 

trespass  by  sleep-walker,  I'.GO. 

somnambulism  and  life  insurance,  1165. 


1024  INDEX. 

{References  are  to  aectiotuL} 

SOMNOLENTIA, 

use  of  ttrm,  11(52. 

as  an  e.KCuse   for   homicide,    11G3. 

SPEECH,  DISORDERS  OF.     See  Aphasia. 

SPERMATOPHOBIA, 

as  a  form  of  hypochondria,  798. 

SPIRITUAL  ADVISERS, 

effect  of  vuidiie  influence  upon  gifts  to,  by  will,  89. 

SPIRITUAL  CONCEPTION  OF  INSANITY.      See  Metaphysical  Conception 
OP  Insanity. 

SPIRITUALISM, 

belief  in,  as  evidence  of  inaapacity  to  make  deed  or  contract,  36. 

belief  in,  efl'ect  upon  validity  of  marriage,  42,  n. 

as  constituting  insane  delusion  invalidating  will,  86. 

as  evidence  of  insanity  of  insured  who  committed  suicide,  259. 

TATISTICS, 

relation  of  heredity  to  insanity  a  matter  of  statistics,  584. 

statistics  not  always  reliable,  578. 
as  to  proportion  of  insane  in  different  coimtries,  585. 
of  insane  suicides,  706. 

difficulty  of  analyzing  statistics,  707. 
;is  to  suicides  committed  just  before  or  after  childbirth,  739. 
as  to  cause  of  general  paresis,  888. 

;tatu  quo, 

restoration  of,  by  party  rescinding  contract,  5. 

parties  to  be  placed  in,  under  roscission  of  contract.  7. 

TATUTE  OF  LIMITATIONS.     See  Li.\iiTATiON  of  Actions. 

TATUTES, 

prohibiting    collateral    attack    of    marriage    based    on    ground    of    insanity, 

validity  cf,  44. 
authorizing  divorce  on  ground  of  subsequent  insanity,  validity  of,  50. 
de  prerogattva  regis,  407,  457. 

requirements  of,  as  to  tests  for  insanity,  490,  491. 
insanity,  being  a  fact,  is  not  definable  by  statute,  529. 

STEALING, 

by  general  paretics,  907. 

STUPOROUS  INSANITY, 
defined,  713. 
occurrence,  714. 

the  onset  in  preliminary  symptoms,  715. 
characteristics,  716.  ♦, 


INDEX.  105J3 

^References  are  to  sections.) 

STUPORUS  INSANITY—  ( continued) . 
physical  state,  717. 
special  s^Tiiptonis,  718. 
prognosis,  719. 

this  insanitj'  is  a  physical  disease,  720. 
not  a  disease  likely  to  ligure  in  the  courts,  721. 

SUICIDE, 

ininiediately  after  marriage  as  evidence  of  insanity  at  time  of  marriage,  43. 

as  evidence  of  want  of  testamentary  capacity,  109. 

drunkenness  as  an  excuse  for  attempt  to  commit,  240. 

as  a  common  danger  in  melancholia,  669. 

mental  state  in  suicides,  670. 

riglit-and-wrong  test  as  applied  to,  071. 

the  medico-legal  importance  of,  672. 

among  the  ancients,  67."]. 

Bracton's  statement  as  to,  674. 

the  law  in  America  on  attempt  to  commit,  675. 

homicide  while  attempting  to  commit,  676. 

accidental  suicide  wliile  attempting  to  commit  felony,  677. 

cases  of  doable  suicide,  678. 

the  guilt  of  the  survivor,  679. 

the  psychology  of  double  suicide,  680. 

double  suicide  in  mother  and  child,  681. 

the  principle  of  husband's  control,  68.3. 
assisting  in  any  way  to  commit  suicide  is  a  crime,  682. 
relinements  of  law  on  subject  of,  684. 
futility  of  laws  against,  0S5. 
condemned  by  Christianity,  686. 
laws  against  suicidal  attempts  also  useless,  688. 

the  law  relating  to  suicide  and  life  insurance  viewed  from  medical  stand- 
point, 689-695. 
as  raising  presumption  of  insanity,  696. 
findings  of  coroners'  juries  in  cases  of  suicide,  697. 
presumption  of  sanity  viewed  from  medical  standpoint,  700. 
relation  of  suicidal  act  to  delusion,  701. 

present  doctrine  of  English  law  viewed  from  medical  standpoint,  702. 
insanity  as  a  defense,  704. 
difficulty  from  medical  standpoint  of  diacrnosis  in  cases  of  insane  suicides, 

704. 
study  of  statistics  of  insane  suicide,  700. 

difficulty  of  analyzing  statistics,  707. 
in  cases  of  confusional  insanity,  739. 

statistics  as  to,  committed  just  before  or  after  childbirth,  739. 
during  recurrent  attack  of  periodical  melancholia,  775. 
in  periodical  insanity,  792. 
by  hypochondriac,  798. 
during  hysteria,  812. 
during  alcoholic  mehancholia,  926. 

See  also  Insubancb. 

Vol.  1.  Med.  Jub. — 65. 


1026  INDEX. 

{References  are  to  8ectiQn».i 
SUNSTROKE, 

as  cause  of  insanity,  596. 

SYPHILIPHOEIA, 

as  a  form  of  liypochondria,  798. 

SYPHILIS, 

as  cause  of  insanity,  592. 

as  cause  of  general  paresis,  888. 

Sec  also  Syphh-itic  iNSANrrr, 

SYPHILITIC  1NS.VNITY, 

the  destructive  action  of  syphilis,  915. 

its  wide  extent  in  the  nervous  system,  916. 

the  mental  symptoms,  917. 

dementia,  918. 

resemblance  between  syphilitic  and  general  paresis,  919. 

medico-legal  aspects  of,  920. 


TEMPORARY  INSANITY, 

distinguished  from  habitual,  306. 

TERMINAL  DEMENTIA.     See  Dementia. 

TESTAMENTARY  CAPACITY.     See  Wills. 

TESTS, 

as  to  capacity  to  make  deed,  10. 

as  to  capacity  to  make  deed  or  other  conveyances,  10. 
delusion  as  a  test,  II. 

of  intoxication  which  will  invalidate  contract,  22. 
as  to  mental  capacity  to  marry,  41. 
as  to  testamentary  capacity  in  general,  63-73. 

of  contractual  capacity  distinguished  from  test  of  testamentary  capacity,  64. 
of  want  of  capacitj'  authorizing  appointment  of  committee  or  guardian,  145. 
as  to  responsibility  for  crime,  174-178. 

of  present  insanity  which  Avill  prevent  trial  of  accused,  206. 
as  to  sanity  of  suicide  in  action  on  insurance  policy,  250-252. 
See  also  Right-and- Wrong  Test. 

TEXAS, 

statute  of,  as  to  effect  of  intoxication  upon  criminal  responsibility,  241, 

TORTS, 

lunatic  liable  for  torts,  264. 
liability  for  punitive  damages,  264. 
elTect  of  insanity  of  person  injured,  265. 
effect  of  intoxication  upon  liability,  266. 


ll^DEX.  1027 

(References  are  to  sections.) 

TORTS—  ( continued) . 

liability  of  employer  for  torts  committed  by  habitually  intoxicated  servant, 
267. 
where  injury  results  to  a  fellow  servant,  2G8. 
effect  as  to  contributory  ne^rligence,  269. 

effect  as  to  trespassers  upon  and  jjersons  crossing  railroads,  270. 
etfoct  with  relation  to  passengers.  271. 

effect  with  relation  to  injuries  on  highways  and  streets,  272. 
application  of  hist  clear  chance  doctrine,  273. 
question  for  jury,  274. 

sufficiency  of  evidence  to  establish  negagence,  275. 

the  law  relating  to  lialiility  of  insane  person  reviewed  from  medical  stand- 
point, 1209-1212. 
eWdence  to  show  want  of  capacity  for,  see  Evidence. 

TOTAL  INSANITY, 

no  such  tiling  as  total  madness,  488. 

TRANSITORY  MANIA, 

a.s  a  defense  for  criine,  640. 

TREASON, 

insanity  as  a  defense,  461. 

TRIAL, 

effect  in  general  of  insanity  of  accused  at  time  of  trial,  204. 

method  of  raising  question  as  to  insanity  of  accused,  205. 

tests  of  present  insanity  which  will  prevent  trial  of  accused,  206. 

determination  as  to  submission  of  issue  of  insanity  of  accused  at  time  of,  207. 

disjwsition  of  issue  as  to  insanity  of  accused  at  time  of  trial,  208. 

effect  of  determination  as  to  insanity  of  accused  at  time  of  trial,  209. 

insanity  of  accused  after  verdict,  210. 

insanity   of  accused  after  judgment,   211. 

appeals  or  reviews  of  determination  as  to  sanity  of  accused  at  time  of  trial, 

212. 
effect  of  recovery  of  accused  whose  trial  has  been  postponed  on  account  of 

insanity,  213. 
the  law  in  procedure  relating  to  the  determination  of  the  existence  of  insanity 

at  time  of  trial,  reviewed  from  medical  standpoint,  1213-1225. 
examination  of  insane  party  before  trial,  292. 

See  also  JuBY:  Questions  of  Law  and  Fact. 

TWINS, 

insanity  of,  1130. 

TYPHOID  FEVER, 

as  cause  of  insanity,  591. 

as  cause  of  confusional  insanity,  725. 

suicide  during  delirium  of,  739. 

See  also  i3i;r,iRiirif,  Acute. 


1028  INDEX. 

(References  are  to  sections.) 
U 

UNDUE  INFLUENCE, 

effect  upon  validity  ot  contract  with  person  of  weak  mentality,  14. 
weakness  of  mind  susceptible  of,  16. 

effect  of  mental  and  physical  condition  of  person  inlluenced,  34. 
coupled  with  mental  weakness, — effect  in  general  upon  validity  of  will,  87. 
undue  influence  must  amount  to  restraint,  88. 
efl'ect  of  contidenlial  relations,  89. 
question  is  one  of  capacity  to  resist,  90. 
weight  and  sufficiency  cf  ca  idence  where  fraud  is  combined  with  testamentary 

wealiness,  118. 
weigiit  and  suiiiciency  of  evidence  where  undue  influence  is  combined  with 

drunkenness,  IIP. 
of  hysterical  person,  813,  814. 
viewed  from  medical  standpoint,  1190^/^. 

UNWORTHINESS, 

feeling  of,  as  an  element  of  melancholia,  654,  655. 


W 

WILD  BEAST  THEORY, 

as  viewed  from  medical  standpoint,  480. 

WILLS, 

deposing  mind,  definition  and  necessity  of,  58. 
idiots  unable  to  make  will,  59. 

different  theories  as  to  necessary  qualifications,  60. 
theory  that  low  grade  of  intelligence  is  sufficient,  61. 

rule  changed,  02. 
business  capacity  as  test,  03. 
contractual  capacity  as  test,  64. 
capacity  to  understand  transaction  as  test,  65. 
capacity  to  collect  and  retain  in  mind  facts  and  circumstances  involved,  a» 

test,  66. 
capacity  to  undeistand  claims  to  bounty  as  test,  67. 
delusion  test,  OS. 

capacity  for  criminal  responsibility  as  a  test,  69. 
time  of  application  of  test,  70. 
mere  mental  weakness  does  not  incipacitate,  71. 
age,  weakness,  and  disease,  72. 
failure  of  meinorj',  73. 
monomania  or  partial  insanity — definition,  74. 

legal  existence  and  recognition  of  monomania,  75. 

conflict  in  the  decisions  reconciled  by  theory  of  mental  twilight,  76. 

modern  rule  as  to  effect  of  monomania,  ou  capacity,  77. 


INDEX.  lOM 

(References  are  to  sections.) 
WILLS —  ( continued ) . 

moral  insanity  defined,  78. 

jnoral  insanity  as  affecting  testamentary  capacity,  78. 

even  morbid  derangement  need  not  incapacitate,  79. 
delusions — definitions,  SO. 

will  void  when  the  result  of  in.sane  delusion,  81. 

but  not  avoided  by  collateral  delusion,  82. 

delusion  must  be  an  insane  one,  83. 

must  actually  exist,  84. 

effect  of  mere  prejudice  or  eccentricity,  85. 

speculative  beliefs,  S(>. 
Christian  Science,  86. 
Mormonism,  86. 

belief  that  secret  societies  are  wrongful,  86. 
belief  in  Avitchcraft,  86. 
belief  in  faith  cures,  8G. 
incapacity  acted  upon  by  fraud  or  undue  influence — effect  generally,  87. 

must  amount  to  restraint,  88. 

effect  of  confidential  relations,  89. 

question  is  one  of  capacity  to  resist,  90. 
effect  of  intoxication  or  drunkenness — degree  of,  91. 

coupled  with  undue  influence,  92. 

habitual  drunkard  not  necessarily  incapacitated,  93. 

drunkenness  is  evidence  only,  94. 
use  of  medicines  may  destroy  capacity,  95. 
methods  of  determining  capacity  or  incapacity,  96-98. 

questions  of  laM',  90. 

questions  of  fact,  97. 

equity  cases,  98. 
weight  and  sufficiency  of  proof  of  incompetency — general  insanity,  99. 

partial  insanity  and  delusion,  100. 

cogency  and  necessity  of  proof  by  attesting  witness  and  others  present, 
101. 

value  of  evidence  of  subscribing  witnesses,  102. 

self-contradiction  of  subscribing  witness's  denial  of  competency,   103. 

preparation  of  instrument  as  evidence,   104. 

rationality  or  irrationality  of  the  will  as  evidence,  105. 

equality  and  justice  of  the  provisions  of  the  Avill  as  evidence,  106. 

conformity  of  v»ill  to  previous  intentions,  107. 

character  of  will  considered  in  connection  with  claim  that  testator  waa 
intoxicated,  108. 

conduct  and  behavior  of  testator,  109. 

conduct  of  others,  110. 

change  in  character  or  disposition  of  testator,  111. 

intoxication  in  connection  with  conduct  and  circumstances,  112. 

business  acts  and  capacity  of  testator,  113. 

business    acts   in    connection    with    fact   that   testator   was   addicted   to 
excessive  drinking,  114. 

previous  and  subsequent  insanity,  115. 

previous  and  subsequent  intoxication,   116. 


1030  INDEX. 

{References  are  to  sections.) 
WILLS —  ( continued ) . 

hereditary  t<3ndency,  117. 

insanity,   fraud,   and  incapacity   combined,   IIS. 
drunkenness  in  connection  with  undue  influence  and  fraud,  119. 
instructions  by,  and  Icnowledge  and  intent  of,  testator,  120. 
knowledge  of  contents  in  case  of  drunkenness,  121. 
ratification  or  subsequent  recognition,  122. 
effect  of  old  age — does  not  per  se  incapacitate,  123. 

neither  does  partial  loss  of  faculties,  124.  ^ 

or  bodily  infirmities,  125. 
excessive  failure  of  memory  invalidates,  126. 
and  senile  dread  of  relatives,  127. 
mere  weakness  and  its  effects,  128. 
effect  of  absolute  prostration,  129. 
deaf  and  dumb  testators,  130. 
lucid  intervals — application  of  doctrine  to  wills,  131. 
restoration  of  disposing  mind  must  be  shown,  132. 
how  proved,  133. 
unexecuted  or  nuncupative  wills — strict  proof  of  testamentary  capacity  and 

intent  of  testator,  134. 
revocation  of  wills — mental  capacity,  135. 
morphinism  and  other  addictions — applicability  of  rule  as  to  drunkenness, 

136. 
conflicting  rules  us  to  burden  of  proof  in  will  cases,  299, 
shifting  of  the  burden  resting  with  the  proponent,  300. 
sufticiency  of  evidence  to  satisfy  or  shift  the  burden,  301. 
burden  of  proof  after  probate,  302. 

evidence  as  to  insanity  or  intoxication  in  general,  see  Evidence. 
testamentary  capacity  during  lucid  interval  viewed  from  medical  standpoint, 

7  85. 
testamentary  capacity  of  epileptics  viewed  from  medical  standpoint,  881. 
testamentary  capacity  of  paretic  viewed  from  medical  standpoint,  912. 
testamentary   capacity   during   drunkenness   as   Adewed   from   medical   stand- 
point, 952. 
testamentary  capacity  of  senile  dement  as  viewed  from  medical  standpoint, 

992. 
medico-legal  aspects  of  aphasia  from  medical   point  of  view — testamentary 
capacity,  1012. 
impairment  of  motor  aphasia,  1013. 
impairment  in  auditory  aphasia,  1014. 
impairment  in  verbal  blindness,  or  visual  aphasia,  1015. 
impairment  in  agraphia,  1016. 
testamentary  capacity   of   idiots   and   imbeciles  viewed   from   medical   stand- 
point, 1091. 
the  decisions  and  law  relating  to  testamentary  capacity  reviewed  from  medi- 
ra]  ^t.^.ndpoiut,  1104-1194. 

WITCHCRAFT, 

as  constituting  insane  d^lu.sioD  Invalidating  will,  86. 
history  of,  o^H 


INDEX.  1031 

(References  arc  to  sections.) 
WITNESSES, 

competency  to  testify  as  to  mental  capacity,  32. 

testimony  of  subscribing  witnesses  as  to  capacity  of  testator,  101-103. 

general  rule  as  to  effect  of  mental  infirmities  upon  competency  of  witness,  288. 

presumption  and  burden  of  proof  as  to  competency  of  witness,  289. 

method  of  deteimining  capacity  of  witness,  290. 

proof  as  to  incompetency  of  witness,  291. 

habeas  corpus  to  bring  witness  from  insane  asylum,  292. 

exaniination  of  insane  witness  before  trial,  292. 

establishment  of  hiindwriting  of  attesting  witness  ^vliere  he  has  become  in- 
sane, 2J/3. 

admission  in  eviden-,^^  of  books  of  account  kept  by  one  who  had  subsequently 
become  insane,  293. 

admission  of  evidence  taken  at  former  trial  where  witness  becomes  insane, 
2D3. 

mere  forgetfulness  does  not  justify  admission  of  testiitiony  given  at  former 
trial,  293. 

effect  of  insanity  of  adverse  party,  294. 

effect  of  drunkenness  upon  competency  of  witness,  295. 

prejudice  of,  application  of  doctrine  to  expert  testimony,  339. 

cross-examination  of  expert  witnesses,  347. 

cross-examination   and   impeachment   of   nonexpert   witness   testifying   as   to 
mental  capacity,  361. 

opinions  of  subscribing  witnesses  aa  to  mental  capacity,  365-368. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  851  292    3 


UNIVERSITY  OF  CAUFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


APR  24  1984 

IW^Y     9  1984 


/f»"  f;«. 


'"^1  hfi'i 


MAY  1  8  1984 


PSD  1916     8/77 


